Anver v Transport Accident Commission
[2023] VCC 2253
•12 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02083
| HISHAMA ANVER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2023 | |
DATE OF JUDGMENT: | 12 December 2023 | |
CASE MAY BE CITED AS: | Anver v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2253 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Accident compensation – Transport accident – Serious injury application - multiple injuries – two motor vehicle accidents – to delineate impairment consequences of spinal and right shoulder injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkvoski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Popal v Transport Accident Commission [2023] VSCA 222; Victorian WorkCover Authority v Brassington [2021] VSCA 236]; Poholke v Goldacres TradingPty Ltd & VWA [2016] VSCA 232; Dressing v Porter v Anor [2016] VSCA 215; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC with Mr A Kleiman | Maxiom Injury Lawyers |
| For the Defendant | Mr S Smith KC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1Two motor vehicle accidents in the space of one month have brought Mrs Anver’s case before the Court. She claims that the second motor vehicle accident (“second MVA”) has resulted in serious injury within the meaning of s93 of the Transport Accident Act 1986. She relies primarily on injuries to the spine (being the neck and lumbar area) and separately right shoulder injuries, stemming from a thoracic outlet syndrome (“TOS”). A claim was also pressed in respect of paragraph (c) for psychiatric injury, but this was done so only faintly. The defendant submits that the claim should be denied for the following reasons:
(a) That the plaintiff cannot establish what injury was caused in the second MVA. To the extent that there was an aggravation of pre-existing injuries, it was not possible to establish the extent of the impairment of a body function before and after the relevant injury. This meant that the Plaintiff could not establish whether the second MVA had serious long term impairment consequences;[1]
(b) If an injury could be identified as arising from the second MVA, it was not possible to identify the impairment consequences properly referable to that second MVA injury and to exclude the consequences referable to the other injuries;[2]
(c) Overall, the plaintiff’s inconsistency and unreliability affected her credit and made the task of assessment of the above issues so clouded they could not be decided and, in any event, it could not be found her impairment consequences met the serious injury threshold.
[1]Petkovski v Galletti [1994] 1 VR 436
[2]Peak Engineering & Anor v McKenzie [2014] (‘Peak Engineering’) VSCA 67 at paragraph [2]
2For the reasons which follow I have found for the plaintiff. I have found that, in the second MVA, she sustained injuries to the spine involving the neck, an aggravation of the lumbar spine and a right shoulder injury. I have further found that the consequences of the injury to the spine are “more than significant or marked”.
Brief relevant chronology
3The plaintiff was born in Sri Lanka in October 1970. She attended university only very briefly and then trained as a pastry chef. She married in 1989 and worked as a pastry chef thereafter. She has four children with her husband. In about 2008, she came to Australia with her family. Since then, she has worked full time as a pastry chef at a variety of different hotels and clubs.
4In March 2012, she began to develop some problems in her right elbow.[3] She is right hand dominant. She had a steroid injection into the right elbow. She also complained of neck pain radiating into the right shoulder. She consulted a physiotherapist.[4]
[3]Further Amended Defendant’s Court Book (“DACB”) 7
[4]Plaintiff’s Amended Court Book (“PACB”) 7 and DACB 7
5In August of that year, she complained of left shoulder problems, tennis elbow and lumbar spinal problems.[5] She was referred to an orthopaedic surgeon, Mr Phong Tran. He took a history of six months of right hip instability.[6] She continued working. In September 2014, she had some physiotherapy for tendinosis in the right shoulder.
[5]DACB 10
[6]DACB 11 and 13
6In 2015, she started working full time as a pastry chef at Mr Donut. She remained working there as at the date of the second MVA.
7In January 2016 she had an MRI scan on the cervical spine for her neck and right arm pain.[7]
[7] DACB 48
8In April 2016, she suffered a crush injury to her right thumb, which was fractured. She made a WorkCover claim.[8] She returned to work in April 2017 on a graduated return-to-work program.[9] She commenced full-duties work on full-time hours in November 2017.[10] She was working full-duties work with Mr Donut at the time of the first motor vehicle accident on 23 January 2018 (“the first MVA”).
[8]DACB 19
[9]PACB 8
[10]DACB 23
The first MVA
9At the time of this accident, she was driving. She failed to brake and ran into the back of a truck at about 65 kilometres per hour. She consulted her treating doctor that day with pain over the neck, upper back and mid and lower back, radiating over her right leg. She was given a medical certificate.[11]
[11]DACB 162. She was given a referral to Mr Geoffrey Edwards. It is unclear from the evidence what his speciality is or what the referral was for. There is no evidence that she made an appointment with him or that she saw him at any time.
10On 25 January 2018, she consulted her treating doctor with worsening pain in the lower back. She was prescribed Panadeine Forte and referred for x-ray.[12] That x-ray was largely normal, save for noting a partial sacralisation at the L5 level, which I take to be a long evolving problem not caused by the first MVA.
[12]PACB 161 and DACB 52
11She consulted her treating doctor again on 27, 29 and 31 January 2018 primarily for breathing difficulties, which were ultimately ascribed to asthma. She lodged a transport accident claim form on 31 January 2018, nominating injuries to the shoulder and lower back, and middle finger pain.
12She returned to work at about this time in her normal full-duties work. This work involved manual duties over eight-hour shifts five days per week. During this time, she was on her feet for the majority of the time, lifting, carrying and bending to pick up goods. It was put by the defendant that this was often heavy, awkward and repetitive work. She agreed with that suggestion.
The second MVA
13On 10 February 2018, she was a front seat passenger in a car which was struck on the right side by a vehicle merging from another lane. An ambulance was called, but she did not utilise it. She saw her treating doctor on 12 February 2018, who recorded that she had neck pain and right ankle pain. It appears that she did return to work, but saw her doctor again on 16 February 2018, complaining of right shoulder, upper arm and forearm and right ankle pain. Referral was made for radiological investigation.[13] That was conducted, showing right shoulder mild subacromial bursitis. However, on 19 February 2018, her treating doctor saw her again and wrote a certificate of capacity, putting her off work, and noting injuries to the right upper back, right shoulder and lower back pain.
[13]PACB 163
14She then returned to work for a few weeks and then claims that her injuries made work impossible. She ceased work in around April 2018 and remains off work until this day.[14] She lodged a Transport Accident Commission (“TAC”) claim form in respect of the second MVA, noting neck pain and shoulder pain.
[14]PACB 62 – she ceased work 4-6 weeks after the second MVA
15She received referrals to orthopaedic surgeons, initially Mr Khan, and then onto Dr Rez Rahim. Throughout 2018, under the care of Dr Rahim, she was investigated for worsening lower back pain. He diagnosed significant sacroiliac joint pathology[15] and performed a steroidal injection at that low level in October 2018.[16] He recorded that she had only temporary relief and, as her pain had returned, he considered she might be developing a chronic pain syndrome.
[15]PACB 40
[16]PACB 9 at paragraph [22], PACB 166 and 141
16Toward the end of 2018, Mr Rahim thought her ulnar nerve pain in the right arm was worsening and suggested surgery for it.[17]
[17]PACB 43
17She was referred for multidisciplinary pain management with Advanced Healthcare in January 2019 and came under the care of Dr Aston Wan, the pain physician, and the multidisciplinary team. They considered she had possible nerve sensitisation,[18] but also that there was widespread non-anatomical distribution of her pain symptoms that were disproportionate and inconsistent.[19]
[18]PACB 69
[19]PACB 68
18In May 2019, she had right ulnar nerve transposition surgery performed by Dr Rahim.[20]
[20]PACB 10, 47 and 77
19Dr Rahim continued to investigate the sacroiliac joint difficulties. He commenced her on Lyrica and Endone. They also sought authorisation for nerve ablation at this level but it was rejected, as was a request by Mr Rahim for fusion of the sacroiliac joint.
20As to ongoing investigations for right shoulder pain these were conducted by Dr Janaka Seneviratne, neurologist.[21] Ultimately, he concluded that he suspected she was suffering from TOS.[22]
[21]PACB 91
[22] PACB 92
21Dr Rahim considered a nerve ablation procedure in October 2019.[23] This request was denied by the TAC. She was referred by Dr Rahim to Dr Vishal Bhasin, a pain specialist, who considered her cervical spine was her major problem.
[23] PACB 49
22Dr Rahim sought approval to decompress the thoracic outlet, but this was rejected by the defendant.
23Between April and July 2022, the plaintiff helped in her son’s business for two to three days per week for four hours of time. She was paid for this work. Otherwise, she has remained off work.
24She had a cortisone injection to her lower back in February 2023, which only provided temporary relief.[24] She occasionally sees her treating doctor.
[24]PACB 21 and 59
The effect of any pre-existing medical conditions
25The first argument the defendant raised was that the plaintiff had a number of pre-existing medical conditions prior to the second MVA. Those injuries went back in time to at least 2012, when she began presenting with right elbow difficulties.[25] This was also associated with knee and left shoulder radiating pain.[26] She had some physiotherapy. Later that year, she had lumbar spine and right hip problems for six months and was referred to Dr Tran, an orthopaedic specialist. He took a history of an irritable right hip over six months.[27] It does not appear there was any time taken off work due to those matters or any treatment beyond some limited physiotherapy sessions. Certainly, no prolonged medication or treatment course ensued. I conclude that it was a temporary limited episode of only minor significance. On the evidence, I find it resolved reasonably quickly and well prior to 2018.
[25]DACB 7 and PACB 7 at paragraph [10]
[26]DACB 6
[27]DACB 13
26In the medical chronology she also had right shoulder problems in September 2014. Once again, no time appears to have been taken off work, no prolonged treatment course other than physiotherapy and no long-term medication or specialist referral. In late 2016, she began work full time as a pastry chef with Mr Donut. The plaintiff accepted this work was at times heavy, repetitive and awkward manual work.[28]
[28]Transcript (“T”) 10, Lines (“L”) 24-31
27At some point she had neck problems and was referred for an MRI scan of the cervical spine in 2016. There was very little evidence about why this occurred or what happened vis a viz treatment for this episode. The lack of evidence as to treatment for the right shoulder and neck conditions and her continuation of full-time work at this time, leads me to infer that these episodes were of no moment and passed quickly, with no long-term implications beyond the time of that investigation. I find any injury to right shoulder and neck and any impairment consequences had well resolved by January 2018.
28It is also relevant to note she sustained a crush fracture to her right thumb in April 2016. She had ongoing problems with the function of the right hand and arm such that she was on modified duties until November 2017. Thereafter, she appears to have returned to full time normal duties work. As described above, such work was manual and often heavy, awkward and repetitive. This strongly suggests no limits on her physical capacity by reason of her right thumb injury. I find that the injury to the right hand and any impairment consequences had resolved well prior to the second MVA.
What was the effect of the first MVA? Did it cause permanent injury or were the consequences minor and resolving at the time of the second MVA?
29Turning to the first MVA on 23 January 2018. That incident involved her running into the back of a truck at about 65 kilometres per hour. She saw her treating doctor that day, who recorded, “c/o pain over neck upper back, mid and lower back pains radiating over Right LL”.[29] She received a medical certificate. She returned to her treating doctor on 25 January 2018, who recorded:
“c/o chest pains + tender ovr sternum
adv to take time off/rest/xrays+ ECG
tender over back all spins
worse at lower back”.[30]
[29]DACB 162. I take “Right LL” to mean “right lower limb”.
[30]DACB 162
30She was given a prescription for Panadeine Forte and a medical certificate. An x-ray was ordered. That revealed partial sacralisation at L5, but was otherwise normal.[31] The plaintiff then had three consultations with her treating doctor on 27, 29 and 31 January 2018 for right shoulder problems and breathing difficulties related to asthma.[32] On 31 January 2018, she lodged her TAC claim, nominating injuries to her “l/r” shoulder, lower back and left middle finger.[33] She then appears to have returned to work full time performing full-duties work. She performed such work for a week or so before the second MVA on 10 February 2018.
[31]DACB 53
[32]DACB 163
[33]DACB 147
31Her affidavit described the situation after the first MVA in the following terms:
“Following the first accident, I saw my GP in relation to pain in my back, chest, right leg, right arm and neck. My neck pain settled, but I continued to have pain in my low back, chest and right shoulder … I had a couple of days off work. I returned to work. I managed my pain with Panadeine Forte, which had been prescribed by my GP.”[34]
[34]PACB 8 at paragraph [15]
32By the time of the second MVA, it is apparent that the plaintiff had ceased consulting her general practitioner, complaining of the injuries. She had not been referred for any specialist orthopaedic assessment as she had in the past.[35] She had not been referred for physiotherapy as she had in the past. Her x-ray results were essentially normal. However, she was continuing to take Panadeine Forte, as prescribed on the day of the first MVA (no further prescriptions were written from 23 January to 10 February 2018). Most importantly, I consider she had returned to work on a full-time basis doing full duties. As set out above, such work was manual, and often heavy, repetitive and awkward. During work, the plaintiff was required to be on her feet a great deal. All this strongly suggests the plaintiff’s injuries from the first MVA were minor and successfully resolving, as the plaintiff submits. The defendant argues, however, that medical assessments after the second MVA demonstrate that the effects of the first MVA were serious and persisting. They call in aid a clinical note of a physiotherapist, Ms Yasemin Arslan, from April 2018, and a report from pain specialist, Dr Wan, to make good their submission.
[35]See footnote 8.
33The note of Ms Arslan is dated 9 April 2018. It details the first MVA and then goes on to set out the plaintiff’s current state, particularly as to the cervical spine. There is no recording whatsoever as to the second MVA or its effects. The defendant submitted this showed that the plaintiff was attributing her neck pain to her first MVA. I do not accept that submission. Caution must be taken into reading too much into one isolated clinical note.[36] This is particularly so when the surrounding clinical notes are not in evidence and the practitioner is not called. Further, the note does not represent an accurate history of what had clearly occurred. The plaintiff had seen her treating doctor about the second MVA, had radiological investigations for it, been given Certificates of Incapacity in respect of it, and been referred to an orthopaedic surgeon. Clearly the plaintiff was open about the second MVA. Her certificates being written by the treating doctor make the issue clear in that, as at 19 February 2018, she wrote that there was a “[s]ignificant worsening after the second MVA”.[37] In that circumstance I consider the plaintiff most likely told Ms Arslan about the second MVA and its effect but it was not properly recorded.
[36]Popal v Transport Accident Commission [2023] VSCA 222 at paragraph [60]
[37]DACB 25
34Assessing that material, I do not accept the defendant’s submission. I find the note of Ms Arslan has an incomplete history and the inference the defendant seeks to draw cannot be made. I find it most likely that the fault for recording the history rests with Ms Arslan.
35As to Dr Wan. He was a specialist pain physician, who first examined the plaintiff in February 2019. The same submission was made in respect of his recordings. Namely, that he recorded a current host of symptoms of the neck and right arm, with no history of the second MVA at all. This was said to evidence the plaintiff’s belief that the symptoms related to the first MVA. I do not accept that submission. By this stage, as set out above, the plaintiff had been treated, referred for, and investigated, in respect of the injuries the subject of the second MVA. She had been put off work by her treating doctor as a result of the “significant worsening” of the second MVA. She had also lodged a separate TAC claim form in respect of the second MVA. In that circumstance, why she would completely omit reference to the second MVA to Dr Wan is inexplicable, and unlikely, I find. More probably, he simply did not record it. This is more likely, I find, because the remainder of the pain management team took an accurate history – including the second MVA – one week later.[38] I therefore also reject this limb of the defendant’s argument.
[38]PACB 64
36I now come to assess the Claim Forms which the defendant suggested demonstrated the plaintiff’s own opinion that the problems she experienced in both MVA’s were similar. I have set out above how she defined her injuries after the first MVA. Then, after the second MVA, she wrote her injuries as “neck pain shoulder pain”. In doing so, the defendant submitted the plaintiff was clearly indicating there was no lower back injury after the second MVA. This includes a worsening of any lower back problems arising from the first MVA. The defendant submitted that this meant that all recordings as to the lower back injury after the second MVA, then, must relate to the ongoing effects of the first MVA. On the defendant’s case, this gave rise to insurmountable problems when the principles in Peak Engineering & Anor v McKenzie (“Peak Engineering”)[39] came to be applied.
[39][2014] VSCA 67
37An assessment of the Claim Forms in the context of other evidence in the case does not lead to this conclusion, however. First, as I have found, the injury in the first MVA was largely resolving by the time of the second MVA, with no treatment, no further investigation, no physiotherapy and a return to full-time, full-duties work. The only issue was ongoing pain, for which there had been one prescription of Panadeine Forte. All this strongly suggests that the first MVA was a self-limiting, largely resolved situation by the time of the second MVA.
38Second, medical evidence in this case tells in favour of the plaintiff’s injuries from the first MVA being minor and resolving. Such an assessment is supported most strongly by the plaintiff’s treating practitioners. The starting point for this finding is the course of conduct engaged in by the plaintiff’s treating doctor, Dr Jayasinghe. After the first consultation on 23 January 2018, she saw the plaintiff for her first MVA-related injuries on one other occasion, being 25 January 2018. As noted above, she ordered radiological investigation, provided a medical certificate for some days, and a single prescription for Panadeine Forte. From 25 January 2018 to 10 February 2018, despite three consultations, there is no further recording of lower back or neck pain. There is reference to right shoulder pain and a request for radiology. This is evidence on which it can, in part, be inferred that there was a resolving set of injuries.
39Next, is the fact that the plaintiff returned to work in heavy, often awkward and repetitive work on full-time hours, at about the end of January 2018. This also suggests her injuries from the first MVA were of a reasonably minor nature. Next is the reporting of Dr Jayasinghe, which records that, after the first MVA, the plaintiff was slowly recovering.[40] Then, the second MVA caused a “significant worsening”.[41] She described the role of the second MVA in the following way:
“Despite all other issues she had in the past, she was able to function in all roles she played until the second accident. This event is the turning point that she could not return to work (despite multiple trials).[42]
[40]DACB 25
[41]DACB 25
[42]PACB 99
40Dr Jayasinghe made this comment in a report dated 21 September 2023. She had been the plaintiff’s treating doctor since 2012.[43] She was well aware of the plaintiff’s past medical history and the first MVA. She has treated the plaintiff clinically throughout the first and second MVAs. She has made numerous referrals for investigations and specialist consultations. Due to this significant history of treating the plaintiff in a therapeutic, clinical setting before, during, and after the first and second MVAs, I have afforded her opinion great weight, because it is based on a thorough understanding of Mrs Anver’s situation.
[43]DACB 12
41Next, the plaintiff’s treating specialist, Dr Rahim, spinal and orthopaedic surgeon, broadly supports the assessment of Dr Jayasinghe. He recorded:
“The first motor vehicle accident resulted in her car being hit and as a result experienced (sic) lower back pain. In February, whilst she was a passenger in a car, she was hit from the side and it sounds like this was the most significant of the two events as it caused shooting pain down her right arm and leg.
…
On clinical examination, [the plaintiff] has significant right SI joint pathology with mild SI joint dysfunction on the left side. This is most likely secondary to her recent accident, which is the most common reason for SI joint pathologies in this situation. … .”[44]
(emphasis added)
[44]PACB 40
42This commentary is obviously focused on the spinal injury sustained in the second MVA that was, at that stage, most troubling the plaintiff as at September 2018. For that reason, and because he was not asked specifically, there was no specific commentary on the longevity or severity of the injuries arising from the first MVA. That is wholly understandable, I consider, and is not a criticism of his opinion, nor do I consider it can be used to argue his opinion as to the first MVA is that it continued to play a role in the plaintiff’s ongoing presentation. To the contrary, I consider his opinion was sought by Dr Jayasinghe for ongoing orthopaedic injuries as a whole. While the referral is not in evidence, it is obvious that Dr Rahim took a history of both MVAs. In taking that history, he recorded only lower back pain after the first MVA. That was clearly not accurate, because Dr Jayasinghe had noted neck, upper and mid-back pain at the time the plaintiff first presented. However, his report makes clear that he reviewed cervical and lumbar spine MRI scan results, indicating that he was aware of complaint in other regions of the spine at the time of his assessment. In coming to his opinion, as set out above, he did not consider any other spinal pathology, nor, on examination, findings, significant enough to comment on. This suggests that the focus was on the sacroiliac joint pathology and the initial reasons for other investigations of the other spinal levels had largely faded away. Overall, this supports the notion that the impact of the first MVA was minor and resolving at the time of the second MVA. It is important to record that the plaintiff’s sacroiliac joint problems persisted over the next three years that Dr Rahim treated the plaintiff. During this time, he performed diagnostic cortisone injections to the sacroiliac joint.[45] It had the effect of positively reducing pain and so Dr Rahim considered either radiofrequency ablation or a fusion.[46] This evidences the seriousness and chronicity of the problems he attributed to the second MVA injuries.
[45]PACB 9 at paragraph [22], PACB 166, PACB 41, PACB 159, PACB 60
[46]PACB 49
43Ultimately, both procedures were denied funding by the TAC. And were not performed.
44Dr Rahim also considered the plaintiff had developed TOS. His comments in this regard do not indicate whether this arose in the first MVA or the second MVA, or even if both remained involved.[47] This is the same opinion expressed by the neurologist, Dr Janaka Seneviratne.[48] I will return to the TOS diagnosis later. At this stage, it is sufficient to note that Dr Rahim provides no view as to whether the right arm TOS was minor and resolving at the time of the second MVA.
[47]PACB 54
[48]PACB 91
45The plaintiff next calls in aid the opinion of Dr Ash Moaveni, orthopaedic surgeon, to support her argument that the first MVA caused injuries which were minor and had largely resolved by the time of the second MVA. His reporting was criticised because he was asked questions as to causation solely focused on the second MVA. Dr Moaveni opined that, as a result of the second MVA, the plaintiff had sustained the following injuries: soft-tissue injury of the cervical spine, TOS, right upper limb, right Carpal Tunnel Syndrome, soft-tissue injury of the lumbar spine and right sacroiliac joint injury. There is no specific opinion as to injuries and consequences arising from the first MVA.
46The defendant called in aid the opinions of both Mr Myron Rogers, neurosurgeon, and Mr Gary Speck, orthopaedic surgeon. Both opined that the first MVA caused soft-tissue injuries, which were likely to resolve over several weeks, were not aggravated by the second MVA, but, rather, temporarily exacerbated by it.[49] Such temporary exacerbation, they opined, likely lasted for only a period of one to three months.[50]
[49]DACB 133 and DACB 92
[50]Ibid
47Assessing the opinion of Mr Rogers first. I accept his opinion as to the first MVA in regard to the spinal injury: that a soft-tissue injury occurred which was resolving at the time of the second MVA. I also accept that such injury likely resolved eight to twelve weeks after the first MVA. This is consistent with the plaintiff’s attendances on her treating doctor’s opinion, her return to work on full duties in a manual position and also consistent with the opinion of Dr Rahim, her treating specialist, as I have set out above. The same reasons can be applied in respect of Mr Speck’s opinion as to the soft-tissue injury arising in the first MVA.[51]
[51]DACB 132
Conclusion as to the injuries caused in the first MVA and their consequences.
48Assessing all of that evidence, I find that, almost unanimously, the evidence supports the finding that the spinal injuries and right shoulder injuries occasioned by the first MVA were minor and resolving by the time of the second MVA. I find that, up to the time of the second MVA, the plaintiff had no functional limitations related to her spine, in either the neck or lumbar regions or the right shoulder. I base that finding on the fact of only having a few days off work after the first MVA and then the return to full-duties work on full-time hours. Such duties were manual and often heavy, awkward and repetitive. The finding is also supported by the treating practitioners, whose opinions carry particular weight because of the longevity of their treatment of the plaintiff in a therapeutic setting. Their opinions are also supported by Mr Rogers and Mr Speck, and, also, to a lesser extent, there is also some support from Dr Moaveni, whose opinion was focused on the injuries arising in the second MVA.
What spinal injuries were caused in the second MVA if any?
49I find that the plaintiff sustained a soft-tissue injury of her cervical spine, an injury of the lumbar spine, and an injury to the right sacroiliac joint in the second MVA. That finding is supported by Dr Jayasinghe’s opinion.[52] Her opinion is that such injuries were soft-tissue injuries.
[52]PACB 98
50The treating doctor saw the plaintiff after the second MVA on 12 February 2018, and recorded, “neck pain since then pain in the R ankle”.[53] Ultrasound was requested for the neck and x-ray of the ankle. Consultation on 16 February 2018 was for right upper and forearm pain, and right leg and shoulder pain.[54] On 19 February 2018, the treating doctor consultation notes that there was worsening pains all over the right side. On the same day, her treating doctor noted:
“right upper back pains, inferior to shoulder bade
Right shoulder pains, Right upper limb pains, Right Knee joint pains + swelling and Haematoma over Right calf
Right Ankle and foot pains ,
lower back pains worse on Right, Right back lower rib pains radiating down , Right hp pains with feeling of lockingsignificant Anxiety for Driving , Significant worsening after second MVA”.[55]
(sic) (emphasis added)
[53]DACB 164
[54]DACB 164
[55]DACB 25
51Quite clearly the treating doctor has nominated back pain as worsening significantly as a result of the second MVA. As a result, her treating doctor put her off work for one week. Referrals were made to Mr Khan, an orthopaedic surgeon. The referrals are not in evidence, but Mr Khan was clearly examining, not only the plaintiff’s right arm and neck, but lumbar spine, with complaint of pain in the right buttock,[56] in April and June 2018.
[56]PACB 37-38
52She referred the plaintiff for specialist investigation. This was first to Dr Khan who took a history of lumbar pain then she was referred to Dr Rahim. His investigations, over a period of time, resulted in examination findings demonstrating more than soft-tissue injuries. Rather, he found on examination, positive sacroiliac joint pathology.[57] Investigation by means of a diagnostic injection into the sacroiliac joint provided confirmation of such pathology.[58] Dr Rahim then sought to treat an advancing Chronic Pain Syndrome[59] and right arm cubital tunnel condition.[60] He obtained approval to perform that right arm surgery, however he returned to the sacroiliac joint issue afterward and considered it so significant he sought approval for an ablation or fusion.[61] Both procedures were not approved. This is clear support for the notion that, in the second MVA, a sacroiliac joint injury occurred. This position is supported by Dr Moaveni.[62] He took note of the sacroiliac joint problem and that it continued to cause intermittent pain, which was worse with prolonged sitting, standing and walking. He considered radiofrequency ablation was appropriate for this problem.
[57]PACB 40
[58]PACB 9, paragraph [22], PACB 166 and PACB 41
[59]PACB 40-41
[60]PACB 10, PACB 47 and PACB 77
[61]PACB 49
[62]PACB 156
53While Mr Rahim took a history of neck problems, he also recommended surgery for the TOS by way of neck decompression surgery. I will return to the TOS injury and causation.
54In contrast, both Mr Rogers and Dr Speck were of the view that any spinal injury which occurred in the second MVA was soft tissue only and had resolved by some eight to twelve weeks after the second MVA.[63] Both Mr Rogers and Dr Speck took a history of Dr Rahim’s two sacroiliac joint injections. However, they made no comment as to the appropriateness or otherwise of the proposed ablation or fusion at this level. While Mr Rogers obviously had access to Dr Rahim’s view of the importance of the sacroiliac joint in the plaintiff’s presentation, he did not indicate why the opinion of Dr Rahim was incorrect in its diagnosis or proposed treatment course. Rather, both medico-legal practitioners simply ascribe the ongoing spinal difficulties as being initially soft-tissue injuries, which should have resolved within eight to twelve weeks of the second MVA. I do not accept this blithe disregard for the plaintiff’s treating specialists’ opinion without a more serious analysis. The closest these medico-legal practitioners come to this is by suggesting the plaintiff has developed a chronic pain syndrome.[64] However, for example, they do not explain why the plaintiff had a positive response to the sacroiliac joint injection, which Mr Rahim considered positively diagnostic.[65] By reason of this failure to explain their reason for disregarding the sacroiliac joint pathology, I prefer Mr Rahim’s opinion.
[63]Mr Speck at DACB 133 and Mr Rogers at DACB 92
[64]Mr Rogers at DACB 89 and Mr Speck at DACB 133
[65] PACB 60
55As to the cervical spine, I do not accept the submission that the plaintiff’s injuries in the cervical spine are soft-tissue injuries that resolved within eight to twelve weeks after the second MVA. The starting point for this finding is the almost universal acceptance that soft-tissue injury occurred in the second MVA and had ongoing consequences. The ongoing permanent nature of the injury is reflected in the ambulance notes,[66] the ongoing referral for radiology,[67] the referral to Mr Khan,[68] and the Claim Form lodged on 16 April 2018,[69] Mr Khan’s recording, in June 2018;[70] Dr Rahim’s recording, who ordered cervical spine x-ray in October 2018;[71] Dr Wan, in February 2019, [72] and the pain management team assessment in March 2019.[73]
[66]DACB 158
[67]PACB 164-5
[68]PACB 37
[69] PACB 185
[70]PACB 38
[71]PACB 41
[72]PACB 61
[73]PACB 65
56This is constant reporting of neck pain for at least one year after the date of the second MVA injury. It stands in contrast to the opinion of Mr Rogers and Dr Speck.
57Overall, I consider the body of treating doctors who opined contemporaneously, to have been in a far better position to opine on the severity and chronicity of the cervical spine injuries, than Mr Rogers or Dr Speck. I prefer their opinions. Those opinions support a finding of a long-term soft tissue injury in the cervical spine.
Plaintiff’s credibility and reliability
58An assessment is also called for of the plaintiff’s evidence in coming to a finding of the plaintiff’s injuries. This is because her complaints of pain and the information provided to doctors during examination was critical in them coming to their findings. In this regard, the defendant criticised the plaintiff’s evidence as being unreliable and inconsistent, to the point where it was submitted that her credit was impaired. In considering this issue, I record that the plaintiff gave evidence in a quiet, respectful manner. She attempted to answer counsel’s questions as best she could, but it appeared to me that she seemed to want to accept every proposition put to her by counsel. She presented as being very agreeable. In fact, defendant’s counsel went so far as to accept she had made many admissions against interest, to the point where her evidence was “compelling”.
59The first area in which her unreliability and inconsistency was said to be displayed was that, when asked how her health was in the six months prior to the first MVA, she replied, “perfect”.[74] However, the defendant then pointed out that the plaintiff had fractured the thumb of her right dominant hand in April 2016[75] and had a graduated return-to-work certificate of 23 October 2017,[76] in which her treating doctor opined that she needed to return to work gradually. In considering this evidence, regard must also be had to her affidavit, in which she deposed to returning to work around April 2017.[77] The doctor’s certificate of 6 November 2017 clearly shows a clearance for full-duties work on normal hours at that time.[78] Thereafter, it appears the plaintiff worked full-time, full-duties work until the first MVA. That is a period of a little over two months. Her evidence, then, of being “perfect” in the six months before the MVA is clearly inconsistent with her affidavit and Certificates of Capacity. I consider this an example of inconsistency in the plaintiff’s evidence.
[74]T49, L19
[75]DACB 19
[76]Ibid
[77]PACB 8 at paragraph [12]
[78]DACB 22
60Next it was suggested that she had disclosed income from her son’s business at a level disproportionate to her work.[79] In particular, she was being paid rates of $100 or $225 per hour. The plaintiff explained that she did not do much physically at her son’s restaurant and that her son paid her to “motivate” her.[80] Given the plaintiff disclosed this in her affidavit, the rate of pay becomes largely irrelevant, as it was her son’s choice as to what to pay, and why he did so at this rate is unclear. I do not consider this reveals unreliability or inconsistency with the plaintiff’s evidence.
[79]T37 ꟷ T38
[80]T38, L12
61Allied to this, the defendant suggested a dishonesty perpetrated on Centrelink, as the plaintiff was, at that time, in receipt of social security benefits. There is no force in this argument because there was no material produced from Centrelink to show the plaintiff had failed to make disclosure of the income earned. In fact, she gave evidence that she left it to her husband to deal with all financial matters. I do not consider this discloses any unreliability or inconsistency in the plaintiff’s evidence.
62Next, the defendant pointed to the plaintiff’s affidavit sworn in December 2022, where the plaintiff deposed:
Before my transport accident, my husband and I had planned to travel to far away places in Australia and overseas. This no longer seems possible since the injuries I sustained in my transport accident.[81]
[81]PACB 18 at paragraph [80]
63The defendant pointed out that, since the date of injury, the plaintiff had travelled to Sri Lanka four times, with one trip being in the months immediately prior to the swearing of this affidavit. In evidence, the plaintiff explained that all her Sri Lankan trips were for family reasons, such as sick relatives and not for pleasure.[82] She explained her affidavit was trying to convey her inability to travel for pleasure. I consider this is no more than an example of a poorly expressed Affidavit and the explanation she gave was reasonable and consistent.
[82]T36, L1-6
64Film was also shown of the plaintiff on 14 February 2019, 22 February 2019 and 23 February 2019. The film was less than five minutes in length. It showed the plaintiff moving in, what I consider to be, a free and unrestricted manner. This involved walking, carrying a child and carrying groceries. In film of 23 February 2019, it also showed the plaintiff swinging a child by both arms. The film is only one moment in time, but is clearly inconsistent with the plaintiff’s sworn evidence.[83] In that evidence, she deposes to having difficulties with even washing dishes. This stands in contrast to the weights she was lifting with the young children or the shopping. I consider this shows real inconsistency and unreliability in her evidence as to the capacity she has with her arms. She was also cross-examined as to the limitations of her neck movement that she had deposed to, being: “I have constant pain in my neck and limited movement in my neck. For example, when turning my neck or looking up or overhead”.[84] She was asked whether the film, which depicted her moving her neck, was consistent with this evidence.[85] She then modified her evidence to explain that she could look up, but not continuously.[86] I consider this evidence was inconsistent at best. Some allowance may be made for the fact English is her second language but, quite clearly, her affidavit evidence implied (1) constant neck pain and (2) limited neck movement. The plaintiff, in her affidavit, made no mention of such pain or limitation, only presenting after “continuous” use. These matters lead me to conclude that the plaintiff was unreliable and inconsistent in her evidence, particularly as to impairment consequences related to her neck. However, I do not consider her evidence was impugned to such an extent that it was unbelievable or wholly unreliable.
[83]PACB 16 at paragraph [71]
[84]PACB 12 at paragraph [40]
[85]T46
[86]T46, L8
65Stepping back, then, I come to assess the sustained injuries the plaintiff sustained in the second MVA. In doing so, I weigh the plaintiff’s evidence, the clinical notes, the medical opinion, and the surveillance film.
66I find that the plaintiff sustained spinal injury in the second MVA. That injury is best described by Mr Moaveni as soft-tissue cervical spinal injury, and lumbar spine with injury of the right sacroiliac joint. As set out above, I make this finding accepting the plaintiff’s treating practitioners in preference to the medico-legal reporting of Mr Rogers and Dr Speck.
67Given the longevity of the injuries to date and the ongoing treatment by way of cortisone injection as late as February this year, and ongoing physiotherapy, I find these injuries are extant and permanent. I consider the past is a good guide to the future. That is as such injuries have been present since the date of injury to date, then they are likely to continue for the foreseeable future.
68Given those injuries, I find the injury caused in the second MVA is to the spine – at the cervical, lumbar and sacroiliac joint levels. The body function impaired is the spine.
What right upper limb injuries were caused in the second MVA if any?
69I find there has been a right shoulder and hand injury, namely a TOS injury arising from the second MVA. This finding is supported by the opinion of Dr Seneviratne, a neurologist[87], who suggested her TOS appears to be aggravated by her second MVA. Dr Moaveni[88] also finds Ms Anver’s injuries from the second MVA to include the TOS affecting her right upper arm. However, an ultrasound by Dr Chong, a radiologist, in April 2020 finds that there was no evidence of right TOS.[89] I prefer the opinion of Dr Moaveni given he performed a clinical examination and conducted the relevant Roos test which was positive for TOS pathology. Her current symptoms stemming from the TOS suggests impairment consequences which are present and affect her current capacity to work and daily activities. I will address the impairment consequences that flow from the TOS injury later.
[87] PACB 92
[88] PACB 154
[89] PACB 174
The assessment of impairment consequences where there are 2 claimed serious injuries: here the spine and the right shoulder
70It is usual at this point to consider whether the impairment consequences of the spine injury satisfy the serious injury threshold.[90] However in this case there is a separate claim arising from an alleged injury to the right shoulder, arm and hand. That is said to have impairment consequences which are also serious. The Court of Appeal has set out the way that this Court must deal with the assessment of a claim for a serious injury where the impairment consequences of two injuries overlap.
[90]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at 639
71In Peak Engineering, the Court was considering a situation where two separate injuries were contributing to one impairment consequence, in that case, the inability to play pool, caused either by a hand injury or a knee injury. At paragraph [24], the President stated, in a judgment agreed with by the other members of the court:
“... where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. … .”[91]
[91]Peak Engineering (Supra) at paragraph [24]
72In the matter of Poholke v Goldacres TradingPty Ltd & VWA,[92] the Court of Appeal considered a situation where a worker had a neck injury which was a serious injury and then sustained a subsequent lower back injury. The worker sought a determination that the subsequent lower back injury was a serious injury. The Court stated:
“… In particular, as already noted, it required the judge, based on the evidence, to focus on the consequences of the back injury sustained by the applicant, to the exclusion of any consequences resulting to him from his earlier neck injury. … .”[93]
[92][2016] VSCA 232
[93](Ibid) at paragraph [80]
73I take the ‘exclusion of any consequences’ to mean that I am required to isolate the impairment consequences resulting from each specific injury. Applying that analysis to a consideration of the impairment consequences of the spinal injury, I am bound to exclude the impairment consequences of the right shoulder injury.
74Before I proceed to that specific analysis, I begin by making findings about all of the pain and suffering consequences in accordance with Peak Engineering. I will then proceed to assess whether each injury has impairment consequences which can be evaluated to the exclusion of impairment consequences arising from the right shoulder, arm and hand.[94]
[94] Dressing v Porter & Anor [2006] VSCA 215 at paragraph [47]
The overall impairment consequences produced by the injury to the spine and the right shoulder
75Specifically, as to functional consequences, she deposes that:
“… because of the pain, restriction, and symptoms in my neck, back and associated symptoms in my right arm and right leg. … [95],
[95]PACB 14 at paragraph [55]
she has difficulty doing:
(a) work for her employer at Mr Donut (which she ceased four weeks after the second MVA):
(b) driving – though this was also due to being panicked and anxious and her right hand pain;
(c) sleep – because of neck and lower back pain waking her up three to four times per night;
(d) difficulty raising her right arm to shower, tie her head scarf or reaching up;
(e) difficulty with the right hand when doing fine tasks such as chopping vegetables and cooking;
(f) cooking due to neck pain and increasing lower back pain when standing to cook;
(g) gardening due to neck, right arm and right hand pain;
(h) sewing and crafts due to right hand injuries;
(i) reading due to neck pain;
(j) walking due to back pain and locking up;
(k) driving due to psychiatric injury;
(l) for her right arm pain, she was prescribed Lyrica.
Spine impairment consequences
76The plaintiff’s affidavit identifies the alleged impairment consequences attributable to neck pain in the following terms:
“[40] I have constant pain in my neck and limited movement in my neck. For example when turning my neck or looking up or overhead. [41] the pain from my neck radiates into my right shoulder and right upper back areas. [42] I have difficulty holding my neck and head in the same position for prolonged periods of time..[96]
[96]PACB 12
77As to other functional consequences of the spinal impairment, Dr Moaveni opines that she has limited standing and walking capabilities of 45 minutes. She also has squatting, pushing and twisting restrictions, an inability to lift more than five kilograms and impacts on her carrying and driving capabilities.[97]
[97]PACB 157
78Having put aside Mr Rogers and Dr Speck, the overall impairment consequences are best set out, I consider, by Dr Moaveni.[98] I accept that summary. As to pain, he took a history of intermittent sacroiliac joint pain, worsened with prolonged standing, sitting and walking. It can also interrupt sleep.[99] She takes Panadol Osteo/Extra, four per day for the pain.[100]
[98]PACB 144 -148
[99]PACB 154
[100]PACB 13 - 14, PACB 154
79As to neck pain, specifically, Dr Moaveni noted pain in the cervical spine radiating into the right shoulder girdle and ulnar side of the right hand. At times, such pain was 8/10. For this neck pain, she is prescribed Panadol Forte, two tablets per night and Panadol Osteo four tablets per day.
80I do not accept that evidence as to her ability to turn and move her neck, given the video surveillance. I otherwise accept that evidence.
81It is also relevant to recall that she has had two cortisone injections to the sacroiliac joint, both for pain relief and diagnostic reasons.
82The defendant submitted that, in accordance with the principles in Peak Engineering, it was necessary to identify which of the plaintiff’s pain and suffering consequences are attributable to which injury.[101]
[101]See Peak Engineering (supra) at paragraph [24]
83That much can be accepted. The defendant submitted that the plaintiff could not discharge her burden. However, as I have set out above, the plaintiff has sustained injury to the spine in the second MVA. There is no distinction between the neck and the lower back, and sacroiliac joint for the purposes of the definition of “serious injury” in the Act: they all constitute impairment of one body function, being the spine.[102] The impairment consequences from that injury are pain in the neck, lumbar spine and sacroiliac joint. I accept such pain is constant in the neck, hence the requirement for such significant medications, Panadol Osteo and Panadeine Forte, daily. Such pain can at times get to a severity of 8/10. I find she has intermittent lower back and right sacroiliac joint pain, worsened with prolonged standing, sitting and walking. It requires daily over-the-counter medications of four per day. That pain has required two cortisone injections.
[102]Victorian WorkCover Authority v Brassington [2021] VSCA 236
84I find the neck injury does not limit neck movement, given the video surveillance. I find her answers in cross-examination more accurate than her affidavit as to her range of motion associated with her neck movements. I find the injury to her neck and lower back does have an impact on her sleep such that she wakes three to four times per night. [103]
[103]T16, L1-5
85I find the neck and lower spine injury affects her ability to cook, as she has to stand with her neck flexed, and this increases pain. I also accept that her cooking and household tasks are significantly interrupted by her spine injury.[104] The same is the case in respect of her gardening and I find that she is impacted negatively by her spinal injury in this regard.[105]
[104]T16, L16-29
[105]T17, L4-6
86I also accept the spine injury affects her ability to walk, stand and perform manual tasks associated with her work.
87In conducting this exercise of identifying the impairment consequences attributable to the spinal injury, I have referred to the plaintiff’s affidavit evidence, which I accept, as I do not consider it impugned by the specific instances of inconsistency the defendant pointed to and of which I have set out. This, of course, accepts that the range of motion of the neck is not as severely compromised as the plaintiff deposed.
88It is also necessary to consider the plaintiff’s viva voce evidence in cross-examination, which the defendant submitted showed that the impairment consequences of the right arm TOS were impermissibly entwined with the spinal injury impairment consequences.
89A clear example of this is in relation to the evidence that the plaintiff gave about being unable to drive by reason of her back, TOS and psychiatric injury. The evidence that she gave was such as to make it impossible to find that she was unable to drive by reason of her spinal injury.[106]
[106]T13, L4
90However, it is tolerably clear from her evidence that her back injury itself stops her performing the heavy, repetitive and often awkward work required at Mr Donut.[107] This is to exclude the effect of the right-hand injury which would also impact her work capacity.
[107]T12 and T14, L24-27
91As those impairment consequences can be isolated from any impairment consequences from the TOS (or psychiatric consequences) and can be attributed to the spinal injury, they call for an evaluative judgement as to whether they meet the serious injury threshold. I find that, in combination, those impairment consequences do meet the statutory test. In coming to this conclusion, I note that consequences identified have been present now for over five years and have endured despite courses of allied health treatment, medication and pain-relieving injections. She continues to be on medication, as I have outlined above, which is both over-the-counter and prescription medication. She will have to endure such medication for the foreseeable future. These factors strongly support a finding the spinal impairment consequences are permanent.
92She is unable to perform her work at Mr Donut by reason of her spinal injuries. She has always worked as a pastry chef and being unable to perform this task is a significant impairment consequence. In addition, she is unable, on the evidence, to return to such manual work, which is the only work she has done in her life. That is at least a significant consequence. Lastly, the effects at home in respect of being unable to cook, garden and clean as she used to, represents significant impact. For those reasons, in summary, I can find that the plaintiff is entitled to a determination of serious injury in relation to her spinal injuries.
93I do not, then, need to consider the causation of the right shoulder in any detail. But if I had to, I would find it is related to the second MVA, due to the opinions of Mr Rahim,[108] Dr Moaveni and Dr Seneviratne,[109] particularly as the diagnosis is supported by the positive Roos test.[110] I do not accept Mr Rogers’ and Dr Speck’s opinions, given my preference for the treating specialists’ opinions of Dr Rahim and Dr Seneviratne. However, I do not find the impairment consequences associated with the right shoulder can be delineated in the way required by the Act.[111] In this regard, the opinion of Dr Moaveni is important, and I accept it. That is, that the impairment consequences of the right shoulder and TOS cannot be adequately identified.[112] I also note her answers in cross-examination also make this task of delineating the impairment consequences associated with the right shoulder impossible. I would deny the plaintiff’s serious injury claim for the right arm-related TOS.
[108]Dr Rahim PACB 57
[109]Dr Seneviratne PACB 92, though the subsequent sonograph showed no positive sign of TOS
[110]Dr Moaveni PACB 147
[111]See Peak Engineering (supra) at paragraph [24], Dr Moaveni PACB 159
[112]Ibid
94I deny the paragraph (c) application as the impairment consequences are not sufficient to be severe.
95Having assessed the matter, I find the following:
(a) The plaintiff had had a number of pre-existing injuries to her spine, right arm and right leg prior to the second MVA. These injuries can be separated from the injuries which occurred in the second MVA;
(b) In the second MVA, the plaintiff sustained injury to the spine particularly and injury to the sacroiliac joint. She also sustained an injury to the right shoulder being a TOS.
(c) The impairment consequences of the spine injury can be isolated from the right shoulder injury. Those isolated impairment consequences qualify as being more than significant or marked.
(d) By reason of the impairment consequences of the spine injury she is permanently unable to work.
96By reason of those matters, the plaintiff is entitled to determinations of serious injury for both pain and suffering and loss of earnings.
97I will ask the parties to provide Minutes of Consent to give effect to this judgment and deal with outstanding issues as to costs.
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