Abraham v TAC
[2011] VCC 1414
•14 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. 2189-2010
| SUZANNE SAMOYEL ABRAHAM | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2011 |
| DATE OF JUDGMENT: | 14 September 2011 |
| CASE MAY BE CITED AS: | Abraham v TAC |
| MEDIUM NEUTRAL | [2011] VCC 1414 |
| CITATION: |
REASONS FOR JUDGMENT
Catchwords: | Application under section 93(4)(d) Transport Accident Act 1986; claimed “serious injury” under paragraph (c) [major depressive disorder; adjustment disorder; chronic pain syndrome]; consequential to physical injuries; causation; whether physical injuries now resolved; whether mental disorder substantially resolved; application refused. |
. - APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G.A. Lewis SC with | Slater & Gordon |
| Ms M. Pilipasidis | ||
| For the Defendant | Mr D.E. Curtain QC with | Transport Accident |
| Ms M. Britbart | Commission |
TABLE OF CONTENTS
Application ...........................................................................................................................2
Significant Issues Raised by the Defendant .....................................................................3
Evidence...............................................................................................................................3
Evidence of the Plaintiff ......................................................................................................3
Family Background/Employment —............................................................................3
Medical History ...........................................................................................................4
The Transport Accident...............................................................................................4
Injuries/Medical Treatment..........................................................................................4
Rehabilitation ..............................................................................................................5
Symptoms...................................................................................................................9
Medication.................................................................................................................10
Domestic, Social, Recreational and Employment Restrictions..................................11
Work Capacity....................................................................................................................17
Radiological Investigations ..............................................................................................17
Evidence of Treating Doctors...........................................................................................18
Medico-Legal Opinions requested by the Plaintiff..........................................................26
Medico-Legal Opinions requested by the Defendant .....................................................29
Video surveillance .............................................................................................................31
Applicable Law...................................................................................................................32
Meaning attributed to “severe” injury under paragraph (c) .............................................33
Consequences ...............................................................................................................34
Work Capacity and Inability to Earn Income...................................................................36
Causation .......................................................................................................................37
Analysis and Findings.......................................................................................................38 What is the nature of the mental disturbance (or disorder) or behavioural disturbance (or disorder)? ............................................................................................................44
Consequences ..........................................................................................................48
Conclusion .........................................................................................................................49
Orders.................................................................................................................................49
HER HONOUR:
Application
1 This is an application pursuant to section 93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to bring a proceeding for the recovery of damages in respect of injury, pursuant to section 93(4)(b) of the Act, made by Originating Motion filed 24 May 2010.
2 Section 94(6) of the Act provides:
A court must not give leave under sub-section (4)(d) unless it is satisfied that the
injury is a serious injury.”
3 The Plaintiff claims that as a result of a transport accident on 19 February 2004 she suffered a serious injury under paragraph (c) of the definition of serious injury under section 93(17) of the Act[1] which provides that “serious injury means
(c) severe long-term mental or severe long-term behavioural disturbance or
disorder”
[1] PCB 5 Particulars of Injury claimed
4 It is conceded on behalf of the Plaintiff that none of the physical injuries suffered in the transport accident would have themselves satisfied a serious injury under paragraph (a) of the definition. However, it is claimed that as a consequence of such physical injuries the Plaintiff suffered a psychiatric reaction, which satisfies a serious injury for the purpose of paragraph (c) of the definition,
5 The injuries relied upon in the particulars of injury[2] filed in this proceeding as constituting serious injury within the meaning set out in S93(17)(c) are as follows:
“chronic adjustment disorder with depressed mood;
post traumatic stress disorder
panic disorder with agoraphobia; and.
Chronic pain disorder”
[2] PCB 4
Significant Issues Raised by the Defendant
6 The Defendant submitted that even if the Plaintiff suffered a mental disorder in compensable circumstances she does not satisfy the threshold of serious injury as defined. In particular, Defendant’s Counsel submitted to the effect that, taken at its highest, mild cognitive impairment, and mild features of post-traumatic amnesia do not reach the threshold of a severe long-term mental or severe long-term behavioural disturbance or disorder. The Plaintiff’s credit was also challenged.
Evidence
7 In support of the Application, the Plaintiff relied upon:
(a) Documents referred to in the Plaintiff’s Court Book comprising medical reports, affidavits and other documents; and (b) Oral evidence given to the Court by the Plaintiff and her General Practitioner. 8 Opposing the Application, the Defendant relied upon documents referred to in the Defendant’s Court Book comprising medical reports, affidavits and other documents.
Evidence of the Plaintiff[3]
[3] Affidavits of 16th June 2009
9 The Plaintiff, who is also known as Sozan Abraham, was born in Syria on 22 August 1959 and is currently 50 years of age. She is married with a daughter aged 27 and a son aged 26.
Family Background/Employment —
10 The Plaintiff is the eldest of a family of 12 siblings.
11 She completed a 3 year teaching qualification after finishing high school and worked as a teacher in both secondary and primary education for about 11 years in total. She was also involved in school administration, being Vice Principal of a secondary school.
12 She married in 1983 and after becoming pregnant she ceased work in March 1984. Daughter, Annie Abraham, was born in June 1984 and son, Rimi Abraham was born in May 1985.
13 In September 1986 the Plaintiff returned to work as a Vice Principal.
14 In April 1991 the family migrated to Australia to join other extended family members. After arriving in Australia the Plaintiff spent 3 years studying English. She volunteered at her children’s school while they were young, but did not take up teaching again. She worked for her aunt at a baby clothing shop for 3 years. In May 1998 the Plaintiff purchased a milk bar in Mordialloc which traded as Abraham’s Milk Bar. She managed the business with some part-time assistance from family and others. She worked long hours.
Medical History
15 The Plaintiff suffered from mild back pain about 10 years ago, but her symptoms subsided after about 1 year. Other than this, she has not sustained any injuries of lasting significance prior to the transport accident.
The Transport Accident
16 On 19 February 2004, the Plaintiff was involved in a transport accident (“the accident’) when another vehicle failed to obey a red light and struck her vehicle on the driver’s side at high speed.
17 The Plaintiff’s husband, Hagop Abraham, was travelling behind her vehicle in another vehicle at the time and witnessed the accident.
Injuries/Medical Treatment
18 As a result of the accident, the Plaintiff states that she sustained the following injuries:
(i) Loss of consciousness;
(ii) A possible closed head injury with bruising to the right parietal region;
(iii) A period of post traumatic amnesia of up to several hours;
(iv) Headaches;
(v) Dizziness;
(vi) Balance problems;
(vii) Visual disturbance;
(viii) A neck injury with referred pain in right arm and shoulder;
(ix) A back injury with a fractured L4 vertebrae;
(x) Bruising down right side involving chest, arm and leg;
(xi) Bruising to both knees and ankles; and
(xii) Psychological injuries.
19 Following the accident the Plaintiff was shaken up and dazed. She thought that she was going to die. She experienced pain in her chest, right leg, right arm, neck, back and both ankles and was transported by ambulance to the Dandenong Hospital where X-rays were taken of her spine. She was discharged home the following day on crutches with a diagnosis of bruising. She took Panadeine Forte for pain relief.
20 The next day the Plaintiff received a telephone call from the hospital informing her that she had sustained a fracture of her lumbar spine, which had originally been missed. She was advised to wear a back brace. Her husband took 2 weeks off work to look after the Milk Bar with Annie. He then had to return to work in Benalla, where he was away throughout the week. Annie had to return to University in Shepparton, so the Plaintiff was looked after by her mother and sisters. She was unable to return to work and the Milk Bar was sold on 4 April 2004. She began smoking cigarettes at about this time.
Rehabilitation
21 In July 2004 the Plaintiff began attending the Cedar Court Rehabilitation Centre in Dandenong twice weekly. Her treatment included physiotherapy, hydrotherapy, occupational therapy, pain management and psychological treatment. After 4 weeks of treatment her symptoms had not improved and she had difficulty sleeping due to flashbacks and nightmares. She also experienced pain in her chest, right shoulder, neck and back with pain radiating down the back of her right leg.
22 In early 2005 she ceased attending the Cedar Court Rehabilitation Centre. She had physiotherapy and hydrotherapy at the Narre Warren Physiotherapy Centre. She later attended Chandler Physiotherapy, under the supervision of Mr Michael Melamed. She regularly consulted her local doctor, Dr Anna Kucminska, of the Stud Road Medical Centre in Dandenong.
23 The Plaintiff became increasingly depressed and anxious, with panic attacks and began losing weight. She was referred to a psychologist, Ms Elizabeth Kinsey. In May 2005 she began having psychiatric treatment with Dr Aileen F Jones. She initially consulted Dr Jones on a weekly basis, but this was reduced to fortnightly and then monthly consultations. She was treated with Dothiepin (300 milligrams) and Zyprexa (5 milligrams) daily, and later placed on Avanza. She was also taking Stilnox, Mobic, Tramal and Digesic.
24 The Plaintiff experienced pain in her right middle finger radiating up her arm, elbow and shoulder to her neck with numbness in her 3rd to 5th fingers. She was referred to a neurosurgeon at the Monash Medical Centre who advised against surgery. She continued to have physiotherapy.
25 In June 2005 the Plaintiff moved to a house in Benalla that her husband had purchased. Following the move she experienced increased depression and anxiety with panic attacks. She returned home after a few days and subsequently sold this house. In August 2005 her husband resigned from his job in Benalla and came back home to look after her. He was out of work for 4 months before commencing work with Exxon Mobil on a casual basis.
26 On 28 July 2005 the Plaintiff underwent an EEG to investigate her persistent severe headaches and was referred to a neurologist in Frankston, Dr Russell Rollinson. She was prescribed Atacand.
27 In early April 2006 she had a flare-up of back pain and underwent a CT scan of her lumbar spine. This revealed disc bulges at the L4/5 and L5/S1 levels.
28 By mid 2006 the Plaintiff’s condition had improved significantly despite continuous memory problems, neck pain, intermittent pain down her right leg and abnormal sensation in her right forearm. She was able to resume driving locally, with Hagop as passenger. She hired a person to clean the bathrooms every month.
29 In July and September 2006 she suffered from severe arthritis in her knees, feet, hands and lower back. In early October 2006 she also had a relapse of severe depression. She consulted Dr Kucminska. She also continued to consult Dr Jones once per month.
30 The Plaintiff was reviewed by Dr Jones, who found that she was suffering from memory problems and was referred for neuropsychological assessment by Elizabeth Mullaly at the Caulfield General Medical Centre.
31 On 3 November 2006 she consulted a rheumatologist, Dr Marie Feletar, in relation to right knee pain and swelling. She had an MRI scan of the right knee where it showed some cartilage degeneration in the tear of the anterior cruciate ligament. She was reviewed by Dr Feletar on 21 December 2006. and had a cortisone injection and local anaesthetic to her right knee, which provided some relief. She followed up with Dr Feletar on 7 February 2007 and 5 March 2007, complaining of chronic ongoing pain in her right knee. Dr Feletar requested further investigations and referred her to the Caulfield Pain Management Clinic. By 3 April 2007 her right knee symptoms were improving and she was required to wear orthotic inserts. She was taking about 6 to 8 Panadol tablets per day. She stopped using Tramadol after she commenced Lexapro for depression.
32 In August 2007 the Plaintiff’s husband Hagop suffered a heart attack requiring hospitalisation and a coronary artery bypass graft. He was unable to return to work after this time and is now in receipt of disability insurance payments. This has placed increased financial pressure on the family. The Plaintiff stopped seeing Dr Jones at about this time, as she felt that she needed to focus her energy on caring for Hagop. She continued seeing Dr Kucminska. In February 2008 she began treatment with rehabilitation physician, Dr Daniel Lewis, and continued to see him every few weeks. Dr Lewis prescribed Tramadol and suggested the Plaintiff become an inpatient at Epworth Rehabilitation for a 1 week pain management program, but permission for this was refused by the TAC.
33 In early to mid June 2008 the Plaintiff started seeing a psychologist, Mr Robert Posthlethwaite, on a weekly basis. Funding for this treatment was not approved by the TAC and she stopped seeing him.
34 In October 2008 the Plaintiff was referred to orthopaedic surgeon, Mr Brighton-Knight. He arranged for her to have an epidural injection in December 2008, with temporary improvement. Around this time she also had an overnight admission to Casey Hospital Berwick for a severe episode of neck pain and headache.
35 Mr Brighton-Knight referred the Plaintiff to rehabilitation specialist, Dr Terence Lim. Dr Lim suggested she be admitted to the Cabrini Hopetoun Rehabilitation Hospital for 2 weeks to attend a pain management program, but funding for this was not approved. She consulted Dr Lewis monthly, her psychologist weekly, and Dr Kucminska 2 or 3 times per month until TAC denied funding for the program. She attended review appointments with Dr Lim on 4 February 2009 and 11 February 2009. Dr Lim prescribed Oxycontin (10 milligrams) and Lyrica (75 milligrams). He also referred her to Dr Toby Sacks for psychiatric assessment and treatment. She consulted Dr Sacks on 13 May 2009 and 17 April 2009 and has continued to see him monthly.
36 In early 2009 Dr Kucminska referred the Plaintiff to Dr Peter Blombery for treatment of the injuries to her legs. Dr Blombery prescribed Amantadine Capsules (100 milligrams). TAC also approved 5 sessions of chiropractic treatment with Mr Paul Finn for her spine.
37 Following the accident the Plaintiff has undergone various scans and investigations including the following:
(i) X-rays to her spine, right tibia, right fibula and right ankle dated 19
February 2004;
(ii) An X-ray to her spine dated 20 February 2004;
(iii) CT scans to her spine dated 24 February 2004, 4 March 2004, 12
August 2004, 4 October 2005 and 10 April 2006;
(iv) A CT scan to her chest dated 4 March 2004;
(v) A CT scan to her brain dated 18 June 2004;
(vi) An EMG dated 11 November 2004;
(vii) A CT scan to her right elbow dated 3 December 2004;
(viii) An MRI scan to her brain dated 26 September 2005; and
(ix) An MRI scan to her right knee dated 23 November 2006.
Symptoms
38 As a result of the accident the Plaintiff states that at the time of swearing her first affidavit in June 2009 she continued to suffer from the following symptoms and conditions:
(i) Periods of vagueness and disorientation,
(ii) Memory and concentration problems;
(iii) Slowed thinking;
(iv) Frequent headaches, usually severe, although fluctuating in intensity;
(v) Constant neck pain extending into her right shoulder, right arm and
forearm;
(vi) Restricted movement of her neck and right shoulder;
(vii) Right arm weakness;
(viii) Occasional swelling of her right hand;
(ix) Pain between her shoulder blades;
(x) Left arm pain;
(xi) Back pain;
(xii) A persistent ache in both buttocks, thighs and calves, of mild to
moderate severity;
(xiii) Right hip pain;
(xiv) Chest pain;
(xv) Pain in both knees, legs and ankles;
(xvi) Difficulty sleeping;
(xvii) Fatigue;
(xviii) Loss of libido;
(xix) Weight gain; and
(xx) a. Nightmares and flashbacks to the accident;
b. Avoidance of the accident site;
c. Sensitivity to accident reminders (such as hearing or seeing
accidents and TAC advertisements);
d. Stress;
e. Anxiety;
f. Panic attacks at least weekly;
g. Tearfulness;
h. Depression;
i. Feelings of helplessness and hopelessness;
Psychological injuries including: k. Intermittent suicidal thoughts.
Medication
39 The Plaintiff’s medications for the above conditions when she swore her first affidavit in June 2009 were:
(i) Tramadol (2 per day);
(ii) Panadol (between 6 to 12 per day);
(iii) Dothiepin (300 milligrams at night);
(iv) Zyprexa (5 milligrams per day);
(v) Lexapro (20 milligrams per day);
(vi) Mobic (1 per day);
(vii) Stilnox (5 milligrams at night);
(viii) Panadeine Forte;
(ix) Atacand;
(x) Durogesic patches;
(xi) Oxycontin (1 tablet twice daily);
(xii) Lyrica (1 per day);
(xiii) Glucosamine; and
(xiv) Amantadine Capsules.
40 In her second affidavit sworn in May 2011 the Plaintiff further deposed that she continues to consult her general practitioner, Dr Anna Kucrniniska. About six months ago she prescribed Lovan which the Plaintiff now takes once a day and this helps with her depression and panic attacks. The Plaintiff has now ceased taking all psychiatric medication except the antidepressant Lovan.
Domestic, Social, Recreational and Employment Restrictions
41 At the time of the accident the Plaintiff was in good health and able to undertake an unrestricted range of social, domestic, recreational, work and sporting activities. She worked at the Milk Bar and enjoyed working hard, as well as spending time with family and friends. She was happy and outgoing. She attended the local gym at least 5 days per week. She attended church weekly and enjoyed outdoor activities, such as going for picnics with the family. She also enjoyed reading, watching sport, watching movies, visiting friends and gardening. She went swimming about twice weekly. When she was younger some of her hobbies included sport, gymnastics, drama and singing.
42 Following the accident the Plaintiff has become socially withdrawn. She has a supportive extended family, but now prefers to be alone. She had a number of close friends prior to the accident but now sees them less frequently. She has minimal interest in most activities and sometimes finds herself wandering aimlessly around the house. She does light housework and minor errands at the local shops. She avoids visiting large shopping centres as she is uneasy in crowds. She does some cooking, but buys pre-prepared vegetables to avoid using her right arm. She finds it difficult to hang clothes on the line. Her children do the heavier household chores. She sometimes goes for a walk around a local lake, but finds this difficult. She struggles to hold a book due to right arm pain and weakness. She has difficulty sitting or walking for more than 20 minutes without pain. She struggles to find a comfortable position to sleep. Her vision is worse when she has the headaches. She also has become forgetful and easily disoriented. Sometimes she walks into a room and forgets why she’s gone there. She has accidentally left the gas stove on at home on 2 occasions. In 2007 she returned to Syria for a visit and had trouble recognising the faces of old friends.
43 The accident has put a strain on her marriage due to both financial and physical problems. She feels like a failure being unable to help or provide for her family. She has not returned to work since the accident.
44 In her second affidavit the Plaintiff further deposed that she continues to experience panic attacks. They feel like a tightness and squeezing in her chest. She gets sweaty and has difficulty talking. She continues to experience these symptoms on a daily basis whereas previously she was having them every 2 hours or so. When she experiences these symptoms they normally last for a few minutes. She was taught by Dr Aileen Jones, psychiatrist, breathing techniques to cope when she has these symptoms.
45 The Plaintiff ceased seeing Dr Jones in or about late 2007. She no longer consults psychologist Elizabeth Kinsey or Dr Toby Sacks whom she commenced seeing in or about 2008. Dr Sacks requested permission from the Transport Accident Commission to place her as an inpatient for 2 weeks in a psychiatric hospital, but the insurer would not agree to fund it. He placed her on Cymbalta and Lyrica, which she was taking for about 2 years but was suffering from side effects. She ceased taking it because it was making her feel like a zombie and not herself.
46 She continues to experience pain in her right little finger radiating up her arm, elbow and shoulder and to her neck. She has numbness into her right little finger now.
47 She continues to experience pain in her right shoulder. This has improved with the assistance of a cortisone injection which was given by Dr Marie Feletar, rheumatologist, who saw her due to ongoing problems with her right shoulder. She last saw Dr Feletar in or about March 2011.
48 The Plaintiff has had four cortisone injections over the last 2 to 3 years. She had one in her spine at the Sandringham Hospital and one in each knee and one in her right shoulder.
49 She has difficulties moving her right shoulder above shoulder height and does not have a lot of strength in her right hand and her arm feels heavy. She has difficulty performing repetitive movements with her right arm or undertaking any heavy activities with her right arm.
50 The Plaintiff’s neck continues to be a significant problem for her. She can only move it slowly as quick or rapid movements generally cause pain. It is most of the time painful and in particular at night and it prevents her from sleeping. The pain is particularly unbearable if she is trying to sleep on her back and as a result her sleep is constantly interrupted and she wakes up between 4 to 5 times on average a night. Sometimes she can go back to sleep, sometimes she lays awake. She takes Stilinox to help her sleep, however there are times when this does not work. She tends to be tired during the day as a result of a lack of sleep.
51 The Plaintiff continues to experience headaches most of the time. The headaches start from the base of the neck and into her head. She takes Atacand for the pain and also takes Nurofen Plus and Panadol Osteo to cope with the headaches.
52 The headaches vary in intensity and there have been episodes when the Plaintiff has attended the Casey Hospital because the pain has been unbearable. The last occasion was in or about late 2009 early 2010. The neck pain was so severe and the headaches so bad she could barely move. Her left eye became red which is often the case when suffering from headaches. Her husband insisted on taking her to the hospital where she remained overnight. They gave her painkillers and other medication. They wanted her to undertake studies and be kept in hospital, but she discharged herself.
53 In addition the Plaintiff has had some symptoms in her left arm. This is not as bad as the symptoms in her right. Of late the symptoms have not been frequent.
54 The Plaintiff continues to experience pain in her back although this is not there all the time. The injection that she had in her spine helped. When she does have back pain it tends to extend into the right leg as well. She has had episodes of a numbness and burning sensation into her foot when she have had back pain and leg pain.
55 The Plaintiff has continued to experience some right hip pain which is not there all the time. She finds that walking helps to ease the pain.
56 She continues to experience pain in both her knees and has been told that she has now developed arthritis. She finds that walking frequently and in particular walking in the morning has been of great assistance with her knee pain. She walks 3 days a week for about 15 minutes depending on how she is feeling. Sometimes she does walk more and sometimes less depending on the level of pain. She feels better for walking and there have been times when she has persisted with her walking regime just to get out of the house.
57 The Plaintiff has completely lost her libido and whilst this has been very frustrating to her husband he is very understanding and patient. It upsets her that she cannot be the wife that she would like to be.
58 The Plaintiff has had ongoing suicidal thoughts but thinking about her family stops her from doing anything.
59 She could not drive for about 3 years after the accident. It was only at her husband’s insistence that she got back to driving and she tends to drive locally.
60 She is still very fearful when in a vehicle and very anxious as a passenger. She prefers to walk rather than drive.
61 The Plaintiff continues to experience some nightmares and flashbacks to the accident which upset her but they are not as bad as what they used to be.
62 The Plaintiff feels very depressed and this tends to be a feeling that she cannot shake. Every few days or so she tends to experience a feeling that something bad is going to happen. She prefers not to leave the house for this reason.
63 The Plaintiff is able to perform light chores and cooking at home. Her husband has health issues and is limited in his ability to assist. Her parents live across the road and her mother helps her at times. Her children also help with cleaning, particularly the heavier activities which she has difficulty performing such as vacuuming and mopping.
64 The Plaintiff gets very fatigued easily, so tends to do chores over a period of time rather than trying to complete everything in one day.
65 The Plaintiff has taken various prescribed medications over the years since the transport accident. She is currently taking Tramadol up to two per day, Panadol or Nurofen between 6 to 12 per day depending on pain, one Mobic tablet per day. She takes Stilnox at night and Atacand for the headaches. She also takes Oxycontin tablets once a day. She takes Glucosamine and Fish Oil and is now taking Lovan. She uses Voltaren gel sometimes.
66 The Plaintiff ceased other medication [Cymbalta and Lyrica] because they were making her sick.[4]
[4] Transcript 52
67 Under cross examination:
a)
The Plaintiff was asked about a number of entries in the clinical notes of her general practitioner in 2000 and 2001 which referred to bruising to her head, face and ribs. She denied ever attending the doctor for bruising;
b)
The Plaintiff agreed that her son had committed offences over about 5 years from 2003 for which he was convicted and gaoled. She agreed that she had not mentioned his offending or convictions to any doctor as she did not think that it was relevant to her situation;
c)
She agreed that she was upset about her son and what he had done but felt it was out of her hands.
d) She denied any marital stress in 2004-2005;
e)
Prior to the transport accident she managed a milk bar which they intended to sell and did sell after the accident for $15,000. Earnings from the business was: 2001-$5958; 2002-$4283; 2003-$14,000; and 2004 - $7975. They lived above the shop and she worked 7 days per week;
f)
She agreed that she told Dr Ball that sexual relations with her husband ceased some years ago –about 2003-2004; she said it was her problem and then he had his heart attack;
g)
She travelled overseas with her parents in 2007 and with her husband in 2010; and
h) She last attended a psychiatrist for treatment in October 2007.
68 Hojop (Jacob) Abraham also swore an affidavit[5] in which he attests to the Plaintiff's physical and psychological problems since the transport accident. In particular he notes that since the accident:
My wife cries often, she has poor memory and concentration. My wife no longer
has motivation and she is depressed all the time.[6]
[5] PCB 22-25
[6] Paragraph 13; PCB 24
69 Mr Abraham confirmed that when they moved to live in Benalla his wife suffered frequent and severe panic attacks and her depression worsened. He subsequently relocated to Melbourne to care for her in their home. His wife is now reluctant to leave the house and unable to attend the usual family and other social occasions which they attended together prior to the accident.
Work Capacity
70 I note that in a Vocational review conducted by TAC in September 2007 the Plaintiff had indicated that due to current circumstances she was unable to participate in complex pre-employment activities.
Suzanne no longer wants TAC assistance to job seek as she has decided to
care for her husband"[7]
[7] DCB 137
71 In a subsequent review in June 2010 the TAC report notes in part as follows:[8]
tearful frequently during the interview, looked and sounded distressed, no
motivation
appears profoundly depressed… Feels she is a burden… She describes generalised anxiety, panic attacks and appears to have a very depressed affect…
[8] DCB 142 KTM Consultancy Services
Radiological Investigations
72 The tendered material includes the results of multiple examinations by way of X Ray, CT Scans and MRI the principal features of which are disc bulges, mainly at the L4/5 and L5/S1 levels and other diffuse degenerative changes in her cervical and lumbar spine. The Plaintiff also has osteoarthritis in her right knee.
73 A report of Chandler Physiotherapy summarises the radiological findings in February 2004; October 2005; April and November 2006 encompassing the cervical and lumbar spine and right knee. The concluding remarks of the treating physiotherapist are:
I believe her injuries are consistent with a motor vehicle accident sustained on 19 February 2004. She may never fully recover and might need to be on pain medications for the rest of her life.[9]
[9] PCB 63
74 An MRI of the lumbar spine on 8 October 2008 was reported as follows:
broad based disc bulging at L4/5 producing moderate thecal and nerve root encroachment as well as foraminal narrowing of moderate degree. Disc bulging with posterolateral annular disruption on the right at L5/S1 extending into the exit foramina, causing minimal nerve root encroachment. Lower lumbar facet arthropathy.[10]
[10] Report contained in clinical notes of Dr Kucminska
75 Dr Marie Feletar Rheumatologist examined the Plaintiff in November and December 2006 and again in February, March and April 2007. Her initial main presenting symptom was a painful swollen right knee and then diffuse musculoskeletal pain and fibro myalgia and possible plantar fasciitis.
76 Dr Feletar concluded that the right knee pain was attributable to tri- compartmental degenerative disease.
These abnormalities are constitutional, related to age and degeneration and I do
not believe are contributed by her motor vehicle accident.
She has spinal pain which is also degenerative and constitutional in nature but the involvement in the motor vehicle accident has temporally exacerbated this pain.
Lastly she has plantar fasciitis which is also constitutional in nature and not
related to her TAC accident.
Evidence of Treating Doctors
77 Dr Anna Kucminska General Practitioner has been the Plaintiff's family doctor since 1995. In her tendered reports she documents the Plaintiff's activities prior to the accident and her complaints and treatment following the accident. The Plaintiff has attended irregularly in relation to her injuries since the accident. In her most recent report dated 18 April 2011, Dr Kucminska notes the following current symptoms:
Headaches
continues to suffer symptoms in her neck
bilateral shoulder pain
neck pain and other pain is preventing her from sleeping
she cannot get comfortable
pain from neck radiates through her right arm, right elbow and right for arm and
down to her fingers
also some pain in her left arm
states her right arm feels heavy and she cannot do anything with it
lower back pain
pain from back radiates down her leg
right foot feels hot and burning
pins and needles in both feet
forgetful
sometimes gets confused when walking.
78 Dr Kucminska lists the Plaintiff's current medications as follows:
OxyContin 10 mg a day
Tramadol
Mobic 7.5 mg per day
Panadol Osteo 2 tb every 8 hours
Nurefen Plus
Lovan 20 mg
Stilnox 10 mg
Voltaren Gel
Atacand
Fish oil 1 tab 3 times a day; and
Glucosamine 1 tab a day
79 On examination Dr Kucminska described the Plaintiff as a pleasant, but
depressed looking middle-aged lady… There is restriction in her neck and back movements and restriction in her right limb movement. There is tenderness to her neck, thoracic area, shoulders, right arm, right elbow, right hand, tenderness to lower back.[11]
[11] PCB 57
80 Dr Kucminska concludes that the injuries suffered by the Plaintiff are directly related to the motor car accident. However the report does not specify what precisely are her persisting organic injuries.
81 Under cross examination Dr Kucminska said that the Plaintiff’s depression had not appeared to have improved and she suffered from recent memory deficit which is a major symptom of major depression.[12]
…[she] never become fully mentally healthy. She never got over her depression. She has been depressed all the time. This depression may fluctuate. I didn't see any major progress or improvement with her depression, which she would come and say, "Okay, I went for a walk today, I felt happy." She's never felt happy. Rather than profound unhappiness, she may sometimes feel a little bit better, I guess.[13]
[12] Transcript 68-69
[13] Transcript 75
82 Dr Kucminska said that the Plaintiff did tell her about her son but she did not make a note of it. She agreed that it would have been very upsetting for the Plaintiff, but did not think it would have made any difference to her psychological condition.
83 Dr Kucminska referred the Plaintiff to Cedar Court for rehabilitation. Dr Mithu Palit Rehabilitation Physician, after noting the radiological investigations and continuing complaints of the Plaintiff, reported, in part:
I am a little concerned that this has been a rapid decline within two months of the injury when most of the injuries have been attributable to soft tissue cause. There is undoubtedly a large mood components to her feeling of distress which is concurrent to the pain and I wonder whether there are components of post- traumatic stress disorder.[14]
[14] PCB 120; Report dated 19 April 2004.
84 Dr Kucminska referred the Plaintiff to Elizabeth Kinsey Psychologist for psychological therapy. Ms Kinsey assessed her in December 2004 and concluded that she suffered from clinical depression with anxiety symptoms, complicated by chronic intermittent pain and discomfort in the shoulders, neck and back. According to Ms Kinsey’s report dated 6 June 2005 the Plaintiff had been attending weekly sessions for cognitive behavioural therapy and relaxation. Ms Kinsey recommended at that stage that she continue to receive therapy for her major depressive disorder and in view of psychotic features it was difficult to predict when her condition might resolve.[15]
[15] PCB 33D
85 Dr Aileen Jones Psychiatrist treated the Plaintiff between May 2005 and October 2007 with counselling and medication.
86 On 21 June 2005 Dr Jones advised the TAC that the Plaintiff required hospital admission for treatment of her major depression as a result of injuries sustained in her motor car accident in 2004.[16]
[16] PCB or36
87 On 12 May 2006 Dr Jones reported that she had been seeing the Plaintiff on a regular basis since May 2005 and that it took some time for her major depression with psychotic features (auditory hallucinations) to settle.
She now reports absence of depressive symptoms on Dothiepin 300mgs, and Zyprexa 5 mgs daily. She is back to driving her car and is looking to re-entering the workforce via retraining
. .. Her depression was greatly influencing her recovery. She has however received considerable relief from the prescription of Atacand [by Dr Rollinson]… However on reviewing her cognitive function, I do find significant recent memory deficits which given her vastly improved mood, I can't explain. I will be referring her for a neuropsychological assessment to clarify this.[17]
[17] PCB 38
88 Dr Jones reported that the Plaintiff was discharged back to her General Practitioner on 26 October 2007 being in remission from her depression.[18]
[18] PCB 41
89 In her letter to the Plaintiff’s General Practitioner dated 26 October 2007 Dr Jones wrote:
She appears to be coping as well as could be expected with her husband's illness. Luckily she appears to have a very supportive family on whom she can rely. I have advised her to continue her regular medication until things have settled around her…[Lexapro, Prothiaden and Zyprexa]… Because of the Lexapro, she will have to continue to contain the amount of Tramal I am happy to review her on a needs basis.[19]
[19] Exhibit A
90 Dr Daniel Lewis Rheumatologist, examined the Plaintiff in April and July 2008 upon referral by her General Practitioner.
91 A review of X-rays from 2004 showed no evidence of cervical or lumbar fractures. However X-rays of both knees in 2006 showed changes consistent with early osteoarthritis and an MRI of her knee confirmed degenerative changes and a tear in the meniscus. Disc bulges were apparent from C5 to C6 with widespread osteophytic changes but no evidence of nerve root impingement.
92 On examination the Plaintiff was found to have a low mood state, was despondent and without hope and her pain patterns were more in keeping with fibromyalgia than in discrete ongoing injuries.
93 In his opinion the Plaintiff presented with a chronic pain syndrome.[20] No specific injuries relating to her car accident were defined. She agreed to meet with clinical psychologist Robert Postlethwaite as a first step in developing a pain management program.
[20] PCB 75
94 Robert Postlethwaite Clinical Psychologist saw the Plaintiff on two occasions, in May and June 2008, upon referral by Dr Lewis. In his opinion the Plaintiff presented with a chronic pain disorder associated with both psychological factors and a general medical condition. A secondary diagnosis of major depressive illness was also appropriate.
On the two occasions I saw Ms Abraham pain was the major issue for her. She was distressed by the constant pain and headaches that she experienced despite the treatment she had previously attended. At the time I saw her, the pain has significantly impaired her lifestyle with respect to her capacity to work and her social life. She had become socially withdrawn and isolated. Given the intensity of her distress it was also my assessment that the depression and stress/anxiety she experienced contributed to her perception of the severity and to the maintenance of the pain. I did not believe that there was any evidence that her reports of pain were in any way dishonest or that her pain was better explained by any other diagnosis.
But the first time I saw Ms Abraham it was almost 4 1/2 years after her accident at which point Ms Abraham had been living with the pain and the impact the pain had had on her life for more than four years. At [the] time I believed that an additional secondary diagnosis of Major Depressive Illness was appropriate as the depression she presented with had become an additional problem rather than purely a reaction to the pain. [21]
[21] PCB 79
95 Dr Russell Rollinson Neurologist first examined the Plaintiff in September 2005 at the request of Dr Jones because of her persisting severe headaches. In his report dated 6 May 2008 Dr Rollinson concluded that:
From the mechanism of the injury, I would not think that this lady has suffered significant injury to her central nervous system. She is going to have an MRI of her brain and cervical spine but my feeling is that her complaints are largely psychosomatic.[22]
[22] PCB 45b
96 Dr Rollinson subsequently noted that the MRI of her brain showed changes consistent with trauma and also with small vessel disease and other diagnoses unrelated to the accident.
97 Upon review on 23 November 2008 Dr Rollinson noted that the Plaintiff's headaches are better, occurring only three days of the week, but she still requires lots of analgesics. Dr Rollinson again confirmed his earlier opinion that he did not believe she suffered any serious injury to her central or peripheral nervous system.
She does have post-traumatic migraine which is a result of the accident,
however I can offer no neurological explanation for her failure to settle down.
I don't believe the MRI abnormalities in the brain have anything to do with the accident and I don't believe the disc bulges have anything to do with the accident. [23]
[23] PCB 45d
98 Dr Michael Brighton-Knight Orthopaedic Surgeon first examined the Plaintiff in October 2008 at the request of her General Practitioner. In his report dated 28 October 2008 he noted that the Plaintiff had:
… quite severe L4/5 spinal canal stenosis and quite clear cut bilateral neuropathic pain. This is in the background of significant pain problems that seemed to have arisen from a motor vehicle accident in 2004. She certainly had significant imaging studies leading up to today and has multiple foci and chronic pain that would give her a clear diagnosis of chronic pain syndrome. However this is not back pain that she presents with, it is clear cut neuropathic pain and worse since her last imaging. She is very distressed by it.[24]
[24] Letter dated 28 October 2008 from Dr Michael Brighton-Knight to Dr Kucminska contained in Dr Kucminska’s clinical notes
99 Dr Brighton Knright further indicated that in view of her existing complex pharmacology used to treat her depression he felt uncomfortable ordering any further medication and proposed an injection of cortisone under CT guidance which took place on 31 October 2008.
100 Dr Terence Lim Consultant in Rehabilitation and Pain Medicine first examined the Plaintiff in February 2009 upon referral by Dr Brighton-Knight. Dr Lim noted that the Plaintiff presented with the following symptoms:[25]
chronic low back/right leg pain - the lower limb radiates from her foot proximally
to her thigh as well as down her leg in a sciatica like distribution;
chronic neck and right upper limb pain associated with headaches.
[25] Report dated 4 February 2009 addressed to Mr Brighton Knight and contained in Dr Kucminska’s clinical notes
101 The Plaintiff gave a history that over the previous 18 months there had been an increase in severity of her pain levels causing her to become increasingly frustrated and demoralised. A CT guided epidural [performed by Dr Brighton Knight] gave her only three days of pain relief. Dr Lim further noted that following the transport accident the Plaintiff developed significant depression and panic attacks for which she was taking Dothiepin, Lexapro and Zyprexa as well is other significant pain relief medication. On examination the Plaintiff demonstrated an extremely poor posture with significant anterior pelvic tilt and consequent increase in lumbar lordosis causing a persistent hyperextension moment and a mechanical component back pain. Palpation revealed some exquisitely tender muscular trigger points. Dr Lim confirmed to the Plaintiff that she did have reasons for pain that included a combination of mechanical/myopathic and central sensitisation contributing factors.
102 Dr Lim referred the Plaintiff to Dr Tobie Sacks pain psychiatrist for assessment and review of her psychiatric medications. There were no reports available from Dr Sacks [evidently because of his proposed excessive fees] but neither was Dr Sacks subpoenaed to give evidence.
103 By letter dated 9 September 2009 Dr Lim advised Dr Brighton Knight that he had reviewed the Plaintiff in conjunction with Dr Sacks.
I am pleased to report that Suzanne's state of mind has improved. She is much better resourced in regards to chronic pain, its mechanisms and in particular its consequences that is that there is no cure to chronic pain once central sensitisation is established. However there are ways of learning to become her own pain therapist/pain manager to control her pain better as well as improve her level of functioning.
I have referred her to the Cabrini Hopetoun pain rehabilitations program.[26]
[26] letter contained in clinical notes of Dr Kusminska
104 I note that Dr Kucmiska gave evidence that:
she was referred to Cabrini Hopetoun, to rehabilitation hospital, when she
underwent the assessment with view of further treatment.[27]
[27] Transcript 70
105 Dr Peter Blombery Consultant Physician (Vascular Disease) examined the Plaintiff upon referral by her General Practitioner in April 2009. Dr Blombery noted that the Plaintiff presented with increasing pain over both legs and in both feet which she described as burning and squeezing. Her feet also tend to swell. She also complained of pain around her right shoulder, in her neck and in the low back with some weakness of the right arm. On examination she appeared to be depressed and exhibited vague tenderness over the feet and legs, over the right shoulder, lumbar spine and neck. Reflexes were intact. Dr Blombery concluded:
she has features of a diffuse fibro myalgic type pain syndrome in the affected
areas complicating the motor vehicle accident.[28]
[28] letter dated 27 April 2009 addressed to Dr Kusminska and contained in her clinical notes.
106 Dr Blombery then indicated that he proposed to treat her on a trial of Amantadine, which by blocking NMDA receptors, may be of use and review her in one month.
107 By letter dated 10 June 2009 Dr Blombery advised her General Practitioner that since being on Amantadine the Plaintiff feels a little better.
She said the pain is definitely less than it was before. She still has good days and bad days however. She is also on Lyrica 37.5 mgs b.d. Her response so far is reasonable and I think we should observe matters for the time being rather than progress to a lignocaine ketamine infusion and I will see her again in two months time.[29]
[29] letter contained in clinical notes of Dr Kusminska
108 There are no further reports from Dr Blombery indicating the results of any follow up.
109 Dr Marie Feletar Rheumatlogist assessed the Plaintiff upon referral by her General Practitioner on 19 January 2011. Dr Feletar had previously seen the Plaintiff for knee pain and on this occasion the Plaintiff presented with painful arms and neck and numbness into the hands. Upon examination Dr Leletar noted:
Power in the upper limbs was grossly under estimated by her collapsing
weakness and reflexes in the arms and legs were totally normal….
My impression is that most of her pain is coming from the right shoulder and
acromioclavicular joint[30]
[30] Letter dated 21 January 2011 to Dr Kucminska; contained in clinical file
110 Dr Feletar reviewed the Plaintiff for her right shoulder impingement symptoms on 18 May 2011. An injection which Dr Feletar administered in January initially made the Plainitff’s symptoms worse but then gradually improved. Dr Feletar recommended an ultrasound guided right shoulder corticosteroid injection.
Medico-Legal Opinions requested by the Plaintiff
111 Dr John Waterston Neurologist examined the Plaintiff at the request of her solicitors on 1 August 2008. After recording a quite detailed history Dr Waterston noted on examination that the Plaintiff gave the appearance of being quite depressed and demonstrated widespread abnormalities on cognitive testing. In conclusion:
this lady may have suffered a head injury of mild severity as a result of the motor vehicle accident… With a possible period of post traumatic amnesia of up to several hours.
It does not appear that she would have suffered a severe enough head injury to
account for the MRI abnormalities…
Likewise, the mild nature of the head injury does not seem to correlate with what appears to be a moderate degree of cognitive impairment. It therefore seems likely that there is a significant psychiatric contribution to her apparent cognitive impairment and this is supported by the conclusions in the neuro psychological report from Ms Elisabeth Mullaly performed on 1 November 2006. In this report she performed at an extremely low level on tests of memory and other cognitive functions. It is possible that there is an underlying degree of organic cognitive disturbance as this can occur after mild degrees of head injury.
It is noted that she has had significant problems with depression.
This lady also suffered injuries to her cervical and lumbar spine. She has non-
verifiable radicular complaints. She also has post traumatic headaches.
This lady remains considerably disabled by her chronic pain and psychiatric dysfunction. I understand that there has been some improvement in her psychiatric issues but the pain remains a considerable problem.
She is likely to remain permanently disabled unless these issues can be managed successfully. At this stage, I think it is unlikely that she will be able to resume to the workforce and she remains significantly disabled with respect to her domestic duties as well is her social and leisure duties.[31]
[31] PCB 109-110
112 Dr Clayton Thomas Consultant in Rehabilitation and Pain Medicine examined the Plaintiff at the request of her solicitors on 24 September 2008. After reviewing radiological investigations, upon examination Dr Thomas concluded that the Plaintiff has a diffuse and widespread pain condition.
Investigations do not seem to indicate the aetiology of her pain problem. Effectively she is suffering from a pain disorder. This is heavily influenced by her emotional state.
The nature of her problems do not appear to be degenerative.
My impression from Ms Abraham was that her pain disorder had had a significant impact on her overall functionality… Her pain disorder affected all aspects of her day to day life… Her condition was a genuine one[32]
[32] PCB 115
113 Mr Kevin King Orthopaedic Surgeon examined the Plaintiff at the request of her solicitors on 30 October 2008. Mr King examined prior medical reports and radiological investigations. Mr King noted the following residual problems at that time:
constant generalised headache, usually severe, although fluctuating in intensity
constant generalised aching neck pain and stiffness - the neck pain being usually
severe
persistent pain in the right shoulder radiating to the right arm and into the
forearm - of mild to moderate severity
pain in the low back region of mild to moderate severity, but not as bad as the
neck pain
persistent ache in both buttocks, thigh and cards of mild to moderate severity.
All of these symptoms are aggravated by any sort of exertion and she can only
manage very light housework[33]
[33] PCB 118-119
114 After taking a reasonably detailed history and conducting a clinical examination Mr King concluded:
From her description of what happened [referring to the transport accident] clearly confirmed by her articulate and alert husband who observed the accident from another vehicle, it must be assumed that her cervical, thoracic and lumbar spinal regions were exposed to a violent jerking jolting strain at the moment of collision. Such widespread trauma to cervical thoracic and lumbar discs and associated ligamentous structures would adequately explain the immediate onset of generalised neck and back pain with some referred headache and some referred pain into the right arm and both legs. Such widespread soft tissue injuries would also explain the persistence of generalised spinal and limb pain since then.
In view of her age and x-ray findings this trauma would have been superimposed upon mild, pre-existing but apparently symptomless degenerative changes. … I would attribute all of her persisting problems with headache, neck pain and backache to the effects of the injuries sustained in the accident on 19.02.04.
She has been left with a chronic disability of moderate severity in the form of neck pain, headache and backache, with some radiation to both buttocks and thighs (the effect of mild lumbar spinal canal stenosis aggravated by trauma) and her condition seems to have stabilised
in addition to these quite significant organic injuries to the cervical and thoraco lumbar region there seems to be an underlying factor of significant depression and anxiety with psychological overlay seemed to be a significant complicating factor. My assessment and the overall impairment of neck and back function is based upon my perception of the underlying organic injuries. The depression, anxiety and general agitation seemed to be due in part to psychological factors and partly due to heavy medication - both in the form of antidepressants and narcotic type painkillers[34]
[34] PCB 121
115 Dr Epstein Psychiatrist examined the Plaintiff at the request of her solicitors on three occasions in July 2008; May 2009; and March 2011. On the final occasion he noted that her appearance was unchanged. She presented with a sombre expression, wore little make up, had a quiet manner and appeared fatigued.
She was cooperative and well oriented. Her affect was still restricted and she appeared depressed and anxious. Her speech was slow and spoken in a monotone. She still had some problems with her memory. There was no evidence of thought disorder, delusions or hallucinations…
Suzanne Abraham was injured in a transport accident on 19 February 2004 and within a short time of the accident was complaining of widespread pain but investigations showed no pathology to explain the pain. She has been complaining of widespread chronic pain ever since then. She has had a variety of treatments including a rehabilitation centre, having psychological and psychiatric treatment and for a time it was noted to have a major depression with psychotic features.
There appears to have been no real improvement in her condition since the injury and may have even been some deterioration and there has certainly been no change since she was last seen in 2009.
She has a chronic pain disorder associated with both psychological factors and a general medical condition. She has mild symptoms of a post-traumatic stress disorder and still has panic attacks with some agoraphobia.
Her perception of chronic pain together with her high levels of anxiety has led on to the development of a chronic adjustment disorder with depressed mood. Her quality of life has diminished markedly affecting her work capacity, her relationships and her recreational enjoyment. Her condition is stable and there is no likelihood of any improvement. It is difficult to envisage her being able to return to work in any capacity.[35]
[35] DCB 104
Medico-Legal Opinions requested by the Defendant
116 Dr Entwistle Consultant Psychiatrist assessed the Plaintiff at the request of the Defendant on three occasions, in October 2004; May 2005 and May 2006.
117 Following his final assessment in June 2006 Dr Entwistle reported:[36]
[36] DCB 89
On this occasion, Mrs Abraham presented very differently to the two occasions when I had seen her in 2004 and 2005. She no longer has a depressed face, she is much more responsive, she was neatly and fashionably attired in black sacks and a shirt and jacket. She brought with her a bag and some documents. Her mood was much more normal. Her psychomotor retardation was completely resolved. She is not tearful, she is more positive, she smiled and her behaviour was much more responsive. With psychiatric treatment and the return of her husband her condition is now almost resolved. Her mood is improved, her energy levels have increased, she is more positive in her outlook. She is no longer suffering symptoms of a major depressive illness.
Whilst there are some concerns about her memory, she believes that her
memory overall is improving, along with her other symptoms.
118 Dr Entwistle also considered that the Plaintiff was fit to return to work and to pre-injury employment from a psychiatric perspective.
119 When the Plaintiff was cross-examined about Dr Entwistle’s opinion, she gave some qualified answers. She agreed that she felt better at some stage, her depressive condition may have resolved and her mood may have improved. However, she denied that her energy levels had increased or that she had a more positive outlook. She also denied that she was fit to work from a psychiatric perspective.[37]
[37] Transcript 50
120 Under re examination she confirmed that she was still seeing Dr Jones and taking medication on the last occasion that she saw Dr Entwistle.
121 Professor J Richard Ball Consultant Psychiatrist assessed the Plaintiff at the request of the Defendant on 30 November 2009. I note that he considered all medical and psychiatric reports available to that time. After examination Dr Ball recorded the following diagnosis:[38]
[38] DCB 111
She has a primary component with associated anxiety in relation to the direct accident. She has an adjustment disorder apparently secondary to the perceived physical injuries and their consequences and in effect a chronic pain syndrome.
122 Dr Ball further noted that the husband's severe illness and inability to work was an additional stressor for her. Dr Ball further noted that the Plaintiff had received a lot of treatment for her physical complaints as well as psychiatric/psychological treatment all of which had varying effects over time.
Currently at least when she saw me, she was in a distressed and agitated state with some apparent difficulties in clarifying her history. No formal report has been received from Dr Sacks. This would have been helpful…[39]
[39] DCB 112
123 Dr Ball recommended that she continue to attend Dr Lim and Dr Sacks and treatment with psychotherapy and pharmacotherapy and also pain management.
124 Dr Tony Kostos Rheumatologist assessed the Plaintiff at the request of the Defendant on 2 December 2009. Upon presentation the Plaintiff complained of generalised pain throughout her entire body. She also continues to have problems with arthritis in her knees and has now developed similar problems in her feet. She suffers pain every night especially in her neck and during the day the pain is aggravated by any activity.
125 Upon examination Dr Kostos noted [in part] that neck movements were markedly restricted with pain in all directions and there was diffuse midline cervical and bilateral paravertebral tenderness to light touch. Movements were markedly restricted with pain in all directions. Neurologically there was collapsing weakness in all four limbs.
126 Dr Kostos concluded that the Plaintiff appeared to have suffered from…
minimally displaced transverse process fractures on the right side of L3 and L4
with extensive bruising and swelling [at the time of the accident]…
She has also been diagnosed with osteo arthritis of the right knee which is
unrelated to her motor vehicle accident.
However it is apparent that her main problem is a chronic pain syndrome and
has been so for years… Her prognosis is extremely poor
the injuries noted at the time were consistent with the accident but I doubt
whether there is any ongoing physical injury at the present time
… It is clear that there are a number of discrepancies and inconsistencies on physical examination. For example, the lack of power she demonstrated in her legs would make it impossible for her to stand-something which she is obviously capable of doing. I therefore believe her physical findings have been embellished to a significant degree. In my view nonphysical factors are the main issue for this woman at the moment and would explain her presentation…[40]
[40] DCB 99-100
Video surveillance
127 I note from the Defendant’s court book that covert video surveillance of the Plaintiff was taken although none was played or tendered during the hearing. Accordingly I infer that none of the surveillance taken by the Defendant was inconsistent with the evidence of the Plaintiff.
Applicable Law
128 Section 93(1) of the Act provides that a person shall not recover damages in any proceedings in respect of injury or death as a result of a transport accident except as provided by the section. Specifically, where the degree of impairment is not deemed or otherwise accepted by the Commission to be a serious injury, then a person may apply to this Court; and the Court must not give leave to bring the proceedings unless satisfied that the injury suffered was a serious injury.[41]
[41] subsection 93(6)
129 In the first instance the Plaintiff must prove that the injury is a compensable injury or derives from a compensable injury. In this case, the Plaintiff contends that she suffered compensable physical injury in the transport accident, although it is conceded that such injury does not now satisfy the definition of serious injury for the purpose of paragraph (a). Rather it is contended that as a consequence of her physical injuries she developed a severe long-term mental or severe long-term behavioural disturbance or disorder within paragraph (c) of that definition. Accordingly the mental disorder is not alleged as a primary injury.
130 This application is to be determined on the evidence before the Court, to which I will refer, by applying the above statutory definition to that evidence.
131 It is appropriate to briefly refer to certain authorities dealing with the following issues:
• The meaning of “severe”; • The relevance of consequences; • The relevance of work capacity and inability to earn income; and •
The question of causation in the context of a compensable physical injury and consequent mental disorder.
Meaning attributed to “severe” injury under paragraph (c)
132 The burden of proof is on the Plaintiff to satisfy me that the injury complained of is severe.[42]
[42] see Humphries v Poliak [1992] 2 VR 129 p.l40
133 In Humphries v Poljak Crockett and Southwell JJ said:[43]
[43] [1992] 2 VR 129 p.138
We consider ... that correctly construed sub-s.17(c) means severe long-term mental disturbance (or disorder) or severe long-term behavioural disturbance (or disorder).
134 In Turner v Love[44] which also dealt with an application under sub-s. (c ) of the Transport Accident Act 1986 the Court of Appeal explored the meaning of a mental disturbance or disorder under paragraph (c) noting that the terms "mental breakdown", "mental deficiency", "mental derangement", mental disease" and "mental disorder" are:
[44] (1995) 21 MVR 314
…general terms indicating temporary or permanent impairments of the mind ...
which usually need special care."
135 The Court concluded that subparagraph (c) uses the term ''mental disturbance" or "disorder", "to the general effect described in the Oxford
English Dictionary."
A disturbance or disorder requiring repeated consultations and administration of psychotherapeutic drugs over a protracted period and at high dosages would seem readily enough to fit the description of one requiring ‘special care’.”[45]
[45] @ 325
136 In Mobilio v Balliotis[46] Brooking JA, when considering the meaning of “severe”, chose not to adopt the description giving by McGarvie J. in his dissenting judgment in Humphries v Poliak, namely that "severe" means "grievous" or "extreme".[47] Instead His Honour said that:
[46] [1998] 3 VR 833
[47] @ 159
Without suggesting the use of any particular adjective to mark the distinction, I would say that severe is used in the definition as a stronger word than 'serious'.[48]
[48] @ 846; see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.
137 Winneke P agreed with Brooking JA when he said:
the word "severe" where used in para. (c)… is a word of stronger force than the
word serious when it used in paras (a) and (b)…[49]
[49] @ 834-835;
138 Furthermore, Brooking J expressly rejected the finding in Turner v Love[50] that the same meaning should for practical purposes be given to the two words "serious" and "severe"[51]
[50] (1995) 21 MVR 314
[51] @ 846
139 I must assess the severity of the Plaintiff’s condition by comparison with a range of similar cases. The assessment is necessarily imprecise, but some assistance is offered in Mobilio’s case:[52]
[52] @ 140-141
To be serious the consequences of the injury must be serious to the particular applicant…In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious the question to be asked is ; can the injury when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least “very considerable’ and certainly more than “significant “ or “ marked”
140 I must make this assessment as at the date of this hearing. Hence a condition which may in the past have been properly described as severe, but has since become significantly better, cannot be relied upon to satisfy this test. In my view, as further explained below, the Plaintiff’s case falls into this category.
Consequences
141 The statutory definition requires that the degree of seriousness of an impairment be judged:
a)
By its consequences to the Plaintiff (subjective). This requires an examination of the Plaintiff's before and after position - an internal evaluation; and
b)
By comparison with other cases in the range of possible impairment or losses (objective)[53]. This necessitates a comparison of the identified impairments with other cases in the range of possible impairments or losses - an external evaluation.
[53] Humphries at 140
142 In Turner v Love, Ashley and Hedigan JJ rejected the argument of Counsel that sub-s.(c) addresses only the severity of the disturbance or disorder itself not the consequences of the disorder:[54]
[54] @ 323
"... it matters not whether attention be paid to the severity of the underlying disturbance or disorder or to its consequences for the Plaintiff, for the extent of the condition is in our opinion accurately reflected by its consequences for the Plaintiff ."
143 Furthermore, consideration of the severity of a mental condition or disorder should not be restricted to an examination of the symptoms of the condition but should include an examination of all consequences.:
In our opinion, for the purposes of s.93(17)(c), the consequences of psychiatric injury for an injured person should not be confined to symptoms which it directly produces. Those consequences should include the need for treatment, its type and frequency, and any past or future potential side effects it might have.
So, it might be that treatment would in some cases be the principal long-term consequence of psychiatric injury, thus a patient with a depressive illness might be symptomatically well provided that he or she regularly underwent a course of electroconvulsive therapy which caused memory loss; or the patient might be free of symptoms of a depressive illness but subject to symptoms and disabilities which were side effects of medication used to relieve symptoms of the psychiatric condition.55
144 It is the impairment and not the injury which is assessed as being serious[56] as at the date of the application.[57] In consequence, the medical evidence and the lay evidence must satisfy the Court, as at the date of the hearing of the Plaintiff's impairment to the requisite extent.
[56] Humphries and Anor v Poljak [1992] 2 VR 129 @ 143
[57] Belcher v Wolfenden (unreported - Court of Appeal 24 April 1996)
145 In summary:
a)
I am required by the authorities to regard the word “severe” as a stronger word than “serious”;
b)
I must look at the consequences of the disturbance or disorder for the Plaintiff as well as the severity of the disturbance or disorder itself in weighing up whether the disturbance or disorder falls within the description of severe; and
c)
I am entitled to look at the consequences to the Plaintiff as a whole and should not separately assess each consequence as severe or not severe in coming to my determination. It is the aggregate consequences to the Plaintiff which are to be assessed under paragraph (c).
146 My determination must be objectively made. It is my opinion as to the severity of the disturbance or disorder, not that of the Plaintiff or her medical practitioners, which is decisive.[58]
[58] @ p.137
Work Capacity and Inability to Earn Income
147 In Cropp v TAC[59] Ormiston J.A. addressed how loss of income earning capacity is relevant to a determination of serious injury for the purpose of the Transport Accident Act 1986:
[59] 1998 3 VR 357 at 360-361
Inability to earn any income almost invariably will, and an inability to earn one's former income will more often than not, have an effect of characterising an impairment or loss as serious. It does not follow, however, that one must be able to predict with a reasonable degree of certainty the inability of the applicant to earn an income into the indefinite future. If it has prevented the applicant from earning an income for a number of years and if that applicant requires retraining in circumstances where it is uncertain whether that applicant will successfully re-enter the workforce, then the impairment or loss may, depending on the circumstances, be characterised as serious, without the necessity of showing that the inability to earn an income is itself long-term. The impairment or loss must be long-term, i.e. at least extending beyond a few years, but the consequences may be serious and thus the impairments or loss serious without it having to be shown that the particular consequences as to inability to earn income also continue into the indefinite future. Of course, in many cases it will be easier to describe the consequences as serious if it is clear that those consequences include a loss of earning capacity or an inability to earn more than a minimal income, which is also long-term. So loss of income for four years may not result in a characterisation of the impairment or loss as serious if it is reasonably clear that the applicant will return to a former occupation within 12 months or so. But if there is total loss of income for a period of three or more years and if there is no real probability that the applicant will return to the occupation formerly pursued then, depending upon the totality of the circumstances including other effects upon the applicant's quality of life, the impairment or loss may be characterised as serious, although there is no proof that an inability to earn income or similar income will continue on for many years after the making of the application. In other words it is sufficient if the impairment or loss is proven to be long-term without the necessity of the applicant proving that one of the consequences, namely loss of income earning capacity, will also be long-term. As I have said, the latter may help to establish proof of seriousness but that may also be established without proof that each of the consequences is long-term. In each case the question is whether the impairment or loss is “serious” within the meaning of the section.
148 In Maloney v Mulling[60], the Court of Appeal considered the relevance of likely future interference with work capacity:
[60] [1994] 1 VR 436 at 442
If upon the evidence it could be concluded that the applicant in the long-term would probably suffer considerable difficulty with his back and left leg so as to interfere with his working capacity, then a finding of ‘serious injury’ could well be made.”
Causation
149 It is appropriate to refer to a further authority relied upon by Plaintiff’s Counsel who sought to draw comparison with the circumstances in this case. In Veljanovska v Socobell OEM Pty Ltd[61] Ashley J.A. examined the issue of causation between a compensable physical injury and a claimed consequential disorder for the purpose of paragraph (c):
[61] [2005] VSCA 227 @ para 38-42
The final question which must be decided is whether the judge was compelled to conclude that a paragraph (c) disorder had been sufficiently caused by compensable physical injury.
Once accept that the appellant sustained, at the outset, compensable physical injury affecting her arms, shoulders and neck, that the appellant was suffering at the time of the hearing below from chronic pain syndrome affecting those areas, and that chronic pain syndrome is a paragraph (c) disorder, it would be difficult not to discern in that sequence the probability of sufficient causal linkage between the initial injury and the later psychiatric syndrome. But apart from that sequence of events, amongst the many doctors whose reports were before the judge, each of Dr El-Khoury, Mr Rustomjee, Mr Karna, Dr Stern, Professor Davis, Dr Lee and Dr Blombery (in date order) diagnosed the appellant as suffering from a chronic pain syndrome[62] affecting her arms, shoulders and neck. Each of those doctors save Drs Lee and Blombery opined that the syndrome was psychologically based. Dr El-Khoury, Mr Karna, Professor Davis and Dr Stern postulated a link between initial physical injury[63] and chronic pain syndrome. So did Dr Blombery – although, as I have said, he treated the syndrome as having an organic explanation. Only Mr Rustomjee made no reference to the interposition of compensable physical injury between employment and the development of chronic pain syndrome.[64]
[62] Or a variant description implying a like disorder.
[63] In the case of Mr Karna and Professor Davis, assuming its occurrence.
[64] Dr Lee offered no opinion on the causation issue.
In my opinion, in the state of the material thus described, the judge was obliged to be satisfied that the appellant had established a sufficient causal linkage between initial compensable physical injury and chronic pain disorder, the latter meeting the criteria of paragraph (c). A possible variant finding concerning chronic pain syndrome would have been no better for the respondent. Were it concluded that the syndrome had a physical explanation, the condition, no doubt serious, would fall within paragraph (a) rather than paragraph (c).
Her Honour may also have found that the appellant had established the presence of a depressive/adjustment disorder. That would be the logical development of her Honour’s reference to the opinions of Drs Datta[65] and Shaw and her closely following conclusion that the appellant was probably suffering from a (non compensable) paragraph (c) disorder. But whether or not her Honour found that the Plaintiff had established the presence of a depressive/adjustment disorder fitting paragraph (c), the evidence was overwhelming that such a condition was present in that degree.
[65] To whose later and different opinion the judge did not advert.
Having regard to my conclusion that the judge was obliged to be satisfied that the appellant had established the presence of a compensable chronic pain syndrome which satisfied the criteria of paragraph (c), it is unnecessary to consider whether the judge was obliged to be satisfied that the appellant’s depressive or adjustment disorder was sufficiently linked with compensable physical injury. My provisional opinion is that the judge was not so compelled.
150 I must be satisfied on the balance of probabilities that the disturbance or disorder from which I may find the Plaintiff to be presently suffering was caused as a consequence of physical injuries sustained in the transport accident.
151 Once satisfied as to the issue of causation, I must then be satisfied that the disturbance or disorder should properly be described as severe.
152 With these principles uppermost in mind I now turn to the evidence.
Analysis and Findings
153 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents.
154 As commonly occurs in cases such as these the Plaintiff has been subjected to examination by a great number of doctors over a prolonged period. I have no reason to believe that any of the reporting doctors have been other than thorough in their clinical examination and objective in their assessment. Nevertheless, there are significant differences in their interpretation of radiological findings; their clinical assessment of the Plaintiff; their conclusions as to her current physical and mental impairment and their assessment of work capacity.
155 Regretfully, certain medical reports of treating specialists were not available at the time of the hearing. Copies of these reports, which are contained in the tendered clinical notes of the Plaintiff’s General Practitioner, were subsequently provided by the Plaintiff’s solicitors. The Defendant subsequently advised by email to my Associate dated 15 June 2011:
The additional subpoenaed notes have now been inspected. The defendant has
no further issues to raise.
156 Importantly, the General Practitioner’s clinical notes contain further reports of certain treating doctors, which together with other tendered reports have assisted me greatly in forming a view about the nature of the Plaintiff's physical and psychological condition.
157 There is also an apparent difference of opinion between certain experts, which I will come to shortly. In the end I prefer the opinions of those treating and medico-legal doctors whose expertise I accept to be most relevant to interpret and explain the Plaintiff's initial injuries and their likely progression.
158 Before dealing with the nature of the Plaintiff’s claimed disturbance or disorder and its consequences I make the following preliminary observations:
a)
Defendant's Counsel submitted that no doctor has recorded any history of the son’s offending or its effect upon the Plaintiff where his criminal behaviour and sanctions increased between 2003 and 2010. Accordingly, the reporting psychiatrists made an assessment of the Plaintiff's psychological state without knowledge of a significant stressful factor in her life. Furthermore, Counsel submitted that the illness of the Plaintiff's husband and his inability to work has been a significant stressor upon the Plaintiff. I agree that each of these would naturally weigh heavily upon the Plaintiff. However, I note the evidence of the General Practitioner to the effect that she was well aware of both of these circumstances and, consistent with the evidence of the Plaintiff, she did not consider that they materially affected the Plaintiff's mental state. It is not appropriate to speculate otherwise;
b)
In my view the Plaintiff gave her evidence throughout in a clear and concise manner. While there were matters which she could not recall, she was able to clarify questions with Defendant’s Counsel and give more detailed answers where appropriate. The Plaintiff did not appear to suffer any lack of concentration or inability to answer complex questions. To that extent she did not present as being significantly depressed;
c)
In my view it is significant that the Plaintiff chose not to subpoena Dr Sacks, who had evidently been her treating psychiatrist for pain management for some time. Accordingly, I can reasonably infer that his evidence would not have assisted the Plaintiff; and
d)
I prefer the opinions of the psychiatrists to the opinions of the psychologists relevant to a diagnosis of the Plaintiff’s psychological/psychiatric disorder. Whilst I do not discount the opinions of the psychologists, particularly when describing the Plaintiff’s response to counselling, clearly psychiatrists by training and experience have superior training and knowledge in diagnosing and treating psychological/psychiatric conditions.
159 The tendered medical reports primarily address the investigation and treatment of the physical injuries sustained in the transport accident as well as other unrelated pathology. While the Plaintiff has undergone various physical therapies and been prescribed extensive and potent medication for pain relief, she has continued to suffer increasing and widespread debilitating pain which has clearly impacted adversely upon every aspect of her life. In this context therefore, it is appropriate to briefly summarise the treatment received by the Plaintiff, following the transport accident, with particular reference to her mental state:
a)
As part of the Cedar Court Rehabilitation program, she underwent psychological treatment for 4 weeks following which she still had difficulty sleeping due to flashbacks and nightmares;
b)
The Plaintiff states that she became increasingly depressed and anxious with panic attacks;
c)
From December 2004, upon referral by her general practitioner, she received psychological counselling from Ms Kinsey;
d)
From May 2005, she commenced psychiatric treatment with Dr Jones who treated her with Dothiepin (300 milligrams) and Zyprexa (5 milligrams) daily, and later with Avanza in addition to her pain relief medication;
e)
Following relocation to Benalla in June 2005 she experienced increased depression and anxiety with panic attacks;
f)
She reports a significant improvement in her condition by mid-2006 but continuing memory problems;
g) In early October 2006 she also had a relapse of severe depression;
h) Dr Jones continued to treat her until October 2007, when she reported that her depression was in remission; i) Dr Kucminska referred the Plaintiff for assessment and review by Dr Rollinson Neurologist [September 2005]; Dr Lewis Rheumatologist [April 2008]; Dr Brighton-Knight Orthopaedic Surgeon; and Dr Blombery Consultant Physician [April 2009];
j)
In June 2008 she commenced seeing Mr Postlethwaite Psychologist, which did not continue owing to cessation of TAC funding;
k)
In May 2009 she commenced seeing Dr Sacks for psychiatric assessment and treatment. However there is no report or other information available as to the nature of his assessment or ongoing treatment, other than a reference in a report by Dr Lim to Dr Brighton Knight; and
l)
Her current treatment comprises the anti depressant Lovan [in addition to other pain relief medication]
160 The medical opinions have variously proffered the following diagnoses:
a)
Her treating General Practitioner considers that the Plaintiff still suffers major depression, which may fluctuate and that her memory deficit is a major symptom of this;
b)
In April 2004 Dr Palit treating Rehabilitation Physician raised concerns about possible post-traumatic stress disorder;
c)
In December 2004 Ms Kinsey treating Psychologist concluded that the Plaintiff suffered from clinical depression with anxiety symptoms;
d)
In June 2005 Ms Kinsey recommended continuing therapy for the Plaintiff's major depressive disorder with psychotic features;
e)
In May 2006 Dr Jones, treating Psychiatrist, reported to the effect that the Plaintiff's major depression with psychotic features took some time to settle and she now reports an absence of symptoms on her prescribed medication;
f)
By May 2006, having examined the Plaintiff on three occasions altogether, Dr Entwistle noted a marked improvement in the Plaintiff's psychological state and concluded that with treatment and the return of her husband her condition was now almost resolved. He further concluded that the Plaintiff was no longer suffering symptoms of a major depressive illness but he did express some concerns about her memory, noting that the Plaintiff herself considered overall that her memory was improving. Dr Entwistle considered that the Plaintiff was fit to return to work from a psychiatric perspective;
g)
By October 2007 Dr Jones Psychiatrist diagnosed depression in remission and discharged her back to her General Practitioner with a recommendation that she continue her regular medication [Lexapro, Prothiaden and Zyprexa] until things have settled around her;
h)
In April and July 2008 Dr Lewis treating Rheumatologist diagnosed pain patterns more consistent with fibromyalgia and a chronic pain syndrome with no specific injuries referable to the transport accident defined;
i)
In June 2008 Mr Postlethwaite treating Psychologist diagnosed chronic pain disorder associated with both psychological factors and a general medical condition. A secondary diagnosis of major depressive illness
was also appropriate.
j)
In August 2008 Dr Waterson Neurologist noted likely significant psychiatric contribution to her apparent cognitive impairment while still allowing for the possibility of an underlying degree of organic cognitive disturbance which can occur after mild degrees of head injury. He also noted significant problems with depression while also noting some improvement in psychiatric issues;
k)
In September 2008 Dr Thomas Consultant in Rehabilitation and Pain Medicine diagnosed a pain disorder. Investigations did not seem to indicate the aetiology of her pain and her problems did not appear to be degenerative;
l)
In October 2008 Mr King Orthopaedic Surgeon concluded that her persistent and widespread generalised neck, spinal and limb pain was directly referable to the widespread trauma upon her cervical, thoracic and lumbar discs and associated ligamentous structures in the transport accident. Significant organic injuries to the cervical and thoracolumbar region complicated by significant depression and anxiety with psychological overlay, which is partly due to the heavy medication;
m)
In October 2008 Mr Brighton-Knight treating Orthopaedic Surgeon identified quite severe L4/5 spinal canal stenosis and quite clear cut bilateral neuropathic pain with a clear diagnosis of chronic pain syndrome;
n)
By November 2008 Dr Rollinson treating Neurologist confirmed that the Plaintiff had not suffered any significant injury to her central or peripheral nervous system and that her complaints were largely psychosomatic. Radiological abnormalities in the brain and spine were not related to the transport accident;
o) Medicine confirmed to the Plaintiff that she did have reasons for pain that
In February 2009 Dr Lim treating Consultant in Rehabilitation and Pain sensitisation contributing factors;
p)
In February 2009 Dr Blombery treating Consultant Physician diagnosed diffuse fibro myalgic type pain syndrome in the affected areas complicating the motor vehicle accident. Treatment with Amantadine improved pain symptoms;
q)
By September 2009 Dr Lim advised [following examination in conjunction with treating Pain Psychiatrist Dr Sacks] that the Plaintiff’s state of mind had improved and she was much better resourced in regards to chronic pain, its mechanisms and in particular its consequences; and referred her to the Cabrini Hopetoun pain rehabilitation program;
r)
In November 2009 Dr Ball Psychiatrist diagnosed anxiety; and adjustment disorder apparently associated with the perceived physical injuries and a chronic pain syndrome;
s)
In December 2009 Dr Kostos Rheumatologist diagnosed a chronic pain syndrome; doubted whether there was any persisting physical injuries referable to the transport accident; and noted inconsistencies and nonphysical factors in her presentation;
t)
By March 2011, having examined the Plaintiff on three occasions altogether, Dr Epstein Psychiatrist noted that the Plaintiff appeared depressed and anxious, still had some problems with her memory but there was no evidence of disorder, delusions or hallucinations. Despite complaints of widespread pain, investigations had failed to demonstrate any pathology to explain the pain. Dr Epstein diagnosed a chronic pain disorder with both psychological factors and a general medical condition; with mild symptoms of post traumatic stress disorder; panic attacks and some agoraphobia. Dr Epstein also diagnosed a chronic adjustment disorder with depressed mood. He did not consider that she had any current work capacity.
What is the nature of the mental disturbance (or disorder) or behavioural disturbance (or disorder)?
161 Overall the evidence in this case has been most difficult and perplexing to assess. Most of the medical opinions deal with a plethora of complaints encompassing debilitating pain and restricted movement. Some doctors have clearly correlated certain physical injuries to the transport accident. Other doctors have found no evidence of residual physical injuries referrable to such accident. In addition there is other physical pathology, including degenerative disease which is clearly unrelated to the transport accident,[66] although there is no consensus as to the precise nature and extent of such pathology . This latter category encompasses right knee and right shoulder pain and some brain abnormalities demonstrated by the MRI.
[66] Dr Feletar refers to painful swollen right knee; diffuse musculoskeletal pain and fibro myalgia and possible plantar fasciitis
162 In addition, some reports referred to a combination of factors impacting upon the Plaintiff’s presentation, including emotional, psychological and and/or non organic/psychological factors contributing to the Plaintiff’s presentation. Some doctors could not verify the Plaintiff’s pain by reference to diagnostic investigations and clinical examination. Significantly there also appears to be a divergence of opinion in the conclusions reached by the Neurologists and Rheumatologist [Waterson, Rollinson and Kostos] on the one hand and Orthopaedic Surgeons [Brighton-Knight and King] and treating Consultant in Rehabilitation and Pain Medicine [Dr Lim] on the other.
163 However, the treating Orthopaedic Surgeon and treating Consultant in Rehabilitation and Pain Medicine readily correlated the Plaintiff’s pain to injuries sustained in the transport accident as well as unrelated pathology. The Plaintiff’s medico legal Orthopaedic Surgeon also readily identified significant organic injuries from the transport accident which could account for her complaints of generalised spinal and limb pain since. Some reporting doctors have examined the Plaintiff on one occasion only;[67] and some treating doctors[68] have not examined the Plaintiff for some years. Some opinions proffered also fall outside the specific expertise of the reporting doctor. Accordingly, taking all of these factors into account I give particular weight to the opinions of:
[67] Doctors Waterson, Thomas, King, Ball and Kostos
[68] Doctors Jones, Lewis, Rollinson and Brighton Smith
a)
Mr Brighton-Knight treating Orthopaedic Surgeon and Mr King Orthopaedic Surgeon, whose orthopaedic expertise is particularly relevant to the assessment of physical injuries arising from the transport accident; and
b)
Dr Lim treating Consultant in Rehabilitation and Pain Medicine, who also apparently coordinated with the most recent treating psychiatrist Dr Sacks.
164 I find that the Plaintiff principally suffered multiple soft tissue injuries in the transport accident which precipitated a major depressive illness and possible post traumatic stress disorder characterised by panic attacks and agoraphobia.
165 I accept the specialist opinions to the effect that as a result of the transport accident the Plaintiff sustained significant organic injuries to the cervical and thoraco-lumbar region occasioned by widespread trauma to her cervical, thoracic and lumbar discs and associated ligamentous structures [Mr King]; and severe L4/5 spinal canal stenosis and quite clear cut bilateral neuropathic pain with a clear diagnosis of chronic pain syndrome [Mr Brighton-Knight]; and is now left with a combination of mechanical/myopathic and central sensitisation contributing factors [Dr Lim]. Together with other pathology unrelated to the transport accident, these conditions have been the cause of the Plaintiff’s complaints of chronic debilitating and widespread pain.
166 Accordingly, on the basis of these opinions, I accept that the Plaintiff’s current complaints of widespread pain is principally attributable to organic origins, which includes residual physical injuries from the transport accident.
167 Her current mental state at its highest has been described by Dr Epstein as constituted by mild symptoms of post traumatic stress disorder; panic attacks and some agoraphobia. Dr Epstein also diagnosed a chronic adjustment disorder with depressed mood –essentially consistent with the diagnosis of anxiety; and adjustment disorder made by Dr Ball in November 2009. In my view both of these specialist opinions are largely predicated upon an assessment that the Plaintiff’s complaints of pain were principally not organically derived. As indicated, I accept those specialist opinions which have concluded to the contrary.
168 More significantly, in my view,
a)
By May 2006 Dr Entwistle, who had by then examined the Plaintiff three times, noted
• a marked improvement in the Plaintiff’s psychological state; ƒ her condition was almost resolved with treatment; ƒ she was no longer suffering symptoms of a major depressive illness; ƒ she exhibited a residual memory deficit; and ƒ she was fit to return to work from a psychiatric perspective. b) By October 2007 Dr Jones Psychiatrist diagnosed depression in remission and discharged her back to her General Practitioner with a recommendation that she continue her regular medication [Lexapro, Prothiaden and Zyprexa] until things have settled around her. The Plaintiff subsequently ceased all such medication and is currently maintained on the anti depressant Lovan alone by the General Practitioner without any current psychiatric or psychological counselling; and c) By September 2009 Dr Lim [following examination in conjunction with treating Pain Psychiatrist Dr Sacks] reported improvement in her state of mind. There is no record of any further attendance upon Dr Sacks. Significantly, Dr Lim’s report did not recommend the need for any further psychiatric counselling or specific medication. 169 Significantly in my view, at present and for some years the Plaintiff has received no treatment from a psychiatrist or counselling from a psychologist. Furthermore, in addition to her medication for pain relief, she is prescribed the antidepressant Lovan by her General Practitioner. She is not prescribed any psychotropic medication and since ceasing to attend Dr Sacks there has apparently been no recommendation for continued psychiatric treatment.
170 There is no question that in addition to the debilitating pain arising from physical injuries the Plaintiff also suffers a degree of continuing depression and anxiety. However, contrary to the position which I understand was being put by Plaintiff’s Counsel, I am not persuaded that the chronic pain arises principally as a secondary psychiatric reaction to her physical injuries but rather is a direct manifestation of those physical injuries. On this basis the current case is readily distinguishable from the factual circumstances described in Veljanovska v Socobell. In my view the consequences of the pain and restricted movement associated with the Plaintiff’s physical injuries have overwhelmed the Plaintiff’s life.
Consequences
171 I accept that:
a) Prior to the accident the Plaintiff led an active social life; worked seven days a week in the family’s milk bar business; and attended a gymnasium five days per week; b) Since her accident the Plaintiff has been unable to do any of those things and continues to be prescribed significant medication for pain relief; and c) Since her accident the Plaintiff has become socially reclusive. 172 However, I am not satisfied that these consequences principally or to any substantial degree flow from her mental state as distinct from her chronic debilitating and widespread symptoms of pain.
173 When judged by comparison with other cases in the range of possible disorders the Plaintiff’s condition stands in marked contrast to cases which more clearly fall within the description of severe. For instance, the Plaintiff does not currently:
• Require frequent or even occasional hospitalization, • Suffer psychotic episodes or persistent panic attacks; or • Require psychotropic medication and ongoing psychiatric counselling. 174 While there is no question that the Plaintiff initially suffered a major depressive illness which required extensive psychiatric medication and specialist counselling, that treatment and counselling has now ceased for some time and the Plaintiff is now maintained on one anti depressant medication consistent with the diagnosis of Dr Jones [and the earlier assessment of Dr Entwistle] that the Plaintiff’s depression was in remission.
175 I am satisfied that the Plaintiff continues to suffer a degree of depressive systems, anxiety and occasional panic attacks, which are more likely to be permanent. However I am not satisfied that any persisting behavioural or mental disorder or any consequences there from, can be described as serious to the extent of being severe.
176 I note that, upon each party being given the opportunity to make written submissions as to costs, the solicitors for the Plaintiff filed a written submission dated 28 September 2011 in which they submitted, for reasons given, that the parties should bear their own costs. No response has been received on behalf of the Defendant.
177 In my view there is no reasonable basis for exercising a discretion in this case to order costs on a basis other than in favour of the successful party.
Conclusion
178 I do not find that the Plaintiff suffers a serious injury for the purpose of paragraph (c) as a result of the transport accident.
Orders
179 The Plaintiff’s application for leave to commence common law proceedings is refused.
180 The proceeding be dismissed.
181 After giving the parties the opportunity to make submissions on the question of costs the following orders were made:
182 The Plaintiff pay the Defendant’s costs, including Reserve costs, on County Court Scale D to be taxed in default of agreement;
183 Certify for:
a) Brief fee for two Counsel on County Court Scale D; and
b) The reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial rate to be fixed by the taxing registrar.
Ashley and Hedigan JJ continued (at p.323)
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