Mr Grills' injuries
257Mr Grills was injured when his head and shoulder struck the boomgate. He collided with a concrete wall and fell to the road. Given his speed, he seems to have suffered serious but remarkably limited physical injuries, as well as serious, ongoing psychological injuries. Up until the time of hearing, his injuries have prevented him from working.
258Mr Grills suffered fractures of his cervical and thoracic spine, for which he was treated by a neurosurgeon, Dr Tim Steel, at St Vincent's Hospital. They did not require surgery. He also suffered extensive soft tissue injuries, which required bed rest and pain medication.
259There was no issue that all of Mr Grills' spinal fractures have healed, but he has never recovered sufficiently to resume work and he was eventually medically retired from the Police Force in 2010.
260Mr Grills' evidence that he has complied with all of the treatments he has pursued must be accepted. At the time of the hearing he said that his current exercise regime was basically restricted to mobilisation exercises, designed to make sure that he didn't cramp and that his muscles didn't waste. They included non-weight bearing, water-based exercises, largely self-directed, as well as use of his home gym.
261His considerable medical records were in evidence. At the time of the hearing, he remained under the care of Dr Boundy, and under the treatment of a psychologist, Ms Lorraine Simpson, who he was seeing about every 5 weeks.
262Despite various ongoing investigations, specialist treatment, including pain management treatment, medication, physiotherapy and exercise programs, injections to strengthen ligaments, as well as treatment by a TENS machine and by a psychologist, even at the time of the hearing Mr Grills continued to suffer considerable pain.
263Dr Steel's 2007 and 2008 reports evidenced Mr Grills' then ongoing pain and the investigations undertaken to establish its cause. A report of 31 October 2007 from his physiotherapist, Mr Aaron Lewis, referred to mobilisation treatment which Dr Steel had recommended, with a view to him returning to work. Treatment was described and Mr Lewis' concern that Mr Grills was evidencing fear avoidance behaviour, being pain focussed in rehabilitation, explained. He recommended a return to work on light duties 3 - 4 days per week and a course of cognitive behavioural therapy, if he could not tolerate a graduated return.
264In cross-examination, Mr Grills was asked about discussions with Dr Steel about a return to work. He said that he was told in July 2007, that it would take at least another 6 months before he could get back to his pre-injury role. Mr Grills said also that he remembered that Dr Steel considered that it would be February 2008 before anything would be considered.
265Mr Grills' then GP was Dr Bishara, who he saw initially and then he came under the care of Dr Boundy, a sports physician, who had continued to supervise his care and treatment, including referring him to Dr Raj Sundaraj, for pain management treatment, as well as Dr Alex Ganora, for rehabilitation and pain management.
266Mr Grills was cross-examined about discussions with the Police Force in the latter part of 2007 about a return to work. He attended a return to work meeting at Surry Hills, where his difficulty in travelling from his home at Glenmore Park was discussed. He said in re-examination that at that meeting, his boss would not agree to having him in the station, given the medication that he was on. He agreed that an arrangement had then been made for him to work at Penrith, but he was not able to take that up, because of ongoing problems with pain management, at a time when he was under the care of Dr Boundy. He did not then consider himself to be reliable enough to undertake police work.
267Mr Grills was assessed by Dr Peter Endrey-Walder, a general and trauma surgeon in February 2008. He agreed with the physiotherapist that he appeared to be showing fear avoidance behaviour and that the psychological aspect of his injuries needed to be addressed and his narcotic intake reduced.
268 Reports prepared by Dr Boundy from time to time for the insurer explained his ongoing symptoms and their effects upon his life. Mr Grills saw an orthopaedic specialist Dr Michael Ryan in October 2008. He agreed that he was then doing some light cleaning and cooking, but not all that he had been able to do before he was injured, and some of it, such as vacuuming only with difficulty.
269Dr Matheson saw Mr Grills in October 2008. He said he expected his fractures to heal without disability, and that his medication was inappropriate, for his physical condition. He required treatment by a physiotherapist and should be capable of sedentary employment.
270Dr Ryan also saw Mr Grills in October 2008. He then considered that Mr Grills had a combined 26% whole person impairment, because of his fractures, but that his limitations appeared excessive for his physical limitations, which suggested non physical causes. Theoretically he should be able to work. He required cognitive behavioural therapy and a general exercise program.
271Mr Grills began seeing Ms Simpson, a clinical psychologist, in October 2008. In a July 2009 report Ms Simpson, described the pain he continued to suffer and how it prevented him sitting for long periods and the consideration being given to work which he could manage, with his ongoing problems and the treatment he was receiving.
272By December 2008, Dr Boundy reported that he considered that Mr Grills' condition had plateaued and that there was little more that could be offered by way of physical treatment. Pain was being managed by narcotics and he continued to see Ms Simpson. Over time Dr Boundy became concerned about the effects of his chronic narcotic use, tolerance and dependence. Various medications were resorted to, including Oxycontin.
273Dr Elias Matalani, a consultant, occupational physician, saw Mr Grills in July 2009. He noted Mr Grills report of pain in the neck, mid-back, numbness in the right leg with prolonged sitting and pain radiating into the right ribs, as well as tingling in the hands and fingers. After noting CT and MRI investigations of his cervical and thoracic spine and his brain, as well as bone scans and the range of movement he demonstrated on examination, Dr Matalani concluded that his impairment was permanent, his manual handling ability and occupational functioning were adversely affected and that his long term prognosis was guarded.
274In a 6 November 2009 report, Dr Brian Stephenson, an orthopaedic surgeon, referred to various investigations, medical and psychiatric reports, and the results of his own physical examination of Mr Grills. He found restricted neck and back movement, which made it unlikely that he could return to work in the police force. He considered that Mr Grills could not successfully participate in a graded return to work plan, even on restricted hours and days. Based on his progress and need for pain management medication, he doubted that he was capable of managing any full-time work, but did not exclude the possibility that he might receive some benefit from non-drug related treatment, which could permit some resumption of work in the more distant future, but not in the police force.
275In February 2010, Dr Ryan saw Mr Grills again and observed that a failure to return to work within 6 months of injury led to only a 50% chance of a return to work. Physically he ought to be able to manage most activities and that he required less pain medication and behavioural therapy directed at weaning him off his medication, as well as treatment directed at reactivation. Resumption of work was theoretical, but unlikely to occur because of the passage of time.
276In March 2010, Dr Boundy reported that:
"As a direct result of Adam's motorbike accident he has sustained compression fractures to C7, T1, T7, and T8. Because not all of these fractures were initially diagnosed at the time of the accident there was no surgical intervention. The fractures were managed by observation only. Adam is therefore left with a loss of height in all of these 4 vertebrae.
MRI scans of Adam's back showed that he has damaged all of the intervertebral discs between C7 and T8. All of the discs are seen to be compressed and desiccated. Close review of the MRI reveals bony irregularities through the vertebra in this region consistent with osteoarthritic change as a result of the loss of intervertebral disc height.
The combination of the crushed vertebra and crushed intervertebral discs mean that Adam has lost height in his thoracic spine. The ligaments that stabilise the spine are now no longer taut and Adam has been left with a chronic instability in the area. The chronic instability means that he has non-physiological movement taking place between the injured vertebra and associated soft tissues. It is this non-physiological movement of the damaged tissues that is causing him pain.
Adam will never be able to return to work because he has difficulty supporting the weight of his own head as he moves around. He would not be able to wear a crash helmet without experiencing severe pain in his neck and back. He would not be to ride a motorbike because the forces associated with acceleration and deceleration would cause excessive movement in the area causing him pain.
Because of the instability Adam has great difficulty with any movement whether he be sitting or standing for any period. He would certainly not be fit to run or engage in any crowd control with his condition."
277Mr Grills' condition was considered to be stable and Oxycontin and Oxymora medication continued. In September 2011, after further MRI examination, Dr Boundy expressed concern at muscle wasting because of Mr Grills' sedentary lifestyle, because of the pain caused by movement and recommended an exercise program. Physiotherapy and hydrotherapy were later recommended, as well as continuing pain medication. Dr Boundy then described Mr Grills' experiencing pain so severe, that he could not get out of bed some days.
278In April 2012, Dr Boundy recommended after the birth of Mr Grills' baby, that he continue seeing his psychologist, in preference to him, so that he could maintain good psychological health. Narcotics treatment continued.
279In March 2013, Dr Boundy reported that Mr Grills was suffering with problems he had developed in his feet, as the result of his gait, developed to reduce shock being transmitted to his injured thoracic spine, which were causing him pain. He began treatment with Celebrex, while continuing Oxycontin.
280In July 2013, Dr Boundy reported that:
"For the purposes of assessing total and permanent incapacity much has been made of whether or not Mr Grills has sustained a fracture to the T8 vertebra. I have always believed that Mr Grills' pain has come from damage to the soft tissues and compression of the thoracic intervertebral discs. The loss of height throughout his upper thoracic spine has meant that the supporting ligaments are no longer held taut. The lack of tension in the supporting structures would allow nonphysiological movement to take place within the upper thoracic vertebrae, and I believe that it is this uncontrolled movement of the upper vertebrae that causes much of his pain.
On reviewing the enclosed reports I note that in 2007 Aaron Lewis, physiotherapist wrote "my biggest concern though is that he appears to be showing fear avoidance behaviour and is very concerned with his prognosis and is clearly pain focused in his rehabilitation." I note, however, that in a psychological impact assessment performed by Olga Asad in 2012 she writes "the psychological assessment I conducted indicates he is not precluded from working due to his psychological symptoms, however they certainly would impact on his ability to learn new things and adapt to a different job if he had to learn new tasks. This is primarily due to his depressive symptomatology and poor concentration due to pain and discomfort." A subsequent report from Dr James Maguire, psychiatrist states "he noted a tendency to irritability at times and this is fairly common in people with painful conditions. In the same way, the reduction in his social activity and ability to work relates to his physical problems rather than his emotional state."
I make note of these reports because it would suggest that Mr Grills has been experiencing an adjustment disorder as a result of the pain he continues to have from his injuries. He is not exhibiting fear avoidance behaviour or overly focussed on his pain. Review of his medical records show that he found the physiotherapy quite painful, and ultimately stopped attending because it was not helping his condition, but in the short term making it worse."
281Dr Boundy also referred to conflicting opinions of Dr Matheson, a consultant neurosurgeon in October 2008, that his injuries would take 2 years to settle down and that of Dr Casiker in 2013, that in normal circumstances he should have recovered from those injuries in 3 months.
282Dr Boundy considered in 2013 that Mr Grills' bone fractures had healed, that his ligament injuries had responded to treatment and that his condition was relatively stable, but that the inherent instability in his thoracic spine had not been addressed. This caused him pain, reduced movement and stiffness and muscle spasm, which required ongoing narcotic treatment.
283After further examination by Dr Boundy, in July 2013 reported no change in Mr Grills' condition, which he observed had essentially not changed in all of his years of treatment. He noted habituation, tolerance and dependence on Oxycontin, which was not ideal. He could recommend no other treatment, but opined that future treatments were likely to be developed, which could assist him.
284In his oral evidence Dr Boundy explained that Mr Grills had unsuccessfully attempted to lower the levels of his pain medication, describing him to be 'chasing his tail' and suffering side effects, such as disorientation. He considered the prospect of successfully reducing his levels of medication to be poor and that his pain was the result of the structural causes of his spine, which could not be changed. That was not the view of other specialists, whose evidence I consider must be preferred.
285Dr Boundy said, however, that more recent MRI's had established that despite intervertebral disc damage, there was no pressure from disc bulges and no pressing on Mr Grills' nerves or the spinal cord, which would cause radiculopathy pain. In cross-examination, he explained how Mr Grills had come to be treated with such extensive levels of medication and why he had not been referred to a pain management course at a tertiary hospital. He said his past experience of such programs had been variable. He agreed that he had no qualifications in drug and alcohol addiction, neurology, or orthopaedic surgery and that he was not in a position to offer Mr Grills treatment which would drastically change his outcome. He said Mr Grills was now being treated only by a GP, who he considered had reasonable experience with narcotic treatment of the type he was receiving. It is difficult to accept that opinion given the other evidence received.
286Dr Boundy considered that a physical activity program would benefit Mr Grills, but explained that past attempts had failed, because they increased his pain.
287In May 2013, Dr Ryan again assessed Mr Grills, almost six years after his accident. He then noted his lack of work and social life, dependence on narcotics for healed physical injures and limitations, far in excess of the physical severity of his injures. He also noted the result of intrusion of non-physical factors on examination.
288Dr Endrey-Walder examined Mr Grills in May 2013, referring in his report to various reports of Dr Boundy. He reported little change in Mr Grills reported pain levels and similar restricted range of movement and a habitation to daily narcotic analgesia and lack of intellectual work. He referred in his second report of 20 May to Dr Casikar's view that his injury should have recovered in 3 months, saying '[i]t is impossible to predict in any individual case as to how long symptoms of fractured vertebrae cause ongoing debility'.
289In his June 2013 report, Dr Matalani noted ongoing complaints of pain in the neck, upper part of the thoracic spine and mid-back, fluctuating from 0 to 10 in pain intensity, with an average level of 5 to 6. There was intermittent pain in the ribs and ongoing tingling in the little and ring fingers, more on the left side. Pain in the feet, related to altered gait had been experienced from the end of the last year.
290Dr Matalani noted Mr Grills' report that he could walk and stand for only approximately 10 to 15 minutes, and that sitting for longer than 20 minutes aggravated pain, so that he avoided driving. Pain disturbed his sleep and cold weather aggravated his symptoms, as did coughing and sneezing. Pain impeded carrying out household duties, or lifting heavy weights. It was managed with Oxycontin and Oxynorm.
291Dr Matalani reviewed Mr John Raue and Ms Christine Leaver's vocational capacity report, which he considered provided options which were suitable in theory, but presented many practical problems. He considered that if Mr Grills obtained part-time clerical work, he would require regular breaks and postural flexibility, to avoid exacerbating his condition, if it was to be sustained long term. He could not tolerate prolonged sitting, working at a computer, given his physical symptoms and medications. That would impact his ability to perform call centre or radio despatch work. He could not perform the full range of duties of an insurance investigator. He considered that he required self paced work, which allowed intermittent time off, not too far from home, to prevent aggravation caused by travel. He would need to be able to continue and perhaps increase the use of painkillers, which would reduce his concentration and performance. He considered his prospects of employment in the open labour market to be quite reduced.
292Dr Matalani considered Mr Grills' prognosis to be guarded and that his condition was unlikely to change substantially, even with further treatment. It had reached maximum improvement. He required part-time sedentary employment, which did not require a high level of concentration or alertness. His chronic pain and narcotic treatment made it difficult for him to sustain full-time employment.
293Dr Matalani also explained that he disagreed with the view that Mr Grills in normal circumstances should have been able to return to work, 3 months after his injury, given that he had suffered a severe ligamentous injury, as well as various fractures, consistent with a crush injury, which had also damaged discs. He considered it not to be surprising that Mr Grills still suffered pain unexpectedly with certain activities, which caused unexpected exacerbations. The result was that any work which he undertook required flexibility in terms of posture and that prolonged sitting would aggravate his symptoms. The heavy medication he was currently taking would also adversely affect his working ability.
294In cross-examination, Dr Matalani explained that there had been no loss of stability in Mr Grills' cervical spine, but that in his thoracic spine there had been a loss of integrity, because of the consequences of the compression fractures. He agreed that he required pain management, that he needed to reduce his narcotic medication, that the litigation was a significant stressor that was contributing to the level of his incapacity to work and that he had developed a fear of and avoidance of any tasks which he feared would affect his pain levels. He believed that subject to being able to manoeuvre from sitting to standing positions on a regular basis, Mr Grills could work in a clerical position for less than 8 hours a day. He considered that Mr Grills had developed a tolerance to his medication, so that its efficacy had reduced, while still adversely affecting his concentration and alertness. He would encourage him to pursue work which was within his restrictions.
295In re-examination Dr Matalani agreed that given the nature of those restrictions, suitable work would be difficult to find, but explained that Mr Grills' current medication would not be providing him effective pain relief because of habitation and tolerance and that reducing his medication could not increase his pain levels. He needed pain relief, but there were better types available.
296Dr James Maguire, a consultant psychiatrist saw Mr Grills in February 2013. In his March report he referred to the explanation Mr Grills gave of his initial expectation that he would recover his health and return to work and the impact of his ongoing symptoms and eventual discharge from the Police Force. He described being angry and depressed, with ongoing problems of pain, concentration and mobility causing headaches, broken sleep, tiredness and an inability to work. He diagnosed Mr Grills to be suffering from chronic adjustment disorder with anxiety and depressed mood. He considered the litigation to be a significant stressor and that he needed ongoing treatment by a psychologist, as well as pain management. He thought that his emotional state would eventually resolve, with the result that he could pursue employment. He agreed with Ms Olga Asad's opinions as to treatment requirements.
297In her July 2013 report Ms Simpson also described the impact which his injuries, disabilities, problems with chronic pain and pain management and retirement from the police force had posed for Mr Grills. She agreed that he was suffering from an adjustment disorder with mixed anxiety and depressed mood, as the direct result of his accident.
298Ms Simpson considered Mr Grills to be a fairly emotionally steady man, but also considered that he would require ongoing treatment. She agreed with Dr Maguire's conclusions as to his condition, situation and prognosis, but emphasised that in any future employment, his physical capacities had to be realistically taken into account. She considered that the only vocational option likely for him was a business where his partner could do the hands on work and he could do the administrative side of things, in a flexible way, to permit him the rest during the day that he needed.