Blaschka v TAC
[2022] VCC 584
•5 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01396
| KIM BLASCHKA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 & 15 November 2021 | |
DATE OF JUDGMENT: | 5 May 2022 | |
CASE MAY BE CITED AS: | Blaschka v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 584 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Motor vehicle accident – pain and suffering and pecuniary disadvantage - whether aggravation to spine – whether resolution of organic injury – whether non-organic chronic pain - failure to undergo suggested course of treatment – whether long term injury – effect of injury on employment and pecuniary disadvantage
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries v Poljak [1992] 2 VR 129.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Ms M Fudim | Hounslow Lawyers |
| For the Defendant | Mr S Smith SC with Ms A Woods | Wisewould Mahoney |
HIS HONOUR:
1The plaintiff seeks leave to commence a proceeding to recover damages for injuries she suffered in a transport accident on 13 May 2014. She does so under the Transport Accident Act 1986 (“the Act”) and she relies upon paragraph (a) of the definition of “serious injury” contained in s93(17).
2
The plaintiff was represented by Mr Stanley of leading counsel, together with
Ms Fudim of counsel. The defendant was represented by Mr S. Smith of Senior Counsel and Ms A. Woods of counsel.
3The plaintiff deposed that she has suffered from back pain at times in the past and prior to the transport accident. In 2011 she had some middle back pain. In 2009 she saw a physiotherapist for some time due to low back pain, and in 2012 and 2013 she attended her general practitioner for low back pain.
4Regarding paragraph (a) of the definition of serious injury, the injury relied on is said to be an aggravation of a pre-existing degenerative condition of the plaintiff’s cervical and lumbar spine and the body function associated with the injury is the spine. At the hearing all counsel accepted the injury was an aggravation type injury and, therefore, called to be considered in light of the principles expressed in Petkovski v Galletti.[1]
[1] [1994] 1 VR 436.
5The plaintiff relies on both pain and suffering and loss of earning capacity. Any pecuniary disadvantage the plaintiff has suffered is to be assessed in combination with any pain and suffering consequences.[2]
[2] Humphries v Poljak [1992] 2 VR 129, [40].
The issues
6It became evident in the course of the cross-examination of the plaintiff that the defendant’s objection to the grant of a serious injury certificate was its reliance on the plaintiff’s transport caused injury not being ‘long term’ or, as Mr Smith submitted, not ‘permanent’[3] and that the plaintiff retained a work capacity.
[3] The Act uses the definition of an injury being “long-term” as opposed to “permanent”.
7Mr Smith acknowledged that should I not be satisfied by the arguments addressing these two points advanced on behalf of the defendant, then by reason of the pain and suffering consequences as a result of the accident deposed to by the plaintiff, it would be difficult for the defendant to contend that she did not satisfy the narrative test requirements as is it sometimes compendiously called, for the grant of a serious injury certificate.[4]
[4] Transcript (T) 21-24.
The documentary evidence
8The plaintiff tendered the following evidence in support of her application:
·
Three affidavits of Kim Blaschka dated 4 April 2020,[5] 6 August 2020[6] and
[5] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 4-10.
[6] Exhibit P1, PCB 11-13.
12 November 2021;[7]
[7] Exhibit P1, PCB 118-122.
· Notice of Entitlement dated 14 July 2016;[8]
[8] Exhibit P2, PCB 18-24.
·
CT Cervical Spine dated 04 May 2015,[9] CT lumbosacral spine dated
[9] Exhibit P3, PCB 25-25.
1 October 2015[10] and CT lumbar and cervical spine dated
[10] Exhibit P3, PCB 26-26.
10 October 2019;[11]
[11] Exhibit P3, PCB 27-27.
· Report of Dr Tim March dated 13 December 2018;[12]
[12] Exhibit P4, PCB 36-38.
·
Reports of Mr Douglas Gardiner dated 4 December 2019[13] and
[13] Exhibit P5, PCB 40-46.
11 August 2021;[14]
· Reports of Dr G. Sendecki dated 22 December 2020;[15]
· Report of Dr Varun Saluja dated 3 April 2020;[16]
· Report of Dr Salavati dated 13 July 2021;[17]
· Report of Zachary Rouse dated 21 September 2021;[18]
· Report of Dr. Clayton Thomas dated 4 October 2021;[19]
· Letter of resignation from plaintiff to RJ Hee Pty Ltd dated 5 August 2016;[20]
· Progress notes of Point Cook Super Clinic dated 13 May 2014 – 7 July 2014,[21] 7 November 2014[22] and 4 May 2015 – 27 May 2015,[23] Symmetry Physio dated 8 September 2014 – 3 June 2015[24] and The Sports Injury Clinic dated 24 September 2015 – 26 April 2018.[25]
[14] Exhibit P5, PCB 56-63.
[15] Exhibit P6, PCB 52-52.
[16] Exhibit P7, PCB 53-54.
[17] Exhibit P8, PCB 55-55.
[18] Exhibit P9, PCB 64-69.
[19] Exhibit P10, PCB 70-74.
[20] Exhibit P11, PCB 95-95.
[21] Exhibit P12, PCB 96-99.
[22] Exhibit P12, PCB 100-100.
[23] Exhibit P12, PCB 101-102.
[24] Exhibit P12, PCB 103-113.
[25] Exhibit P12, PCB 114-117.
9The defendant relied on the following in opposing the grant of a serious injury certificate:
· Reports of Dr M Rahgozar dated 22 May 2018[26] and 6 August 2021;[27]
· Reports of Dr R Simm dated 24 January 2020[28] and 7 September 2021.[29]
[26] Exhibit D1, Defendant’s Court Book (‘DCB’) 6-15.
[27] Exhibit D1, DCB 16-24.
[28] Exhibit D2, DCB 24-31.
[29] Exhibit D2, DCB 32-40.
10In reaching my conclusions I have had regard to all medical reports and clinician notes referred to and that were relied on by the parties, the cross-examination and re-examination of the plaintiff and the addresses of counsel. I have referred to such of the medical evidence that has proved necessary for me to arrive at my findings and in order to explain my reasons.
The transport accident
11On 13 May 2014 at about 7.55 am the plaintiff was driving to a site for work. She deposed that:
“I was driving down princess freeway in Laverton North. The traffic was at a standstill because it was busy. My car was stationary in the right lane. Suddenly my car was hit from behind. I was driving the company car at the time. I believe the damage on the car was unrepairable, but I was able to drive it back to the office”.[30]
[30] Exhibit P1, PCB 6 paragraph 14.
The plaintiff’s affidavit evidence
12The plaintiff said she attended her general practitioner the afternoon of the accident. She was provided with a certificate to stay home for a few days. She reattended her general practitioner as the pain in her neck and back had not improved. She commenced physiotherapy in Point Cook.[31]
[31] Exhibit P1, PCB 6 paragraph 15.
13At the time of the accident she was still on a probationary period of employment with her employer, RJ Hee Pty Ltd, working in Occupational Health and Safety and Sales. She said the job involved a lot of driving around and the carrying of various health and safety supplies and materials. She worked full time hours. She continued to work on a full time capacity after the transport accident. She said she wanted to keep her job. She took some days off when she needed physiotherapy.
14She resigned from work in August 2016, some two and quarter years after the transport accident. She said she was not coping with her work duties due to spinal pain.[32]
[32] Exhibit P1, PCB 7 paragraph 20.
15She commenced a business of her own called Savvy Dog Network in 2016. She said she wanted to work with small businesses that supply products and services for dogs. It seems the enterprise remained embryonic and very little at all was done in pursuit of it and she did not make any income from it. She thought the business ceased in 2019.[33]
[33] Exhibit P1, PCB 13 paragraph 7.
16During the period of time that the plaintiff continued to work with her employer after the transport accident, she nonetheless received some treatment and had some radiology undertaken. On 4 May 2015 she had a CT scan of her neck.[34] In about mid-2015 she commenced seeing David Shriven, a physiotherapist. In September 2015, Mr Schriven referred her to a sport physician, Dr Tim March who in turn sent her for a CT scan of her low back on 1 October 2015. The plaintiff estimated that she saw Dr March about 7 times between 2015 and 2018.[35] On 10 October 2019, she had an updated CT scan of her neck and back.[36]
[34] Exhibit P3, PCB 25.
[35] Exhibit P1, PCB 7 paragraph 18.
[36] Exhibit P3, PCB 27.
17As far as pain medication is concerned, the plaintiff deposed in her August 2021 affidavit to taking Panadeine Forte and Panadol Osteo for pain on average three times a week.[37] In her first affidavit she deposed that she took Panadol Forte for pain but tried to only take it at night and on average she thought she took Panadeine Forte 2 or 3 times a month. That is not much at all. She says she stopped taking most prescription medication because it made her feel like she was in a fog and her mind was not working properly. She said she had less occasion to take medication after she ceased working because her pain was less.[38] On the other hand, in her affidavit evidence, the plaintiff’s account is of being affected by constant pain.[39]
[37] Exhibit 1, PCB 12 paragraph 4.
[38] Exhibit P1, PCB 7 paragraph 21.
[39] In her third affidavit sworn 12 November 2021 at [para 1], the plaintiff deposed that her pain was still as described in her two earlier affidavits.
18She takes medication for her blood pressure every day. She is prescribed an anti-anxiety tablet which she takes most days, although she will avoid it if she can because it makes her feel “loopy”.[40]
[40] Exhibit 1, PCB 12.
19The plaintiff said she attends her general practitioner about once a month. She sees a physiotherapist through a Medicare plan. She used to do Pilates because it helped with her pain. However, WorkCover stopped paying for it. She does some home based exercises that were demonstrated to her by her physiotherapist.[41]
[41] Exhibit P1, PCB 7 paragraph 21.
20She said she suffers pain in her neck all the time. She experiences pins and needles down her right arm and some numbness in her right arm. As well, she suffers pain in her low back all the time. The pain level varies depending on what she is engaged in doing with the result that she endeavours to avoid movements which aggravate the pain.[42]
[42] Exhibit P1, PCB 7.
21She deposed that her neck feels stiff most of the time and that it also hurts to turn her head quickly. When she needs to turn her head, she said she tends to turn her whole body. She mainly relies on mirrors to do head checks when she is driving.[43]
[43] Exhibit P1, PCB 8.
22The plaintiff said that she gets increased low back pain when she is seated for more than an hour at a time. She said that her back pain is also made worse when bending. She says that she finds standing for greater than 30 minutes at a time aggravates her back pain. Walking uphill is difficult due to her back pain. She can walk for about 30 minutes before her back pain worsens. She thinks she now walks at a slower pace whereas prior to the injury she was a fast walker. When she dresses, she sits down and puts her feet up to put on socks and shoes, so as to avoid bending her back. She can drive a car for about an hour before her back pain gets worse. She says that she tries to use her left hand to hold the steering wheel more than her right, as holding the steering wheel with her right hand aggravates her neck pain.[44]
[44] Exhibit P1, PCB 8.
23She deposed that her spinal pain affects her sleeping. She uses a special pillow. She wakes every night due to back pain and also because of pins and needles in her right arm when she sleeps on her right side.[45]
[45] Exhibit P1, PCB 8.
24The plaintiff said that since the accident she avoids wearing high heels because it aggravates her back and neck pain.[46]
[46] Exhibit P1, PCB 8.
25The plaintiff lives alone and so all domestic chores fall to her. She said she needs to pace herself and she allocates cleaning a particular room on a particular day. She finds vacuuming the hardest task to manage due to her spinal pain. She said that she avoids washing the floors for as long as she can because the actions required makes her spinal pain worse. Prior to the injury she says she had no problems with cleaning the house.[47]
[47] Exhibit P1, PCB 8-9.
26She said that she tries to avoid cooking complicated dishes to avoid the necessity to stand too long in the kitchen. Sometimes friends bring food over.[48]
[48] Exhibit P1, PCB 9.
27Prior to her injury she enjoyed gardening. On her last property before the accident she had a lawn and could mow it. The plaintiff does very little gardening now due to her spinal pain.[49]
[49] Exhibit P1, PCB 9.
28She deposed that she has a red heeler dog whom she walks on a long leash that allows him to run around because she cannot afford to chase after him due to her spinal pain.
29Prior to the accident the plaintiff attended gym most days. She was doing weights and cardio. She was also doing Zumba. She deposed that she is able to manage some yoga and Pilates, but she find weights, cardio and Zumba too difficult because of her spinal pain.
30Prior to her injury, she would go out with friends for dinner or dancing most weekends. She says she barely goes out now due to her spinal pain. She does not remember the last time she danced.[50]
[50] Exhibit P1, PCB 9.
31Prior to ceasing work, the plaintiff was working full time hours. She says she was paid about $1,350 gross per week. She said that whilst working her spinal pain was much worse and she would need to spend her weekends resting and lying down. She doubts she could perform her previous job. The predominance of medical opinion supports that view. Her employment involved a lot of driving and carrying heavy material. She said that recently she helped her friend at an Expo, but she had to sit down every 30 minutes because of her spinal pain.[51]
[51] Exhibit P1, PCB 9-10.
32She deposed that because of the injury she has had to reinvent herself.[52] She said that in 2018 she completed a Certificate III in Business Management and Operations at Frankston TAFE. She has undertaken free online courses about social media and website design. She has applied for a number of jobs in media and advertising, and other sedentary jobs. She has not been successful. She believes that is because she is over 50 and lacks relevant experience.
[52] Exhibit P1, PCB 10, paragraph 36.
33In the plaintiff’s second affidavit she deposed that the consequences of her spinal injury have remained much the same. She continues to have constant pain in her neck. She has constant pain in her low back; however, her neck pain is worse than her back pain. She says that her neck pain is made worse when she twists her neck. She gets headaches every few days usually above the right eye. When her headaches come on, she has to take painkillers. Her low back pain is aggravated when she sits for more than about an hour and walks for more than about 30 minutes. When her pain is worse, she avoids driving but prior to driving, however, she usually takes pain killers.[53]
[53] Exhibit 1, PCB 12 paragraph 5.
34She says that she continues to be woken each night by spinal pain. When she wakes up she needs to shake off the pins and needles in her right arm and to change positions. She puts on a meditation tape to help her fall back to sleep, although this in not always effective.[54]
[54] Exhibit 1, PCB 12 paragraph 6.
35She says that her general practitioners have advised her that she can work eight hours a week. She deposed that she continues to look for work and has contacted an agency. However, she was told that eight hours a week is very limited, and she will be unable to secure a job.
36In her second affidavit the plaintiff said she wants to move back to Queensland because the cold weather makes her pain worse but due to COVID-19 and her financial difficulties she is not sure when she will be able to do so.[55]
[55] Exhibit 1, PCB 13 paragraph 8.
THE MEDICAL REPORTING
Dr Gardiner 11 August 2021
37Dr Gardiner is an orthopaedic surgeon. The plaintiff relied on two reports prepared by him. In the more recent report dated 11 August 2021,[56] Dr Gardiner identified the plaintiff’s only comorbidity as hypertension for which she takes medication. He confirmed that her activities prior to injury consisted of regular gym attendance and very long walks with her dog. She told Dr Gardiner that she was functioning normally at home and at work prior to the injury and that she had no past history of injury and, in particular, denied any past history of neck or low back symptoms.[57]
[56] Exhibit P5, PCB 56-63.
[57] Exhibit P5, PCB 56.
38
Dr Gardner commented on the CT scan of the plaintiff’s cervicothoracic spine of
4 May 2015 having identified multilevel degenerative changes especially at C6-7 and some significant right and left-sided C6-7 foraminal stenoses.
39Dr Gardiner noted that Dr March, in his reports, had described the plaintiff experiencing ongoing neck and upper back pain as well as some low back pain and that she had been offered Pilates, which reportedly helped, and had been offered general physical therapies.
40Dr Gardiner noted that a CT scan of the lumbosacral spine of 1 October 2016 reported a mild degree of lumbosacral degenerative change, with L2-3 disc narrowing and some bulging of the lumbosacral disc without nerve root compromise.[58]
[58] Exhibit P5, PCB 57.
41Dr Gardiner recorded that over the 12 months after the transport accident the plaintiff attempted to continue working but was reportedly experiencing great difficulty with her mental function due to multiple medications that she was taking. I observe that this comment reflected the plaintiff’s evidence of the effects some medications had on her mental acuity. By 2016 she could not cope with the ongoing ‘foggy feeling’. She stopped taking her tablets, but then she reportedly could not drive or perform her job adequately because of pain and so she resigned. Since then she had attempted to undergo re-education and obtained qualifications in Microbusiness Operations as a consultant. She said she had made several job applications but said that as soon as the potential employers discovered that she had a WorkCover claim, she never heard from them again.
42Dr Gardiner reported that the plaintiff denied radicular symptoms, apart from some numbness in the right hand during sleep which wakes her.[59] He noted that since he had first seen the plaintiff on 4 December 2019, she had continued to suffer from neck and back symptoms. She said her neck was still painful and probably more so than previously described. With regard to her low back, she said that the situation is essentially “ISQ”[60] and not as bad as her neck.[61]
[59] Exhibit P5, PCB 57.
[60] “in status quo.”
[61] Exhibit P5, PCB 57-58.
43In terms of endeavouring to try and return to work, although she underwent retraining she had been unable to find satisfactory employment and in addition, the COVID-19 disruption during 2020 prevented further progress in terms of employment opportunities.
44Dr Gardiner observed that the plaintiff had not undergone any further injections to her neck[62] or to her low back and there had been no mention of surgery in either of these areas.[63]
[62] In fact, there is no evidence that the plaintiff has had any injections.
[63] Exhibit P5, PCB 58.
45She related ongoing neck and low back pain. She said she could sit for up to an hour and stand for half an hour. She resorted to short walks with her dog and her sleep was disturbed sometimes by pain but also by numbness in the right hand. She was able to self-care and perform household chores, but to do involved short periods of effort accompanied by rest periods, and she reportedly accomplished household tasks over several days rather than in one undertaking. She said that she tires easily.[64]
[64] Exhibit P5, PCB 58.
.
46Dr Gardiner wrote that the plaintiff’s driving was still restricted to short distances and told him that the pain in her back and neck was greatly increased on the drive from Seaford to South Yarra for her consultation with him. She avoids driving for any more than a maximum of 5 to 10 minutes, which is the length of time it takes for her go to the physiotherapist or the supermarket.[65]
[65] Exhibit P5, PCB 58.
47
Dr Gardiner commented on the radiology and films. He considered the findings in the whole spine were identical with those at date of his first examination on
4 December 2019. He made the following comments about the radiology;[66]
“CT cervical spine dated 4 May 2015 (approximately 12 months after the work injury): This concludes that there are multilevel degenerative changes, worse at C7, resulting in severe right and moderate/severe left foraminal narrowing. It also notes some moderate narrowing on the right at the C5-6 level and on the left at the C3-4 level;
CT lumbosacral spine dated 1 October 2015: I have seen these films and confirm that there are spondylotic (sic) lipping at the disc margins at several levels with narrowing of the L2-3 disc and very minor posterior bulging of the L5-S1 disc;
CT lumbar spine dated 10 October 2019: This describes mild degenerative change involving bilateral L4-5 facet joints, as well as at the L4-5 level where there is reported to be a diffuse mild disc bulge. It also describes a left paracentral diffuse disc bulge at L5-S1 without nerve root compression at any level;
CT cervical spine dated 10 October 2019: This describes degenerative changes from the C3 to C7 discs which I presume means the C3-4 to C6-7. There are several areas of endplate osteophyte formation with central canal calibre maintained. It also reports mild stenosis involving the bilateral C5-6 and left C3-4 exit foramina with the rest of the foraminae being patent.”[67]
[66] Dr Gardiner report PCB 59-60
[67] Exhibit P5, PCB 59-60.
48Dr Gardiner diagnosed the plaintiff with a traumatic aggravation of pre-existing previously asymptomatic cervical spondylosis as well as a soft tissue injury to the cervicothoracic region but without radiculopathy and traumatic aggravation of previously asymptomatic lumbosacral spondylosis including a soft tissue injury but without radiculopathy.
49Dr Gardiner thought the plaintiff:
“is theoretically capable of suitable employment taking into account her age, education, background, training, experience and the restrictions that she may have. She would need to work in a specially designed environment where she could change positions regularly from sitting to standing and would be able to move around in the workplace. She would not be able to perform activities that required significant range of movement in her neck and low back and she would therefore be significantly restricted in lifting. I suggest that she would only be fit for three days per week at four hours per day as a trial and to increase her hours as tolerated or to cease work if such a return-to-work scheme is unsuccessful”.[68]
[68] Exhibit P5, PCB 61.
50Dr Gardiner considered the plaintiff’s prognosis as “guarded at best”.[69]
[69] Gardiner PCB 61
Mr Thomas report 4 October 2021
51Dr Clayton Thomas is a rehabilitation and pain medicine specialist. He reported to the plaintiff’s solicitors on 4 October 2021,[70] following his examination of the plaintiff in which she complained of central neck pain with radiation down the right arm and pins and needles to the right ring finger as well as headaches that are right sided to the back of her right eye. She indicated that her pain levels are generally 4/10 but with activity can be as high as 7 to 8/10. She has difficulty with head checks when driving. She lives alone. She does do the domestic chores but breaks down the activities.
[70] Exhibit P10, PCB 70-74.
52On examination, Dr Thomas found that the plaintiff exhibited tenderness in the upper thoracic spine and lower cervical spine. Neck movements were grossly limited but better on indirect observation although still revealing limited neck movements. Her shoulder movements were well preserved. Neurologically upper and lower limb reflexes were brisk and symmetrical. Lower limbs tended to be more hyper-reflexic and slight hypertonicity but the upper limbs were not. Straight leg raising was unrestricted. Hip examination was unremarkable.
53Dr Thomas diagnosed the plaintiff with symptomatic spondylosis of the cervical spine and lumbar spine. He said the condition of the plaintiff’s neck was an aggravation of a previous asymptomatic complaint and the situation with her lumbar spine was an aggravation of a previous complaint which was symptomatic but manageable.[71]
[71] Exhibit P10, PCB 72.
54Dr Thomas thought the plaintiff presented with a capacity for suitable employment.[72] He noted that she had worked in accounts and in an office administrative environment with extensive experience in this regard. From a work restriction perspective, Dr Thomas considered that the plaintiff would need to perform work which is both back and neck friendly, and that office-type work with flexible ability to alter her posture in an appropriately established ergonomic setup would be reasonable.
[72] Exhibit P10, PCB 73.
55He considered that the nature of the plaintiff’s injury has had a “moderately severe” impact on her ability to function socially, domestically and recreationally and his prognosis was one of ongoing pain and associated disability.[73]
[73] Exhibit P10, PCB 73.
Dr March
56
Dr Tim March specialises in sports and orthopaedic medicine. He saw the plaintiff on referral from her physiotherapist David Scriven. He provided a report to the ACCS dated 13 December 2018.[74] He explained that the plaintiff had
7 consultations with him over a period of three years and had reviewed the
plaintiff in January 2016, July 2016 and April 2018, and over this time the
plaintiff “continued to soldier on with her pains”.[75]
[74] Exhibit P4, PCB 36-38.
[75] Exhibit P4, PCB 37.
57Dr March wrote that on the occasion of each review he had recommended the plaintiff have a CT SPECT examination and possible cortisone injections to the facet joints, both in the lumbar sign and the cervical spine.[76] He also discussed with her options such as radio frequency which he noted can relieve pain significantly coming from the facet joints. However, on each occasion the plaintiff was resistant to further investigation or further treatment modalities, including injections or radio frequency. Dr March said what he had proposed are fairly standard treatments but that the plaintiff was not keen on embracing them.
[76] Exhibit P4, PCB 38.
Mr Rouse
58Zachary Rouse is physiotherapist at The Sports Injury Clinic, and who in a report dated 21 September 2021,[77] detailed that the plaintiff had received physiotherapy treatment in Point Cook one to two times a week in the year before commencing physiotherapy at the Sports Injury Clinic on 18 August 2015 and had been seen by David Scriven.[78] Mr Rouse wrote that:
“Given the longevity of Kim's symptoms (7 years) as well as a reduction in current treatment consistency, it is quite hard to provide a solid prognosis for Kim. I tend to agree with Mr Douglas Gardiner in the ideal that if we continue to with the current restrictions to regular Physiotherapy, supervised exercise as well as potential access to specific pain management specialties; Kim will continue in her current state of immobility and pain.”[79]
[77] Exhibit P9, PCB 64-69.
[78] Exhibit P9, PCB 64.
[79] Exhibit P9, PCB 66.
Varun Saluja
59Varun Saluja, physiotherapist, reported in April 2020,[80] that the plaintiff presented for treatment on 6 December 2019 under a general practitioner management care plan for five visits. He thought her prognosis was unpredictable as her symptoms had been persistent and ongoing since the accident, which at the date of his report was almost five years ago and, in his opinion, “Kim does not have a capacity to return to her pre-injury employment on a full time unrestricted basis”.[81] He expressed no opinion on suitable employment.
[80] Exhibit P7, PCB 53-54.
[81] Exhibit P7, PCB 53.
Dr Greg Sendecki and Dr Ali Salavati
60The plaintiff’s general practitioners have both identified that the plaintiff can do no more than eight hours work per week.[82]
[82] Exhibit P6, PCB 52 and Exhibit P8, PCB 55.
THE DEFENDANT MATERIAL
Dr Rahgozar
61Dr Rahgozar is an occupational physician who provided reports for the defendant on 22 May 2018[83] and 6 August 2021.[84] In his first report, he noted that over the previous four years, the plaintiff had not engaged in any invasive treatments such as steroid and local anaesthetic injections, medial branch blocks, radiofrequency neurotomy or spinal surgery. Her condition of neck, back and right upper limb had been mainly managed conservatively, with analgesics, physical therapies and exercises. She continued to use opioid medications, namely Panadeine Forte regularly for pain.[85]
[83] Exhibit D1, DCB 6-15.
[84] Exhibit D1, DCB 16-24.
[85] Exhibit D1, DCB 8.
62The plaintiff reported to Dr Rahgozar a high level of pain experienced in the neck and lower back that she rated at 7/10. Her pain can be aggravated by bending and twisting, prolonged sitting, static standing, lifting, carrying and pushing and pulling heavy objects, especially above shoulder level. She reported paraesthesia and tingling of the entire right upper limb which interrupts her sleep. She did not report morning stiffness. [86] She reported radiation of pain from the neck to the shoulder and proximal arm, right more than left. She used Panadeine Forte, one tablet regularly at night before going to bed and occasionally half or a tablet during the day for breakthrough pain.
[86] Exhibit D1, DCB 8.
63She used to attend physiotherapy regularly but has been paying for these treatments herself, having hands-on treatment such as dry-needling and exercises.
64She reported easy fatigue, taking naps in the afternoon, but otherwise no significant symptoms or concurrent mental health conditions.[87]
[87] Exhibit D1, DCB 8.
65She reported an ability for self-care and light chores around the house, such as making a light meal, washing a few dishes, and the like. She can do mopping, vacuuming and hanging the washing, However, she does these activities in portions. She can do shopping. He said the plaintiff had driven to her appointment.
66In relation to activities of leisure, she reported not being able to return to her gym activities.
67She had not been able to return to work.[88]
[88] Exhibit D1, DCB 9.
68She could unilaterally weight bear on right and left, stand on her tiptoes and heels, and perform a squat. Range of motion of the knee joints, hip joints, lumbosacral spine was normal. Range of motion of the cervical spine revealed mildly reduced flexion, extension and near normal lateral flexion and rotation. The range of motion of the left shoulder was normal. Range of motion of the right shoulder was mildly restricted in flexion and abduction with normal internal and external rotation and normal adduction. There was no pain on resisted abduction, internal rotation and impingement tests were negative on the right side. Neurological examination of the upper limbs within the confines of the examination was normal.[89]
[89] Exhibit D1, DCB 9-10.
69She had tenderness in the mid lower cervical spine and paraspinous areas, right more than left.
70Neurological examination of the lower limbs was normal.[90]
[90] Exhibit D1, DCB 10.
71Dr Rahgozar observed that the CT scan of the lumbosacral spine dated 1 October 2015 showed degenerative changes of a mild nature, without spinal canal narrowing, foraminal narrowing, instability, or facet joint arthropathy.[91]
[91] Exhibit D1, DCB 10.
72Dr Rahgozar wrote that the plaintiff had been experiencing chronic neck, back and right upper limb pain after a motor vehicle accident in which her car was written off but that she had not suffered any fracture, dislocation or significant neurological impairment and, thereby in his opinion, rendering a likely diagnosis of her condition as a musculoligamentous injury. He thought that her injuries should likely have settled in a few weeks or a few months. However, her pain appeared to have become chronic.[92] He thought the plaintiff was likely to have suffered a musculoligamentous injury, which had resolved. He thought it unlikely that she will suffer from any significant pathology in her cervical spine, shoulder girdle, lower lumbosacral spine or pelvic girdle. He assessed her pain as non-specific but unrelated to the compensable injury.[93] Dr Rahgozar noted that the plaintiff had an independent psychiatric assessment, which may be suggestive of psychosocial stressors in her presentation at the time. Overall, in his opinion, he regarded the plaintiff’s presentation as disproportionate to any physical injury.[94]
[92] Exhibit D1, DCB 10.
[93] Exhibit D1, DCB 11.
[94] Exhibit D1, DCB 13.
73Dr Rahgozar wrote that a mild degree of mechanical dysfunction of the cervical spine could not be ruled out, but that the likelihood of any significant pathology in the plaintiff’s cervical spine, shoulder girdle or lower lumbosacral spine was not high.[95]
[95] Exhibit D1, DCB 11.
74Dr Rahgozar thought that considering the plaintiff’s low and stable dose of Panadeine Forte, that she was fit and safe to drive a vehicle for journeys up to about 45 to 60 minutes and was capable of using public transport.
75Dr Rahgozar considered that the plaintiff was capable for activities such as OH&S, office and administrative work in the field of finance and accounting, and the like.[96]
[96] Exhibit D1, DCB 11.
76In his second report dated 6 August 2021, Dr Rahgozar wrote that the most likely diagnosis of the plaintiff’s injuries is a musculoligamentous injury or a whiplash-type injury of the cervical spine and shoulder girdle and/or lumbosacral spine and pelvic girdle. He observed that such injuries tend to resolve in about 6 to 12 weeks.[97] He reiterated his opinion that the plaintiff’s injury had resolved and that her ongoing pain and disability is non-specific and in that sense, she was not presenting with any pathology in the cervical spine, lumbosacral spine, shoulder or pelvic girdles differently in comparison to a woman of her age and constitution.
[97] Exhibit D1, DCB 21.
77Dr Rahgozar wrote that the plaintiff was not taking any analgesics and did not report significant disability for activities of daily life. [98] She told him that she had been able to drive to his rooms in a journey that took her about 50 minutes. She told him that she had been able to attend courses online at home.
[98] Exhibit D1, DCB 21.
78Dr Rahgozar noted that the plaintiff was able to sit for the length of his examination, a period of about 40 minutes and his clinical examination did not reveal any significant pathology arising from spine, shoulder or pelvic girdle.[99]
[99] Exhibit 1, DCB 21-22.
79In Dr Rahgozar’s opinion the plaintiff does not present with an incapacity for work and activities of daily life in comparison to a woman of her age and constitution.[100] He believes she has capacity to work in office and administration, accounting and marketing roles with minor modifications being made to accommodate her, such as the provision of sitting and standing workstation, ergonomic optimisation of workstation and the like.[101]
[100] Exhibit D1, DCB 23.
[101] Exhibit D1, DCB 21.
Mr Simm
80Mr Rodney Simm is an orthopaedic surgeon. Mr Simm reported to the defendant on 24 January 2020[102] and 7 September 2021.[103] In his first report, Mr Simm commented on the state of the plaintiff’s cervical spine, shoulders, the thoracolumbar spine and her current condition.
[102] Exhibit D2, DCB 24-31.
[103] Exhibit D2, DCB 32-40.
81
On formal evaluation the range exhibited in the plaintiff’s cervical spine was limited to 40° of rotation to the right and left sides, 30° of extension, 20° of flexion and
30° of lateral flexion to the right and left sides.[104]
[104] Exhibit D2, DCB 28.
82Mr Simm wrote that neurological examination of the upper limbs showed no objective clinical signs of radiculopathy. There was global weakness on the right side. The plaintiff did not move the dial of the Jaymar dynamometer with her right hand when assessing grip strength, but registered 10 kilograms, which is a low reading, with her left hand.[105]
[105] Exhibit D2, DCB 28.
83Mr Simm wrote that the plaintiff gesticulated freely with both upper limbs during the interview and at times during the examination, and when doing so showed no evidence of pain or limitation of shoulder movements. He acknowledged these movements did not include overhead movements. However, on formal evaluation of both shoulders, Mr Simm wrote that the plaintiff presented as inhibited with quite marked restriction of movement, and her movements were associated with evidence and complaint of shoulder pain.[106]
[106] Exhibit D2, DCB 28.
84Mr Simm found inhibited and restricted movement on flexion and extension of the thoracolumbar spine, with 60° of flexion and 20° of extension, but the plaintiff demonstrated normal lateral flexion and normal rotation, and she confirmed there was no pain on performing these movements.
85Neurological examination of the lower limbs showed no abnormality.[107]
[107] Exhibit D2, DCB 28.
86Mr Simm considered the plaintiff’s current medical condition to consist of a chronic pain syndrome with symptoms involving the cervical spine, both shoulders, the right upper limb and lumbar spine.[108]
[108] Exhibit D2, DCB 29.
87Mr Simm was unable to establish a definite diagnosis of any underlying physical condition that could explain the plaintiff’s current signs and symptoms. He wrote that she has moderately advanced longstanding constitutional degenerative changes in the cervical spine with foraminal narrowing. He thought that these changes could, to some extent, explain her chronic neck pain and referred symptoms into the right upper limb, but he believed that her non-organic and inconsistent physical findings suggested that non-organic and/or psychological factors are contributing to the clinical presentation of the cervical condition. He reported an absence of clinical signs of radiculopathy, in particular, no evidence of right C7 nerve root involvement, but which however was potentially involved on the CT scan.[109]
[109] Exhibit D2, DCB 29.
88Mr Simm wrote that the plaintiff presented with minor degenerative changes from the lumbar spine, which are common age-related changes, but that he said were not necessarily the cause of her pain. He wrote that the degenerative changes may be relevant to her chronic lumbar back pain, but as with the cervical condition, he thought that there seemed to be other non-organic and/or psychological factors which were of greater relevance to her current clinical presentation.[110]
[110] Exhibit D2, DCB 29.
89Although the plaintiff complained of referred pain from the cervical spine over the top of both shoulders and on formal evaluation she presented with inhibited movement of the shoulders, taking into account the discrepancy in the presentation of movement on evaluation, Mr Simm concluded that it was unlikely there was an intrinsic condition of either shoulder. He said there had been no investigations of the shoulders to determine if there was any underlying pathology.[111]
[111] Exhibit D2, DCB 29.
90Mr Simm said that the medical file material provided to him suggested the possibility of a mild cervical spine injury at the time of the accident, but there was no record of a lower back injury, nor any reported signs of a lower back injury. There was a record of blunt trauma to the knees, without evidence of bruising or swelling, and he noted that the plaintiff has some minor knee symptoms.
91
Mr Simm wrote that it appeared that the plaintiff’s lower back pain became problematic in the year after the accident. It was not until October 2015 that she had the CT scan of the lumbar spine. He wrote that she developed chronic cervical and lumbar symptoms as referred to in the report from Dr March. However,
Mr Simm thought these symptoms were consistent with a Whiplash Associated Disorder and, consistent with his thesis of diagnosis, he considered there are probably non-organic and/or psychological factors contributing to the plaintiff’s ongoing pain, which could not otherwise be fully explained on the basis of her physical injury/ies, or the underlying investigations. Mr Simm wrote that although the plaintiff had neck symptoms after the accident and then back symptoms sometime later, they were not bad enough to prevent her from undertaking her normal full time duties with the employer, which had included a requirement for repeated lifting.[112]
[112] Exhibit D2, DCB 29.
92Mr Simm wrote that a Whiplash Associated Disorder can lead to quite severe chronic neck and spinal pain, but the natural history of a Whiplash Associated Disorder is for the spinal pain to gradually improve with time. In this case, Mr Simm considered that the plaintiff’s claims of gradually worsening pain was not a reflection of the physical effects suffered in the transport accident, but instead was suggestive of her having developed a chronic pain syndrome due to non-organic and/or psychological factors, which had become problematic some four years after the transport accident.[113]
[113] Exhibit D2, DCB 29.
93Mr Simm noted that although there existed a report of right upper back pain shortly after the accident, the plaintiff did not present to him with right upper back pain, which therefore had presumably resolved and, at some later time, probably the year after the accident, her back pain became lumbar associated back pain. He wrote that the nature of the accident and the symptoms in the neck reported after the accident are consistent with the diagnosis of the development of a Whiplash Associated Disorder, with a focus of pain in the neck associated with referred pain to the shoulders and referred symptoms into the right upper limb. He did not regard the deterioration in her condition and the claim for injuries to both shoulders and to the lower back as related to the physical effects of the accident.[114]
[114] Exhibit D2, DCB 30.
94Mr Simm wrote that the plaintiff’s current presenting symptoms of neck pain, bilateral shoulder pain, lower back pain and inhibited movement in all of these regions on formal evaluation, cannot be reasonably related to the physical effects of the transport accident, but that the chronic pain symptoms and associated inhibition the pain imposes on physical activity could make it difficult for her to undertake her pre-injury duties.[115]
[115] Exhibit D2, DCB 31.
95
Mr Simm said he believed the plaintiff capable of a range of alternative employment but that in going about the same, she would require work that does not involve extended periods of driving and repetitive lifting of items up to
10 kilograms.
96He considered that the plaintiff’s inability to do the heavier domestic tasks relates to the more recent development of chronic pain as opposed to the physical effects of the transport accident.
97Mr Simm wrote that he would not impose any restrictions and suggested that the plaintiff be as active as possible within the common sense limits of her pain.[116]
[116] Exhibit D2, DCB 31.
98In Mr Simm’s second report he noted that, on his first examination of the plaintiff she reported constant and at times high levels of pain in the neck and lower back. She had radiating pain in the right arm with pins and needles into the fingers of the right hand. When physically examined there was marked restriction of movement of the neck, shoulders and lower back on formal evaluation. He reiterated his opinion that the plaintiff had a chronic pain syndrome, which was initiated by the rear-end motor vehicle collision, but the deteriorating and increasing symptom complex, in the years that followed the transport accident, could not be explained on the basis of the physical effects of the transport accident, and were an indication that non-organic and/or psychological factors were the major contributing factors to her condition.[117]
[117] Exhibit D2, DCB 34.
99During his interview with the plaintiff she made limited movement of the head and neck. She did not gesticulate with her arms. On formal evaluation there was extremely limited movement presented and it was undertaken cautiously. There was some variability in the range observed.[118]
[118] Exhibit D2, DCB 37.
100Mr Simm wrote that there had been no significant change in the plaintiff’s condition since his previous examination. He could not establish a physical cause for the limitation of movement and remained of the opinion that the appropriate diagnosis is essentially a chronic pain syndrome.[119]
[119] Exhibit D2, DCB 38.
101
In advancing the defendant’s ultimate submission that I ought not be satisfied that the plaintiff had suffered an aggravation caused by the transport accident and that the same, if established, was not ‘permanent’, Mr Smith’s cross-examination of the plaintiff included questions directed at her recollection of advice she had received from Dr March. The plaintiff said that she remembered a conversation with
Dr March about cortisone injections but not about radio frequency but that any discussion was to the effect “that he didn't believe that these things would necessarily make a great difference”[120] but was unsure “if they were his exact words but these were the options that I had…”[121] The plaintiff could not explain why she had not taken Dr March’s advice. When pressed by Mr Smith she agreed that it’s “definitely an option, to do that. I am happy to look at any way in which I can relieve this pain, so, yes, I definitely can do that”.[122]
[120] T23, L9-11.
[121] T23, L13-14.
[122] T30, L21-24.
The extent of painkillers
102There was some discrepancy between the plaintiff’s affidavit and her viva voce evidence on her usage of painkillers. Mr Smith put to the plaintiff that in her initial affidavit[123] she deposed to taking Panadeine Forte two to three times a month. When asked if this was a true statement she said:
“I am just trying to think. So, yeah, well, I was trying not to take as much medication as I possibly could, so if it says that I was two or three times a month, yes, that's fine. I believe that I was taking a lot more than that so - and I have been since 2014”.[124]
[123] Exhibit P1, PCB 4-10.
[124] T25, L13-18.
103Mr Smith asked the plaintiff then why she had sworn to the more limited use of painkillers in her first affidavit and she said, “I don't know”.[125]
[125] T25, L19-20.
104In her second affidavit of 10 November 2021 the plaintiff deposed to taking a combination of Panadeine Forte and Panadol Osteo three times a week.[126]. In oral evidence, she added, “at least three times a week”. [127] As to whether she takes more Panadol Osteo than Panadeine Forte she said, “it depends on the day”.[128] However, she said that she takes Panadeine Forte “most nights, not every night but most nights”.[129] When pressed on the point the plaintiff said:
“probably take it five - well, three, four, five night a week. It just depends on - it depends on the pain level when I go to bed, and as to whether I am going to get any sleep. So it is always dependant on the pain level so I have constant pain, sometimes it is a lot worse than others, depending on what I have done in that day”.[130]
[126] Exhibit P1, PCB 12.
[127] T25, L30.
[128] T26, L5.
[129] T26, L9-10.
[130]T26, L15-21.
105Mr Smith asked the plaintiff why in her second affidavit she swore that ‘I am trying not to take much medication’? She said, 'Some days, however, when my pain is worse I have to take it'? 'On average three times a week I take Panadeine Forte and Panadol Osteo for pain'.[131] The following further exchange with the plaintiff followed:
“Would the position be that you are taking Panadeine Forte five nights a week on average, plus additional medication on top? Why do you swear to the fact that you are taking a combination of Panadeine Forte and Panadol Osteo on average three times a week? ---Well, Panadeine osteo is not as strong a drug and that is better to take throughout the day. So as you don't end up with - - -
My question is this: if you are taking five Panadeine Forte a 5 week and Panadol Osteo on top? ---No, it is not on top. One is the daytime thing and one is an evening.
That is what I mean. In the course of a week you take five Panadeine Forte at night and then during the day you take Panadol Osteo. Why have you, two days ago, sworn up to the proposition that on average you would take three tablets a week of a combination of Panadeine Forte and Panadol Osteo? ---As a combination?
Between the two medications, you take on average three a week? ---I would be taking both of them, some during the day and some in the evening, and some evenings and some days I don't take any at all, depending on what I am doing throughout the day, and that starts from the minute I try to get out of bed. So some days I am trying to not take any medication, but that doesn't work.
So should His Honour accept your sworn evidence in your affidavit as being accurate or should he accept your sworn evidence today? ---I think the evidence in the affidavits is correct, and that's what I am saying.
So His Honour should accept that the true position is, on average, you take three - three times a week you will take either Panadeine Forte or Panadol Osteo? ---Not either. So it would be one or the other or both.”[132]
[131] T26, L27-28.
[132] T26, L23 – T27, L28.
106As these exchanges make plain, it is difficult to be confident of the amount and frequency of the plaintiff’s consumption of pain relief medication. The plaintiff agreed with Mr Smith that her treatment since the transport accident has been limited to physiotherapy, Pilates and painkillers. However, her use of and need for pain relieving medication continues.
Defendant’s submissions
Long term
107Mr Smith argued that I could not be satisfied that the plaintiff’s condition is a long term injury.
Employment
108Mr Smith submitted that the only occupational physician to have commented on employment is Dr Rahgozar who, in his report dated 22 May 2018, said that 'In my opinion she has the capacity for activities such as for OH&S, office and administrative work in the field of finance and accounting, and the like.'[133] Later in the same report Dr Rahgozar wrote that, 'She has the capacity to return to normal duties and hours.'[134]
[133] Exhibit D1, DCB 11.
[134] Exhibit D1, DCB 12.
109Mr Smith noted that in Dr Rahgozar’s report dated 6 August 2021 he said that 'In my opinion she has capacity for office and administration, accounting and marketing roles.'[135]
[135] Exhibit D1, DCB 23.
110Mr Smith submitted that Dr Rahgozar’s opinion is supported by Dr Simm who in on 24 January 2020 said, 'I would not impose any restriction on her. I would suggest she is as active as possible within the common sense limits of her pain.'[136]
[136] Exhibit D2, DCB 31.
111Mr Smith contended that Dr Simm’s opinion is in similar vein to Dr Thomas, who in his report dated 4 October 2021, on behalf of the plaintiff said that:
“She does have capacity for suitable employment. She has worked in accounts. She has worked in office administrative environment. She has extensive experience in this regard. She has capacity to perform suitable employment. From a restriction perspective she needs to perform work which is both back and neck friendly and office type work with flexible ability to alter her posture in an appropriately established ergonomic setup would be reasonable for her.”[137]
[137] Exhibit P10, PCB 73.
112Mr Smith relied as well on Dr Gardiner who wrote in his report dated 11 August 2021 that the plaintiff was:
“Theoretically capable of suitable employment taking into account her age, education, background, training, experience and the restrictions that she may have. She would need to work in a specially designed environment where she could change positions regularly from sitting to standing and would be able to move around in the workplace. She would not be able to perform activities that required significant range of movement in her neck and low back and she would therefore be significantly restricted in lifting. I suggest that she would only be fit for three days per week at four hours per day as a trial and to increase her hours as tolerated).”[138]
[138] Exhibit P5, PCB 61.
113
Mr Smith submitted that the certificates provided by the plaintiff’s general practitioner recommending no more than eight hours work a week provide no process of reasoning why such limited hours is considered warranted and that
I should prefer the evidence of Dr Thomas, Dr Rahgozar and Dr Simm.
114Mr Smith contended that the plaintiff proved capable of full time work for more than two years immediately after the motor vehicle accident, when one might reasonably anticipate her physical impairment would have been at its most significant.
115Mr Smith made the point that the fact of the plaintiff not currently working gives no indication as to her capability to engage in employment, because she is simply not putting herself in the marketplace and seeking work.
116Mr Smith submitted that if I was not satisfied that the plaintiff lacked capacity for employment then her application for the grant of a certificate is problematic because of the absence of objective evidence that she has suffered an aggravation injury of significance. He sought to reinforce his submission by the limited treatment the plaintiff is undertaking, consisting of physiotherapy and a very modest use of analgesia, in the form of Panadol Osteo, a non-prescription over-the-counter pharmaceutical medication and occasional Panadeine Forte.
117Mr Smith made the following further submission from a different but allied perspective. He said[139]:
The clinical notes don't indicate a very troubling back or neck problem in the years before the motor vehicle accident, but there is a problem there and it does create an issue, for instance, when the plaintiff says, 'Well, the physical nature of my work at RJ Hee became too much for me.' She never, and this is investigated during the cross-examination, she never engaged in work of a physical nature from the time that her back and neck pain had come on and she had been at RJ Hee for one week before the subject motor vehicle accident.
So there is a difficulty there, an uncertainty, about whether Your Honour could accept that if it is back pain that took her out of the work at RJ Hee, that it was the back pain necessarily related to the motor vehicle accident as opposed to that which she was already experiencing prior to the motor vehicle accident.
[139] T12, L10 to 26.
118Mr Smith argued that I could reasonably infer that the true extent of the plaintiff’s pain is not significant due to a lack of referral to an orthopaedic surgeon or neurosurgeon and because of the plaintiff’s refusal to date to engage in the other forms of treatment which had been recommended to her.
119Mr Smith submitted that the radiological material does not bespeak any significant structural abnormality in the plaintiff’s spine which would necessarily generate pain of a significant degree.
120Ultimately, Mr Smith submitted that the picture drawn objectively from the medical treatment of the plaintiff’s condition is one of a modest impairment.
Plaintiff’s submissions
121
Mr Stanley made the following submissions. The transport accident involved a significant rear end impact with an obvious whiplash style reaction being suffered by the plaintiff. Dr March diagnosed[140] that the pain the plaintiff is experiencing in her neck is most likely related to a cervical facet joint injury in the low back.
Dr March also identified the problems associated with the facets joint at the lumbosacral spine.
[140] Exhibit P4, PCB 38.
122
Mr Stanley submitted that Dr March’s diagnosis is consistent with Dr Gardiner, who identified an aggravation of cervical spondylosis. Mr Stanley submitted that the aggravation of lumbosacral spondylosis should be regarded as consistent with
Dr Thomas' diagnosis of symptomatic spondylosis and thought to have been caused by the accident and affecting the cervical and lumbar spine.
123Mr Stanley also relied on the diagnosis offered by Dr Rahgozar, who thought it likely that the plaintiff presented with a mild degree of mechanical dysfunction of the cervical spine caused in the accident, although he also went on to say that it '… cannot be ruled out but the likelihood of significant pathology arising from the spine, shoulder girdle or pelvic girdle is not high.'[141]
[141] Exhibit D1, DCB 18.
124In seeking to meet Dr Rahgozar’s opinion that the plaintiff’s injury had resolved, Mr Stanley posed the rhetorical questions of when and how he had divined that the injury had resolved.
125Dr Rahgozar identified a musculoligamentous injury consistent with a whiplash-type injury to both areas of the spine. Mr Stanley submitted that Dr Simm is not far different, and had also identified longstanding degenerative changes in the cervical spine and that these changes could, to some extent, explain the plaintiff’s chronic neck pain. Although he also suggested the existence of non-organic inconsistent findings, nevertheless, Mr Stanley submitted he had identified on the radiology aggravation to the cervical spine.
126Dr Rahgozar also referred to degeneration in the lumbar spine that may be relevant to the plaintiff’s continued back pain.
127Mr Stanley referred to Dr Simm’s opinion that the transport accident 'may have been the initiating event but in the years that followed, the predominant diagnosis has been that of a chronic pain syndrome.'[142] Mr Stanley submitted that although there is a more than respectable argument that the transport accident has aggravated the pre-existing condition and may have initiated the chronic pain syndrome, there is no evidence to support a finding that the accident-caused injury ceased and that it is to this that the pain and physical limitations may be attributed.
[142] Exhibit D2, DCB 38-39.
128Mr Stanley submitted that it is relevant that the plaintiff has presented with an account of consistent pain since the transport accident occurred in May 2014. She attended for medical care in late 2014 that is, within the first six months of the accident, with persistent neck and back symptoms by way of pain. As Mr Stanley characterised it, the plaintiff undertook significant physiotherapy with Mr King through the latter part of 2014, and into 2015, and she is continuing to receive physiotherapy treatment.
129In May 2015, one year after the accident, Dr Narsingh, general practitioner, noted chronic pain. The plaintiff commenced treatment with Dr March in 2015. There was pain in the neck and lower back, and a CT scan occurred. Dr March continued treatment into 2016. In 2016, the plaintiff resigned her employment because of difficulties in carrying out her duties due to pain. The plaintiff’s letter of resignation identified “continual and ongoing pain sustained from the injuries incurred from the motor vehicle accident” as the reason for her resignation.[143]
[143] Exhibit P11, PCB 95.
130The plaintiff continued treatment with the Sports Injury Clinic into 2018 and 2019.
131Mr Stanley urged me to be wary of the theories proffered by Mr Simm that somehow the injury which originated with the transport accident has now diminished to such an extent that it cannot be said that it is a cause of her current pain symptoms and restrictions.
132In joining issue with the defendant on the question whether the plaintiff has suffered a long term injury Mr Stanley referred to Barwon Spinners Pty Ltd v Podolak[144] in which the Court of Appeal elaborated that the word 'permanent' or the words 'long term' fundamentally convey that there need be a probability that the impairment will last and not mend or repair, at least to any significant extent.
[144] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (‘Barwon Spinners’).
133Mr Stanley submitted that I should be cautious in presuming that any treatment will in all probability lead to a marked change by way of a repair to the plaintiff’s injury. Mr Stanley argued that a reference by Dr March some three years ago having discussed with the plaintiff his opinion that radio frequency and injections can have some benefit to the facet joints is a far cry from suggesting that either treatment would cure the plaintiff’s ills, or would change to any significant extent for the better the plaintiff's long-term symptoms caused by the aggravation injury.
134Mr Stanley contended that where doctors have been asked to comment on the plaintiff’s prognosis, it is overwhelmingly poor. Mr Saluja, in April 2020,[145] said the plaintiff’s prognosis is unpredictable as her symptoms are persistent and have been ongoing since the accident. Dr Rouse, physiotherapist, in September 2021,[146] said:
“Given the longevity of Kim's symptoms (7 years) as well as a reduction in current treatment consistency, it is quite hard to provide a solid prognosis for Kim. I tend to agree with Mr Douglas Gardiner in the ideal that if we continue to with the current restrictions to regular Physiotherapy, supervised exercise as well as potential access to specific pain management specialties; Kim will continue in her current state of immobility and pain.' Dr Gardiner said that the plaintiff’s prognosis is guarded and 'I believe she will continue to experience her current symptoms in the foreseeable future.”[147]
[145] Exhibit P7, PCB 53-54.
[146] Exhibit P9, PCB 64.
[147] Exhibit P5, PCB 44.
135Mr Stanley submitted that when one looks at the breadth of the evidence, the lack of any particular comment that the proposed treatment will make a material difference, and a poor prognosis, I should be satisfied that the plaintiff suffers now seven years post-accident is permanent.
136Mr Stanley argued that the plaintiff’s general practitioners, Dr Sendecki and subsequently Dr Salavati, in certificates dated late 2020[148] and in mid-2021,[149] have identified that in their opinion the plaintiff can do no more than eight hours work.
[148] Exhibit P6, PCB 52.
[149] Exhibit P8, PCB 55.
137The plaintiff’s treating physiotherapist, Dr Saluja, is of the opinion that, 'Kim does not have a capacity to return to her pre-injury employment.'[150]
[150] Exhibit P7, PCB 53.
138Dr Gardiner, says there is no basis for a capacity for pre-injury employment, but identified a theoretical capacity, that she is fit for three days a week, four hours per day.
139Dr Thomas’s recommendation is for the imposition of significant restrictions on the plaintiff, including the requirements for breaks, a limit to driving beyond 2 hours and a flexible, ergonomic set up for office-type work. Mr Simm identifies that, with “the chronic pain symptoms and associated inhibition the pain imposes on physical activity could make it difficult for her to undertake her pre-injury duties.”[151]
[151] Exhibit D2, PCB 31.
140Mr Stanley submitted that there is, therefore, sufficient evidence to conclude that the plaintiff is suffering an injury affecting her earning capacity. There is scant evidence to suggest she could perform her pre-injury employment or earn an income into the indefinite future. Her pre-injury employment was a source of great pride and enjoyment for the plaintiff, as she has deposed. Her letter of resignation speaks of happiness at her workplace. Mr Stanley submitted that I should accept the plaintiff’s account that she has suffered a great deal by not working and having regard to her very good work record prior to the transport accident.
Legal considerations
141A person who is injured as a result of a transport accident may recover damages in respect of the injury if the injury is a serious injury. In this application, the “serious injury” is said to be a long-term serious impairment or loss of body function. The plaintiff carries the burden of proof on the balance of probabilities on all matters required by the application.
142The meaning of “serious” in s97(17) of the Act was explained in Humphries & Anor v Poljak:[152]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[153]
[152] [1992] 2 VR 129.
[153] Ibid, 140.
143In Petkovski v Galletti,[154] the relevant proposition of law applicable in an aggravation-type injury is that “where the case is one of aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident.”[155] An analysis must be made of the extent of the impairment of a body function before and after the relevant injury, and the additional impairment must of itself involve serious long-term impairment of a body function.
[154] [1994] 1 VR 436.
[155]Ibid.
Credit
144Although Mr Smith challenged the plaintiff concerning her account of the type and frequency of pain medication required by her to address pain and identified a discrepancy between the plaintiff’s affidavit and oral evidence, she was not subject to a challenge to her underlying credit and instead it was argued that whereas the plaintiff had been involved in a transport accident the effects were modest and transitory and her current condition is a combination of pre-existing and advancing degeneration coupled with a non-organic and unrelated pain condition. I am satisfied that the plaintiff very largely gave an honest account of herself but I do think the extent and frequency of her need to resort to pain relief medication was somewhat exaggerated and that the recourse to it is not great but it is constant.
145In truth, there was little if any challenge, and certainly none of any moment, to the plaintiff’s condition before as opposed to after the transport accident. The question is whether the plaintiff has proved that this change was caused by the transport accident in the sense required when an injury manifests itself as an aggravation of a pre-existing condition and also whether the plaintiff has proved that the extent of any aggravation has itself wrought consequences to the previous functioning of the body part that is very considerable and certainly more than significant or marked. When attention is given to that comparison and that test, in my opinion, I am satisfied that the plaintiff has experienced an aggravation to the body function of the spine that is more than modest and satisfied the test. Let me explain.
146Prior to the transport accident the plaintiff suffered from back pain and had seen a physiotherapist and her general practitioner for some low back pain. There were, as the plaintiff explained in her evidence, occasions such attention was warranted and she attributed it as predominantly prompted by overextending herself in exercise at the gym but that these instances were sporadic and the accompanying pain was episodic. However, and despite this periodic but symptomatic condition, the plaintiff deposed to a suite of activities that she was regularly able to engage in prior to the transport accident, but that since then, she is no longer able to enjoy or is limited in doing, whether by the length of time they may be undertaken or the physical exertion she can apply to them. She wakes at night for reasons that include back pain. She no longer is able to wear high heels and, living alone as she does, she is forced to pace herself in everyday activities including moderating the way she takes her dog walking. Prior to the accident she was able to participate in a range of additional physical activities, including daily gym attendances and Zumba. She could work full time and discharge her duties of employment before the accident.
147It could be a matter of debate whether the plaintiff’s state of degeneration would have absent the transport accident led her to a need to resign her employment some two years after the transport accident. However there is an inadequate evidentiary basis to arrive at such a finding.
148I agree with Mr Stanley that there is no identification if the organic injury suffered as a result of the transport accident resolved or when it was resolved and was supplanted by the onset of an independent chronic pain syndrome. It seems to me to be more probable than not, that the plaintiff’s resignation some two years after the transport accident as a result of an increasing inability to discharge her work because of her physical restrictions and pain was due to an aggravation of her pre-existing spine caused by the transport accident and not because of a separate chronic pain condition or a chronic pain syndrome overlaid by the ordinary progressive degenerative state of the plaintiff’s spine. The latter analysis depends on the plaintiff having only suffered a musculoligamentous or whiplash associated disorder that Mr Simm, for example, believes should have resolved quickly and well before that point in time arose whereby she could no longer manager her employment. Because it did not do so within the timeframe usually associated with the same, then the explanation to account for the plaintiff’s presentation must be because of a pain syndrome.
149It seems to be that the non-resolution may be as readily explicable because of the transport accident having triggered the onset by way of a traumatic aggravation of the plaintiff’s pre-existing and asymptomatic cervical spondylosis, as well as soft tissue injury to the cervicothoracic region but without radiculopathy and traumatic aggravation of previously but largely asymptomatic lumbosacral spondylosis, including a soft tissue injury but without radiculopathy. That is essentially the opinion of Dr Gardiner and, it is the opinion, I prefer after a consideration of all the evidence. Likewise, Dr Thomas diagnosed the plaintiff with symptomatic spondylosis of the cervical spine and lumbar spine. He said the condition to the plaintiff’s neck was an aggravation of a previous asymptomatic complaint and the situation with her lumbar spine was an aggravation of a previous complaint which was symptomatic but manageable.
150I prefer this reasoning but have borne in mind that Dr Rahgozar favoured a diagnosis in the guise of a musculoligamentous soft tissue injury that had “resolved” because despite the force of the accident, the plaintiff did not sustain fractures.
151I have also considered that Mr Simm considered the possibility that the plaintiff had sustained in the accident a mild cervical spine injury although there was no record of a lower back injury, nor reported signs of a lower back injury. Mr Simm wrote that it appeared to him that the plaintiff’s lower back pain became problematic in the year after the accident and it was not until October 2015 that she had the CT scan of the lumbar spine. He further wrote that the plaintiff had developed chronic cervical and lumbar symptoms, which were referred to in the report from Dr March but Mr Simm thought these symptoms were consistent with a Whiplash Associated Disorder and, consistent with his thesis of diagnosis, he considered “there are probably non-organic and/or psychological factors contributing to the plaintiff’s ongoing pain, which could not be fully explained on the basis of her physical injury/ies, or the underlying investigations”.[156]
[156] Exhibit D2, DCB 29.
152I am not dissuaded from my finding that the plaintiff suffered an aggravation injury to her spine in the transport accident that itself is serious because of Mr Simm’s analysis that, although she had neck symptoms after the accident and back symptoms sometime later, they were not bad enough to prevent her from undertaking her normal full time duties, which included a requirement for repeated lifting. There is evidence that the plaintiff was experiencing pain in the period of time after the transport accident and it was significant. Her job involved her driving to many sites, carrying equipment and she deposed that this took its toll. At the end of a day she would finish work in pain, relying on Panadeine Forte at night. Under the advice of her doctor, she stopped work in August 2016. The plaintiff did not impress me as someone who would willingly surrender her employment and her stoicism should not be penalised.
153Whilst there are legitimate questions why the plaintiff did not pursue the course suggested by Dr March, I am not persuaded that the course he proposed may be seen as one that, had it been adopted or indeed was now adopted, considering that the plaintiff under cross-examination expressed a preparedness to explore the same, would lead me to conclude her injury will not last and it will mend or repair at least to any significant extent. Whilst it is unhelpful to try and fix the minimum number of years that must pass before an injury can be regarded as ‘long term,’ I am satisfied that as far as the plaintiff is concerned, it is far reaching.
154Mr Smith also submitted that if the injections or radio frequency that Dr March recommended would have alleviated the pain the plaintiff experiences when trying to undertake physical activity due to the injury to the functioning of the spine then there can be no impairment.[157] In another case involving another set of circumstances the submission may warrant greater attention but I do not think the issue is supported by a sufficient evidentiary basis for me to be troubled by it. There is an absence of evidence of the lasting efficacy of such treatments and it is not suggested by any practitioner that had the plaintiff proceeded with the proposed course it would have eliminated or significantly diminished pain when endeavouring to undertake or participate in her many physical activities and activities of daily life associated with the function of the spine.
[157] T31, L9-10. Senior Counsel distinguished for example an amputation.
155Having regard to all of the evidence, I think there is a reasonable basis that the pain and impositions caused by the dysfunction to the spine resulting from the transport accident, and that have heightened over time, justifies a finding that the plaintiff is suffering a long term serious injury. The plaintiff having expressed a willingness in the teeth of cross-examination to look at these courses of potential remediation of pain, and even bearing in mind that they may be assumed to amount to relatively standard options for treatment of spinal pain, I am not satisfied that this is evidence commensurate with a finding that her injury is not long term.
156I have had regard to the fact that the plaintiff takes painkillers obtained from a pharmacist as and when required and otherwise undertakes physiotherapy and home-based exercise and that there is no indication that surgery is warranted or will prove necessary. The absence of prescribed medications is a factor among a range of considerations that may in a given case militate against a finding of seriousness as might also be thought the plaintiff’s absence of recourse to the proposals made by Dr March. However, it is trite to observe that the existence of, or absence of, some of the criteria frequently associated with an assessment of an injury as a serious injury, is only a guide, and the surest judgment is by reference to all of the evidence including an assessment of the plaintiff. On balance, I am not satisfied that these considerations counterbalance the fact of injury, the occasioning of an organic aggravation to function, the loss of amenity in life and in work and the presence of pain and restriction that is marked contrast to the plaintiff before the transport accident.
157A part of my overall assessment of the plaintiff’s application, I am also of the opinion that there is a sufficient evidentiary basis to conclude that the plaintiff has suffered a long term pecuniary disadvantage as a result of the transport accident and injury suffered. Bearing in mind the interferences to the plaintiff in her everyday activities, coupled with the loss of her employment, and that any employment she might possibly obtain in the future obtain would be limited in the hours that could be worked, and thus bear no resemblance to the earnings she enjoyed with the defendant, and that any employer would, in any event, need to make adaptions for her, in my judgement the plaintiff may be reasonably regarded as having satisfied the requirement for the grant of a serious injury certificate for pain and suffering and loss of earnings occasioned by an aggravation to the function of the spine that is very considerable and certainly more than significant or marked. The plaintiff has satisfied me of this requirement after I have taken into account the effects on her and when they are assessed according to a range of like impairments.
158I will hear the parties on the form of final orders and costs.
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