September 14, 2015

A Rockhampton compensation claimant has convinced a court his degenerative disc condition – commonly thought to be age-related – was as a direct result of a multi-vehicle collision on the Bruce Highway near Calliope in which he was a passenger.
Council plant operator Michael Goodfellow was ambulanced to the Gladstone Hospital but the X-ray views appeared normal as did those repeated 16 months later.

However on MRI undertaken at an even later date, a minor disc bulge at C3/4 with “mild desication of the intervertebral disc” was reported.

In the subsequent injury claim, CTP insurers Suncorp and Allianz asserted – via medical specialist John Fraser – that these findings were indications of “degenerative change” notwithstanding Fraser conceded  the prospect of a male in his early 20s developing such a condition was “virtually none”.

Fellow orthopedist Cameron Cook – considering the localised nature of the injury, the patient’s age and the fact that it was at C3/4 rather than C6/7 as is more commonly the case for natural cervical degereration – contended the symptoms to be more likely “post-traumatic than age-related”.

District Court Judge Michael Burnett agreed. In an ex tempore judgment he ruled that given “the evidence of no pain, no prior relevant trauma and pain only existing post-trauma, I find that the collision caused the condition noted in the MRI”.

The disagreement among the specialists as to the origin of the disc disorder inevitably led to differing DRE category assessments.

Fraser – who placed Goodfellow in DRE 1 (resulting in zero impairment) refused to concede in testimony there may be persons “more seriously injured than what is described in category 1 but may not tick all the boxes require the category 2”.

Cook – by adopting AMA 6 – allocated Goodfellow a DRE 2 and then “by following certain steps in the guide” reduced the resulting impairment rating from 5% to 3%.

All things being equal, a court would have adopted Dr Fraser’s assessment, bound as it is under Civil Liability Regulation 10, to give preference to a rating based on AMA 5 over any other method of assessment.

Unable to rely on Dr Cook’s AMA 6 opinion but dissatisfied with Dr Fraser’s conclusions, the judge found another way “of informing the appropriate ISV”, namely via Schedule 4 item 88 and relying on the MRI results as a sufficiently “objective sign” of impairment.

That somewhat tortuous exercise translated to a full $6,100 in general damages to Goodfellow for the November 2011 accident.

Things didn’t get much better when it came to the assessment of income loss where Facebook indiscretions counted against his credibility.

Posts like “I am overworked and thinking it is time for a new job” and numerous “sick days preceded by social events where parties and alcohol featured strongly” just looked bad.

Photo boasts of jet-skiing and motorcycling pursuits and the absence of any comments bemoaning his impairment, depicted someone much more active and physically able than he was asking the court to believe.

In the end, past loss of wages was allowed at just $15k and together with a global sum for future loss of $20k, made up a total award of $48k.

Goodfellow v Clarke [2015] QDC 193 Burnett DCJ 03/07/2015

Categories: Personal Injury , Litigation & Law Practice

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