Bolton v Transport Accident Commission
[2023] VCC 426
•27 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00788
| SALLY ANN BOLTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 March 2023 | |
DATE OF JUDGMENT: | 27 March 2023 | |
CASE MAY BE CITED AS: | Bolton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 426 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – credit – video surveillance – whether the plaintiff continues to have symptoms which are “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Richards v Wylie [2000] VSCA 40
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr A Saunders | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Smith KC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff, Sally Bolton, was involved in a transport accident on 16 May 2019 when her car was struck by a car that failed to give way to hers, causing her car to spin and collide with another car (“the accident”). It is accepted that the plaintiff developed neck pain after the accident, consistent with her attendance on a general practitioner, Dr Carolyn Sebastian, the following day with a complaint of a stiff neck.[1]
[1]Plaintiff’s Court Book (“PCB”) 209; notes of The Clinic Altona.
2This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986. The plaintiff claimed that as a consequence of the accident she suffered a “serious” physical injury to the spine – specifically the neck – said to produce a “very considerable” consequence.
3The plaintiff submitted that she had a “very considerable” consequence from the neck injury due to a combination of chronic, fluctuating, neck pain since the accident, with the need for invasive treatments (essentially injections), the need for ongoing medication, with interference for day-to-day activity and a restriction as to the type of employment options available to her post the accident.
The issues for determination
4The defendant denied that the plaintiff had suffered a “serious injury”. It did so for several reasons, that were set out in a colourful “plain English” final submission as the relevant issues for determination follows:
(a) First, the neck condition is not very bad (the ‘serious issue’).
(b) Second, any impairment is substantially caused by a longstanding, non-compensable psychiatric/psychological condition (the ‘disentangling issue’).
(c) Third, the plaintiff has not covered herself in glory when it comes to the accuracy of what she has said in her affidavit evidence and to the doctors, as compared to what is shown in covert video surveillance (the ‘credit issue’).
(d) Fourth, the radiological evidence is unremarkable. Accordingly, there is no objective indicia of a neck problem. Medical practitioners have therefore relied on the veracity of her complaints, whereas the most eloquent evidence is the video surveillance (rolling up the previously identified issues).
The application
5The application proceeded in the usual manner. The plaintiff tendered affidavits, medical reports and documents relied upon by her. In addition, she gave oral evidence. The defendant tendered covert video surveillance, medical reports and documents relied on by it. I have considered all of the evidence and the transcript of the plaintiff’s oral evidence but shall only refer to it to the extent necessary to explain my conclusions.
6The relevant legal principles are uncontroversial. Neither party chose to make submissions directed specifically to any point of legal principle. Rather, the resolution of this proceeding involves factual findings and the application of the facts as determined to the well-known “serious injury” legal principles.
Credit
7The issue of the credit of the plaintiff looms large in this proceeding. Her senior counsel acknowledged as much when closing submissions commenced with the candid acknowledgment of what I would make of the plaintiff’s evidence and that questions of credit loom large.[2]
[2]Transcript (“T”) 91, Lines (“L”) 17-19.
8In assessing the seriousness of an injury a consideration of credit is a critical factor. I agree with the submission of the defendant that the radiology evidence is relatively unremarkable and where a substantial foundation of the plaintiff’s case is acceptance of her complaints of pain, then in those circumstances her credit is highly relevant. I respectfully adopt what was said by Beach, Kaye and Niall JJA in Petrovic v Victorian WorkCover Authority [2018] VSCA 243 as follows:
“[74]As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
The plaintiff’s affidavit evidence
9The plaintiff swore an affidavit on 16 June 2021[3] setting out her evidence of her neck pain and restrictions since the accident. The thrust of that evidence was of ongoing constant neck pain with significant interference for a range of activities. She described radiating symptoms into her shoulders and arms. She described disturbed sleep and struggling with any activity that required her to hold her neck in a sustained posture for prolonged periods. She described difficulty watching television, gardening, cleaning, and performing housework. She described an inability to continue her pre-accident employment as a bookkeeper or to undertake study.
[3]PCB 24.
10In a further affidavit sworn 10 October 2022,[4] she essentially adopted what had been said in her first affidavit. She said that, since the first affidavit, her neck condition had slightly improved, but she continued to suffer the pain and associated restrictions as previously set out. She said the pain was constant but bearable and the more she did then the more pain she was in. She said because of her neck injury she was no longer able to do a number of things and had difficulty doing others. She expanded upon that as follows:
“24.However, to what is set out there, I add that:
a.I now very rarely watch television and or go to the movies; I also struggle to read;
b.Cleaning and gardening remain difficult, although I manage – as long as I pace myself and do not overdo it;
c.I continue to struggle to walk my dogs; I now use a special harness. I also live next door to a park, which helps;
d.I now have a sixth grandchild. I continue to struggle to care for, and play with my grandchildren – which upsets me very much;
e.I continue to be a carer for my son; he requires significant assistance with his diet and other matters to do with his diabetes – but requires no physical assistance; and
f.I struggle to drive a manual vehicle because of left arm pain; I purchased an automatic car, with a rear camera, to assist me to manage this difficulty.”
[4]PCB 29.
11The plaintiff then swore further affidavits dated 26 October 2022[5] and 3 November 2022[6] exhibiting photographs of damage to her vehicle and otherwise referencing her earlier affidavits.
[5]PCB 35.
[6]PCB 42.
Video surveillance
12Around the time that the plaintiff was busy preparing her second, third and fourth affidavits, the defendant had also been busy arranging video surveillance of her. The defendant played to the Court and tendered[7] covert video surveillance of the plaintiff obtained on 6 June, 6 September, 3 October, 6 October, 16 October and 17 October 2022.
[7]Exhibit D1.
13Pausing, video surveillance must be considered in both time and context. Relevant to that consideration is what it shows, what the plaintiff says about it, and whether any doctors have been asked to comment on it.
14In this proceeding, the tendered video surveillance broadly showed the plaintiff to engage in a range of “unremarkable” day to day activities. She is seen to drive a car, including turning her head to reverse, without any apparent restrictions. She is seen to engage in mundane day to day activities such as shopping, running errands, dealing with garbage bins and the like, again without any apparent restriction or obvious sign of being in pain.
15Perhaps the most relevant video surveillance was obtained on 17 October 2022, when the plaintiff was tidying up after moving home. She is seen to lift timber planks and other items. She is able to bend, twist, turn her neck and move briskly without any obvious restriction.
16The video surveillance casts doubt on the plaintiff’s reliability as a witness. It casts doubt on her described level of pain and restriction. On the dates and times she was shown on the tendered video surveillance she is seen to move briskly, like a lady who is always in a hurry, to engage in daily activity without any obvious pain or restriction.
An example of the unreliable history to medical practitioners – Professor Bittar
17To select as an example of an inconsistency between what she has said and what is shown in the video surveillance, the plaintiff was seen for medico-legal purposes by Professor Richard Bittar, neurosurgeon. In the second of his reports, dated 27 May 2022,[8] following an examination of the plaintiff on that day, Professor Bittar set out her complaints of symptoms as follows:
“Neck pain. She reports intermittent bilateral neck pain which is worse on the left-hand side. This typically occurs around four times a day, lasting around one hour on each occasion. Her neck pain is generally aching in character, and radiates into her left shoulder and arm. It has an average severity of 6-7/10 with a maximum severity of 9/10. It is precipitated and exacerbated by a variety of activities including sudden or repetitive neck movements, maintaining her neck in a fixed position for prolonged periods, repetitive or forceful pushing or pulling, coughing, sneezing or straining, repetitive arm movements, use of her arms above shoulder height, driving for more than around 40 minutes, using a computer for more than around 10 minutes, or sitting in one position for more than around 15 minutes. It deteriorates if she lifts more than around 10 kg. It improves with heat packs, recumbency, medications, gentle exercise, and frequent change of posture.”[9]
[8]PCB 156.
[9]PCB 156-157.
18The picture painted to Professor Bittar was of chronic neck pain, ranging at best from 6/10 and at worst 9/10. The picture was of basically any task involving the use of the neck, or holding it in a fixed position, as provoking neck pain. In my opinion, that picture is inconsistent with the video surveillance.
19In fact, at least to some extent, Professor Bittar agreed that the video was inconsistent with what he was told, or what he found on formal examination. He commented on the video surveillance in a further report dated 24 November 2022, where he said that “in the videos provided, there was no evidence of restricted neck movement, gait abnormality or other disability”.[10] This is to be contrasted with the examination findings in his report of 27 May 2022, where he recorded moderate restriction of neck flexion, mild restriction of neck extension and rotation to the left, with flexion and rotation to the left being the most painful movements.
[10] PCB 169.
20No doubt aware of this inconsistency, in his report of 24 November 2022, Professor Bittar then postulated why there might be such an inconsistency. He said:
“It can be difficult to interpret this type of surveillance material without knowing the medications that she was taking before carrying out such activities, and without having an understanding of whether she had pain at the time that these activities were carried out. I note that her neck pain and arm pain are intermittent. It is possible that her neck pain and arm pain were absent at the time that these activities were carried out.”[11]
He then said that:
“taking all the above into consideration, none of the activities seen in the surveillance videos cause me to alter any of the opinions expressed in my previous reports.”[12]
[11]Ibid.
[12] Ibid.
21I do not consider there to be much difficulty in interpreting the video surveillance. The explanations proffered by Professor Bittar are not supported by the evidence in this proceeding and reduce the weight I attach to his opinions. Rather, the evidence is that the plaintiff can undertake the type of activity demonstrated in the video, with a greater capacity and range of movement in her neck as opposed to what she said in her affidavits or to the doctors (including to Professor Bittar). Of course, pain cannot be seen, but the person in the video does not give any hint of having a painful neck, or of a painful neck that ranges from 6/10 to 9/10.
Returning to the plaintiff’s evidence and her explanation of the video
22It was put to the plaintiff in cross-examination that the picture that she had been portraying in her first affidavit was of being very significantly impaired by her neck and arm pain, to which she agreed.[13] It was further put that in her second affidavit there was nothing to suggest she had any improvement of any significance between swearing it and the second affidavit of October 2022, to which she said that she had a “slight improvement from the operation”. However, she accepted that anyone reading that second affidavit would form a view that she had constant pain in the neck, struggling with any activity that required a sustained posture of the neck and difficulty to do things such as gardening and cleaning due to neck pain.[14]
[13]T 7, L 7-31.
[14]T 24, L 7-31.
23That brings me to the plaintiff’s most recent affidavit. In my view, she attempted to meet the sting of the video surveillance in the recent affidavit sworn by her on 10 March 2023.[15] She addressed the video surveillance as follows:
“12.My lawyers have shown me the surveillance footage taken on 17 October 2022 (and other days).
13.I was cleaning up a house, and moving some things out, at the end of a lease, that day.
14.I had intended to pay someone to do it, but I ended up doing it myself – with assistance from a friend.
15.While I was able to do what I had to get done that day, and without obvious restriction, I remember nonetheless being in pain, and having to push myself. I had to take rest breaks. Moreover, I remember paying for it later.”
[15]PCB 47.
24Pausing again, clearly the plaintiff was provided with the video surveillance before this matter proceeded in court. It is unclear when it was provided to her (or her lawyers), but it must have been some time before 25 November 2022, because in a report of that date her treating general practitioner, Dr Summera Munir,[16] noted that he had seen and observed the video surveillance. It is curious then why she waited until 10 March 2023 to provide an affidavit dealing with it.
[16]PCB 59.
25In any event, the defendant did not pull any punches regarding the video surveillance. In cross-examination, the plaintiff was asked why she had not dealt with relevant matters such as increased pain when moving house in her earlier affidavits, to which she said it had been a stressful time and must have slipped her memory.[17] It was put to her that her affidavits gave no inkling that she had engaged in the task of clearing her house, to which she agreed. After jousting on this topic for some time, senior counsel for the defendant then put the sword squarely to her as follows:
“And I want to suggest to you that when you've seen this film, you thought, 'Geez, this is a real problem for me, because there's nothing in the film that shows me to have any problem whatsoever.' Correct. Yes?‑‑‑Yes.”[18]
[17]T 31, L 25.
[18]T 35, L 20-23.
26In other words, the plaintiff eventually conceded in cross-examination that relevant matters were missing from her earlier affidavits. These were only addressed in the most recent affidavit because she considered the video surveillance to create a problem for her.
The plaintiff’s credit is impugned
27The plaintiff was correct to form the view that the video surveillance created a problem for her. The thrust of the evidence in her affidavits and in what she told the doctors was of significant pain and disability for even modest day to day activity. In my view, that is at odds with what is shown in the video surveillance.
28I do not elevate the video surveillance to a level of a mortal wound. But in a case built largely around subjective complaints of pain, it impugned her credibility. I conclude that, based on the video surveillance, I am unable to accept the plaintiff’s subjective complaints of pain without corroborating evidence.
29In the context of the unreliability of what the plaintiff has said about her pain and restrictions, the next consideration is the identification of the nature and extent of the neck injury, if it persists, and what are the true impairment consequences from any persisting neck injury.
30Before moving on to the rest of the evidence and issues to resolve, there arises an issue as to why the plaintiff has not given an accurate description of her symptoms or restrictions in her affidavits or to the doctors. In that context, I note the plaintiff has had several traumatic events in her life. She also readily conceded that her pain levels are aggravated by stress, for example, when waiting for her court case to get on, her pain was worse.[19] It may be that due to her life experiences and because of stress, when asked to describe her pain, that has caused her to embellish. Another explanation is deliberate exaggeration to improve her prospects of establishing a “serious injury”, although I did not get a sense of that having seen her in the witness box.[20] Ultimately, nothing turns on the reason why, but the fact is she has exaggerated her level of disability.
[19] T 18, L 6.
[20] Where she sat without any obvious discomfort, or problem with her neck, when giving evidence.
What is the injury and what are the impairment consequences
31In the absence of reliable evidence from the plaintiff, it is necessary to look at the objective evidence of the injury, impairment, and impairment consequences, commencing with the medical evidence.
The medical evidence - treaters
(i) The radiological evidence
32Dealing very briefly with the radiology, it is relatively unremarkable. The plaintiff tendered several reports of scans of her neck. Those reports are described broadly as either unremarkable or showing mild degenerative changes. The most recent radiology was an MRI of the plaintiff’s cervical spine undertaken on 20 September 2022 for a described clinical indication of left neck and arm pain. The radiologist said that “overall, no findings to explain clinical presentation”.[21]
[21] PCB 22.
(ii) Dr Munir
33Returning to Dr Munir, he is a general practitioner at the Boardwalk Health Medical and Skin Centre. Dr Munir first saw the plaintiff on 16 July 2021 for the purposes of providing a medical report. In a report dated 16 July 2021[22] Dr Munir noted that no treating doctor/patient relationship was established. Dr Munir provided a diagnosis of whiplash injury to the cervical spine with chronic pain syndrome and aggravation of spondylosis. Dr Munir noted it had been a few weeks since the plaintiff had a C7/T1 radiofrequency denervation performed by Dr Symon McCallum and that “she has experienced pain has [sic] reduced significantly”. Dr Munir went on to opine that the plaintiff was incapacitated for her full pre‑injury duties as a bookkeeper due to her accident-related cervical spine condition.
[22] PCB 55.
34Next, Dr Munir provided a further report dated 25 August 2022.[23] It can be inferred that by then he had established a treating doctor/patient relationship. That report is similar to the earlier report, namely a brief report setting out various conclusions without a great deal of information to understand how the conclusions had been arrived at. In any event, the opinions and conclusions expressed by Dr Munir broadly repeat those in the earlier report.
[23]PBC 57.
35Dr Munir then provided a third report dated 25 November 2022. [24] Amongst other things, the doctor considered the video surveillance, as I have already discussed. The diagnosis was then repeated, and it was noted that Dr McCallum had performed a C7/T1 radiofrequency neurotomy on 28 September 2022. Dr Munir said that his patient still complained of ongoing neck pain with a severity of 7/10 and was extremely stressed and appears very anxious during consultations. Dr Munir did not directly comment on the video surveillance, other than that it had been seen and observed. The doctor said that for further expert opinion he referred to Dr McCallum.[25]
[24]PCB 59.
[25]PCB 60.
36Dr Munir’s opinions are briefly expressed in the reports. It is unclear exactly what history he had from the plaintiff or the basis for the opinions provided by him. It is curious that he simply noted having seen the video footage rather than commenting directly on it. He seems to defer to Dr McCallum.
(iii) Advance Health Care
37The plaintiff has undergone treatment at Advance Health Care. Dr Malcolm F.S.W. C-Ong is a medical practitioner at Advance Health Care who provided a report dated 30 January 2021.[26] Dr Ong noted that he first saw the plaintiff on 5 September 2018. The referral was for “further opinion and management of her multiple body areas problems, and related psychological trauma problems.”[27] He said that the plaintiff had complex issues surrounding her physical injury and pain issues but also multiple other secondary psychological and psychosocial issues.[28] He noted a referral to a multidisciplinary pain management program between October 2019 and April 2020 and that the plaintiff had then been discharged from that program and would return to her usual treaters for long term management.
[26]PCB 61.
[27]PCB 62.
[28]PCB 62.
38Dr Ong then noted the plaintiff had returned to see him as part of the post pain management program follow up “due to her ongoing pain issues and secondary psychological issues.” He noted in recent months there had been complications from other family matters causing significant mental stress and anxiety with relapse of her psychological traumas resulting from her injuries as well as other psychological conditions prior to her injury.[29] His report is littered with references to pain and secondary psychological problems. He summed up the situation by describing the plaintiff’s prognosis as guarded but that “it is possible she may suffer persistent pain symptoms, pain-related issues and secondary psychological concerns, and limited capacity for the foreseeable future.”[30]
[29]PCB 63.
[30]PCB 76.
39It is trite to note that Dr Ong’s report is now out of date and was provided obviously without a consideration of the plaintiff’s more recent treatment with Dr McCallum, or of the activity depicted on the video surveillance. But he does support a diagnosis of some sort of an injury to the neck, although an actual diagnosis is hard to extract from his report. What is easier to extract is that the plaintiff has a range of factors contributing to her psychological condition, and that the psychological condition may influence her level of pain and function. In my view, it is the psychological condition that is really the focus of his report, consistent perhaps with the nature of the referral for pain management.
(iv) Dr Akil
40Dr Hazem Akil is a neurosurgeon who has treated the plaintiff and provided reports. In a report dated 29 June 2021,[31] Dr Akil notes that he first met and began to treat the plaintiff on 15 December 2020, before reviewing her on several occasions, the last time being the same day as his report. He records arranging for her to have a right C7/T1 diagnostic medial branch block and then a radiofrequency denervation targeting the right C7/T1 joint. He diagnosed aggravation of cervical spondylosis resulting in a facet joint arthropathy particularly at the right C7/T1 causing significant neck pain.
[31]PCB 78.
41Dr Akil then provided a further report dated 13 August 2022,[32] noting that he had last seen the plaintiff on 24 August 2021. In this further report he records that the plaintiff had already seen a pain specialist and had the left C6/7 nerve sheath block, which gave good pain relief for two days only. He found her upon examination to have a significant restriction in all range of motion of her cervical spine, but particularly worse on the extension of her neck. Dr Akil repeated his diagnosis of aggravation of cervical spondylosis. He said when last seen she still had restrictions in the range of motion of her cervical spine and he did not feel that she was suitable to return to work. He said the prognosis remained guarded although the significant psychological background might make a significant improvement in her case difficult.[33]
[32]PCB 81.
[33]PCB 82.
42Dr Akil supports a diagnosis of a physical injury to the neck namely aggravation of cervical spondylosis. His reports are otherwise a little out of date. It is trite to note that he is ignorant of the video surveillance but his clinical examination findings appeared to demonstrate a much greater restriction of neck movement than I observed on the video surveillance.
(v) Dr McCallum
43Dr Symon McCallum is a pain specialist who has treated the plaintiff and provided reports. In a report dated 20 October 2022[34] he described how he first saw the plaintiff on 14 May 2021 and performed a right sided cervical C7/T1 radiofrequency neurotomy, as requested by Dr Akil. He then reviewed the plaintiff on 14 June 2022. At that time, she apparently described right sided lower neck pain, described as an ache and intermittent, worse with stress. He recorded that the radiofrequency had helped in the past, but the effects were decreasing.[35]
[34]PCB 84.
[35]Ibid.
44Dr McCallum noted the plaintiff’s mental health history and treatment. He described her as having a lot of family stress. He also conducted a clinical examination and recorded decreased range of movement to the right and the plaintiff being tender in the lower neck posteriorly to palpation, worse on the right side.[36] He described the plaintiff as having a cervical whiplash with left sided arm pain and intermittent numbness. He described intermittent right sided pins and needles and noted that she told him she had been diagnosed with post-traumatic stress disorder.
[36]PCB 86.
45In his report, Dr McCallum said that the diagnosis of cervical whiplash and post-traumatic stress disorder were entirely consistent with the stated cause. He then discussed the plaintiff’s capacity for work and described the prognosis as poor. He said that “she has had the pain for a prolonged period of time. It has not resolved spontaneously. She has got diagnosis of post-traumatic stress disorder.”[37]
[37]PCB 87.
46Dr McCallum provided a further report dated 22 November 2022. He noted the further radiofrequency neurotomy performed on the right sided C7/T1 on 28 September 2022. He discussed his review with the plaintiff on 10 November 2022 and recorded that she felt the radiofrequency neurotomy had helped, it was less painful than in the past and had helped the pain by about one-third at that time. She again apparently described right sided lower neck pain as intermittent and worse with stress.[38]
[38]PCB 88.
47Dr McCallum was asked to review the video surveillance. Having done so he said, after a consideration of his consultation notes from 20 October 2022 and what the plaintiff had told him, that “this does not alter my opinions in the report dated 20th October 2022”.[39] He then concluded by saying that “[i]n summary, the contents of the videos do not alter the opinion of my report.”[40]
[39]Ibid.
[40]PCB 89.
48Dr McCallum supported a diagnosis of a cervical whiplash, which I understand to be an organic injury and similar to the diagnosis made by Dr Akil. But Dr McCallum seems to blend that diagnosis with the diagnosis of post-traumatic stress disorder. Further, I have some trouble understanding the reason why the video surveillance did not alter his earlier expressed opinions. I infer it is because what is seen on the video is consistent with his understanding of his patient’s condition, but his report does not make that explicit.
(vi) Dr O’Neill
49Dr Matthew O’Neill is an osteopath who treated the plaintiff and provided reports. In a report dated 20 December 2019[41] he noted the plaintiff first attended at his osteopathy clinic on 30 May 2019. Apparently, she initially described moderate to severe aching upper back and neck pain and a subjective feeling of neck instability with significant reduced range of motion in the neck. The report then sets out his treatment, thereafter, and records matters that contributed to an increase in the plaintiff’s stress, unrelated to the accident. Dr O’Neill noted that suicidal ideation and/or the fear of suicidal ideation was brought up several times by the plaintiff.[42] In that report he diagnosed acute whiplash associated disorder caused by the motor vehicle accident with associated left C7 nerve impingement.[43] He opined she might benefit from a multidisciplinary approach to her injury. He noted the last treatment as at 17 September 2019.
[41]PCB 90.
[42]PCB 92.
[43]PCB 93.
50Dr O’Neill then provided a further report dated 2 May 2022.[44] He noted that osteopathic management had ceased due to funding issues as at 31 December 2021. He repeated his opinion the plaintiff would benefit from a continued multidisciplinary approach to her injury. His report is mostly directed towards the benefit of such treatment or the benefit of osteopathy and is therefore of little assistance in understanding her current impairment and impairment consequences.
Plaintiff’s medico-legal reports
[44]PCB 115.
(i) Professor Bittar
51Returning again to Professor Bittar, he first reported on 2 June 2020.[45] On that occasion, he noted neck pain that was intermittent and occurred three times per day, lasting two hours at a time, with an average severity of 5-6/10 but up to a maximum severity of 6-7/10.[46] He recorded mild restriction of neck movement.[47]
[45] PCB 150.
[46] PCB 151.
[47] PCB 153.
52Professor Bittar then reviewed the plaintiff and provided his next comprehensive report dated 27 May 2022.[48] At that time he recorded intermittent neck pain, lasting one hour at a time, up to four times per day.[49] Again, he recorded restriction in neck movement. He described a severe impact on her recreational activities and also impacts on other day to day and employment activities.[50] He recommended more radiological examinations and consideration of a repeat radiofrequency neurotomy.[51]
[48] PCB 156.
[49] Ibid.
[50] PCB 158.
[51] PCB 159.
53Professor Bittar’s reports to this point support the plaintiff’s claim for an organic injury to her neck described by him as a whiplash injury to the cervical spine with chronic pain syndrome. He also described the aggravation of spondylosis. His diagnosis is not dissimilar to some of the other medical opinions already discussed but, as may already be clear, he recorded - and appeared to accept without qualification - significant ongoing impairment and impairment consequences. I have already discussed what I consider to be the shortcomings of his report of 24 November 2022[52] when it comes to a consideration of the video.
[52]PCB 168.
54Of course, I can accept some of the opinions from Professor Bittar and reject others, without having to reject the entire contents of his reports. I consider his diagnosis to be consistent with many of the other medical opinions. But I do not accept his opinions insofar as they relate to the ongoing restrictions, impairment, and impairment consequences from the identified compensable injury, because of the pithy way in which he dealt with the video surveillance.
(ii) Mr Miller
55Mr Russell Miller is an orthopaedic surgeon that provided a report regarding the plaintiff on 28 September 2020.[53]
[53]PCB 170.
56Mr Miller took a history of the accident and the plaintiff’s ongoing symptoms, which he recorded as widespread, diffuse and intermittently severe. He also noted the plaintiff had complex mental health issues. The examination was conducted by video link, yet he was able to record a limited range of motion in the cervical spine and, curiously, diffuse tenderness. He diagnosed an injury to the spine which included musculoligamentous strain and aggravation of degenerative disease. In that regard, his opinion is similar to the other medical opinions already discussed. He also noted an adverse mental state reaction.
57Mr Miller opined that the plaintiff would require ongoing conservative treatment. He said she would have difficulty with work that involved large amounts of repetitive bending, lifting, and lifting of weights more than 5 kilograms, and a requirement to shift her posture on a regular basis. He said that mental health issues, including the development of a chronic pain syndrome, would also have a significant impact on work capacity.[54]
[54]PCB 176.
58In respect to a lifestyle evaluation, Mr Miller recorded that the plaintiff could drive a motor car but had difficulty with anxiety and turning her neck. He noted a complaint of difficulty with domestic and gardening activities, and reduced capacity for heavy domestic and gardening activities. He said she would have a reduction in her capacity for pre‑injury leisure and recreational activities.[55]
[55]PCB 178.
59Mr Miller was then provided with the video surveillance and asked to comment, which he did in a further report of 16 November 2022.[56] Having reviewed the video surveillance, he said it revealed a slightly greater range of motion in the neck than as recorded in his report. He noted that, in his report, the plaintiff had told him that her symptoms fluctuate and that there are good and bad days. He said a review of the video did not otherwise alter the findings or conclusions previously expressed in that report.
[56]PCB 179.
60Mr Miller’s supplementary report is also a little unsatisfactory. Firstly, it is provided approximately two years after his examination of the plaintiff and without any attempt to understand what had happened during that intervening period. Secondly, his reference to good and bad days is perhaps a cryptic reference to an assumption that the plaintiff was having good days when shown in the video, which I do not consider to necessarily reflect the evidence.
61Therefore, once again, we are left with a scenario whereby Mr Miller’s opinion supports the diagnosis of a whiplash injury with aggravation of cervical spondylosis, but otherwise his report is of no great assistance in understanding the true level of the plaintiff’s impairment and impairment consequences.
Medicinal cannabis
62The plaintiff relied on the use of medicinal cannabis as a relevant impairment consequence.
63However, I consider the state of the evidence regarding medicinal cannabis to be unsatisfactory and does not enable a conclusion that it is prescribed for an organically based neck injury.
64There is no medical report which directly sets out the reason why the plaintiff has been prescribed medicinal cannabis or what condition it is taken by her to manage. In her most recent affidavit sworn 10 March 2023, she notes the use of medicinal cannabis and having been prescribed that since 2021. Last year, she asked the TAC to fund the cost, but that request was refused, and she appealed the decision.
65She gave oral evidence of the use of medicinal cannabis. She said that it helped with her pain level.[57] It has been prescribed by various doctors or agencies, including a doctor in Brisbane. She said her GP (Dr Munir) gave her the referral to the initial clinic that prescribed it and more recently to a new clinic.[58]
[57]T 63, L 13.
[58]T 63, L 24-29.
66The plaintiff relied on a decision by a claims officer named Megan, after a request from a Dr Clementine Hammond,[59] for the TAC to fund medicinal cannabis to alleviate chronic neck and left arm pain secondary to her complex regional pain syndrome, and anxiety and PTSD symptoms.[60] The plaintiff submitted that this was evidence that medical cannabis was prescribed for her organic injury and pain.
[59]From whom we do not have a report.
[60]PCB 319.
67I do not accept the submission regarding medicinal cannabis. First, it is a decision by a claims agent as part of a statutory scheme. It is not a medical report, nor hard evidence as to why medicinal cannabis is required. It is simply evidence of a decision to fund it. Second, the decision, such as it is, is to fund medicinal cannabis to alleviate chronic neck and left arm pain “secondary to [the plaintiff’s] complex regional pain syndrome and anxiety and PTSD symptoms”.[61] As I understand that decision, it appears to relate to approved medicinal cannabis to treat non-organic conditions.
[61]Ibid.
68It may be that not much turns upon this point, but I am unable to conclude that the medicinal cannabis is prescribed to treat neck pain from an organically-based neck injury.
The defendant’s medico-legal experts
(i) Associate Professor Evangelos Romas
69Associate Professor Romas is a consultant rheumatologist who has examined the plaintiff and provided reports at the request of the defendant. In his first report, dated 3 October 2022,[62] he took a history of the plaintiff’s background, injury, subsequent history, and symptoms. He set out his examination findings, including minor uniform cervical restriction. He then diagnosed chronic pain syndrome, largely psychogenic in nature and unconnected to the accident. He expanded upon this when he said:
“I do not believe her chronic pain syndrome is causatively linked to the traffic collision. However, it is most definitely linked to multiple psychosocial susceptibility factors and stressors including alleged childhood sexual abuse, the death of her first husband, an allegedly violent second husband, and chronic illness in one of her children.”[63]
[62]Defendant’s Amended Court Book (“DACB”) 19.
[63]DACB 21.
70Associate Professor Romas went on to a discussion about what he meant by a “chronic pain syndrome and/or central sensitisation”. He said he was not suggesting that the plaintiff was engaging in a wilful misrepresentation of symptoms. He said she did have psychological distress and chronic neck discomfort or tightness, but that the radiological findings could not explain her symptoms. He said her psychological distress and chronic pain syndrome was not causally connected to the accident and set out his reasons for forming that opinion.[64]
[64]DACB 23.
71Associate Professor Romas was then asked to make any other comments he considered relevant. He accepted that invitation to give Professor Bittar a ‘serve’ and vigorously set out how and why he disagreed with Professor Bittar’s report of 2 June 2020. The ‘serve’ came in his comment that “Prof [sic] Bittar is part of the precision healthcare team who is, directly or indirectly, invested in the claimant’s treatment”.[65]
[65] DACB 25
Romas v Bittar
72The inference from Associate Professor Romas was that Professor Bittar’s opinions were influenced by the connection with Precision Healthcare and were therefore biased opinions. As I shall come to, this has sparked a ‘tennis match’ between the two doctors, with a back-and-forth war of words between them.
73Returning to Professor Bittar, in his report of 10 November 2022, Professor Bittar had been specifically asked to consider Dr Romas’s earlier report and opinions. He accepted that invitation with some enthusiasm, stepping forward to strongly criticise Dr Romas’ opinion that the transport accident was not a causative factor to the plaintiff’s neck condition.[66]
[66]PCB 165.
74However, not satisfied with criticising Associate Professor Romas’ opinion on causation, Professor Bittar then went on to make, what he described as, “My further comments in relation to Dr Romas’ report”. In a gratuitous exchange, he took issue with Dr Romas’ earlier comment regarding the possible conflict of interest. He returned serve by pointing out what he saw as a conflict because Dr Romas was expressing opinions favourable to the party that had requested and paid for his reports, namely the defendant.
75Associate Professor Romas then provided a supplementary report, dated 28 November 2022.[67] After, he was provided with additional documents and the video surveillance. He provided his opinion regarding the video surveillance, but he also took issue with some of what Professor Bittar had said in his reports. He decided to return by way of more of a ‘drop shot’, as opposed to smashing a forehand winner, by crisply saying that, “Dr [sic] Bittar had made shrill remarks which are not worthy of a response”.[68]
[67]DACB 140.
[68]Ibid.
76As discussed with counsel, I am far from convinced that each of Professor Bittar and Associate Professor Romas have covered themselves in glory as expert witnesses by engaging in a fairly pointed and personal attack upon each other. It may have been the unintentional consequence of the questions asked of them. Regardless, in my opinion, they have become politicised in the debate about which medical evidence to accept and, broadly, that impacts the weight I attach to each of their opinions.
Returning to Romas
77Once he had finished rallying with Professor Bittar, Associate Professor Romas said that the video surveillance was fully consistent with his clinical impression of normal physical functioning and the absence of neck dysfunction, and the surveillance was inconsistent with persisting neck injury. He said that:
“Therefore, the correct conclusion is that either the worker is suffering from a purely psychogenic pain disorder which is linked to the circumstances of the traffic accident (accepting her history is genuine) or she is no longer suffering from any persisting neck injury. In the alternative, any persisting neck pain or symptoms reflect entirely constitutional factors and/or soft tissue rheumatic pain or tension myalgia reflecting factors unconnected with her traffic accident.
The additional material does not cause me to change my opinion on the diagnosis as expressed in my report dated 3 October 2022.
Indeed the surveillance material vindicates my interpretation that the worker is not suffering from any persisting neck injury or dysfunction.”[69]
[69]DACB 140.
78Finally, Associate Professor Romas provided another final report, dated 10 March 2023, in which he was asked to comment on various radiological imaging. He said the latest MRI scan was less than expected for her chronological age and consistent with genetic and constitutional factors. He said the MRI scan did not indicate any structural injury. He said the radiology did not cause him to change his earlier opinion.
79Obviously, Dr Romas does not support a finding of a persisting organic injury to the plaintiff’s neck from the accident. Equally, having seen the video surveillance, he felt fortified in his opinion that there was no persisting physical injury and that any claimed impairment, if it was genuinely suffered, could only be explained on a non-organic basis.
80But, returning to conclude a consideration of Associate Professor Romas and his evidence, in a similar vein to what I said about Professor Bittar, I am able to accept some of his opinions, without having to accept all of his opinions. In respect to causation, I consider his opinion that there is no persisting physical injury to be against the weight of medical opinion and I do not accept it. However, there is merit in his opinion that the video surveillance supports a conclusion that the plaintiff is not suffering a persisting neck injury or dysfunction.
(ii) Mr Armin Drnda
81The remaining medical report is from Mr Drnda, consultant neurosurgeon. He provided a report to the defendant, dated 9 November 2021.[70] Like the other doctors, he took a history of neck symptoms. On that occasion, the plaintiff complained to him of constant neck pain, 5/10 on a good day and, since the radiofrequency denervation, she had more good days than bad. But on a bad day, she described the pain as going to 9/10. She reported, to Mr Drnda, clumsiness in the left hand and pain in the left hand, some two to three times a week. She also reported stress, of which she had a lot in her family, and that stress increased her neck pain and symptoms in the arms. He then took a history of her treatment, restrictions, and history. Under clinical examination, he found no particular tender points, but the plaintiff admitted she was fearful she may develop pain. He recorded mildly limited movement in her neck in all directions.
[70]DACB 43.
82Mr Drnda then answered a number of questions. He noted the plaintiff’s background history, including childhood trauma. In that setting, he said the plaintiff had signs of central sensitisation and that:
“… From a physical point of view, I do not think there is any significant issue with her cervical spine. However, given the emotional trauma and central sensitisation, [the plaintiff] is likely to remain with significant pain.”[71]
[71]DACB 47.
83Mr Drnda commented that a further radiofrequency denervation was not indicated because her symptoms then related more to anxiety and central sensitisation rather than any active pathology in her neck. He described the radiological changes as mild. In respect to a diagnosis, he said she had sustained soft tissue injuries of her neck, and did have mild underlying age-appropriate spondylosis, which he did not believe was symptomatic.[72]
[72] DACB 48.
84He opined that the plaintiff mainly required treatment with a pain-trained psychologist and that the plaintiff should be able to return to full-time work, which would also be beneficial for her mental health. He said that, in his opinion, activities of daily living are mildly affected.[73]
[73] DACB 49.
85In final submissions, the defendant placed emphasis on Mr Drnda’s opinion, describing it as a fair and balanced opinion, and an accurate summary of the plaintiff’s true level of pain and disability. For the reasons I shall shortly express, I agree with that submission.
86On the one hand, Mr Drnda’s opinion is a little out of date and expressed without the benefit of seeing the video surveillance. But, on the other hand, his diagnosis of a soft tissue injury, in the context of radiologically demonstrated degenerative change, is consistent with the majority of the medical opinions, even if he is equivocal as to whether the degenerative change has been aggravated and rendered symptomatic. Even without the benefit of the video surveillance, overall, I consider that he does have as good a picture of any medical practitioner as to the true level of her pain and impairment, and the interaction with the plaintiff’s anxiety. In that sense the video surveillance supports his conclusions, and the passage of time does not weaken his opinions.
A word about the disentangling issue
87The plaintiff does not rely on a discrete psychological injury, other than a broad reliance on the amplification of her physical symptoms due to an emotional reaction to the accident.[74] The medical evidence is littered with comments about the plaintiff having ‘anxiety’ or ‘stress’ from numerous events in her life. It is in that context that the ‘disentangling issue’ arises, namely to what extent is the plaintiff’s true level of accident-related impairment masked by her unrelated emotional condition.
[74] In accordance with the principles as set out in Richards v Wylie [2000] VSCA 40.
88There is no need to deal with this issue in detail. The evidence paints a picture of the plaintiff having numerous stressful events in her life and at times having difficulty coping. That is no criticism of her, but just a reality of the hand she has been dealt. It adds to the difficulty of extracting the true level of her accident-related impairment consequences, and as mentioned earlier, may explain her unreliability.
89I consider that the video surveillance supports a conclusion that the plaintiff’s activities of daily living are at best mildly affected by her neck injury. It may be that her level of function is at times adversely impacted by unrelated stressful events. It is difficult to extract the true level of impairment consequences from the neck injury. Of all the medical practitioners, I consider that Mr Drnda has come the closest to disentangling the physical from the emotional.
The serious issue
90That brings me to the remaining issue as identified, namely does the plaintiff have a “very considerable” impairment consequence from the physical injury to her neck?
91Having considered all of the evidence, I conclude that the answer to that question is ‘no’.
92First, I accept that the plaintiff suffered an injury to her neck in the accident. I conclude that the injury persists and is best described as a soft tissue injury with aggravation of underlying degenerative change.
93Second, I accept that the plaintiff has persisting symptoms, specifically ongoing pain in her neck.
94Third, it is difficult to discern her true level of symptoms, given that her credit has been impugned and her subjective complaints are unreliable. On balance, I consider it likely she has ongoing, intermittent, mild neck pain.
95Fourth, I accept that she has required conservative treatment and invasive treatment for her neck pain. That treatment is not trivial, but by the same token is not at the more extreme range for treatment, such as major neck surgery. The need for the radiofrequency denervation procedures must, to some extent, be questioned, as her treaters have offered the treatment without challenging her as to her level of described symptoms. I am not critical of that decision, as it may not be the place for treating practitioners to challenge the voracity of a patient’s complaints of pain, unless there are obvious ‘red flags’ for such treatment, bearing in mind some of the injections were diagnostic and the others are not invasive in the sense of a spinal fusion or the like. In isolation it is not corroborative evidence of her complaint of severe pain and impairment for daily activity.
96Fifth, consistent with Mr Drnda’s opinion, I consider that the true level of impairment is best described as mild. There is much that the plaintiff retains, as demonstrated by the video surveillance, should she choose to utilise it. She can engage in daily activity. She can drive a car without any apparent restriction. She was seen on the video to move briskly and clean up when moving house. She has remained active in the lives of her children. She was working for her daughter before the accident in a book-keeping position and retuned to that work post-accident, even if on reduced hours. That work ended for reasons that are unclear and unrelated to the accident (a falling out with her daughter). On a consideration of the whole of the evidence, I consider Mr Drnda’s opinion that she should be able to return to full-time work to be accurate, with his suggestion of the provision of an ergonomically designed workstation.
97Sixth, as mentioned, I accept that the neck injury may produce some impairment consequences for her. The true extent of those consequences is hard to discern given her unreliability and largely subjective complaints of pain and dysfunction. She bears the evidentiary onus and so the lack of reliable evidence is an onus that works against her. But, doing the best I can based on the whole of the evidence, I consider that she likely has impairment consequences that might be described as ‘marked’ or ‘significant’ but do not reach the requisite threshold of “very considerable”.
98Therefore, for the reasons set out, the application is dismissed.
99I shall hear from the parties as to consequential orders.
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