Carlin v Transport Accident Commission
[2013] VCC 1799
•25 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05055
| SONIA CARLIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 15 and 16 April 2013 | |
DATE OF JUDGMENT: | 25 November 2013 | |
CASE MAY BE CITED AS: | Carlin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1799 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of cervical spine – psychiatric injury – whether or not consequences are “serious” or “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Zepic [2013] VSCA 232; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566; Church v Echuca Regional Health [2008] VSCA 153
Judgment: Application for serious injury in respect of the cervical spine is granted. Application for psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr A E A McNabb | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr J Gorton SC with Ms K E Foley | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 23 October 2009. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 11 March 2007 (“the said date”).
2 Section 93(6) of the Act provides a Court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function; or
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder”
4 In this application, the plaintiff in effect has two separate applications for serious injury. Under s93(17) of the Act the plaintiff seeks serious injury certification by the Court for:
(i)loss of body function of the cervical spine; and
(ii)serious long term severe mental or behavioural disturbance or disorder.
5 The inquiry under s93(17) of the Act focuses attention first upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment to determine whether it is serious and long term.
6 The serious injury defined by ss(a) of ss(17) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of an impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
7 Since the hearing of this application, the Court of Appeal has handed down judgment in Transport Accident Commission v Zepic.[2] In that case, Maxwell P said:[3]
“It was clear, therefore, that the psychological impact of the physical injuries was significant and pervasive. On Mr Zepic’s own evidence, and that of others, the 2008 accident had a serious, adverse effect on his state of mind, which in turn contributed materially to his experience of pain and disability.
There was, in short, no simple way of separating out the psychological from the organic causes of his pain and suffering. The fact that the necessary ‘disentangling’ was not done — and was probably not capable of being done, given the state of the evidence — is a further, separate, reason why it was not open to conclude that the organically-based consequences satisfied the narrative test.”
[2][2013] VSCA 232
[3]at paragraphs [110] and [111]
8 It is not clear if this pronouncement of law was designed to overturn the law as it was set out in Richards v Wylie. The earlier authority is not referred to in the text of the decision nor in the footnotes for the judgment in Zepic’s Case. I have proceeded with this decision on the basis that a “serious injury” as defined by ss(a) of ss(17) can have its seriousness measured in part by a mental response to a physical impairment as set out in Richards v Wylie.
9 In forming a judgment as to whether the consequences and the injury are serious, the question to be asked is: can the injury when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and “more than significant” or “marked”?[4]
[4] Humphries & Anor v Poljak [1992] 2 VR 129
10 A serious injury s93(17)(c) requires the level of impairment to be “severe”.[5]
[5]Mobilio v Balliotis & Ors [1998] 3 VR 833
11 The plaintiff swore and relied upon three affidavits dated 25 June 2009, 31 July 2012 and 14 March 2013. The plaintiff also relied upon the affidavit of her husband, Geoffrey Carlin, sworn on 18 April 2012 and the affidavit of her father, Nicoliy Posotsky, sworn 11 April 2012. The plaintiff gave evidence and was cross-examined. None of the medical practitioners involved in the plaintiff’s treatment or assessment were called to give evidence in this case. The husband and father of the plaintiff were not required to give evidence or be cross-examined on their affidavits.
12 In addition to the affidavits referred to and the evidence given by the plaintiff, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material.
13 The tendered evidence in this proceeding was as follows:
·Exhibit A – Plaintiff’s Court Book (“PCB”) pages 5 to 49.1, pages 50 to 216, pages 226 to 234.4, pages 238 to 239, pages 241 to 320 and pages 350 to 362
·Exhibit B – Defendant’s Court Book (“DCB”) pages 40 to 58A and pages 105 to 109
·Exhibit 1 – DVD surveillance footage dated 30 November 2011 and 1 December 2011
·Exhibit 2 – DVD surveillance footage dated 19 and 20 June 2012
·Exhibit 3 – DVD surveillance footage dated 31 December 2012, 1 January 2013 and 5 January 2013
·Exhibit 4 – Plaintiff’s taxation return for the year ending 2012
·Exhibit 5 – Defendant’s Court Book pages 1 to 39, pages 59 to 84, pages 87 to 104 and pages 110 to 153
·Exhibit 6 – Plaintiff’s Court Book pages 235 to 237.
14 The issues in this application are as follows:
(a)What injuries did the plaintiff suffer to her cervical spine as a result of the transport accident? This issue includes whether the aggravation of any previous injury to the plaintiff’s neck occurred as a result of the transport accident;
(b)Whether the injuries or consequences for the plaintiff as a result of the injury to her cervical spine are properly described as in “the range” of cases considered as a whole to be a serious injury under the Act;
(c)The credit of the plaintiff;
(d)Whether the plaintiff suffered any psychiatric condition as a result of the transport accident; and
(e)Whether the plaintiff’s psychiatric condition meets the “severe” test as required under the Act.
15 Mr Gorton, Senior Counsel, on behalf of the defendant, submitted at the commencement of the proceedings that the plaintiff had a whiplash-type injury to her neck which the medical opinions have no organic explanation for the ongoing symptomology. Mr Gorton SC submitted that in relation to the psychological/psychiatric injury, that the history given to Dr Strauss was misrepresented by the plaintiff and she had no medical support for a severe psychiatric injury.[6]
[6]Transcript (“T”) 29
The Plaintiff’s background
16 The plaintiff was born in August of 1969. She is now aged forty-four years.[7] The plaintiff is a married woman and she lives with her husband and only daughter, who is now ten years old.[8]
[7]PCB 5
[8]PCB 5
17 The plaintiff was educated to Year 11 at Dandenong High School. She has subsequently completed a two-year course at Swinburne Technical College and completed a Diploma of Accounting. The plaintiff has conducted her own bookkeeping business since 2000.[9] At the time of the accident, she was conducting her bookkeeping business. At the time of the application in this matter, the plaintiff was continuing to operate her bookkeeping business but she gave evidence that her ability to work is limited by the effect of the consequences of her neck injury.
[9]PCB 6
The transport accident involving the Plaintiff
18 The plaintiff described the accident in her affidavit sworn 25 June 2009 in the following terms:
“On the 11th March 2007 I was involved in a transport accident (“the transport accident”) at the intersection of Summers Road, Burwood and the Burwood Highway when a motor vehicle driven by Guiying Ma entered the intersection against a red traffic light and collided with the motor vehicle I was driving.”[10]
[10]PCB 5
19 The plaintiff initially attended the Box Hill Hospital but was unable to wait the six hours in the casualty section. She then attended the Burwood Private Medical Centre where she was diagnosed with a whiplash injury noting that she had tingling in the left side of her face.[11]
[11]PCB 81
The Plaintiff’s impairment in relation to psychiatric/psychological injury
20 The plaintiff, in her Amended Particulars of Injury dated 9 April 2013, added the following grounds for application for serious injury:
“In addition or in the alternative, the Plaintiff has suffered a serious injury as defined by s.93(17)(c) of the Transport Accident Act by reason of severe long-term mental or severe long-term behavioural disturbance or disorder.”[12]
[12]PCB 4.2
21 The plaintiff, in her affidavit dated 31 July 2012, deposed:
“As a result of the pain and discomfort in my neck and right shoulder I have become anxious, depressed and frustrated. My memory and concentration are not what they used to be.”[13]
[13]PCB 13, paragraph 17
22 In that same affidavit, the plaintiff deposed to taking the medications of Temazepam, Zoloft, Valium and Tramadol to deal with her symptoms.[14]
[14]PCB 13-14
23 In her final affidavit dated 14 March 2013, the plaintiff deposed:
“I currently take Zoloft 200mg daily, Tramal 150mg twice daily and Temazepam 10mg nightly to treat my neck and right shoulder pain, headaches, sleeping difficulties, depression and associated symptoms. In October 2012 my dose of Zoloft was increased to its current dosage in response to my depression getting worse, related to the difficulty in managing my chronic pain. Further, in about December 2012 I increased my dosage of Tramal from 100mg twice daily to the current dosage of 150mg twice daily as the higher dosage was needed for pain management purposes.”[15]
[15]PCB 17, paragraph 12
24 The plaintiff was cross-examined about being diagnosed with post-natal depression after her daughter was born in September of 2002. The plaintiff gave evidence that she was prescribed and took Zoloft for a period of time following that diagnosis. The plaintiff stated:
“… I could have said I stopped taking it but not a complete recovery, I was actually in denial, I said that I didn’t have it. I was just exhausted because my daughter had colic and I unfortunately never had any support from my husband and I was looking after her on my own.”[16]
[16]T39, L1-6
25 The plaintiff, when further cross-examined about the depressive illness prior to the transport accident, stated as follows:
“That’s correct, I didn’t think I had depression, I was an exhausted mother with a child who was sick and I was also in the process of owner building a new home where I was organising all the subcontractors.”[17]
[17]T40, L2-6
26 The plaintiff clearly accepted that she had had psychological and psychiatric difficulties before the transport accident. She also gave evidence of having a difficult marital situation due to her husband’s studying program.[18]
[18]T44
27 The plaintiff’s evidence was that her psychological problems, such as they were, were coming from her pain.[19]
[19]T75
28 The plaintiff was extensively cross-examined about the taking of anti-depressant medication over an extended period of time. She answered as follows:
“No, because I didn’t think there was anything wrong with my head and I associate antidepressants unfortunately with something being wrong with your head, there is nothing wrong with my head, just the pain.”[20]
[20]T81, L12-16
29 By this answer, the plaintiff clearly states that she is not suffering from a distinct psychological or psychiatric condition. Her evidence clearly sets out that her psychological problems arise from her suffering physical pain.
Dr Simon Kinsella
30 The plaintiff has consulted with Dr Simon Kinsella, psychologist, from 29 March 2011. She continues to see Dr Kinsella for psychological difficulties. In his report dated 13 June 2011, Dr Kinsella diagnoses the plaintiff with a Major Depressive Disorder of moderate severity and a Pain Disorder with psychological and physical factors.[21] In his report dated 11 April 2013, Dr Kinsella, after viewing all of the video material and other documents sent to him, states as follows:
“I have reviewed all the material and have not altered my opinions or diagnosis. While the video footage does indicate that she is smiling and probably laughing, having a diagnosis of a major depressive disorder does not preclude periods of happiness.
… I remain of the opinion that the diagnosis of major depressive disorder is the more appropriate diagnosis.”[22]
[21]PCB 76
[22]PCB 80.1
Dr Nigel Strauss
31 The plaintiff has been examined by Dr Nigel Strauss, psychiatrist. Dr Strauss has reported on the following dates: 12 February 2008, 26 February 2009, 8 June 2010, 11 August 2011, 8 May 2012, 13 December 2012 and 8 April 2013. Dr Strauss has examined and reported on the plaintiff over an extended period of time. Dr Strauss was shown the DVD surveillance material of the plaintiff which had been shown in the hearing of this matter. In his final report, he outlines the following opinion:
“Taking the emotional state first, it is quite possible that this woman does suffer from anxiety and depression and has to make an effort in social situations to be positive. … I still believe it is possible that this woman is suffering from a mild adjustment disorder with mixed anxiety and depressed mood. It is possible that she does get quite emotional, depressed and anxious at times as a consequence of the accident and its effects and in this regard I do not wish to change my opinion.
… I do not wish to change my conclusion that she is effected by post traumatic stress symptoms.
Finally I should state that after watching the surveillance material I cannot state necessarily that this woman is suffering from psychologically based pain. She seemed to move quite freely and therefore from a psychological perspective it is difficult for me to state that she in fact does have a pain disorder.
…
I cannot state with any certainty that she has a psychologically based pain disorder.
…
I am not stating that Ms Carlin is not genuine because I believe that she may well be suffering from psychological problems which surveillance material does not necessarily demonstrate under any circumstances.
…
I do not believe necessarily that she has an incapacity for employment on psychiatric grounds.”[23]
[23]PCB 194.8 – 194.9
32 It is clear from Dr Strauss’s opinion that he does not believe that the plaintiff has a psychologically-based Pain Disorder. Dr Strauss concludes that the plaintiff has a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Strauss has had the advantage of examining and reporting on the plaintiff over an extended period of time; in all, approximately five years. On his assessment, the plaintiff does not have a psychiatric or psychological condition which would satisfy the statutory test required in this case.
Dr John King
33 Dr John King, psychiatrist, examined the plaintiff on behalf of the Transport Accident Commission and reported on the following dates: 10 November 2008, 22 March 2010 and 21 December 2012. In his final report, Dr King notes:
“She finds she does not sleep without taking temazepam, with her sleeping 6 top 7 hours and then waking feeling tired. She does not have dreams or nightmares.
…
Whenever the details of the accident were discussed, or whenever her injuries and pain was discussed, she was extremely tearful, but without a sustained depressed affect. She was quite tearful by the end of the assessment. Overall I thought her affect was that of mild depression mingled with some anger.”[24]
[24]DCB 55
34 Dr King diagnosed the plaintiff as follows:
“Adjustment Disorder with Anxiety and Depressed Mood, including some symptoms of PTSD.
Pain Disorder as the overwhelming opinion of the specialists in the enclosures provided is that the psychological factors ‘have an important role in the onset, severity, exacerbation or maintenance of the pain’.”[25]
[25]DCB 56
35 Dr King was of the view that the plaintiff should not continue with the psychological counselling by Dr Kinsella. Finally, Dr King stated:
“I believe that the plaintiff’s symptoms can be attributed to her traffic accident; I believe they partly have an organic basis, and they partly have a psychological basis.”[26]
[26]DCB 57
36 Dr King was of the opinion that the plaintiff had an 80 per cent work capacity.[27]
[27]DCB 57
37 Dr King had had the advantage of seeing some of the surveillance material and his opinion was not altered by viewing it.
38 Dr King’s opinion is very similar to that of Dr Strauss in relation to the plaintiff’s condition. Dr King is of the view that the plaintiff’s symptoms are physically and psychologically based.
Dr Timothy Entwisle
39 Dr Timothy Entwisle, psychiatrist, examined and reported on the plaintiff for and on behalf of the Transport Accident Commission on 28 August 2007. The opinion expressed by Dr Entwisle is obviously old in terms of this application given that he examined the plaintiff on 20 August 2007. For the sake of completeness, Dr Entwisle diagnosed the plaintiff at that time with an Adjustment Disorder with Depressed and Anxious Mood.[28] Dr Entwisle was of the opinion that the plaintiff’s symptoms could be attributed to the transport accident.[29]
[28]DCB 21
[29]DCB 21
40 In conclusion, based on the evidence of the plaintiff and the opinions given by Dr Strauss and Dr King, I find that the plaintiff does not suffer from a psychiatric or psychological condition which satisfies the test set out in the legislation under s93(17)(c). I accept that the medical opinions from a psychiatric point of view do attribute the impact on the psychological wellbeing of the plaintiff to pain which she is suffering from her physical conditions. This aspect is but one of the consequences that I have to be satisfied about in assessing the physical injuries in respect of the plaintiff as a result of the transport accident.
Injury to the Plaintiff’s cervical spine as a result of the transport accident
Medical treatment and opinions
41 The plaintiff was injured in a transport accident on 11 March 2007. Immediately after the accident she attended the Box Hill Hospital for treatment. She was advised that there was a wait of some six hours for casualty patients at the hospital. The plaintiff decided that she would attend the Burwood Private Medical Centre rather than wait at the hospital.[30] Her complaint at the Burwood Private Medical Centre was that she had tingling to the left side of her face involving her lip and also her teeth. She was told that she had suffered a whiplash-type injury, and was discharged. There was no report from the Burwood Private Medical Centre contained within the numerous documents tendered in this case.
Mr Michael Silverstein[31]
[30]PCB 81
[31]PCB 89
42 The plaintiff had previously been to see Mr Michael Silverstein, ear, nose and throat surgeon, for treatment for a tonsillectomy and follow up and review. Coincidentally, she was due to be reviewed by Mr Silverstein on 14 March 2007. This is three days after the accident.
43 Mr Silverstein noted that the plaintiff had presented with some tingling sensation to the left side of her face and down her left arm. He thought her complaints were of a recent whiplash injury from the transport accident. Mr Silverstein wrote to the plaintiff’s doctor, Dr H Debinski at Cabrini Medical Centre, on the day of the plaintiff’s attendance upon him. Mr Silverstein did not give any opinion about the injury to the cervical spine.[32]
[32]PCB 89
Dr Bruce Ingram
44 The plaintiff attended upon Dr Bruce Ingram, general practitioner, at the Junction Place Medical Centre on 17 March 2007. The plaintiff gave Dr Ingram a history of immediately after the accident noticing pain in the right side of her neck. Some short time after the accident she noted that she had facial tingling over the region of her left cheek, upper lip and left upper gum and tongue and the medial three fingers of her left hand.[33]
[33]PCB 29
45 Dr Ingram examined the plaintiff and noted that she had persistent right neck pain and facial symptoms as described by her complaint and numbness in her left hand to the medial three fingers. Dr Ingram arranged for an MRI scan of the plaintiff’s cervical spine and her brain. He also arranged for an MRI angiography to exclude the possibility of a cervical or cervico-cranial vertebral artery dissection. Dr Ingram reported that all the investigations were normal except the MRI of the cervical spine which revealed a disc bulge at C5-6 that did not explain her symptoms. Dr Ingram referred the plaintiff to Dr David Wallace, neurosurgeon, for opinion. He prescribed Panadeine Forte for pain reduction.[34]
[34]PCB 29
Mr David Wallace
46 The plaintiff was referred to Mr David Wallace, neurosurgeon, for examination on 19 April 2007. Mr Wallace examined the plaintiff for the symptoms in relation to her tingling in the jaw and cheek area. He also found:
“Her upper and lower limb strength was normal, but there was left C8 sensory dulling. She had a positive ‘surrender test’ on her left side, the test producing left arm heaviness and tingling in the palm of the hand.”[35]
[35]PCB 82
47 The plaintiff was then reviewed by Mr Wallace on 11 May 2007 when she was complaining of a burning sensation to the left side of her neck and a lower cervical and shoulder discomfort. By the time of the review on 9 July 2007, the plaintiff was complaining of occipital headaches and that she was not sleeping well. She was taking Panadeine Forte for her pain. The plaintiff was complaining also of shoulder difficulties. Mr Wallace was of the view that the plaintiff may require surgical intervention for her presumed ongoing thoracic outlet syndrome.[36]
[36]PCB 82
48 In his report dated 4 February 2008, Mr Wallace’s opinion was:
“… She also suffered a significant neck injury with development of left arm problems, with sensory disturbance radiating into the left fourth and fifth fingers, and difficulty using her arms in the elevated or outstretched position, persistent when reviewed in September 2007. … .”[37]
[37]PCB 83
49 In his report dated 26 February 2009, Mr Wallace noted that the plaintiff’s right arm pain was not a feature. He noted as follows:
“… Right arm pain was not a feature, but when her trapezius muscle was aching, she experienced some pain radiating to the right shoulder, which I thought was probably due to cervical disc disease at C5/6, her MRI scan showing a minimal disc protrusion at C5/6 foramen.”[38]
[38]PCB 84
50 Mr Wallace referred the plaintiff to Professor Teddy for neurosurgical intervention for the C5-6 pathology. Mr Wallace reported that Professor Teddy was of the view that the plaintiff would not benefit from neurosurgical intervention at C5-6 either in the form of an anterior cervical discectomy and fusion or a posterior decompression.
51 The plaintiff was finally assessed by Mr Wallace on 31 March 2010. By that time the plaintiff was taking the medications of Zoloft, Lexapro and Endep without any improvement. Mr Wallace took a history that the plaintiff had had cortisone injections into her right shoulder performed by Dr Bruce Ingram. This procedure did not assist in her complaint.
52 Mr Wallace noted that the plaintiff was emotionally labile and tearful. On examination, he found that the plaintiff’s neck was rather puffy bilaterally. She had a good range of neck movement. Mr Wallace noted:
“On the ‘surrender test’ she developed pain in the left arm and forearm after about a minute and had discomfort in the right trapezius and shoulder region on holding her right arm up. There was concise left ulnar sensory loss involving the ulnar one and a half fingers and the palmar and dorsal branches of the nerve.”[39]
[39]PCB 87
53 I note that Mr Wallace ordered an MRI scan of the cervical spine to look at the C5-6 disc problem. The results of that MRI report do not appear to have made it into the papers in this application.
Dr Ronald Leong
54 Dr Ronald Leong is a consultant physician in rehabilitation medicine. Dr Leong saw the plaintiff on 14 March 2008. Dr Leong was conducting a rehabilitation program for the plaintiff between March of 2008 and August 2008.
55 Dr Leong took a history from the plaintiff, stating that she had had constant discomfort in the lower neck, predominantly on the right side, which she rated at a pain level of 7 out of 10. She said that the pain to her neck was exacerbated by reading or prolonged sitting or in lifting objects. She improved with some rest.[40] The plaintiff also complained of sleep disruption as a consequence of her neck discomfort. She reported that she was able to sleep for approximately four to five hours at a time and often woke up unrefreshed in the mornings. The plaintiff complained that she had previously worked 40 hours a week but after the accident was only able to work approximately 25 hours per week spread over the five days.
[40]PCB 50
56 Dr Leong found on examination that the plaintiff demonstrated a slowly reduced range of movement of her cervical spine, predominantly at the extremes of movement and with right rotation. Dr Leong noted the MRI of the cervical spine and thought there was evidence of a generalised disc bulge without neural displacement at the C5-6 level.[41]
[41]PCB 51
57 Dr Leong diagnosed that the plaintiff’s pain was myofascial in nature, particularly following the relatively normal MRI examination of the cervical spine. Dr Leong noted that the plaintiff had limited progress over the course of the program at the Epworth Rehabilitation Camberwell Centre. Her participation was limited by pain and her endurance levels were decreased as a result of that.[42]
[42]PCB 52
Associate Professor Martin Richardson
58 The plaintiff was examined by Associate Professor Richardson, orthopaedic surgeon, on 19 May 2010. Professor Richardson noted that the MRI scan of the cervical spine had been done, which showed some disc damage at C5-6 with no nerve root impingement and nerve conduction studies had been performed which were normal.[43] Professor Richardson notes:
“Clinical examination revealed a full range of shoulder movement with a painful arc and positive Neer and Hawkins impingement tests. A further subacromial injection of local anaesthetic and Depo-Medrol under ultrasound control was given at this appointment.”[44]
[43]PCB 53
[44]PCB 53
59 Professor Richardson’s predominant area of focus in respect of the plaintiff was to do with her shoulder complaints.
60 In his report dated 23 May 2011, Professor Richardson noted that at his consultation with the plaintiff on 28 February 2011:
“… Unfortunately however her neck was causing further problems and some chiropractic management was recommended. Some muscle spasms and trigger point tender areas were noted in the neck consistent with a myofascial pain syndrome around the shoulder girdle it was thought some medical acupuncture by Dr Allen Yuen would be worth pursuing. … .”[45]
[45]PCB 54
61 In summary, after his reports dated 1 February 2012 and 15 May 2012, Professor Richardson was of the view that the shoulder problems for the plaintiff had been rectified. He noted that there was ongoing pain in the right parascapular muscle region and thought that the plaintiff had developed Reflex Sympathetic Dystrophy. It was clear that Professor Richardson accepted that the plaintiff was still suffering pain in the neck region and down towards her right shoulder.
Professor Peter Teddy
62 Professor Teddy, neurosurgeon, prepared two reports, dated 21 July 2008 and 10 June 2010. Professor Teddy first saw the plaintiff on 30 April 2008 on the recommendation of Mr David Wallace, neurosurgeon. On that day, he found:
“On examination, she had focal tenderness deep to the trapezius muscle on the right side along the nuchal line of the scalp but there were no abnormal findings that I could determine apart from slightly diminished sensation to light touch in the left little finger. An MRI scan showed a very small disc / osteophytic bar at C5/6 on the right. I did not think this was contributing to her symptoms.”[46]
[46]PCB 90
63 Professor Teddy then recommended that the plaintiff attend the Epworth Pain Management Program.
64 Professor Teddy later examined the plaintiff on 10 June 2010. On that day, he took a history from the plaintiff that she was complaining of right-sided neck pain radiating to her right shoulder. The plaintiff was also complaining of sharp constant pain just above her right collarbone and over the muscles of the shoulder (trapezius and deltoid). These are the relevant complaints in respect of the plaintiff’s claimed injury to her cervical spine. Professor Teddy took a history from the plaintiff that she had reduced her working hours from 38 to 40 hours a week to 15 to 20 hours per week as a result of the impact of the accident upon her. Professor Teddy was of the opinion that the traction injury to the plaintiff’s neck would not have resulted in the cranial nerve injury with radiculopathy causing the plaintiff’s fascial numbness and deafness.
65 Professor Teddy noted:
“I believe however that Mrs Carlin is an entirely genuine person who is in no way malingering of falsifying her position. It is simply that her neurological state does not appear to have a significant organic basis and her difficulties in coping have, to some extent, been reinforced by the (necessary) neurological reviews and investigations undertaken.”[47]
[47]PCB 96
66 In summary, Professor Teddy was of the opinion that the basic cause for the plaintiff’s ongoing difficulties was her psychological state. He was not in a position to assess it and did not try.
Dr Leslie Sedal
67 Dr Leslie Sedal, consultant neurologist, prepared two reports in respect to this matter, dated 27 April 2012 and 20 February 2013.
68 In her first report, Dr Sedal states that the MRI showed a degenerative change and a small central disc protrusion at C5-6 without evidence of compression of neural structures. The diagnosis for the plaintiff was musculoligamentous strain of the cervical spine (whiplash) and a degenerative change with small disc prolapse at C5-6.[48]
[48]PCB 207
69 In her final report, Dr Sedal stated that her opinion was:
“… That Mrs Carlin suffered a whiplash injury of the neck together with aggravation of degenerative changes and she now has a small disc prolapse of C5-6 without evidence of neural compression.
…
Her neck and spine would be assessed in an orthopaedic spinal assessment but I do not feel that she had evidence of radiculopathy complicating her spinal condition.
I believe the headaches are muscle contraction headaches associated with her neck injury, her jaw grinding and her psychological state.”[49]
[49]PCB 214
70 I conclude from the reports of Dr Sedal that the plaintiff has suffered a whiplash injury to her neck which has developed into pain in her neck-related region including headaches.
Mr Peter Moran
71 Mr Peter Moran, orthopaedic surgeon, prepared reports dated 20 May 2008, 6 June 2009, 11 July 2010, 31 May 2012, 1 February 2013 and 11 April 2013. The examinations and reports by Mr Moran of the plaintiff cover the period of 14 February 2008 (approximately one year after the transport accident) until the time of the hearing.
72 In his first report, Mr Moran gave the opinion that:
“… The dominant physical legacy of this collision has been an injury to the neck, with pain extending to the right shoulder and arm.”[50]
[50]PCB 112
73 Mr Moran continued with his opinion, stating:
“MRI scanning confirms evidence of disruption of the C5-6 disc but does not show clear evidence of neurological compression. I am uncertain on clinical grounds whether your client’s radicular symptoms arise as a consequence of nerve root compression in the neck, or whether these symptoms arise as a result of a compressive or traction injury to the brachial plexus. … .”[51]
[51]PCB 113
74 In his report dated 11 July 2010, Mr Moran describes his opinion as follows:
“Mrs. Carlin describes a significant transport accident, in which her vehicle was struck at speed from the right, this leading to symptoms of neck pain, shoulder pain and brachialgia. She has also had symptoms of headache, oral numbness and paraesthesiae, as well as fatigue.
In terms of her musculo-skeletal injuries, she has evidence of a chronic soft tissue strain of the cervical spine, with aggravation of underlying and asymptomatic age related degenerative change at C5/6.”[52]
[52]PCB 119
75 The plaintiff attended Mr Moran on 21 January 2013 for review. Mr Moran noted:
“At the time of interview your client’s dominant symptom was right sided neck pain radiating to the top of the shoulder. The symptoms intrinsic to the shoulder have improved, although there has been a persistent ache over the upper arm laterally.”[53]
[53]PCB 124
76 Mr Moran took a history of the poor sleeping patterns by the plaintiff and other physical limitations which she has learned to avoid, such as reaching up and not sleeping on her right side.[54]
[54]PCB 124
77 Mr Moran did not detect any evidence of conscious exaggeration by the plaintiff in her clinical assessment. He noted:
“… a depressed brachio-radialus reflex on the right consistent with her intermittent ‘shooting pain’ to the radial side of the hand in a typical C6 dermatomal pattern.”[55]
[55]PCB 124
78 Mr Moran’s opinion was:
“As the consequence of a transport accident in March 2007, Mrs Carlin has severe chronic spinal pain syndrome, which has persisted without relief for almost six years and has left her with an inability to cope with even trivial physical tasks, particularly domestic activities as suggested above.”[56]
[56]PCB 124
79 In Mr Moran’s opinion, the plaintiff suffered from a significant if not severe Chronic Pain Syndrome which is almost certainly permanent.[57]
[57]PCB 125
80 Mr Moran was subsequently shown the DVD surveillance films. In a supplementary report dated 11 April 2013, he states:
“These videos do demonstrate a reasonable functional range of movement of your client[’]s neck, but it is interesting that at all times she does sustain a relatively erect posture of the upper body and neck, and does not sustain a position of flexion or rotation for more than brief periods of time.
…
Ms Carlin has an organic basis to her pain, i.e. discogenic pathology at C5/6. This has left her with chronic neck pain for which her prognosis for improvement or recovery is poor.”[58]
[58]PCB 125.1
81 It is clear from the many reports of Mr Moran that in his opinion the plaintiff has suffered injury to her neck. The previously asymptomatic neck condition is now symptomatic with the proven pathology at C5-6.
Dr Robert Hjorth
82 Dr Robert Hjorth, neurologist, examined the plaintiff and prepared two reports dated 4 July 2007 and 7 January 2013. The plaintiff was examined on behalf of the Transport Accident Commission.
83 In his first report, Dr Hjorth noted that the plaintiff was taking medications of Panadeine Forte and Endep. In his initial report, Dr Hjorth noted that the plaintiff would have some kind of “whiplash” type injury. He noted that the plaintiff had a small degree of C5-6 disc prolapse on the MRI scan of the cervical spine but stated that the injury would not account for the numbness to the left side of her face.[59] Mr Hjorth proffers the possibility that the symptoms suffered by the plaintiff were psychogenic in origin but in his view, that was unlikely.[60]
[59]PCB 234.3
[60]PCB 234.4
84 In his most recent report dated 7 January 2013, Dr Hjorth makes the following observations:
“The case is one of great complexity and mystery. …
… One can sometimes diagnose a functional disorder because of the complexity and the way the symptoms spread across multiple systems, but often one has to rely on intuition or hunches or feelings about a case. In Sonia’s case I was struck by the fact that her symptoms were relatively consistent between 2007 when I first saw her and 2012 when I saw her again. … .
Also in favour of the trouble being organic is the fact that she has managed to get back to work, to at least some extent. It is more common with functional consequences of injuries to see that the people are permanently and totally incapacitated.
…
Do you believe that the Plaintiff’s injuries have an organic basis?
Yes, I think that they basically have an organic basis (see above.) There may be some psychological component but I think the organic component is the major feature.”[61]
[61]DCB 108
85 It is to be noted that Dr Hjorth had the advantage of seeing the surveillance films at the time of preparing this report.
86 It is clear from Dr Hjorth’s report that the concept of functional overlay has been clearly put to him by the defendant in this case. He has had the advantage of observing the surveillance film and examining the plaintiff on two occasions from 2007 to 2012. In his opinion, the plaintiff clearly has an organic basis for her complaints and that her complaints have been relatively consistent over that period of time. I accept Dr Hjorth’s opinion that the plaintiff has genuine and serious problems in respect of the pain suffered as a result of the injury to her cervical spine in the transport accident.
Dr Paul Verrills
87 Dr Paul Verrills, musculoskeletal physician, prepared a report dated 20 February 2013. He initially assessed the plaintiff on 17 July 2012.
88 I note in a letter to the defendant dated 20 July 2012, Dr Verrills states as follows:
“I concur with Dr de Graaff that her pain may well arise from the cervical articular pillars and my clinical assessment is that it is most likely from the C2/3 to C5/6 joints which also fits the scientific literature for injury following motor vehicle accidents.”[62]
[62]PCB 57
89 In that letter, Dr Verrills was attempting to obtain funding for medial branch blocks to the cervical spine.
90 In his report dated 20 February 2013, Dr Verrills sets out the history of administering a third occipital nerve block to C5-6 on 25 September 2012, the result of which was negative. A further injection was administered at C6-7-8 on 12 November 2012. The cervical injections were also negative.[63]
[63]PCB 60
91 Dr Verrills states:
“The scientific literature suggests that the maximal biomechanical impact in her trauma would occur at the C5/6 level and the major differential diagnosis in chronic neck pain is between zygapophyseal (facet) joint pain and discogenic pain. Often the pain can be mixed.”[64]
[64]PCB 61
92 Dr Verrills goes on to state:
“Medial branch blocks were negative, ruling out the facet joints. Hence, the provisional diagnosis would be cervical discogenic pain.”[65]
[65]PCB 61
93 The conclusion of Dr Verrills’ evidence is that the plaintiff does not suffer from facet joint pain in her neck but the appropriate diagnosis if cervical discogenic pain.[66]
[66]PCB 61
Dr Peter Blombery
94 Dr Peter Blombery, consultant physician (vascular disease), prepared two reports in respect of this application, dated 14 May 2012 and 5 February 2013.
95 In his first report, Dr Blombery was of the opinion:
“… She sustained a whiplash type injury which is an organic disorder of pain nerve pathways affecting her neck and right shoulder area. She also developed sensory symptoms in the distribution of the fifth cranial nerve suggesting that there was a traction injury to that area. … .
It was my opinion that these changes in the shoulder have been made worse by the motor vehicle accident where previously asymptomatic changes had become symptomatic. There may have also been the development of similar changes in the cervical spine where previously asymptomatic degenerative changes in the discs of the cervical spine became symptomatic as a consequence of the motor vehicle accident.”[67]
[67]PCB 198
96 In his latest report dated 5 February 2013, Dr Blombery noted that the plaintiff had ongoing pain in her right trapezius muscle and right neck, as well as headaches on the right side. There was pain in the right shoulder and posterior aspects of the right upper arm.[68]
[68]PCB 201
97 Dr Blombery noted that the plaintiff was taking the medications of Tramal, Zoloft and Temazepam. He also noted that the plaintiff had had nerve blocks from Dr Verrills at the Metropolitan Spinal Clinic in September and November of 2012.
98 Dr Blombery’s opinion was:
“Ms. Carlin has ongoing features of a pain syndrome affecting the neck and shoulder which is in the nature of whiplash type injury. This is an organic disorder of pain nerve pathways.
Her prognosis for recovery at this stage is poor and it is my opinion there will be no significant change in her level of disability in the foreseeable future.
…
It is my opinion that all of the ongoing pain in her neck, shoulder and face was caused by the motor vehicle accident that occurred on 11th March 2007.”[69]
[69]PCB 202
General Practitioners
99 The plaintiff has attended upon the general practitioners, Dr Bruce Ingram, Dr Alissia Kost and Dr Selsea Tan at the Junction Place Medical Centre from the time of the accident until the time of the hearing in this matter. The medical reports tendered in this application dated from 13 November 2007 until 10 April 2013 covered the whole of the ongoing treatment by general practitioners for the plaintiff.
100 The general practitioners, more recently Dr Selsea Tan, have provided the plaintiff with medications for management of pain to her neck and right shoulder area. The plaintiff has constantly attended with neck and trapezius muscle pain.
101 In her final report, Dr Tan appropriately summarises the plaintiff’s situation as follows:
“As you can see Ms. Carlin’s consultations have involved medication for pain management as well as procedural attempts to control her chronic pain. She is currently awaiting a review appointment with Dr Paul Verrills to discuss all available options, including proceeding with a planned cervical epidural. She has also been referred by Dr Verrills to see Dr David Fields – a psychologist who works closely with patients with pain management issues.”[70]
[70]PCB 47
102 Dr Tan goes on to give the opinion that the plaintiff has a maximum working capacity of 20 hours per week and that she is attempting to do that.
103 I accept the reportage of the various general practitioners from the one general practice setting out the ongoing and constant treatment of the plaintiff for pain management issues in relation to her neck. Dr Tan was shown the surveillance material and stated the following:
“… The surveillance material has not altered my view that Ms Carlin’s symptoms and impairment arise from an organic basis.”[71]
[71]PCB 49.1
Mr Brendan Dooley
104 Mr Brendan Dooley, orthopaedic surgeon, examined and assessed the plaintiff on behalf of the defendant. Mr Dooley prepared four reports, dated 18 July 2007, 10 November 2008, 21 April 2010 and 18 August 2010.
105 In his first report, dated 18 July 2007, Mr Dooley described the plaintiff’s symptoms as:
“… now are minimal except for the neck discomfort, the paraesthesiae of the left side of the face and in the hands have largely subsided; are mild and intermittent and likely to recover soon fully.”[72]
[72]DCB 4
106 In Mr Dooley’s second report, dated 10 November 2008, the examination of the plaintiff revealed that there was mild muscle spasm during active movement. Passive movements were not tested. This related to the neck examination.[73]
[73]DCB 9
107 Mr Dooley gave his opinion as follows:
“As a result of the motor vehicle accident of the 11th March 2007, over eighteen months ago this young woman sustained minor soft tissue whiplash type injury to the cervicothoracic spine; the injury was almost certainly confined to soft tissue and ligamentous injury with no structural damage to the cervical spine itself. … .”[74]
[74]DCB 10
108 In his report dated 21 April 2010, Mr Dooley notes:
“As a result of the motor vehicle accident, Mrs Carlin remains anxious and depressed. She suffered a whiplash type injury to the cervico-thoracic spine, with no structural damage in the form of fracture or dislocation affecting her neck. There are no signs of neurological damage, i.e. radiculopathy affecting either of the upper extremities …”[75]
[75]DCB 14
109 Mr Dooley however does say that he believes the plaintiff’s symptoms have an organic basis but that they are greatly magnified by her psychological reaction with anxiety and depression.[76]
[76]DCB 15
110 In Mr Dooley’s opinion the plaintiff would not be assisted by surgery to her cervical spine and in that opinion he agrees with Professor Teddy. He then offers this opinion:
“… I believe that most of the pain, if not all, represents referred pain from her soft tissue injury to the cervical spine. … .”[77]
[77]DCB 16
111 Mr Dooley confirms his opinion on 18 August 2010, where he says:
“You hold my report of 21 April 2010. Therein I gave my opinion that I considered that her right shoulder pain represented referred pain from her neck injury as most of her pain has been in the region of the trapezius muscle as noted by Mr David Wallace, Neurosurgeon.”[78]
[78]DCB 17
112 This is the final report from Mr Dooley.
Dr David Elder
113 Dr David Elder, consultant in the specialty of occupational and environmental medicine, prepared five reports in respect to this application dated 17 December 2008, 3 March 2010, 15 May 2012, 27 June 2012 and 17 December 2012.
114 In his report dated 3 March 2010, Dr Elder made the following observations on examination:
“The Plaintiff demonstrated almost a full range of motion in the cervical spine. She was not tender to palpation through the cervical spine musculature. Spinal contour was normal and there was no evidence of muscle spasm at all. There was also no abnormality of the shoulder girdle musculature with normal functioning of trapezius and supraspinatus and rotator cuff functioning was completely normal as well.”[79]
[79]DCB 69
115 At that time, Dr Elder was of the view that there was no ongoing physical medical condition suffered by the plaintiff.
116 In his report of 15 May 2012, Dr Elder maintained his opinion that there was no clinical evidence for any ongoing physical medical condition suffered by the plaintiff. He cannot put forward any physical reason for the plaintiff’s symptoms, notwithstanding the sequelae of the surgical intervention.[80]
[80]DCB 76
117 In his final report, which is dated 17 December 2012, Dr Elder confirms his previous diagnosis and opinion and simply puts the situation as:
“I do not accept that her situation can be explained from an organic basis.”[81]
[81]DCB 83
118 It is clear that Dr Elder does not think there is anything wrong with the plaintiff’s neck and he does not accept, after viewing the DVD surveillance films, that there is any psychological basis for the plaintiff’s complaints and symptoms.
Mr Michael Dooley
119 Mr Michael Dooley, orthopaedic surgeon, reported on behalf of the defendant on four separate occasions. Mr Dooley reported on 13 June 2012, 16 July 2012, 26 July 2012 and 16 January 2013.
120 After his first assessment on 17 May 2012, Mr Dooley was of the view:
“In my view, it is clear that Ms Carlin has had an overwhelming psychological reaction to her situation. I believe she has developed a chronic pain syndrome and that the constancy and intensity of her ongoing pain and her described disability are out of proportion to the soft tissue injury sustained in the motor vehicle accident over five years ago.”[82]
[82]DCB 91
121 Mr Dooley notes that continuing to treat a patient’s ongoing pain as though it is organically based only in this setting, often leads to a disappointing outcome and can further adversely affect an already delicate psychological situation.[83]
[83]DCB 91
122 On 13 June 2012, Mr Dooley’s opinion was:
“Injuries
I believe that from an orthopaedic viewpoint only, Ms Carlin will continue to note some intermittent neck and shoulder girdle pain. I would not expect this to be significant and I would not expect her orthopaedic condition to deteriorate in time.”[84]
[84]DCB 92
123 Mr Dooley agreed that it was appropriate for the plaintiff to be working approximately 20 hours per week at that time.
124 By the time of his report on 16 July 2012, Mr Dooley had had the opportunity to see the DVD surveillance films. After viewing those films, his opinion concerning the plaintiff’s ability to work changed. He was of the view that she could work greater than 15 to 20 hours per week. He stated that the DVDs confirmed his opinion that the plaintiff has not suffered a significant musculoskeletal injury in the transport accident.[85]
[85]DCB 94-95
125 In Mr Dooley’s final report dated 16 January 2013 his opinion was:
“I remain of the view that the soft tissue cervical spine injuries sustained in the motor vehicle accident involve musculoligamentous damage and possibly some aggravation of underlying degenerative disc disease. It did not cause disc bulging etc. The bulging of the disc relates to the underlying degeneration. … .
It remains my view that it is evident that the very large majority of Mrs Carlin’s symptoms relate to her psychological condition. … She has not sustained a serious injury. She has mild degeneration of the cervical spine. The so called bulging disc is not about to compress or sever the spinal cord. She will not be overwhelmed by arthritis. It is important that Ms Carlin increases her activity and tries to do more in her everyday life. Resting and lying down will not benefit her. … .”[86]
[86]DCB 101
126 Mr Dooley’s opinion is that –
“From an orthopaedic viewpoint only, I would expect Mrs Carlin to note some intermittent cervical spine pain. This might be associated with some occasional referred shoulder girdle pain. I would not expect her orthopaedic condition to deteriorate in time.”[87]
[87]DCB 101
127 It was Mr Dooley’s opinion that the soft tissue cervical spine injury accounts for a small proportion of the plaintiff’s ongoing symptoms. He was of the view that the plaintiff has developed a psychological condition relating to her symptoms. He describes that the plaintiff has developed a Chronic Pain Syndrome consequent upon a significant psychological reaction to her situation.
128 In his final commentary on the plaintiff, Mr Dooley relies upon his observations of the DVD surveillance film. He maintains his opinion that the plaintiff has a voluntary input to the symptoms that she complains about. In effect, he is saying that the plaintiff is making this up or exaggerating her symptoms consciously.
129 I have had the advantage of observing the plaintiff giving evidence and being cross-examined over a lengthy period of time. I reject Mr Dooley’s assessment of the plaintiff as voluntarily or consciously exaggerating her symptoms.
The Plaintiff’s evidence
130 The plaintiff relied upon three affidavits sworn by her on 25 June 2009, 31 July 2012 and 14 March 2013. The plaintiff also gave evidence over three days: 12, 15 and 16 April 2013. In her first affidavit, the plaintiff sets out all of the medical treatment that she had had up until the time of swearing an affidavit. She stated:
“Notwithstanding my treatment I continue to experience constant neck pain particularly on the right side, made worse with the elevation of my right shoulder. Whilst I can raise my arm I experience shoulder pain in doing so. My neck pain is present all the time. Its intensity varies. I awake each morning with pain of moderate intensity which can increase to a severe level. … .”[88]
[88]PCB 7
131 In her second affidavit, the plaintiff deposes:
“On some days my neck pain is worse than my shoulder pain and on other days my shoulder pain is worse than my neck pain. The neck pain travels down into my shoulder and in the back of my head, which causes me to suffer from headaches.
…
… Keeping my head in a fixed position for a long period of time such as whilst sitting in front of a computer or reading causes me worse neck pain.
…
As a result of the pain and discomfort in my neck and right shoulder I have become anxious, depressed and frustrated. My memory and concentration are not what they used to be.”[89]
[89]PCB 13
132 The plaintiff set out that at that time she was taking medications of Temazepam, Zoloft, Tramadol and Valium. She was also using a TENS machine.
133 In her final affidavit dated 14 March 2013, the plaintiff states:
“I currently take Zoloft 200mg daily, Tramadol 150mg twice daily and Temazepam 10mg nightly to treat my neck and right shoulder pain, headaches, sleeping difficulties, depression and associated symptoms. In October 2012 my dose of Zoloft was increased to its current dosage in response to my depression getting worse, related to the difficulty in managing my chronic pain. Further, in about December 2012 I increased my dosage of Tramal from 100mg twice daily to the current dosage of 150mg twice daily as the higher dosage was needed for pain management purposes.”[90]
[90]DCB 17
134 The plaintiff goes on to say that she does not think she can work more than 20 hours per week without having a significant escalation in her symptoms. In terms of the daily activities of home life, the plaintiff says that her husband now does the predominant amount of housework and cooking. I note from the DVD surveillance films that it is fair to describe the plaintiff’s husband as being the main gardener who is following directions given to him by the plaintiff.
135 I have read the three affidavits relied upon by the plaintiff. The plaintiff also relied upon the affidavit of Jeffrey Carlin dated 18 April 2012 and the affidavit of Nicoliy Pisotsky dated 11 April 2012. Neither of these deponents was called for cross-examination in this proceeding.
Consequences of the neck injury to the Plaintiff
Sleep
136 I accept that the plaintiff suffers from interruption to her sleep as a result of the injury and pain suffered in her neck. The plaintiff has given evidence that she takes sleeping medication in order to help her sleep.[91]
[91]PCB 16
137 The plaintiff’s husband, in his affidavit, stated that his wife now suffers from disturbed sleep at night.[92] The plaintiff’s husband in this regard was not challenged. The plaintiff, during the course of examinations by the medical practitioners, made complaints of the effect of her injuries on her sleeping patterns. In his report dated 1 February 2013, Mr Peter Moran noted that the plaintiff would not rise until mid morning and that she could not sleep on her right side.[93] In his report, Dr Ronald Leong noted that the plaintiff could only sleep for four to five hours at a time and would often feel unrefreshed in the morning.[94] When examined by Dr Entwisle, the plaintiff complained that her sleep was poor due to the pain in her neck.[95] The plaintiff consistently reported to doctors that her sleep has been interfered with as a result of the pain that she suffers in her neck region.
[92]PCB 23
[93]PCB 124
[94]PCB 51
[95]DCB 20
138 In the course of her evidence, the plaintiff was cross-examined about the change in arrangements for taking her daughter to school. She stated:
Q: “What’s caused the change?---
A:Just struggling to get up in the morning, unable to get up in the morning and on a couple of occasions when my husband’s on a business trip I have dropped my daughter off at school and I have had to park once on the side of the road and once at McDonald’s to have a nap because I’m exhausted.”[96]
[96]T135, L1-6
139 Later in her evidence, the plaintiff was cross-examined about her sleep. Directly, the evidence was:
Q: “On most nights you get an adequate night’s sleep?---
A:I usually go to bed probably about 11 o’clock, 11.30 and then wake up at perhaps 7, 7.30, 8 o’clock.
Q: So you normally get seven to eight hours sleep?---
A: I do probably now, yes, that’s with medication.”[97]
[97]T149, L12-16
140 It is clear from the evidence of the plaintiff that her sleep has been interrupted by the effects of her symptoms from the neck injury. The need for her to take medication to regulate her sleep is a significant consequence to the plaintiff. I accept the plaintiff’s evidence that she is regularly tired as a result of interrupted or compromised sleep.
Pain
141 The plaintiff has given evidence that she suffers pain in her neck and down into her right shoulder region. She also gives evidence that she suffers headaches as a result of pain from her neck. The plaintiff has also consistently reported of pain to the neck region to the medical practitioners that she has consulted with either in the capacity of treatment or for examination and assessment. The pattern of her complaint is consistent from the very beginning in 2007 until just before the hearing.
142 The plaintiff was cross-examined about pain and in particular that it was pain in relation to her right arm and shoulder area. The evidence was:
MR GORTON:
Q:But what’s happened is even with the operation you say it hasn’t affected the pain levels?---
A:I’m still getting the pain in my neck and this position here that I’m pointing to.
HIS HONOUR:
The witness is indicating the trapezius muscle on the right side.”[98]
[98]T65, L3-8
143 In this piece of evidence, the plaintiff was clearly indicating that even though she had had surgery on her right shoulder, the pain in her neck was a continuing problem for her.
144 The plaintiff was cross-examined in relation to some surveillance film showing her at a $2 shop leaning forward and examining goods. The following evidence was given:
Q:“I suggest if that movement caused you any real pain at all you simply wouldn’t have done it or you would have used your left arm or you would have shown some reaction to it at the time?---
A: I had my bag in my left hand and on my shoulder.
Q:If use of your right arm caused pain in your neck you could have put the bag down or put your bag in your right arm and done that work with your left arm, couldn’t you?---
A:I could have, yes.
Q:And the reason you didn’t is because what we saw in the video, those sort of activities and movements you can do without it causing you pain in the arm or neck?---
A:I notice the change in my pain when I extend my arms but yes, I do it.
Q:You might question these words, it’s hard to know, but is that effectively a trivial increase in the level of pain, did you notice?---
A:It is trivial, however I do – you know, I stop and I have to, you know, and it does hit me as, you know, that thought does have to unfortunately enter my mind that I do such an action and as I’m doing it I can feel the pain movement.”[99]
[99]T105, L30 – T106, L19
145 I have observed the surveillance film relating to this particular part of the evidence and it is clear that the plaintiff will try and engage in normal activities but I accept that she accurately describes the impact on her in relation to the resultant pain after such activities.
146 The plaintiff was also cross-examined about her statement that she could not work any more than the 20 hours per week. This was a general attack on the plaintiff’s credibility about her working capacity. The plaintiff described the inability to work as an inconvenience. She was challenged about that in cross-examination. The evidence was:
Q: “What’s the inconvenience?---
A: Not being able to work.
Q: But I mean in terms of what ---?---
A: I would like to be working more hours but I can’t.
Q: Because---?---
A: I have tried because of the pain.
Q: The pain in your neck?---
A: That’s correct.
Q: Do you have pain in your neck all day long?---
A: Yes, I do.
Q:Do you have pain in the neck whether you’re sitting or standing or walking in a line?---
A: Yes, I’m sitting here now and my neck is heated.”[100]
[100]T136, L12-20
147 I accept the plaintiff’s evidence when she says that she suffers pain in her neck if she is required to sit in a fixed position for some time, and that as a result of that she has pain in the neck.
148 I accept that the plaintiff is suffering from organically-based pain to her neck region as a result of the transport accident. I consider the pain is of such a level that it has a large impact on the nature in which the plaintiff can enjoy her life in regards to daily activities, work, enjoyment with her daughter, enjoyment with her husband and general suffering as a result of the pain itself.
Medication
149 As a result of the injury to the plaintiff in the transport accident in March of 2007, the plaintiff has been prescribed various medications to cope with her pain levels. The medications over time have included Panadeine Forte and Endep.[101] The plaintiff has also been prescribed medications of Temazepam, Zoloft, Tramadol and Valium.[102] The plaintiff is currently prescribed Zoloft, 200 milligrams daily; Tramal, 150 milligrams twice daily; Temazepam, 10 milligrams nightly to treat her neck and right shoulder pain, headaches, sleeping difficulties and depression and associated symptoms. The plaintiff’s prescription of Zoloft has been increased in recent times.[103] The plaintiff confirmed that these medications were currently being taken.[104]
[101]PCB 9
[102]PCB 13-14
[103]PCB 17
[104]T31
150 The plaintiff was challenged about her medications and the reasons for taking them. She stated that she took the painkillers for her neck pain.[105]
[105]T116-117
151 The plaintiff later gave evidence in cross-examination that she took Panadeine Forte in between 2007 and 2009 for the pain in her neck.[106]
[106]T159
152 I find that the necessity for the plaintiff to take such significant amounts of medication over a long period of time is a significant consequence for her. The medication is in part for pain and to assist her in sleeping. She also has medication to deal with her psychological reaction to the physical pain. The necessity for this medication is approved by all of her treating medical practitioners and therefore reasonable for her to take.
Ongoing treatment
153 The plaintiff has had ongoing treatment from her general practitioner and is currently awaiting further surgical or nerve block intervention by Dr Paul Verrills. She is currently prescribed the medications just referred to in these reasons. There is no doubt on the evidence in this case that the plaintiff’s condition will remain in its current state for the foreseeable future, if not deteriorate.
Activities of daily living
154 The plaintiff deposes in her final affidavit as follows:
“I have great difficulty doing the housework because activities such as vacuuming, cleaning the bathroom, sweeping and cleaning tiles involve bending and lifting movements which exacerbate my pain. Jeff does most of the housework and cooking. I do some light cooking and cleaning when I can manage.”[107]
[107]PCB 17
155 The plaintiff was cross-examined about this but I find and accept her evidence that she does less and less of the family activities relating to cleaning the house and cooking. The plaintiff’s husband, Jeffrey, deposes in his affidavit that he does more of the housework than before and his evidence in that regard has not been challenged.
Art and sport
156 The plaintiff has reduced the amount of painting that she has done in the past. Her father deposes that she has effectively reduced her artistic output since the accident.[108] The plaintiff agrees that she can continue with cycling but does not cycle as much as she used to prior to the transport accident. She readily admits that she does ride her bike from time to time.[109] The plaintiff, in her evidence, did not make a big issue out of her inability to paint and/or cycle. I accept, however, that the reduction in enjoyment for her of the physical activity and exercise of cycling and the almost complete destruction of her ability to engage in her artistic pursuits is a consequence to her and is to be taken into account when assessing the impact of the injuries upon her.
[108]PCB 27
[109]T90
Work
157 The plaintiff, in her first affidavit, states that as a result of the accident, her working capacities have been reduced by about half.[110]
[110]PCB 8
158 In her final affidavit, the plaintiff stated that she was able to work approximately 15 to 20 hours per week and was unable to increase her hours of work beyond 20 hours without significant escalation in her symptoms.[111]
[111]PCB 17
159 The plaintiff was extensively cross-examined about her capacity to work. In cross-examination relating to the motor vehicle expenses related to her bookkeeping business, the plaintiff was cross-examined about the biggest barrier to her working was her inability to drive a car. The following evidence was given:
Q:“Is that correct, that the biggest barrier to working is the travel involved and you can manage the pain whilst you’re at work?---
A:No, I can’t manage the pain at work, But I push through so if you call that managing, yes, I do push through my work.
Q:When you do a batch of work you work for about five hours?---
A:With breaks, yes.
Q:With breaks?---
A:Yes.
Q:Because you can take breaks as you need?---
A:Yes, I can.
Q:So you work somewhere around 20 hours a week at the moment?---
A:Yes, I do.
Q:And that 20 hours a week is enough hours for you to complete all the work you need to do for your clients?---
A:At times I struggle, and I might do 15 hours a week and the following week I may have to do 22 hours a week or something to have a slight catch up.”[112]
[112]T127, L22 – T128, L6
160 The plaintiff was also challenged about not seeking to obtain more bookkeeping work closer to her new residence. The following evidence was given:
Q:“Because of your loyalty to your old clients you haven’t made any endeavours at all to get new clients, is that the situation?---
A:I have been offered jobs by the two accountants that I still report to and I tell them no, unfortunately I’m not ready to take on new clients.”[113]
[113]T132, L21-25
161 I accept the plaintiff’s evidence that her capacity to work is limited to 20 hours per week. This is a reduction in her capacity to perform bookkeeping work. Given her domestic situation with one child now at school, the plaintiff would almost be able to work full-time hours of 40 hours per week. The fact that these injuries and the symptoms arising from them have reduced her working capacity to half of that is a significant consequence for the plaintiff.
Psychological impact of the pain
162 Mr Michael Dooley and Dr David Elder are of the view that the plaintiff is suffering psychologically-based injuries. I accept the evidence of the other medical practitioners referred to in these reasons that the basis for the plaintiff’s pain is an organic basis. I accept the plaintiff’s evidence that as a result of her organically-based pain, she has become anxious, depressed and frustrated. The proof of that is her presentation at examinations by various medical practitioners as reported by them.
163 The plaintiff has been treated by Dr Kinsella, psychologist, over an extended period. She was cross-examined about this treatment and the evidence was as follows:
Q:“So we can be absolutely confident that you saw a psychologist in the times before Dr Kinsella said you don’t need treatment for your mental state?---
A:Well, it’s something that strikes a chord when somebody tells you after so many people have told you it’s in your head that she’s telling you you’re okay, it’s the pain.
Q:It’s more than that isn’t it, she’s telling you your emotional state, mental state is such that you don’t need to have any counselling, any psychological treatment?---
A:Yes, because my psychological problem is coming from my pain.”[114]
[114]T75, L9-19
164 I accept the plaintiff’s evidence on this issue, that it is because of her pain that she is having her psychological difficulties.
Credit of the Plaintiff
165 As I have previously stated in these reasons, the plaintiff was cross-examined extensively over the course of this application. Some of the cross-examination was based on surveillance film. The surveillance footage covered 30 November 2011, 1 December 2011, 21 April 2012 and 27 April 2012. That footage was exhibit 1 in the proceeding.
166 The DVD surveillance footage of the pokies venue between 19 June 2012 and 20 June 2012 was exhibit 2 in the proceeding. Exhibit 3 in the proceeding portrayed DVD surveillance conducted on 31 December 2012, 1 January 2013 and 5 January 2013.
167 I have watched the surveillance film of the plaintiff very carefully. I conclude that nothing was shown of the plaintiff’s movements that contradict her evidence about pain. I accept that she appears to be able to engage in playing the pokies for example, or attending her garden at Point Cook without any difficulty; however, a very close viewing of her movements does not display full and free rotation of her neck or indicate that she is pain free. I accept the plaintiff’s evidence that she has taken medication constantly and as a result this allows her some level of function as shown on the DVD surveillance.
168 The Court of Appeal, in the authority of Church v Echuca Regional Health,[115] set out the caution with which video surveillance films are to be approached when assessing the credibility of a plaintiff. I take into account the comments and directions set down in that authority when assessing the plaintiff in this case. The film does not display any activities that the plaintiff says that she cannot perform. The plaintiff readily says that she goes to work; she says though that she is limited by pain as to how much she can do. In conclusion, I do not find that the extensive video surveillance film has dented the credibility of the plaintiff in this case.
[115][2008] VSCA 153
169 I accept that the plaintiff is a witness of credit. Whilst she was very emotional when giving her evidence, that was consistent with the manner in which she has presented to the various medical practitioners over the extensive examination and treatment process that she has undergone. I did not find that the plaintiff was putting on this emotional response or acting out in any way. I accept the plaintiff is genuine in her description of her pain and the impact that it has on her.
Conclusion
170 I conclude that the level of psychiatric or psychological disorder suffered by the plaintiff is not “severe” as required under the Act. I accept the plaintiff’s evidence in this regard, that she does not think her complaints are psychologically or psychiatrically-based. Whilst the plaintiff does take medication prescribed for depression, she is not under the ongoing treatment of a psychiatrist.
171 I conclude that the plaintiff’s application in respect of serious injury certification for psychiatric and psychological disorder is dismissed.
172 I find that the plaintiff has satisfied the test for serious injury in respect of symptoms and the consequences of pain and suffering to her as a result of the transport accident. I find, based on the reasons previously outlined, the plaintiff has pain and suffering of a very considerable nature and that the consequences, when considered as a whole, have a very considerable impact on her enjoyment of life.
173 The level of pain and its impact on her work and daily activities are very considerable consequences. Further, I accept that the consequences are long term and permanent, in the sense that the plaintiff will suffer from them into the foreseeable future. I am satisfied that the plaintiff has met the required test for serious injury under the Act in respect of the physical injury to her cervical spine.
174 The application for serious injury certification in respect of the physical injury to the plaintiff’s cervical spine as a result of the transport accident is granted.
175 I will hear the parties on the question of costs.
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