Alimov v Transport Accident Commission
[2023] VCC 2150
•27 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02195
| GULIZAR ALIMOV | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2023 | |
DATE OF JUDGMENT: | 27 November 2023 | |
CASE MAY BE CITED AS: | Alimov v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2150 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – left shoulder – pain and suffering – consequences – aggravation
Legislation Cited: Transport Accident Act 1986
Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222; Petkovski v Galletti [1994] 1 VR 436
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr P Bourke | Hall and Wilcox |
HIS HONOUR:
Introduction
1The proceeding before the Court is a serious injury application brought pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”).
2The plaintiff in this proceeding, Ms Gulizar Alimov (“the plaintiff”), was involved in a motor vehicle accident on 24 March 2017, when the vehicle in which she was travelling as a passenger was struck from behind by a vehicle that failed to stop whilst her vehicle was stationary at a red traffic light (“the accident”).
3For this proceeding, there is no dispute that the accident occurred.
4By Amended Particulars of Injury dated 17 October 2023, the plaintiff claimed to have suffered injury in the accident, as follows:
(a) left upper limb;
(b) right upper limb;
(c) left lower limb;
(d) right lower limb;
(e) left hip;
(f) psychiatric condition;
(g) spine (in particular, lumbar spine and cervical spine).
5Of course, for the purposes of establishing a “serious injury”, the plaintiff cannot combine injuries to separate body functions and cannot combine any claim based on a physical injury within the meaning of s92(17)(a) of the Act (namely, a “serious long-term impairment or loss of a body function”), with any claim pursuant to s93(17)(c) of the Act (namely, a “severe long-term mental or severe long-term behaviour disturbance or disorder”).
6Therefore, to paraphrase what is sometimes said about having many points to be made, allowing for the fact that a person can suffer more than one “serious injury” in a transport accident, a claim based on several claimed injuries to several different body functions, might indicate that no single injury or impaired body function is capable in isolation of being described as a “serious injury”.
7Regardless, by the time the trial of this proceeding commenced, the plaintiff had narrowed her focus and disavowed the Amended Particulars of Injury, and relied only on a claimed physical injury to the left shoulder within the meaning of s93(17)(a) of the Act.
8Regarding the claimed left shoulder injury, that was narrowed further at the commencement of the trial to be described as the aggravation of a pre-existing left shoulder condition.
9For completeness, the plaintiff was born in 1947. As hopefully will become clear during a discussion of the evidence, she had a range of pre-existing or unrelated health issues. In this proceeding, she sought the leave of the Court to commence a common law proceeding because of the pain and suffering consequences of the claimed compensable injury to the left shoulder, where she had retired from paid employment sometime before the accident.
10Against that backdrop, the issue for determination in this proceeding involved the identification of any aggravation injury to the left shoulder because of the accident, and whether any such aggravation injury as identified produced a “very considerable” impairment consequence.
11I have considered all of the tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions. I shall refer to the evidence, the transcript, and the submissions, to the extent necessary in these reasons.
The plaintiff’s evidence
12The plaintiff swore three affidavits in support of her application for serious injury.
13Her first affidavit was sworn on 6 December 2022.[1] In that affidavit, she claimed to have suffered a serious injury to her spine, right upper limb, left upper limb, left hip, head, left lower limb and a severe psychiatric condition. She said that “as a result of my injuries, my enjoyment of life has been affected very considerably”.[2]
[1]Plaintiff’s Amended Court Book dated 20 November 2023 (“PCB”) 15.
[2]PCB 15.
14In her first affidavit, relevant to what was described as “other health”, the plaintiff said:
“a.I have previously experienced aches and pains in various parts of my body. For example, I have previously experienced neck, right shoulder, left shoulder and left hip pain.
b.I was diagnosed with lung cancer in 2019, and I required surgery to manage this in February 2019.
c.I am under the care of cardiologist, Dr Grewal after a diagnosis of atrial fibrillation. I require medication to manage my condition.
d.I have high cholesterol, which I manage with medication.
e.I had a fall in May 2021, and I experienced some left knee and ankle pain as a result. This has improved with time.
f.I have osteoporosis.
g.I have previously experienced anxiety and depression in the context of life stressors.”[3]
[3]PCB 16, paragraph [5].
15The plaintiff then set out the circumstances of the accident. She set out a summary of her treatment thereafter and of ongoing consequences. Relevant to consequences, she said that she then experienced the following symptoms:
“a. Ongoing pain in my left shoulder.
b. Ongoing pain in my right shoulder.
c. Ongoing pain in my neck.
d. Ongoing pain in my lower back.
e.Pain in the left-hand side of my body including the left side of my head, hip and leg.
f.Regular headaches.
g.Anxiety and depression.
h.Ongoing stomach pain.
i.Low energy.”[4]
[4]PCB 18, paragraph [11].
16In her first affidavit, the plaintiff said that, “I am most bothered by my neck and left shoulder pain. I find this very limiting”,[5] and that “[a]lthough I experienced some aches and pains prior the accident, everything became much worse and more long lasting, after the accident”.[6]
[5]PCB 18, paragraph [12].
[6]PCB 18, paragraph [13].
17In a further affidavit sworn 2 October 2023,[7] she confirmed the contents of her first affidavit as true and correct. By then, the plaintiff was 76 years of age. In her second affidavit, she set out again her current symptoms, treatment and consequences. Broadly, she said that her symptoms and consequences were either “roughly the same” or “pretty much the same” as when she swore her first affidavit.
[7]PCB 21.
18Then, in a further affidavit sworn 17 November 2023,[8] the plaintiff brought focus to the claim based on the left shoulder. She said:
“I continue to suffer from constant pain in my left shoulder. Before the accident, I had left shoulder pain but it wasn’t constant and it was not as severe as it has been since the accident. Before the accident, I would have rated my pain as 2 out of 10, 10 being the most severe. Since the accident, my left shoulder pain has been an 8 out of 10. For my shoulder pain, every day, I take four tablets of 665 mg of Panadol Osteo. I also take 100 mg Panadeine Forte about every second day. In the six months before the accident, I wasn’t taking Panadol Osteo or Panadeine Forte.”[9]
[8]PCB 30.
[9]Ibid.
19The plaintiff then set out restrictions from the claimed left shoulder injury and discussed those claimed consequences in the context of how she was before the accident as follows:
“3.Since the accident, my left shoulder pain prevents me from vacuuming, moping [sic], cleaning the bathrooms, cleaning the kitchen and gardening. Before the accident, despite my pre-existing health issues, I was able to do these things without restrictions. Since the accident I have been reliant on my son, daughter in law and sister as well as gardener with these tasks.
4.Since the accident, my left shoulder pain makes it difficult for me to wash my hair and I don’t wash my hair as often as I used to. Before the accident, washing my hair didn’t trouble me and I washed my hair regularly. But for my left shoulder pain, I think I could continue washing my hair regularly.
5.Since the accident, I am unable to sleep on my left side because of my left shoulder pain. Before the accident, I could sleep on my left side. Since the accident, the quality of my sleep is much worse and I wake up a lot more due to my left shoulder pain.
6.Since the accident, my left shoulder pain prevents me from lifting a washing basket. Before the accident, I was able to lift a washing basket.
7.Since the accident, my left shoulder pain prevents me from lifting heavy pots and pans. Before the accident, I was able to lift heavy pots and pans when I cooked.
8.Having constant pain in my left shoulder has made me feel extremely depressed. Being restricted in the use of my dominant arm has made feel that I have lost all my independence and have aged prematurely. I had suffered from anxiety before the accident and I have felt depressed at times but prior to the accident, I still had a positive outlook on life. Since the accident, because I have constant pain in my left shoulder, I no longer feel positive. For my depression, I take 10mg of Lexapro before I go to bed. In the six months before the accident, I wasn’t taking Lexapro.”[10]
[10]PCB 31, paragraphs [3]-[8].
The plaintiff’s oral evidence
20As an overview, the plaintiff was an unreliable witness. Allowing for the fact that English is not her first language and that she gave evidence with the assistance of a Macedonian interpreter, she was still an unreliable witness when it came to a description of her life before the accident and of her unrelated health complaints.
21However, I did not form an opinion that she was a dishonest witness. Ultimately, not much turns on the reason why she was unreliable, but the fact is that much of her oral evidence was of little assistance to the resolution of this proceeding. In such a scenario the objective evidence, or gaps in the objective evidence, are important.
22Turning then to her oral evidence, the plaintiff was challenged broadly by counsel for the defendant as to the extent of “aches and pains” she had in various parts of her body before the accident, including the left shoulder. The thrust of her evidence was that she had had some “aches and pains” before the accident, including the left shoulder, but that the left shoulder pain had been much worse since the accident.
23The plaintiff’s evidence that her left shoulder was much worse after the accident must be evaluated in the context of much of her evidence that she simply could not remember events before the accident. For example, when asked by me if she recalled attending a general practitioner (Dr Chandar) in January 2017 and being told she needed a scan of her left shoulder she said: “No, I don’t remember. I don’t remember, I just can’t say. I went a few times there”.[11]
[11] Transcript (“T”) 22, Line (“L”) 8-11.
24Generally, when challenged on the contents of medical records that pre-date the accident, the plaintiff defaulted to say that either she could not remember or that any previous medical problem (including in the left shoulder) was not like it is now.[12]
[12] For example, T 17, L 3-16.
25The defendant raised as an issue the unreliability of the plaintiff not only in the witness box but also in her description in her affidavits of her health before the accident. Perhaps more pointedly, it also raised as an issue the fact that the plaintiff had not provided a proper history of any previous left shoulder problems when seen for medico-legal examinations.
26The critical issue of her failure to provide a proper history to the medico-legal examiners[13] was put to her in cross-examination. It was put directly to her that she had seen many doctors for the purposes of this proceeding, but to those doctors when asked about whether there had been problems with her left shoulder before the accident, she had said “no”. The plaintiff gave a somewhat ambivalent answer, that neatly highlights her overall evidence, when she conceded she may not have mentioned left shoulder pain. Her answer was: “Look, you know, I can’t remember. Maybe I said yes, maybe I said no. I don’t remember. I did have some, you know, pain before. I am not saying no, but worse after”.[14]
[13] See Popal v Transport Accident Commission [2023] VSCA 222 (“Popal”) at [60].
[14] T 27, L 28-31; T 28, L 1-2.
27I shall set out the medical evidence in due course, but there is merit in the submission of the defendant that the plaintiff failed to give an accurate history to any of the medico-legal experts about any left shoulder problems before the accident.
28Indeed, when the medical evidence is analysed, the plaintiff’s case shifted with time from that based on a discrete injury to the left shoulder in the accident, with no previous shoulder problems, to one of an aggravation of pre-existing left shoulder degeneration in the light of the evidence of objective medical records.
29It is well established that where the plaintiff relies upon an “aggravation” injury, then she bears the onus of proof to establish the extent of any additional impairment because of the aggravation, and that such additional impairment produces “very considerable” impairment consequences.[15]
[15]Petkovski v Galletti [1994] 1 VR 436.
30As mentioned, my observation of the plaintiff was that she had not set out to deliberately mislead. She had a long and complex medical history, and it is no surprise that she could not remember all of it. By the same token, her evidence was of little assistance in an assessment or understanding of any problems she may have had before the accident, including symptoms in the left shoulder, and how any unrelated medical condition (including any previous left shoulder problems) may have limited her day-to-day activities.
31I also note the lack of any lay affidavit to attest to observations of the plaintiff’s level of health before and after the accident, in circumstances where her own affidavits identified her son, daughter-in-law and sister as persons providing assistance to her.[16]
[16] Popal at [57] – [58].
The medical evidence
32The medical evidence contained in the clinical records and hospital notes before and after the accident assumed some prominence during cross-examination and during final submission. I will deal first with the relevant evidence from treating practitioners and then move to the relevant medico-legal evidence.
Radiology
33Each party took the Court to the relevant radiology. The defendant relied on the radiology to support its submission that the plaintiff had a demonstrated problem with her left shoulder before the accident. On the other hand, the plaintiff relied on the radiology to show that there was a problem before the accident but that there was radiological support for further injury or aggravation injury after the accident.
34Before the accident, the plaintiff had attended at a medical clinic in Derrimut where her main general practitioner was Dr Naveen Chandar. The plaintiff had presented to Dr Chandar with symptoms in the left shoulder. He arranged for her to undergo an ultrasound of the left shoulder.
35By report dated 6 October 2015, the ultrasound was said to demonstrate a partial thickness supraspinatus tendon tear in the left shoulder, and there was a recommendation for an ultrasound-guided steroid injection, if clinically indicated.[17]
[17]Amended Defendant’s Court Book dated 20 November 2023 (“DCB”) 56-57.
36Next, in the context of symptoms in both shoulders, the plaintiff was referred for bilateral shoulder x-rays. In a report on those x-rays dated 1 September 2016, the radiologist described bilateral AC joint mild to moderate degenerative change.[18]
[18]DCB 60.
37The next radiological investigation of the left shoulder was an ultrasound arranged by Dr Raviraj Kabrawala. An ultrasound of the left shoulder was reported on 18 September 2017, approximately six months after the accident, in which there was a conclusion of a small incomplete full thickness rotator cuff tear of the supraspinatus tendon with background tendinopathy, associated subdeltoid bursitis and impingement. There was also reported focal tenderness at the AC joint in keeping with AC joint arthropathy.[19]
[19]PCB 130.
38The plaintiff’s case was put on the basis that the ultrasound report of 18 September 2017 supported a conclusion that the accident caused an aggravation to the left shoulder because it demonstrated a different or progression of pathology from the earlier ultrasound of 6 October 2015. In an appropriate concession, her counsel conceded that if the Court rejected that contention, then her case would fail.[20]
[20] T 67, L 24.
39Her counsel also appropriately conceded that her reliability could be called into question but submitted that the result of this proceeding could be largely guided by the clinical notes, both pre and post-accident, and that amongst that “crowded prior medical history” one thing stood out, which was that before the accident most of the plaintiff’s complaints had been regarding the right shoulder, and then post-accident the majority of the complaints were regarding the left shoulder.
40In that context, the plaintiff submitted that while the October 2015 radiology showed a partial thickness tear, the radiology makes out that there had been an aggravation, and the ultrasound of 18 September 2017 shows an increase in the size of the supraspinatus tear.[21] It was submitted that there was undeniably a progression in the pathology from pre to post-accident. I shall return to discuss that submission, but before doing so, I shall move on to set out some of the other relevant medical evidence.
[21]T 64, L 2-23.
Dr Naveen Chandar
41Dr Chandar is a general practitioner at Derrimut Medicals in Deer Park. Dr Chandar, and other general practitioners at that clinic, treated the plaintiff for several years before the accident.
42The evidence from Dr Chandar was confined to the clinical records from his clinic. I am conscious that care must be exercised in the use of medical records as evidence where Dr Chandar was not called to give evidence. But nevertheless, I am also entitled to rely on the evidence in Dr Chandar’s notes based on a consideration of the whole of the evidence in this proceeding to make findings both in respect to the reliability of the plaintiff and for necessary factual findings regarding the condition of the plaintiff’s left shoulder before and after the accident.[22]
[22] Popal at [87].
43The plaintiff was cross-examined about the notes from Dr Chandar’s clinic. Relevant to the left shoulder, following an attendance on 29 September 2015, Dr Chandar referred the plaintiff for an ultrasound of the left shoulder. At an attendance on 7 October 2015, Dr Chandar noted the reason for contact as “supraspinatus tendon tear – partial” and anxiety.[23]
[23]DCB 244.
44To skip forward, over the next several years there were numerous attendances on Dr Chandar or other doctors at his clinic for a variety of what might broadly be described as aches and pains, as well as issues to do with the plaintiff’s mental health. At an attendance on 26 May 2016, various health issues were considered, and it was recorded the plaintiff had chronic neck/shoulder/back pain. An injection in the shoulder, which is likely a reference to the right shoulder, was noted as having helped for a while. Under “Reason for contact” there was included supraspinatus tendon tear – partial.[24]
[24]DCB 257.
45Next, on 15 July 2016, Dr Chandar reported that the plaintiff had chronic arthralgia and “she never drives”.[25] At a follow-up attendance on 20 July 2016, a form was apparently completed for the plaintiff to access taxis and Dr Chandar noted “tearful due to multiple joint pains”. There were then ongoing attendances for various health problems, including referral for ultrasound examination of the plaintiff’s pelvis and left hand and ongoing problems with anxiety.
[25]DCB 260.
46Dr Chandar provided a certificate of attendance dated 14 November 2016,[26] which noted the plaintiff attending the clinic and that she had “multiple physical problems [arthritis, shoulder pain, hip pain, sciatica etc] and suffers from anxiety and depression”.
[26]DCB 110.
47Then, on 9 January 2017, the plaintiff was referred for an x-ray of her left hip because of ongoing left hip pain.[27] Next, and relevant to the left shoulder, at an attendance on Dr Chandar on 25 January 2017, after a consultation the doctor noted under a heading of “Actions”, that diagnostic imaging had been requested by way of an ultrasound of the left shoulder (previous tendon tear and bursitis).[28]
[27]DCB 267.
[28]DCB 268.
48It is unclear from Dr Chandar’s note of the attendance on 25 January 2017 why he felt it was necessary to arrange a further ultrasound of the plaintiff’s left shoulder. It appears that the plaintiff did not have that ultrasound. She was then involved in the accident on 24 March 2017.
49The plaintiff submitted that the evidence from Dr Chandar’s clinical records supported her claim because of the increased complaints of left shoulder problems after the accident. However, there is a difficulty in that submission because it requires me to ignore the fact that the plaintiff was recommended by Dr Chandar to undergo another left shoulder ultrasound on 25 January 2017. Of course, I cannot speculate, but the objective evidence is that on 25 January 2017 the doctor considered the plaintiff required further investigation of her left shoulder.
50At this juncture, the unreliability of the plaintiff again becomes important. She gave no useful evidence as to why Dr Chandar recommended an ultrasound at the attendance on 25 January 2017. It is a gap in the evidence that works against the plaintiff where she has the overall burden of proof to establish a “serious injury”.
51The clinical records from Dr Chandar should also be considered in the context of the treatment that the plaintiff was having in the several years before the accident and of referrals made by Dr Chandar.
52Dr Chandar had provided a general practitioner referral to the Western Hospital on 7 October 2015. That referral noted chronic right shoulder pain and an ultrasound as demonstrating subacromial bursitis for which the plaintiff had already had an injection. He recorded a partial tear of the supraspinatus tendon causing her discomfort and pain. Attached to that referral was the report of the left shoulder ultrasound performed 6 October 2015.[29] It is therefore unclear if the referral was for treatment for the right shoulder, left shoulder, or both.
[29]DCB 78-80.
53By early 2016, on referral from Dr Chandar’s clinic, the plaintiff was undergoing osteopathic treatment with Dr Arantxa Rodriguez for a problem in the cervical spine.[30]
[30]DCB 81.
54
Dr Chandar then prepared a comprehensive medical assessment of the plaintiff dated 3 March 2016.[31] That recorded multiple problems/arthritis/tendinitis/
metabolic disease and waiting for specialist review in hospital. Dr Chandar noted arthritis of knee/hip/bursitis of shoulder.[32]
[31]DCB 82.
[32]DCB 83.
55
Next, on 15 July 2016, Dr Chandar provided a letter stating the plaintiff was his regular patient and that she had “chronic arthralgia/shoulder pain/
depression/stress and is on medication. She was advised to refrain from driving due to poor mobility”.[33]
[33]DCB 85.
56By 1 September 2016, the plaintiff was being treated for a community-based rehabilitation program at Western Health.[34] The Western Health progress notes record that on 8 December 2016, the plaintiff was complaining of severe pain over her whole body, worse in left anterior hip and lower back. She had a range of complaints.[35] She was assessed as part of that community-based rehabilitation program on 1 December 2016, with bilateral wasting of the shoulders and bilateral shoulder pain. The left shoulder was described as having come on insidiously over the last one year.
[34]DCB 87.
[35]DCB 88.
57In a diagram contained in the clinical record of the Western Hospital dated 1 September 2016, a physiotherapist recorded the left shoulder pain as 2/10 and right shoulder pain as 10/10. But exactly what is meant by those ratings is unclear based on a notation further in the clinical record.[36] It is unclear whether the record of pain was a base level assessment, or was based on active or passive examination, or whether the same method of assessment was used for each shoulder.
[36]DCB 102.
58In any event, the plaintiff was discharged from that program on 17 February 2017. The discharge summary was addressed to Dr Chandar and recorded chronic bilateral shoulder pain.
59The plaintiff gave no useful oral evidence of her left shoulder symptoms before the accident. Her description in her affidavit of left shoulder pain as 2/10 before the accident is, on probability, reconstructed based on the Western Hospital physiotherapy note. When all of the evidence from Western Health is examined, the plaintiff complained of chronic bilateral shoulder pain and, on clinical examination, had significantly restricted movement in both shoulders. I conclude that it is probable that, because of the symptoms at that time and the lack of response from the community rehabilitation program, Dr Chandar arranged for the further ultrasound of the plaintiff’s left shoulder on 25 January 2017.
60There is no way around the lack of any comprehensive report from Dr Chandar or, indeed, from Western Health. Instead, the Court is asked to draw positive inferences and to accede to submissions on her behalf based on the clinical records. But, leaving to one side the care that should be exercised in a consideration of the clinical records, there are two problems with that request.
61First, the clinical records themselves do not support a conclusion that the plaintiff did not have much wrong with her left shoulder before the accident. In fact, such evidence as is available supports the opposite conclusion.
62Second, the lack of a medical report from Dr Chandar does not assist the plaintiff for her submission that there was not much wrong with her left shoulder before the accident. In fact, Dr Chandar’s notes, in conjunction with the other medical evidence, including the records from Western Health, supports the opposite conclusion, namely that the plaintiff’s left shoulder was troubling her to the extent that she required referral for further radiology on 25 January 2017.
63Seen in that context, it may well be that the further attendances on Dr Chandar after the accident in fact relate to the condition for which she presented on 25 January 2017 and for which he wanted to arrange a further ultrasound. Obviously, there is no report from him to say one way or the other.
64Particularly in an aggravation case, it is necessary to be able to draw reliable conclusions as to the state of the plaintiff’s left shoulder before the accident, to consider what, if any, additional injury and impairment has been caused by the accident. In this proceeding, there is simply a lack of any reliable evidence regarding the plaintiff’s left shoulder before the accident, to draw a reliable conclusion as to her base level of unrelated impairment consequences from the pre-existing injury. Where there is no base to work from, it is impossible to determine the extent of any aggravation.
65In other words, it is not enough to establish a compensable aggravation injury to the left shoulder. The plaintiff still had to prove the extent of any additional impairment consequences from any identified compensable injury, which she has not done.
66That is sufficient to dispose of the proceeding but, for completeness, I shall discuss the relevant medico-legal evidence.
The medico-legal evidence
67The medico-legal evidence relied on by the plaintiff was contained in reports from Dr Jennifer Flynn, orthopaedic surgeon, and Dr Nathan Donovan, orthopaedic surgeon.
Dr Jennifer Flynn
68Dr Flynn assessed the plaintiff at the request of the parties on 20 March 2019 and provided a report dated 18 April 2019.[37] At that consultation, Dr Flynn obtained a history of the plaintiff having left groin pain with difficulty weightbearing and pain radiating towards the anterior aspect of the leg and knee. The plaintiff also described left shoulder pain, left neck pain and headache, as well as pain of the lateral arm.[38]
[37]PCB 106.
[38]PCB 108-109.
69Under a heading of “Other Medical History”, Dr Flynn recorded that “Ms Alimov advised that she suffered from lower back pain some years ago”.[39]
[39]PCB 109.
70Dr Flynn then went on to record her examination findings and to provide an impairment assessment. Under the heading of “Summary and assessment”, she described the plaintiff as a woman “with a history of left shoulder, neck and left groin pain after a transport accident on 25 March 2017”.[40]
[40]PCB 112.
71Dr Flynn then provided a further report to the parties on 7 October 2020, after reviewing the plaintiff on 30 September 2020.[41] She took a history of the progress since her previous examination and again conducted a physical examination. She then diagnosed a left supraspinatus tear and bursitis, left shoulder girdle and periscapular pain, exacerbation of cervical spondylosis and left hip pain as a result of an exacerbation of left hip degenerative change.[42]
[41]PCB 119.
[42]PCB 121.
72Dr Flynn went on to describe that the diagnosed injuries are consistent with the stated cause and the mechanism of injury.[43]
[43]PCB 123.
73Dr Flynn then provided a third report to the parties on 23 August 2022, after she was asked to consider clinical records from Watergardens Medical, Derrimut Medical and Western Hospital. Having done so, she then listed the injuries as aggravation of left shoulder pain: arthritis, bursitis, supraspinatus tear; and aggravation of cervical spondylosis.[44] She also said the left hip condition appeared to have a more complex history than was initially presented.[45]
[44]PCB 127.
[45]Ibid.
74In her third report, Dr Flynn said the plaintiff’s:
“left shoulder condition appears to have been aggravated to a significant degree, with 2/10 pain documented prior to the accident. I consider the transport aggravation of the cervical spine to also be significant.”[46]
[46]Ibid.
75But, obviously, Dr Flynn relied on the evidence in the documents provided to her for the conclusion that the plaintiff’s condition was aggravated to a significant degree, where she did not obtain any such history in her two consultations with the plaintiff. Regardless, Dr Flynn’s third report is of limited assistance in a consideration of what additional impairment consequences were caused by the accident, even if it aggravated the underlying condition of the left shoulder to a significant degree. Dr Flynn’s opinion is further diluted for an assessment of “serious injury” at the present time as her last attendance on the plaintiff was based on an examination on 30 September 2020.
Dr Nathan Donovan
76Dr Donovan is an orthopaedic surgeon who has examined the plaintiff and provided reports at the request of her solicitors.
77The first of Dr Donovan’s reports is dated 24 February 2023.[47] He obtained a mechanism of the accident, the injury sustained and the plaintiff’s subsequent treatment and current status. Under “Medical History”, he recorded lung cancer, reflux esophagitis, high cholesterol and hypertension. He said that the plaintiff “denies any pre-existing head, face, neck or shoulder problems prior to the accident”.[48]
[47]PCB 48.
[48]PCB 51.
78Having conducted an examination and reviewed the radiology then available to him, Dr Donovan diagnosed an exacerbation of cervical spine spondylosis with radicular features, exacerbation of lumbar spine spondylosis and left shoulder rotator cuff tear, and associated bursitis (namely, supraspinatus and partial subscapularis tearing).[49]
[49]PCB 53.
79He went on to describe the prognosis and need for treatment.
80Dr Donovan then re-examined the plaintiff and provided a second report on 4 August 2023.[50] On that occasion, he was provided with various medical reports, radiology and clinical records. He then recorded relevant matters of history, the plaintiff’s current situation, and again conducted an examination. Under the heading of “Medical History”, he noted the conditions identified in his previous report, as well as anxiety and depression, that the plaintiff was under the care of a cardiologist for atrial fibrillation and of left knee and ankle pain in May 2021, in response to a fall which improved with time.
[50]PCB 58.
81Pausing, at the second attendance and notwithstanding the clinical records that were provided to him, Dr Donovan failed to detect or elicit a history of left shoulder problems. He also was seemingly unaware of the ultrasound of the left shoulder from October 2015, as he did not discuss it in his report. In any event, he went on to diagnose exacerbation of cervical spine spondylosis with radicular features, exacerbation of lumbar spine spondylosis, left shoulder rotator cuff tear and associated bursitis (namely, supraspinatus and partial subscapularis tearing), and left arm function impairment secondary to severe left shoulder pain and stiffness.
82Dr Donovan was then asked to provide a supplementary report, which he did by report dated 14 November 2023.[51] On that occasion, he was provided with further clinical records and other material, including a report from an orthopaedic surgeon relied on by the defendant, being Dr Terence Saxby. Having considered that material, Dr Donovan said:
[51]PCB 69.
“I note from GP and Dr Saxby’s documentation, Ms Alimov has had imaging in 2015, predating her 2017 injury, to suggest left shoulder partial thickness supraspinatus tear and subacromial bursitis. I also note however, regarding the rotator cuff, specifically the infraspinatus and subscapularis tendons were intact.
A partial thickness tear would not be uncommon finding in age matched individuals, given Ms Alimov’s age of 68 at the time of initial ultrasound. These aged-matched peers do not, as normal progression of disease, go on to globally restrict movement and disuse of the arm.
Rotator cuff tear progression of supraspinatus may be associated with reduced abduction and increased pain but not global restriction in movement. It is not the accepted norm nor is it the natural history of the disease, that these patients go on to have no functional movement in the shoulder or use of the limb as the norm.
Typically, progression of cuff disease leads to increasing pain requiring symptomatic relief by means of injections or surgery to undertake cuff repair.
Even in patients with far more severe cuff pathology, near complete loss of shoulder function and subsequent disuse of a limb would never be seen as normal or anticipated.
Where major cuff tear leads to arthropathy with migration of the humeral head and eventual need for reverse total shoulder replacement, patients can still have some function of the shoulder and use of the arm and this improves post-surgery.
In addition, the loss of movement evident on examination of Ms Alimov by myself and Dr Saxby, that of globally restricted left shoulder range of movement and generalised disuse of the left arm , would not be solely attributable to rotator cuff tear progression and cannot be ascribed as such, despite Dr Saxby’s inference. I note in 2018 when MRI of the left shoulder was performed, the previously intact subscapularis tendon was torn (new compared with the 2015 ultrasound) and the partial thickness subscapularis was now a near-full thickness tear.
Rather than the slow age-associated progression of an isolated single rotator cuff muscle, Ms Alimov’s disuse of the left shoulder and arm associated with severe pain and restriction in movement is far more likely to be i) acute, traumatically induced exacerbation of her underlying pathology, ii) nerve pain related from aggravation of cervical spine pathology or iii) that of post traumatic frozen shoulder.
Prior to the accident, Ms Alimov may have reported pain in 2015, however the global restriction in use and increase in pain, is inconsistent with age related decline of a solitary rotator cuff muscle (JBJS Rev. 2019 Jun; 7(6): e9).
With regards to my views, the diagnosis of rotator cuff tear in my initial reports shoulder be amended to be;
• Aggravation of Existing Left shoulder rotator cuff tear, with supraspinatus disease progression and new subscapularis tear.
• Suspect frozen shoulder.
• Referred pain from cervical spine.”[52]
[52]PCB 70.
83As is obvious, in his supplementary report of 14 November 2023, Dr Donovan moved from an initial diagnosis of injury to the left shoulder, to one of aggravation of existing left shoulder rotator cuff tear, with supraspinatus disease progression and a new subscapularis tear. As is also obvious, he explained how his opinion differed from that of Dr Saxby.
84The plaintiff placed emphasis on Dr Donovan’s third report and urged the Court to accept it over the opinions from Dr Saxby. On the other hand, counsel for the defendant urged the Court to accept the opinion from Dr Saxby, in effect, because he did not require prompting, and when he examined the plaintiff, he went behind the history.[53]
[53]T 50, L 15-27.
85I shall turn in a moment to Dr Saxby’s opinion, but it is important to bear in mind that, even if Dr Donovan was correct and the radiology demonstrated an aggravation injury (or injury) that was causally related to the accident, it is trite to note that a radiologically proven injury does not necessarily equate to proof of “very considerable” consequences. It is still necessary to consider what additional impairment consequences had been caused by the accident.
86At the risk of repetition, where the plaintiff is unreliable and there is no useful objective evidence to determine her level of pre-accident function, to some extent the debate between Dr Donovan and Dr Saxby is of academic interest only.
87In other words, even if I were to accept the opinion of Dr Donovan, in my view, the result of this proceeding remains the same. Dr Donovan’s third report supported the identification of an aggravation injury (or perhaps even a new injury to the subscapularis tendon) but, in circumstances where he obtained no reliable history of any pre-accident injury or impairment consequences directly from the plaintiff, it is perhaps not surprising that he made no useful comments in his third report about any additional impairment, perhaps except for his comment regarding “the global restriction in use and increasing pain”[54] after the accident. Overall, his third report is of little assistance in a consideration of whether the plaintiff had suffered a “very considerable” pain and suffering consequence.
[54]PCB 70.
Dr Terence Saxby
88Dr Saxby is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 21 August 2023.[55]
[55]DCB 39.
89Because of the conclusions I have already expressed, there is no need to dwell on Dr Saxby’s opinions, but for completeness and because of the emphasis the defendant put on his opinions, they do warrant some discussion.
90In his first report, Dr Saxby was given the relevant documentary evidence. He then obtained a history from the plaintiff, considered diagnostic investigations, including the ultrasound of the left shoulder dated 6 October 2015, and then conducted a clinical examination.
91Consistent with the submissions of the defendant, Dr Saxby, under “Past History”, set out the following:
“Her history is significant for carcinoma of the lung requiring surgery in February 2019. She has gastrointestinal problems and previously had dyspepsia and has undergone colonoscopy. She denies any prior problems with her neck. She states that she did have hip problems and I note the CT scan from 2015. She suffers from atrial fibrillation. She also has a history of bilateral shoulder pain. When I asked about this, she was somewhat unclear about it but I note an assessment report by Ms Clarice Tang, Physiotherapist, dated 01 September 2016 which reports bilateral shoulder pain and decreased active range of motion ‘significantly poorer than the passive range of movement’. There was an aim for a rehabilitation program bit does not appear that Ms Alimov proceeded with this.”[56]
[56]DCB 44.
92Dr Saxby then summarised the situation as follows:
“Ms Alimov is a 76-year-old lady whose main problems are her left shoulder and her cervical spine. She was involved in a transport accident on 24 March 2017. She presented with neck pain and left shoulder pain. There is a pre-existing history of shoulder problems with rotator cuff tendinopathy which predates the transport accident, and the cervical spine investigations reveal multiple level cervical spondylosis. Her treatment is minimal. She continues to have ongoing restrictions mainly due to her left shoulder.[57]
[57]DCB 44.
93Then, in response to a question about the onset and progress of symptoms, Dr Saxby said:
“(a)the onset and progress of symptoms;
Ms Alimov states that she developed left shoulder pain and left neck pain immediately following the transport accident on 24 March 2017. The conditions have progressed since that time. She has increasing pain and restriction of motion in her left shoulder and neck. She denies any problems with her right upper limb or lower limbs. I note however that there were pre-existing problems with both shoulders and left hip, which have previously been documented by her general practitioner.
…
(f)any pre-existing medical history;
Her pre-existing medical history is significant for bilateral shoulder conditions for which Ms Alimov had sought treatment in October of 2015 and there are investigations of the left shoulder including an ultrasound from October of 2015 which demonstrated a partial thickness supraspinatus tear, which appears to have progressed over time, which is a normal consequence of this condition.”[58]
[58]DCB 45.
94Dr Saxby was then asked whether he considered the transport accident a cause of the plaintiff’s left upper limb condition. He said:
“In my opinion, the transport accident has most likely caused a temporary aggravation of the underlying problems. There is clear evidence of a pre-existing condition of the left shoulder based on the report from the physiotherapist at Western Hospital as well as the ultrasound findings on 06 October 2015 where there was significant rotator cuff tendinopathy with a partial tear initially. This tear has progressed over time with follow-up imaging demonstrating progression of the tear. This is the normal pathway for this condition. Rotator cuff tendinopathy is a degenerative condition of the rotator cuff and the incidence of tears increases with age. Given Ms Alimov’s age, there was most likely pre-existing constitutional tendinopathy with a tear and the transport accident has exacerbated this condition. This is based on the presentation to the GP and at the Western Hospital with reports of increasing pain and some restriction of motion.
Based on the mechanism of injury, Ms Alimov was a front-seat passenger and was wearing a seatbelt, therefore the seatbelt would have crossed over the left shoulder and there would have been some force applied with the seatbelt tension in the accident, but this mechanism would not have caused a rotator cuff tear. Therefore, I believe this direct blow to the shoulder has just increased the symptoms and there was increased pain in the left shoulder at the time of the accident but the present state simply reflects progression of the underlying problem, rather than a new injury.[59]
[59]DCB 47.
95Dr Saxby was then asked to consider the reports from Dr Donovan, which he did in a supplementary report dated 17 November 2023.[60]
[60]DCB 50.
96He was asked whether Dr Donovan’s reports caused him to alter his opinion in relation to the plaintiff’s left shoulder condition. He said:
“No, Dr Donovan’s report of 14 November 2023 and the associated article do not cause me to alter my opinion. I maintain my opinion as expressed in my prior report of 21 August 2023.
My opinion is based on the following evidence. Firstly that Ms Alimov’s left shoulder condition was symptomatic prior to her transport accident. As per my previous report, I note that Ms Alimov was somewhat unclear about the history of her shoulder problem.
In my previous report I note a physiotherapist report by Ms Clarice Tang dated 01 September 2016, which reports bilateral shoulder pain and decreased active range of motion ‘significantly poorer than passive range of movement’. There appears to have been a plan for a rehabilitation program but it does not appear that Ms Alimov proceeded with this.
Therefore there is evidence that Ms Alimov had bilateral shoulder problems or pain and certainly was symptomatic prior to her transport accident. I also note that there was a previous ultrasound report from 06 October 2015 notes a 7 x 4 mm hypoechoic defect in the articular surface of the supraspinatus tendon. The infraspinatus and subscapularis tendons were intact. Therefore there is evidence that there was a tear or defect in the supraspinatus tendon which was symptomatic prior to the incident.
In reference to the attached article from Dr Donovan, obviously I agree with the findings that asymptomatic rotator cuff tears are common within the general population and they are associated with increasing age and are common in the contralateral shoulder with symptomatic rotator cuff tears.
I also agree that asymptomatic rotator cuff tears are likely to become symptomatic over time but I would like to point out that in this case, both Ms Alimov’s shoulders were symptomatic and she was having pain and restricted motion in September 2016, based on the physiotherapy records. Therefore I am not certain that this journal article dealing with asymptomatic rotator cuff tears has a direct bearing in this particular case.
I certainly do agree with Dr Donovan that rotator cuff tears can be traumatic and that could explain Ms Alimov’s presentation. However I base my previous opinion on the radiology reports. I note an ultrasound report of 06 October 2015 reporting a 7 x 4 mm hypoechoic defect in the articular side of the supraspinatus tendon. This indicates a small partial tear of the supraspinatus tendon. Obviously this is prior to her transport accident injury.
I also note an ultrasound of the left shoulder dated 18 September 2017 which is obviously post transport accident injury and reports that there is rotator cuff tendinopathy with a small 0.3 x 1.1 cm incomplete full-thickness rotator cuff tear of the anterior aspect of the supraspinatus. This is consistent with the previous ultrasound from October 2015, perhaps with a minor increase in the size of the tear.
I also note from the ultrasound report of 18 September 2017 that it reports the remainder of the rotator cuff tendons and tendons of the biceps are within normal limits. Therefore at this stage there is still only a partial tear of the supraspinatus tendon and the other rotator cuff tendons are not involved. I would note that this is the ultrasound that has been carried out post-injury.
Therefore based on the minimal change in the two ultrasound reports, one pre-injury and the other post-injury, there does not appear to have been a significant exacerbation or worsening of the condition or increase in the tear or other tendons torn.
I also note that the MRI of the left shoulder from 05 July 2018 does report a nearly full-thickness tear of the mid and posterior supraspinatus up to 10 mm in width and tearing of the mid and superior subscapularis with biceps subluxation and biceps tendinopathy. Therefore there does seem to have been significant progression of the pathology with increase in the size of the tear of the supraspinatus and further involvement of the subscapularis and biceps tendons. This is more in keeping with progression of an underlying degenerate condition and therefore I believe this supports my opinion that it is more probable than not that the progression of the rotator cuff pathology in the left shoulder is related to simple degenerate change rather than the transport accident.”[61]
[61]DCB 50-52
97Dr Saxby had all the relevant material and, because of that, was able to consider the reliability of what the plaintiff told him in the context of that evidence when he examined her. His reports are thorough, demonstrate a path of reasoning, and are consistent with the factual findings that I have made.
98Again, at the risk of repetition, not much turns on whether I prefer Dr Saxby to Dr Donovan because the plaintiff has failed to discharge her evidentiary onus to identify the extent of any impairment consequences because of the claimed aggravation injury to the left shoulder. Nevertheless, after a consideration of all of the evidence, in the context of the parties’ contentions, I prefer the evidence from Dr Saxby to that from Dr Donovan.
Balance of the medical evidence
99The parties tendered some other medical evidence, including from Mr Ash Chehata,[62] an orthopaedic surgeon who assessed the plaintiff. The plaintiff also relied on medical reports from Dr Raviraj Kabrawala[63] and Dr Shahab Firuzkuhi.[64] Neither party placed much emphasis on that evidence, no doubt because it post-dated the accident and did not really assist for the identification of any injury from the accident.
[62]DCB 285 and 286.
[63]PCB 37 and 38.
[64]PCB 41.
100I have considered the evidence in those reports, but it does not alter the result of this proceeding. Both Dr Kabrawala and Dr Firuzkuhi provided a history of treatment after the accident but gave no useful evidence regarding the pre-accident situation. Their reports are of little assistance on the issue of diagnosis of any aggravation injury or of any impairment consequences because of the accident. Similar comments apply to the evidence from Mr Chehata.
Conclusion
101For the reasons given, the plaintiff has failed to identify a “very considerable” consequence from any claimed aggravation injury to the left shoulder.
102The proceeding is dismissed.
103I shall hear from the parties as to the question of costs.
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