Haddad v M Awad [2001] NSWCC 79

Compensation Court of New South Wales

CITATION : Haddad v M Awad [2001] NSWCC 79 PARTIES : Elie Haddad M Awad MATTER NUMBER(S) : 47651 of 1999 JUDGMENT OF: Truss J CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/02/01,21/5/01 DATE OF JUDGMENT: 05/25/2001

FOR APPLICANT:Mr M Cleary instructed by Stephen Smart and Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr L Ellison instrtucted by Holman Webb

JUDGMENT: 1. The applicant claims lump sum compensation under s 66 and s67 for permanent impairment of the back and neck and loss of the efficient use of both arms. The claims for the legs was abandoned, in my view appropriately having regard to the evidence. The respondent does not dispute that the applicant was involved in a motor vehicle accident in the course of his employment on 28 August 1997 but disputed that he had suffered any permanent impairments or losses as a consequence. The applicant, who has worked as a taxi driver since coming to Australia in 1971, was involved in four prior relevant incidents with which I will now deal. Motor Vehicle accident on 7 December 1983 2. The applicant did not give evidence in chief about this accident which he was initially unable to recall when cross-examined. It does not feature in the post August 1997 histories. It was a rear end collision at Beaconsfield. Proceedings were brought in the District Court and in the particulars under Pt 12 r 4A it was alleged that the applicant suffered the following injuries and disabilities:- (a) shock (b) head injuries in the form of contusions and abrasions (c) headaches (d) muscula-ligamentus(sic) injury to the cervical spine (e) pain in and restriction of mobility of cervical spine (f) diminution in income earning capacity 3. On 24 September 1985 the proceedings were settled for $27,000 inclusive of costs. When cross examined about this accident the applicant said that all he could recall was injuring his neck. He was unsure as to how much time he had off but his recollection was just a few days. However the Pt 12 r 4A particulars contain a continuing claim for loss of two shifts per week. 4. In a letter of particulars dated 11 March 1985 from the applicant's solicitors it was stated that the applicant was continuing to consult a physiotherapist two or three times per week as he was continuing to suffer pain and headaches. X-rays taken on 6 November 1984 indicated well marked spondylitic changes at C5-6. On 19 December 1984, Dr Guirgis gave a diagnosis of a musculo-ligamentous injury which he said had triggered the symptoms of and/or aggravated the effects of pre-existing osteospondylosis leading to a longer time to heal than normal. He considered the applicant unfit for activities which required stresses to his cervical spine. After re-examining the applicant on 22 August 1995 his opinion remained unaltered. Motor vehicle accident on 21 June 1992 5. This was also a rear end collision and according, to the Pt 12 r 4A particulars the applicant's injuries included injuries to the neck, back and both knees. In a letter dated 18 January 1995 from his solicitors it was alleged that the applicant was suffering the following disabilities:- (a) headaches (b) pain and limitation of movement of the neck. (c) radiation of pain from the neck to both hands. (d) pain and limitation of movement of the back. (e) radiation of pain from the back to both legs. (f) pain and limitation of movement of the left knee. 6. In his report of 6 June 1994 to the applicant's solicitors, under the heading Continuing disabilities Dr Ellis recorded widespread complaints in relation to the back and neck. He considered that the applicant had suffered a musculo-ligamentous contusion and aggravation of degenerative changes in both the neck and back as a consequence of the accident. He reported that the x-rays revealed very degenerate C5-6 and C6-7 discs and that the CT scan had revealed a ruptured C5-6 disc which was causing nerve root compression and gave the following assessments of permanent impairment and losses:- neck - 1:4 back - 1:5 legs as consequence of back - 5 per cent of each 7. In the letter of particulars it was alleged that the applicant was totally incapacitated until 7 July 1992 and thereafter made a claim for general diminution of his earning capacity. In September 1995 the matter was settled for $45,000 which included legal costs of $10,000 and a refund to the Department of Social Security of $1,276.50. 8. On 21 February 1994 Dr Guirgis reported to the applicant's solicitors following an examination on 16 December 1993. He considered that the clinical picture was consistent with the following injuries arising out of the accident:- (1) post-traumatic headache. (2) ongoing post-traumatic symptoms in the cervical spine caused by the combined effects of:- (a) a further strain/sprain of the myofascial and ligamentous structures and aggravation of the underlying chronic post-traumatic pathology arising out of the first accident. (b) implications of a C5-6 disc in the injury. (c) triggering and aggravation of underlying degenerative changes. (d) implication of the left and right C6 nerve roots causing irritation and nerve root entrapment. (3) post-traumatic symptoms in the lower back caused by a chronic musculoligamentous sprain/strain with the implication of the L5-6 discs. (the applicant has six lumbar vertebrae). 9. In his evidence in chief the applicant said that he had some ongoing problems from the accident although he was considerably better after physiotherapy but with a family to support he had to get back to work. In his report of 22 October 1997 Dr Mahony recorded a history that there had been a full recovery from this accident after about two years which would be one year prior to the settlement. However when the applicant saw his general practitioner Dr Farag in April 1995 he recorded complaints of neck tenderness and hand numbness. However the applicant was adamant that by the time of the next incident in 1996 he was having not much problems as a consequence of this accident. 15 February 1996 10. On this occasion the applicant injured mainly his back but to a lesser extent his neck when he lifted a heavy suitcase from the boot at the airport. He said he was off work for two or three weeks and thereafter had some continuing pain in his back and to a lesser extent his neck. On 2 September 1996 an agreement under s 66 A of the Act was registered which provided for 20 per cent permanent impairment of the back and $8,000 for pain and suffering but made no provision for the neck. In cross examination the applicant said that prior to the next incident in November 1996 his back was not too bad - just a little bit sore. 11. Dr Guirgis re-examined the applicant in March 1996 when he recorded a history of intermittent symptoms (I infer cervical) between the last consultation and the accident in February 1996 and very persistent and severe back pain following the accident. He does not give a diagnosis but said he arranged CT scans for further evaluation. According to Dr Mahony, who examined the applicant in May 1996, the CT scan revealed bulging at L4-5 and a broad based prolapse which showed slightly increased encroachment towards the right as compared with the scans of November 1993. I will refer later to Dr Mahony's opinion and assessments when I deal with the claim for permanent impairment of the back. Assault in November 1996 12. The applicant was assaulted in his taxi by two assailants. One held onto his neck whilst the other punched him three or four times. The principal physical problem the applicant has had following that incident is a hearing problem with the left ear. He said that there was a bit of an injury to his neck but not much. The applicant developed a fear of further assault which eventually led to his driving a taxi for the handicapped. Dr Farag referred the applicant to Dr Younan, a psychiatrist, who has treated him for a post traumatic stress disorder. 13. The applicant also consulted Dr Farag and in December 1996 he saw him five times in relation to his injuries including for the neck. In 1997 up to the time of the accident the subject of these proceedings the applicant was on restricted duties which involved driving for reduced hours and attended Dr Farag regularly for certificates. What the doctor recorded throughout 1997 was mainly depression with some improvement. As I understand the applicant's evidence, prior to August 1997 he was still having headaches and problems with his hearing and also some minor neck and back symptoms. He made a claim under the Victims Compensation Act and was awarded $25,000 for his injuries together with $1,320 for expenses on 26 March 1999. The applicant said in his evidence in chief that he was still on restricted duties at the time of the last accident and that sometimes his neck was a bit sore. In cross-examination he was adamant that there was no problem with his back immediately prior to the accident the subject of these proceedings. Accident on 2 August 1997 14. The applicant's taxi was struck from the rear at traffic lights on Victoria Road near Park Avenue at Drummoyne by a Daihatsu Charade driven by Ms Natalie Gobbo who gave evidence. The applicant's description of the accident was very dramatic. He said that he was struck from the rear by Ms Gobbo's vehicle which was travelling at the least at 250 kph or possibly up to 400 kph. The applicant said it was sudden, like a bullet hitting him and the taxi was moved forward about two or three metres jarring his whole body. He was adamant that the light was still red when Ms Gobbo struck him. She stated that she had stopped at the lights behind the applicant's vehicle which was second in the line, the lights turned green and the cars moved off slowly. As she turned her head to the right having been distracted by some people arguing in a bus shelter, the applicant stopped and she ran into the rear of his vehicle. She thought the cars had moved about one car length from the lights before the accident occurred but accepted that it was quite a solid impact. The applicant said that the taxi was extensively damaged in the accident in that the boot was smashed in and the bumper bar fell off. Ms Gobbo said that she inspected the taxi and only noticed a dent on the bumper bar. Otherwise it was intact. There was considerable damage to her vehicle involving the front bumper bar, bonnet and side panels which necessitated a tow from the scene. 15. The applicant's dramatic version of the circumstances of the accident was not pressed upon the court by his counsel who submitted that whilst it was not submitted that it was a high speed collision it was more than a mere tap. As to the circumstances of the collision I have no hesitation in preferring Ms Gobbo's version to that of the applicant which could only be described as fanciful. The applicant's counsel acknowledged that he was not an ideal witness whose presentation could best be described as colourful. 16. Some police who were passing stopped at the scene, spoke to the drivers then left. The applicant said that immediately following the accident he thought he was dying and was nearly unconscious. However Ms Gobbo did not observe anything adverse about his health. She also said that the police asked both drivers if they were all right and the applicant responded that he was. The applicant denied this. 17. Later that night, although he was living in Earlwood at the time and there were a number of hospitals which were closer, the applicant went by taxi to the Prince of Wales Hospital at Randwick. He said that he did that because he was familiar with the hospital and knew where the accident and emergency section was located. According to the hospital records he attended at 11.30 pm complaining of muscular pain around the shoulders and lower back. He was discharged with medication. The certificate issued by one of the hospital doctors gave a diagnosis of muscular strains - neck/back/trapezius and certified him unfit for one day. 18. On 6 March 1998 the applicant completed a claim form stating that he had injured his lower back and both shoulders which were normal before injury. When cross-examined about this the applicant insisted that his shoulders were normal but said that his back was sore but not that sore. 19. The applicant's evidence was that after the accident his whole body was in pain and that he said that for the first few days he could not move his back, neck or shoulders. After resuming work he drove seven hour shifts instead of twelve for four or five months. He had physiotherapy to his shoulders, back and neck for three or four months. He agreed in cross-examination and also the film revealed that when driving the maxi-taxi which he has done since 1999 it is necessary for him to bolt and unbolt seats and when asked whether he was required to bend and twist his body to do up the belts his response was that it was easy and he claimed to have no trouble with his present employment. The film did not give rise to any credit issue so far as the applicant is concerned. 20. The applicant gave evidence that he continues to suffer with pain up to the present time and sometimes he can only work for six hours because of the pain. He considered this accident to be worse than the previous accidents in that he has pain in his whole of his back from the coccyx to the neck and his evidence was that the accident in August 1997 destroyed everything. It was my impression of the applicant that when giving his evidence he went to great lengths to attribute all of his present complaints to the accident in August 1997, which I found unconvincing. I also considered him to be a poor historian and that there was a large element of exaggeration when giving evidence as to his symptoms and restrictions. The back 21. Having regard to the totality of the evidence I am satisfied that the applicant injured his back in the accident. The issue is what, if any, permanent impairment results therefrom. 22. As I have indicated already, the evidence established that the applicant injured his back in the accident of 21 June 1992 and when lifting the suitcase on 5 February 1996. The last report prepared before the accident the subject of these proceedings was Dr Mahony's of 24 May 1996 in which he said:- Mr. Haddad has developed symptoms referable to lumbar disc lesions at the L4/5, L5, L6 levels in association with early degenerate changes. It is consistent that the road traffic accident he described in 1996 could have produced such lesions aggravating a potentially irritable spine. In the previous C.T. Scan there was no definite evidence of discogenic lesions and in consequence I would consider that the development of such lesions is the result of the road traffic accident he described in 1996. He complains of persisting symptoms, it is reasonable that he does have such symptoms and further treatment is indicated. In order to minimise an exacerbation of his symptoms which could suggest surgical treatment to the low back, I would advise him to restrict his activities not involving significant to activities not involving significant bending or lifting. 23. In a supplementary report of the same date he assessed the permanent impairment of the applicant's back at 25 per cent and also assessed consequential loss use of the of the legs at 10 per cent of the right and 5 per cent of the left. 24. Dr Mahony reviewed the applicant in October 1997 and March 1999. On the former occasion he said the applicant presented such symptoms referable to a thoraco-lumbar back strain in association with degenerative changes and considered that in the accident the applicant aggravated a potentially irritable back. He adhered to this opinion on the second occasion when he gave an assessment of 12.5 per cent impairment of the back referable to the accident after deducting an amount for pre-existing degenerative changes. Unfortunately he did not indicate the extent of the deduction nor, bearing in mind his previous assessment of permanent impairment whether he had made a deduction therefor. If he had it is implicit in his latest assessment that the applicant now has a work related impairment of 32.5 per cent, an assessment which in my view is not supported by the evidence, in particular the medical evidence and the applicant's post injury employment and the activities shown on the film. I do not consider that Dr Mahony gave the previous incidents in particular the lifting incident in February 1996 proper consideration or weight when expressing his opinion which I am unable to accept. There is no evidence of any further radiological investigations since the last accident. 25. When Dr Guirgis re-examined the applicant about a month after the accident he considered that he had sustained a further strain/sprain of the myofascial and ligamentous structures of the cervical and lumbar spines with further scarring and loss of resilience and elasticity in the injured areas which were the site of underlying chronic traumatic pathology. 26. The respondent has had the applicant examined by Drs Sachdev, Fearnside and Muratore. Dr Sachdev reported that an examination of movements of the spine was accompanied by pain in all directions and considered the applicant had a tendency to exaggerate his symptoms. In his opinion in the accident the applicant suffered a ligamentous sprain of the cervical and lumbar spines superimposed on pre-existing disc disease. He further considered that the applicant had substantially recovered from the effects of the accident and that residual symptoms are referable to his previous injury. He considered that he had a permanent impairment of 10 per cent due to previous injury. 27. Dr Fearnside considered that in the accident he applicant may have sustained soft tissue injury to his neck and back. He said that many of the physical findings were inconsistent and he was unable to identify any organic signs. He formed the view that there was considerable exaggeration in the applicant's presentation. He did however accept that there was some ongoing low level neck and back pain and in his first report assessed the impairments at 5 per cent of which:- 40 per cent resulted from the accident in August 1997 40 per cent resulted from the accidents prior to August 1997 20 per cent was the result of constitutional degenerative changes 28. However in his report of 10 July 2000 he suggested that 60 per cent of the impairment resulted from the August 1997 accident. Dr Fearnside adhered to this opinion after seeing the film, the only part of which assisted the respondent's case was that taken on 26 April 2000 which I consider is accurately described in Dr Fearnside's report of 10 July 2000. Dr Muratore considered the applicant may have sustained a musculo-ligamentous strain in the accident in 1997 but had long since recovered. He considered he had a 10 per cent permanent impairment of the back referable to the degenerative processes. 29. As I have already recorded, in September 1996 an agreement was registered under s 66A providing for compensation for a 20 per cent permanent impairment of the applicant's back as a consequence of the lifting incident in February 1996. In determining the compensation payable in respect of any permanent impairment of the back resulting from the August 1997 accident s 68A requires inter alia that there be a deduction for any proportion of the loss due to any previous injury. That loss has already been determined at 20 per cent. The applicant is therefore only entitled to compensation if I were to find that his present impairment exceeds 20 per cent. On the evidence before me I am not persuaded that I should make such a finding. In fact I consider that the proper finding of the applicant's present permanent impairment of the back resulting from all injuries and the degenerative condition should not exceed 15 per cent. Accordingly, as to the claim for permanent impairment of the back there will be an award for the respondent. The neck 30. Having regard to the totality of the evidence I am satisfied that the applicant injured his neck in the accident. Again the issue is whether he has suffered any permanent impairment as a consequence. 31. The evidence establishes that the applicant injured his neck in the motor vehicle accidents in 1983 and 1992 as well as in the assault in November 1996 and that his neck was still symptomatic in August 1997 although the applicant's case was only to a minor degree. He saw Dr Farag on numerous occasions between December 1996 and August 1997. His notes are somewhat cryptic but neck complaints are not a feature after December 1996. There was no evidence to suggest that there has been any further radiological investigations of the applicant's cervical spine since the x-rays and CT scans referred to by Dr Ellis in his report of 6 June 1994 following the June 1993 motor vehicle accident and to which I have referred already. 32. Dr Mahony considered that the applicant's symptoms were referable to a cervical strain in association with degenerative changes and assessed the permanent impairment at 12.5 per cent after deducting an unspecified amount for pre-existing changes. When Dr Mahony saw the applicant in May 1996 he recorded that he did not complain of neck symptoms. 33. I have already referred to the opinions by the three respondent's doctors which are more or less the same for the neck as for the back. Dr Sachdev considered the applicant had a 10 per cent permanent impairment referable to previous injuries. Dr Muratore considered he had a 5 per cent permanent impairment referable to normal degenerative changes. Dr Fearnside's assessment was also 5 per cent which he apportioned in a similar manner to the back impairment. 34. Having regard to the totality of the evidence I consider that the injury which the applicant sustained in the motor vehicle accident was in the nature of a whiplash type injury, essentially musculo-ligamentous superimposed on degenerative changes which were quite marked as early as 1985 and quite significant by 1994, when Dr Ellis assessed permanent impairment at 25 per cent. I consider that at the present time the applicant has a permanent impairment of the neck of 10 per cent. However, I consider that a significant deduction pursuant to s 68A is appropriate to reflect that part of the impairment as results from the previous injuries and the longstanding degenerative changes. In my view the appropriate deduction is 50 per cent. The applicant is therefore entitled to be compensated for a permanent impairment in proportion to a most extreme case of 5:100. The arms 35. The applicant claims loss of the efficient use of both arms. On the day of the accident the hospital notes recorded a muscular strain to the trapezius and thereafter the applicant has complained of shoulder pain. 36. Plain x-rays taken in September 1997 were reported as showing degeneration of both AC joints and some sclerosis of the left humeral head. The ultrasound suggested that both supraspinatus portions of the rotator cuffs are bulky and show evidence of bunching and impingement although no complete tears were present. The radiologist stated that these appearances may be due to an overall tendonitis. In his October 1997 report Dr Mahoney considered that the accident produced rotator cuff lesions of the shoulders. In his later report, in addition to this he also considered that the symptoms were referable to a cervical strain with nerve root irritation and gave an assessment of 15 per cent in respect of each arm. 37. Of the respondent's doctors, Drs Sachdev and Muratore did not consider that there was any permanent loss of the efficient use of the arms. Dr Fearnside considered there was a loss of use of each arm of 2 per cent which he apportioned in a similar manner to the back and neck. For this reason I infer that he considers that the losses are a consequence of the neck impairment as he does not give any diagnosis as the arms. 38. The arm symptoms which Dr Mahony recorded in his 30 March 1999 report, namely pain radiating to the occipital area and shoulders and hands as well as pins and needles and numbness in both hands, are in my view more likely to be a consequence of the pathology in the applicant's neck rather than indicative of rotator cuff lesions. For this reason I am unable to accept Dr Mahony's opinion that in the accident the applicant sustained bilateral rotator cuff lesions. In any event I am unable to accept that the collision described could have caused bilateral rotator cuff lesions. I consider it more probable than not the nature of the injury was some sort of soft tissue strain of the trapezius. 39. The difficulty which the applicant faces is the similarity between his present complaints and those which he made after the motor vehicle accident in June 1992 for example in February 1994 Dr Guirgis recorded bilateral C6 radiation down both arms with pins and needles and numbness in the tips of his thumbs and index fingers on both sides. In June 1994 Dr Ellis recorded intermittent numbness in the tips of both fingers. 40. Having regard to the totality of the evidence, whilst I am satisfied that the applicant may be experiencing the symptoms in the arms of which he gave evidence and despite the opinions of Drs Mahony and Fearnside I am not satisfied on the balance of probabilities that he has sustained a permanent loss of the efficient use of either arm as a consequence of any injury he received in the accident in August 1997. Accordingly as to these claims there will be an award for the respondent. I FIND THAT: 1. In 2 August 1997 the applicant suffered injury his back, neck and shoulders in the course of his employment with the respondent and his employment was a substantial contributing factor to the injury. 2. As a result he has suffered permanent impairment of the neck equivalent to a most extreme case of neck impairment in a proportion of 5:100 after deduction for the deductible proportion of 50 per cent of the impairment as found. I MAKE THE FOLLOWING AWARDS AND ORDERS in the applicant's favour: 3. AWARD for lump sum compensation pursuant to s 66 in respect of permanent impairment of the neck for $2,000. 4. I ORDER the respondent to pay the applicant's medical and the like expenses pursuant to s 60. 5. I ORDER the respondent to pay the applicant's costs. Mr M Cleary instructed by Stephen Smart and Associates appeared for the applicant Mr L Ellison instructed by Holman Webb appeared for the respondent