TAC v Zepic [2013] VSCA 232

TAC v Zepic [2013] VSCA 232 - VSCA 2013 case summary — Zoe

[78]

PROGRESS

He told me that in the 18 months or so since I last saw him his condition has worsened, particularly in relation to the right shoulder. He has had further investigations of the shoulder and spine. He continues under the care of his general practitioner. He has not seen any specialists for treatment since I last saw him. There has been no further treatment by any form of intervention since then. He takes Panamax for pain.

Symptoms

He states that his worst problem is constant pain in the right shoulder which keeps him awake at night. He can only sleep on the left side. He has less severe pain in the left shoulder which is not constant. He has a constant pain in the neck and low back.

EXAMINATION

There is approximately 50% restriction in the range of movements of the cervical spine and lumbar spine, apparently associated with pain. There were restricted movements of both shoulders as shown in the attachments, apparently associated with pain on each side.

INVESTIGATIONS

Ultrasound and x-ray right shoulder - 19 July 2011

Damage to the rotator cuff muscles and bursitis.

MRI cervical spine - 26 July 2011

Multi-level degenerative intervertebral disc disease and spondylitis.

MRI right shoulder - 26 July 2011

Degenerative changes in the rotator cuff muscles and arthritis in the acromioclavicular joint with damage to the shoulder joint itself.

...

OPINION

In answer to your specific headings:

Injuries:

- Bilateral rotator cuff injuries to the shoulder.

- Degenerative intervertebral disc disease in the cervical spine and lumbar spine.

Aetiology of injuries:

Causation of or aggravation of pre-existing degenerative disease in both shoulders, neck and back.

...

The physical effects of our client's serious injuries upon their ability to engage in social, recreational or domestic activities:

These will be restricted.

Your prognosis for our client's transport-related injuries and the continuing effects of same upon their capacity for work or interference with their enjoyment of life:

The condition will progressively worsen and markedly interfere with work and enjoyment of life.

A confirmation that your expressed findings are made in consideration of our client's physical injury considered separately from any psychological contribution to their pain and suffering and loss of earning capacity:

I consider that his disability results from physical injuries quite separate from any secondary psychological contribution.

[92]

3.0 MEDICAL HISTORY

...

3.3 Current Complaints:

His condition is "going bad every day".

He now complains of constant pain on the entire right side of his body.

Pain is a problem at night and his sleep patterns are poor. He did not understand the question regarding any aggravating factors occurring during the day.

...

3.5 Past History:

He denied any previous musculoskeletal problems.

However, according to your file, he had surgery on his lower back. When I asked the Claimant about this he did recall having surgery on his lower back many years ago following a motor vehicle accident. Following surgery he had ongoing back pain and said he was never able to work again.

Your documentation also mentions previous problems with his neck but he cannot recall these.

...

6. ANALYSIS OF FINDINGS

6.1 Diagnosis:

This man certainly has a stiff spine and elements of a chronic pain syndrome.

I suspect that he has longstanding problems. It is difficult to know whether his condition has actually been significantly aggravated by the motor vehicle accident or because there are significant discrepancies and inconsistencies on physical examination, together with non-organic signs as described by Waddell.

Therefore I would suggest the only diagnosis that can be made is that the Claimant has a chronic pain syndrome.

He clearly has had pre-existing problems but his recollection is poor and obviously the situation was not helped by the absence of an interpreter today.

6.2 Prognosis:

He claims to be an invalid and to need help with dressing. Certainly on physical grounds I am unable to verify that this is actually the case. Apparently he sits watching television all day.

He will not suffer any harm by engaging in daily living activities.

6.3 Discussion:

I would find it difficult to suggest that this man has any localisable physical injury as a result of the motor vehicle accident. He has generalised pain with widespread tenderness and, as I have noted above, significant non-physical findings are present.

These findings were correctly identified by Dr S Jensen in his report dated the 26th August 2010 when he noted significant yellow flags which certainly suggested a non-physical component.

Dr Jensen goes on to state that if this man has not suffered neck problems before, it can be assumed that his neck problems occurred as a result of the motor vehicle accident. However, as I have stated above, this is very difficult to determine when a chronic pain syndrome is present.

You have also enclosed a report from Dr P Dillane dated the 19th March 2011. In this report Dr Dillane stated that this man has suffered an "exacerbation of degenerative spinal disease and left him with chronic pain in shoulders, neck and back with intermittent headache". Unfortunately this is not an evidence-based diagnosis and I don't believe that sufficient weight is being given to the non-physical issues that Dr Jensen and I have identified.

The only area where he does have some objective findings is with his right shoulder where he does have a decrease in glenohumeral movements. This either relates to glenohumeral joint osteoarthritis or adhesive capsulitis, neither of which would be related to the accident.

I don't believe this man requires any treatment, other than to be reassured that he is not injured and be encouraged to pursue an exercise program. However I suspect that he is so entrenched in his invalid role that he is untreatable.

[134]

Due to the constant, though varied pain from each of my transport accident injuries, my ability to enjoy a restful night's sleep has been very significantly affected. I have difficulty finding a comfortable position and often toss and turn in bed. I often suffer from increased pain in my right upper extremity when I roll onto my right side. I regularly wake in the middle of the night as a result of pain and watch television or get a hot drink in an attempt to distract myself before trying to get back to sleep. I find that such disrupted sleep patterns often leave me feeling lethargic during the day and affect my concentration. I also often suffer from increased pain in my cervical spine, right upper extremity and left upper extremity when getting out of bed.

I also experience significant problems with self-care and personal hygiene as my ability to bathe, groom, dress have been limited by pain in my right upper extremity, cervical spine and left upper extremity in particular. I tend to have difficulty washing and combing my hair as a result of the increased pain it causes me. I also tend to avoid shaving for periods of time as the motions involved cause me increased pain. I also experience increased pain in my lumbar spine and cervical spine when I am required to bend to put on my shoes or socks. I tend to feel increased pain in my cervical spine as well as if I cough or sneeze suddenly. Additionally, due to the pain in right upper extremity and left upper extremity I have often sought the assistance of my wife in the past when in the shower or when bathing.

The physical effects of the injuries to my cervical spine, right upper extremity and left upper extremity significantly affects my ability to perform intrinsic physical activity such as standing or sitting for prolonged periods, reclining for too long in one position, walking for prolonged distances or in a repeated fashion, reaching, bending, as well as repeated or prolonged twisting and leaning. The pain from my [sic] each of my transport accident injuries has

very significantly affected my endurance, reliability and mobility. I feel that my condition has become more painful with time.

My transport accident injuries affect my ability to perform functional physical activity such as carrying, lifting, pushing, pulling, climbing and exercising. My cervical spine, right upper extremity and left upper extremity restricts my ability to perform upper body functions, including those that require repeated, forceful or percussive movements. Sometimes I have pushed myself to do more activities in and around the home. I have at times felt as though if I am positive and push myself that I can force my injury to get better and return to a normal life but even when fortified by medication I tend to be left in much increased pain afterwards. I am frustrated by my restricted physical endurance and reliability.

My reduced physical capacity and constant, though varied pain as a result of my transport accident injuries has had a very significant impact on my enjoyment and outlook on life. I feel as though I am left out of the lives of my sons and am missing out as I am unable to be involved with them as much as I had hoped even though we share the same residence. Prior to my transport accident, we would often go on picnics together as a family and my sons and I would kick around a soccer ball. Since my transport accident, I have tended to avoid such activities due to the increased pain from each of my transport accident injuries. This is a cause of ongoing frustration for me. This upsets me and I feel inadequate as a father.

My ability to enjoy social participation by going out to see friends or receiving guests into my home has also been affected. I used to enjoy going to Bosnian social functions prior to my transport accident, however, I have had to reduce such activities as the motions required cause me increased pain. I am no longer able to participate in the traditional Kolo dancing which involves repeated twisting and turning and causes me increased pain. I also feel more isolated and less social since my transport accident and do not like being in social settings as much as I used to. When I am in social settings I try to avoid talking about my current altered status and restrictions as I feel embarrassed. Furthermore, prior to my transport accident, I would regularly meet friends to watch AFL games on television or go for coffees. I used to enjoy watching Geelong FC games with my sons and friends. Since my transport accident, I tend to avoid such activities and have lost interest in such activities. I often spend most of my days at home on the couch and it makes me upset that I am no longer as socially active as I was prior to my transport accident.

Since my transport accident, each of my transport accident injuries have also affected my religious participation although I continue to visit the Mosque regularly. Since my transport accident, I have found that the actions required when praying such as not limited to bending and kneeling cause me increased pain in my cervical spine and right upper extremity. Since my transport accident, I often pray whilst seated on a chair so as to avoid the increased pain from each of my transport accident injuries. I find this a constant source of embarrassment when I am at the Mosque.

My transport accident injuries, in particular the injuries to my cervical spine and right upper extremity, have also had a very significant effect on my independence and mobility. I tend to experience increased pain when I am required to drive and avoid driving longer distances or outside my local area. I also have difficulties with concentration because I am often distracted by my pain. I also have difficulties performing head checks and looking out the rear window when reversing. As a result of these difficulties, in or around October 2010 I was involved in a minor transport accident. I did not make a compensation claim for this accident. For a short period of time I experienced increased pain in my lumbar spine which eventually settled and returned to the previous level of pain I was experiencing as a result of my transport accident on or about 27 March 2008. I now tend to avoid driving when I can and my sons drive me more frequently. I also worry that my affected driving abilities may cause me to be involved in another transport accident.

As a result of my transport accident injuries, I am very significantly impaired in performing my activities of daily living. Prior to my transport accident, my wife and I was jointly responsible for the household duties as both my sons were working. This provided me with a great sense of pride and purpose. I was able to perform the heavier aspects such as but not limited to gardening, vacuuming, mowing the lawn and moving furniture. Since my transport accident, my sons and wife are now primarily responsible for performing the housework. I am generally unable to carry out physical activity for any prolonged length of time without experiencing more pain which means that I tend to break up what used to be routine activities of daily living into stages that I complete or seek assistance for. Before the onset of my transport accident injuries I was independent in terms of being able to perform the activities required within my household. I tend to avoid activities such as but not limited to gardening, mowing the lawn, mopping and other heavier household duties. I usually have to leave these tasks for sons to complete so as not to aggravate each of my transport accident injuries.

As a result of each of my transport accident injuries, my ability to participate in individual or group activities and hobbies has also been adversely affected. Prior to my transport accident, I used to enjoy going fishing on a regular basis, often with friends or my sons, and was a keen fisherman. I would often go to various locations to fish such as but not limited to Port Arlington, Geelong, Werribee and Horsham. I had even competed in fishing competitions in Horsham where I won prizes for catching perch. I would spend hours fishing while on fishing trips. Since sustaining my transport accident injuries I have been less able to undertake such activities as long drives, casting fishing lines and reeling in fish causes me increased pain from each of my transport accident injuries in particular the injuries to my cervical spine, right upper extremity and left upper extremity. I often have to ask my friend to assist me when casting my fishing rod and reeling in the fish. I often just sit and wait for the fish to bite before calling out to my friend who takes over. It makes me extremely upset that I am no longer able to enjoy fishing as much as I used to prior to my transport accident and that I am not able to fish as frequently as I previously could.

I also experience difficulties with communication as a result of my transport accident injuries and am often distracted by pain and tend not to be well rested or in a position to concentrate when having a conversation with someone. This often frustrates my wife and children when we are communicating.

The very significant diminishment of my physical capabilities and endurance has thus struck at the core of my identity and sense of self-worth. I feel like a liability to those around me and have lost the social contact I used to have as a family man with a normal social and family life. This often leaves me feeling useless and frustrated.

[158]

As to whether these matters tell upon the issue of the plaintiff's honesty however, I note the contrast between the evidence contained in the plaintiff's affidavit as to the level of his incapacity and that given by him in the course of his cross-examination. Generally I found the statements made by the plaintiff in his affidavits as to the consequences of the organic injuries suffered by him in the 2008 accident to be consistent with the consequences which would, in my opinion, be likely to be associated with significant soft tissue injuries inflicted upon the cervical spine of a man in his early seventies at the time at which he was injured and who is now shortly to turn seventy-six.

Further, the plaintiff's affidavit evidence as to the consequences of the 2008 accident is largely consistent with the affidavit evidence and the viva voce evidence given by the plaintiff's son, whose evidence is not the subject of challenge on behalf of the defendant.

Having regard to what appears to be reliable evidence given by the plaintiff in his two affidavits and unreliable evidence given by the plaintiff in the course of cross-examination and on occasions in statements made by him in the course of medical examinations, I am not persuaded that the plaintiff is a dishonest witness who has embarked upon a deliberate course of deception. Rather, I am of the opinion that the plaintiff (most probably by reason of cultural and age-related factors), coped extremely poorly with the process involved in providing histories, giving viva voce evidence, and being cross-examined. That this is so is, in my opinion, reinforced by the naïve and extreme statements made by the plaintiff in the course of cross-examination to which I have previously referred.

That is not to say however that real issues do not arise in this matter in assessing the true consequences to the plaintiff of the injuries suffered by him

in the 2008 accident by reason of the fact that the plaintiff, in cross examination, has proven to be a very unreliable witness.

Having regard to the issues which arise as to the reliability the plaintiff's evidence, I am of the opinion that the approach which I should take in assessing the consequences to the plaintiff of the 2008 accident is that I should:

At a glance

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Source

Judgment (311 paragraphs)

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Legislation Cited (3)

Cases Cited (6)