Collins v Marks and Anor and Collins v TAC
[2012] VCC 1692
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-01601
and CI-10-04709
IN THE MATTER OF
| MEGAN COLLINS | Plaintiff |
| v | |
| MICHAEL MARKS & VICTORIAN WORKCOVER AUTHORITY | Defendant |
| -and- IN THE MATTER OF | |
| MEGAN COLLINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30, 31 May, 1 & 4 June 2012 | |
DATE OF JUDGMENT: | 26 June 2012 | |
CASE MAY BE CITED AS: | Collins v Marks & Anor and Collins v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1692 | |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION; Application for leave pursuant to s134AB Accident Compensation Act 1985 paragraph (a); injury to right shoulder in course of employment with the first defendant in 2006; whether aggravation of previous right upper limb injury; whether the consequences of the injury were at least “very considerable” pursuant to s134AB(38)(c)
TRANSPORT ACCIDENT; Claim under s93 Transport Accident Act 1986 for serious injury as defined under s93(17) paragraph (a) and (c); injury to neck and back as a result of a motor vehicle accident in 2007; also chronic pain with underlying depressive disorder; disentanglement case: Richards v Wylie and Humphreys v Poljak, Stamboulakis
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Gorton QC with Mr J. Brett | Arnold Thomas & Becker |
| For the Defendant (Marks & VWA) | Mr T. Ryan | Herbert Geer |
| For the Defendant (TAC) | Mr R. Middleton SC with Ms M. Britbart | Hall & Willcox |
HIS HONOUR:
Background
1 Ms Collins has had a hard life dogged by illness and accident.
2 She was born in 1974. At the age of 16 she was diagnosed as suffering from Bipolar Disorder, about the same time she began using marijuana. Over the years she has had a number of inpatient admissions for her Bipolar Disorder and has undergone electro-convulsive therapy. She has had a lengthy period of time out of action with chronic fatigue syndrome.
3 In 2006, for instance, she was involved in at least 3 car accidents. In 2010 she was involved in four accidents, two of which, at least, she accepts she was at fault and in two of which she was not at fault. According to her though, “they were only touches or a scuff with the bumper.” (T 63, L 23-26).
4 In 1997 as she was working at the West Brunswick Hotel she slipped, falling on her shoulder and elbow. As a result of this injury she undertook a number of attendances on orthopaedic surgeon Mr John O’Donnell, with a course of rehabilitation at the Dorset Hospital. At one stage Mr O’Donnell contemplated carrying out an arthroscopy of her AC joint and a resection of the outer end of the clavicle. Ultimately, however, while Mr O’Donnell reported to the Workcover insurer that Ms Collins suffered “Grade 1-2 subluxation resulting in quite severe AC pain and inability to use her arm for any form of lifting or repetitive work”. No surgery was undertaken.
5 In this report dated 15 October 1997, Mr O’Donnell referred to continued rehabilitation under the supervision of Dr Clayton Thomas. Nevertheless, he anticipated a “full recovery” though the time for that recovery was uncertain. Her injury had occurred on 19 April 1997. In a “closure” report to the workers’ compensation insurer dated 3 February 1998 her rehabilitation counsellor reported “as you were aware, Ms Collins was certified fit to work in a pre-injury duties 15 hours per week, commencing on 15 December 1997. When advised of her shifts, Ms Collins became extremely distressed. She advised she could not cope with the stress of being under the Workcover system and wished to finalise her Workcover claim and receive sickness benefits through the Department of Social Security.” Ms Collins apparently ceased receiving Workcover benefits and resumed receipt of a Disability Support Pension from the Commonwealth.
6 The evidence did not disclose Ms Collins’ employment history in the past 15 years or so with any detail. It seems clear that for most of the time since 1997 she has been in receipt of the Disability Support Pension from the Commonwealth. This pension entitles her nevertheless to undertake up to 12 or 15 hours of paid employment per week. She was undertaking 15 hours per week of employment at the West Brunswick Hotel when she suffered the injury to her right shoulder in 1997.
7 Ms Collins has had and continues to have a particular interest in landscape gardening. As a result of that interest she undertook studies at a TAFE college, gaining qualifications in horticulture and landscape gardening.
8 Ms Collins had had a previous injury to her right shoulder in 1991. Again, on that occasion she was treated by Mr O’Donnell. She says she made a full recovery from that injury following an arthroscopy and subacromial decompression.
9 She commenced work on 30 January 2006 with Michael Marks who was one of the defendants in these proceedings. Mr Marks carried on business as “Michael Marks Landscape Design and Construction.” She said that she undertook work for Mr Marks on a number of days prior to 30 January “off the books”. This was presumably some sort of probationary period. She said she was officially working “on the books” for Mr Marks on 30 January. She was told to report to a job site at 89 Baroda Street, Ascot Vale where she had to shovel and “wheelbarrow” crushed rock. She was working alone because Mr Marks was engaged on other sites and only called in for short periods “to see how I was going.”
10 Her work entailed using a large builder’s or “brickie’s” wheelbarrow. She had to work eight hours a day with a 10 minute break in the morning and a 10 minute break in the afternoon and a 30 minute lunchbreak. She said that on the second day of work she felt pain in her “right thumb and wrist.” Mr Marks visited the site, and told of the pain, he suggested she “shovel with the other hand”. The pain became worse and worse and “came to involve my whole arm and the shoulder.”
11 Over the following weekend she rested but she said she was “in agony.” On Monday she went to work but could not work. She reported to Mr Marks who told her to seek medical advice. She attended Gladstone Park Medical Clinic. Her usual doctor was Dr Sarah McCarthy who was absent from the practice on that Monday. She consulted Dr Brian Glassenbury who certified her unfit for work. She lodged a claim for Workcover benefits under the Accident Compensation Act 1985. Eventually, she was referred for treatment once again to Mr John O’Donnell, who saw her for consultation on 14 December 2006 organising an MRI scan of her right shoulder.
12 On 23 May 2007 Mr O’Donnell performed an arthroscopy on her right shoulder. She said:
“That operation he found the subacromial space had significant chronic bursitis associated with Grade 3 impingement changes involving the under surface of the acromion and bursal surface of the supraspinatus tendon. He performed an arthroscopic subacromial decompression and bursectomy.”
13 She has had physiotherapy and other treatment modalities but, according to an affidavit which she swore in these proceedings, she “Never completely recovered from the injury to [her] right shoulder.”
14 In November 2006 she was involved in a motor car accident which she said “was a minor accident and I did not suffer any injuries.” On 27 January 2007 she was involved in a more serious motor accident. According to her evidence, her seatbelt was fastened but became detached though the defendant, Transport Accident Commission, contends that the belt was simply not fastened. According to Ms Collins’ account:
“A vehicle driven by William Thomason went through a red light and t-boned my car on the passenger side. My car was written off. I was taken by ambulance to Royal Melbourne Hospital. I was discharged after a few hours.”
She was re-admitted the next day suffering from “a massive headache, blurred vision and dizziness.” She was again discharged.
15 She said that in that collision she:
“Suffered an injury to my neck, upper back and lower back. I have been left with headaches and severe neck and upper back pain and sometimes lower back pain. I also injured both of my knees.”
16 Once again she was referred to Mr O’Donnell who carried out arthroscopic surgery repairing cartilage damage. For the purposes of this proceeding she is to be regarded as having recovered from the injuries to her knees suffered in the 2007 transport accident.
17 Following that accident she underwent an array of treatment and assessment where she was referred to Dr Paul Verrills where she undertook “branch block” surgery entailing injections into her neck. Ultimately, this surgery proved unsuccessful. She says she is now left with an increased level of pain as a result.
18 In these proceedings, Ms Collins seeks leave under s.134AB of the Accident Compensation Act 1985 and s.93 of the Transport Accident Act 1986 to bring damages claims with respect to the work injury whilst in the employ of Mr Marks and the January 2007 transport accident.
19 The two proceedings were ordered tried together by Order of Judge Saccardo. His Honour gave no direction as to the admissibility of evidence called in one proceeding for the purposes of determining the other, but the parties were agreed that I could consider the totality of the evidence for the purpose of determining each of the proceedings.
20 Ms Collins continues under the care of her treating general practitioner Dr Sarah McCarthy. She also receives treatment from psychiatrist Dr Das, who has been treating her for a number of years and before either of the accidents the subject of the present proceedings. She takes Topamax, Panadeine Forte and Mersyndol Forte. She also uses patches for pain relief which have been prescribed for her by specialist in rehabilitation, Dr Clayton Thomas. The depressive elements of her Bipolar Disorder persist. For instance, in August 2007 following a disagreement with her sister, she took an overdose of medication which required an admission to Royal Melbourne Hospital.
Legal considerations
Work accident
21 Unless Ms Collins has been adjudged 30 per cent or more permanently impaired as a result of the work accident, then she may bring a damages claim only if the Victorian Workcover Authority (“VWA”) issues a serious injury certificate or this Court grant leave. Leave would not be granted unless the injury in question was a serious injury. Section 134AB defines serious injury as follows:
“(37) In this section –
…
serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
For the purposes of this proceeding and with respect to the work injury, reliance is placed only on paragraph (a) of the definition. One should note also s.134AB(38) paragraphs (b), (c) and (d) which are to the following effect :
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;”
By virtue of sub-s. (j) of the section, the determination as to whether a serious injury exists is to be made “at the time that the application is heard by the court”. Paragraph (i) of the sub-s. is also important in a negative sense. It provides:
“(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;”
22 The Full Court in Petkovski v Galletti [1991] 1 VR 436 dealing with the question of serious injuries under the corresponding provision of the Transport Accident Act 1986 namely s.93, held that where the injury in question was an aggravation, the aggravation viewed separately must itself meet the requirements of the definition of serious injury. It would be inappropriate on this view to grant leave and make a finding of serious injury based on a combination of a pre-existing injury and an aggravation unless the aggravation itself viewed separately could be adjudged a serious injury.
23 In A G Staff Pty Ltd v Filipowicz [2012] VSCA 60 the Court of Appeal held that the Petkovski principle applied to serious injury certificate applications under s.134AB of the Accident Compensation Act 1985 in like manner to its application under the Transport Accident Act.
24 Section 93 restricts the bringing of common law damages proceedings with respect to injuries sustained in transport accidents as defined in the Transport Accident Act 1986 in a manner broadly similar to the way in which s.134AB restricts such claims relative to work accidents. The definition of “serious injury” to be found in sub-s.(17) is in like form. The application of that definition however is not as elaborately codified in s.93 as it is in the Accident Compensation Act; nevertheless the same broad principles apply. Petkovski’s case establishes that for an injury to be a serious injury where it is an aggravation, it must in itself separately constitute a serious injury independently of the underlying condition aggravated.
25 Again, where the dominant cause of physical restrictions is “functional overlay” or other psychological factors then the question of whether the injury is a serious injury must be judged in accordance with paragraph (c) of the definition and not paragraph (a). Paragraph (a) of the definition is to be applied to injuries which are driven by organic factors. Humphries v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79. One must ask “Can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”. Humphries v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’”. Richards v Wylie (2000) 1 VR 79 at 87 per Winneke P.
Therefore, the psychological sequelae of an organic injury can properly be considered in judging whether it meets the criteria of seriousness under paragraph (a) of the definition.
Expert opinions
26 Following injury in the employ of Mr Marks, Ms Collins sought initial medical treatment from her general practitioner Dr Sarah McCarthy, though Ms Collins’ first appointment was with a Dr Glassenbury at the same clinic. In a report dated 8 May 2006 and presumably prepared for the Workcover insurer, Dr McCarthy noted that:
“Ms Megan Collins is currently being treated under Workcover for an injury to her right forearm and arm. Both her treating doctors at this clinic and her osteopath Sudi de Winter of Northcote Osteopathy Clinic recommend that she undertake gym work and swimming exercises to strengthen the shoulder girdle on the affected side, in order to enable smooth transition back into the workplace.”
27 In a further report dated 18 May 2006 the doctor noted Ms Collins’ occupation as a landscape gardener and the injury which she had suffered, observing:
“Prior to her injury she was medically fit to perform these duties to a standard acceptable to her employer.”
According to the report, Dr Glassenbury provided a Workcover certificate from 6 February 2006 to 13 February 2006:
“I recommended the application of heat along with rest of the forearm and some anti-inflammatory medication.”
28 He made a provisional diagnosis of De Quervains Tenosynovitis at the time. The pain did not abate. Ms Collins decided to consult an osteopath. An ultrasound was arranged which was unremarkable but it ruled out the De Quervains Tenosynovitis. Dr McCarthy noted that the Workcover certificates then being provided indicated, “Tendonitis” as the disability. She said:
“As far as I am aware, there is no expectation of permanent incapacity.”
29 A further report dated 12 February 2007 covered similar ground. A report of 2 March 2007 noted the persistence of pain and restrictions. According to the doctor:
“Megan’s focus remained around the wrist area in particular with pronation/supination and general tenderness over the lateral aspect of the wrist. An ultrasound performed 09/03/06 found no evidence of acute injury or tear, in particular no De Quervain’s Tenosynovitis, ganglion or soft tissue mass.”
30 She noted that indication from Mr O’Donnell of an injury to the right shoulder and concluded:
“Whilst it is likely Megan’s shoulder injury resulted from a workplace injury neither myself nor Dr Glassenbury, who were providing the certificates, saw the shoulder as the significant morbidity above all others. It is highly likely to have been present and dismissed owing to the more pressing concerns of the forearm. I hope this explanation is sufficient.”
31 The doctor’s next report to Workcover was made by letter dated 4 May 2008. In that letter she said:
“When she presented here [two days after the injury] she stated that two days prior she had been shifting soil and subsequently developed pain in the right forearm, radiating upwards into the elbow and upper arm region. The current condition, subacromial bursitis, has directly arisen as a result of the inflammation of the forearm and as such, I believe that her employment has contributed to her current condition.”
The doctor said that Ms Collins was “Incapacitated for all work in her chosen field of landscape gardening.” She was fit, she said, for “office/clerical work”, the restriction on her employment was “no heavy lifting”.
32 The doctor’s next report was dated 30 November 2008. This report recited a relatively lengthy narrative observing:
“Megan’s depression is far and away my primary reason for seeing her and remains so to this day. I first began seeing her in 1994.”
The doctor said that prior to the transport accident, Ms Collins was:
“…depressed but at a level that was manageable, with a few short hospitalisations along the way.”
After the transport accident:
“…she was desperately depressed, required multiple medication changes and became for a time dependent on narcotic analgesia.”
After the transport accident:
“…she was nearly always excessively tearful, requiring extended consultation, gained approximately 20 kg (anti-depressant and anti-psychotic effect) and her physical presentation deteriorated.”
33 Ms Collins had been using marijuana since she was 16. Following the transport accident however, according to the doctor:
“Her marijuana use escalated dramatically.”
34 The doctor noted the introduction of a drug Topamax which has eased a chronic history of migraine. With respect to neck pain, the doctor remarked:
“Described as constant and excruciating to TAC assessor Dr Kenna. Not something we discuss much. Has had TAC funded pseudo science performed by chiropractor with the expected effect, and a few nice massages from an osteopath. Finally decided to see a neurosurgeon. Is able to drive, mow lawns, socialise, attend school, all ADLs, has not requested analgesia. Will wait specialist assessment.”
35 In another report dated 3 May 2009 to Ms Collins’ solicitors, the doctor noted injuries in the transport accident to Ms Collins’ knees “which responded well to operative management.” And a left parietal haematoma deriving from a blow to the side of the head which “resolved as expected”. The doctor continued:
“Megan sustained a whiplash injury in the accident, resulting in severe spinal headaches.”
She said this resulted in “severe spinal headaches.” The doctor noted:
“Significant psychiatric issues which frequently overtake other factors for short periods.”
She said nevertheless:
“Megan often mentioned generalised headaches, neck and other back pain.”
She said these headaches:
“Were not present prior to the accident.”
Ms Collins, she said:
“Experiences severe pain from the cervical region to the lower back in the mid line. She is tender in these areas particularly over the cervical spine and lateral neck area.”
The doctor said:
“Her present capacity for employment at her previous level is non-existent; she is unable to be employed as a landscape gardener in her current state, and this is not because of her previous workplace injury. This is directly because of severe spinal pain caused by the whiplash injury sustained in the ‘MVA’.”
36 Following a consultation in December 2006 Mr O’Donnell reported to the Workcover insurer that Ms Collins had “Evidence on ultrasound of subacromial bursitis and impingement.” This was unrelated, he said, to a motor vehicle accident “in which she was involved more than 15 years ago.” This was presumably an accident in 1991 which seems to have been the first occasion on which Ms Collins saw Mr O’Donnell for treatment. Mr O’Donnell reported to the insurer:
“At the time she presented to me she had full range of movement in the right shoulder. She had minor tenderness across the acromion (sic) clavicular joint. There was a click which was heard and felt beneath the acromion during abduction and forward elevation movement.”
He said that plain X-rays “showed a Type 1 acromion”. Ultrasound “demonstrated bursal impingement”. He recommended an MRI scan. There followed correspondence relative to knee injuries which in the circumstances may be passed over.
37 By letter of 7 April 2008 to the Workcover insurer, Mr O’Donnell reported that he had carried out an arthroscopy of the right shoulder on 23 May 2007. He continued:
“This demonstrated subacromial impingement and bursitis as well as some fraying of the tendon. This was treated by arthroscopic debridement.”
He noted that she required post-operative physiotherapy and rehabilitation and the problems with her knees complicated recovery. He said:
“However her shoulder would be expected to be fully recovered within a period of three to six months from the time of surgery.”
He counselled, however, that Ms Collins should “avoid repetitive heavy lifting in the future.”
38 His next report is dated 2 April 2009 was addressed to her solicitor. Mr O’Donnell reported:
“When last reviewed with respect to her right shoulder on 23 July 2007 [Ms Collins] had some restriction of movement, was seeing a physiotherapist and again appeared to be making an excellent recovery.”
He concluded:
“Her prognosis would seem to be that she has made a full recovery. Her condition has stabilised, there is no apparent likelihood of deterioration in the future.”
39 The final report from Mr O’Donnell is dated 7 March 2012 and is addressed to Ms Collins’ solicitor. He said:
“As [Ms Collins] had not been seen since [2009] … I arranged for her to be seen for review.”
It seems therefore that this report and the examination and review which formed its basis for medico legal purposes and not for treatment. Mr O’Donnell noted a history that Ms Collins was “unable to work” and had “difficulty driving”. He found:
“…a diminished range of internal rotation of the shoulder and tenderness about the area of the anterior and lateral deltoid.”
He reports a complaint of “paresthesia” about the right hand. He noted complaints of pain and diminished range of movement. His diagnosis was:
“…some persisting capsulitis of the right shoulder with post-traumatic (and post-operative) limitation of range of movement and continuing pain”.
He concluded:
“…it is unlikely that any additional recovery will occur within the shoulder, although with ongoing physiotherapy she should develop improved strength and stability of the shoulder with improved muscle power.”
40 Dr Das, treating psychiatrist, provided a report to Ms Collins’ solicitors dated 14 April 2009. He noted that he had been treating Ms Collins since 2003, that is, some years before either of the accidents that are the subject of these proceedings. He said:
“She has a diagnosis of a Chronic Depressive Disorder and Borderline Personality Traits/Disorder and has periodically used marijuana to cope with her emotional problems. Since the time that I have known her she has received 8 ECTs, attained partial remission of her symptoms, with increasing doses of Reboxetine, Oxazepam, Chlorpromazine and Sodium Valproate.”
41 Dr Das offered his opinion only on psychiatric issues. He noted the injury which Ms Collins sustained in January/February 2006. He said following the accident she was upset with her employer’s attitude and preoccupied with Workcover related issues:
“…her future ability to work, compromised financial situation – in the context of the above and her sister having had a stroke as a result of Cerebral Aneurism in February 2006, her depression had deteriorated significantly and she became quite suicidal leading to an admission to the Albert Road Clinic, Melbourne, for 2 to 3 weeks in March 2006.”
42 He noted that in October 2006 her Workcover payments were to be ceased, a decision which was ultimately reversed with the repayment of Disability Support Pension payments made in the meantime. During this time, Dr Das wrote a report in support of Ms Collins being returned to the Disability Support Pension. He noted that:
“…in July 2007 she was thinking of going back to work but felt frustrated that her arm was not yet ready for a return to work.”
He noted that in August 2007 following discharge from an overdose of medication in August 2007 and admission to Royal Melbourne Hospital:
“She lost her driving licence as a result of speeding, a day after her discharge …”
Dr Das said that in his view Ms Collins could not return to her pre-accident employment “because of marked anxiety about the injury and the emotional sequelae thereafter that she experienced.” He said that the effects of the work-related injuries entailed “an acute deterioration of her medical state needing inpatient treatment, change of medications, increased psychological support [and] continue to be issues till date and prevent a remission of moderately severe depressive and anxiety symptoms.”
43 In a subsequent report to the solicitors dated 31 May 2011, the doctor described Ms Collins’ condition in later years as follows:
“For a major part of 2009-2010, sadness, low esteem, poor confidence, poor concentration, poor motivation, poor energy, anger outbursts, excessive marijuana consumption to cope with the moderately severe symptoms mentioned before in the context of injury in her right upper limb, restriction of movements, pain as a result of work-related motor vehicle accident-related injuries, pre-occupation with never being able to work as a landscape gardener because of her injury to the right shoulder were the major features.”
He reported however, that she has been:
“abstinent of marijuana since September ’10.”
Ms Collins told me herself that she had been warned that she had “bong lung”, that is, a condition in which fungal infection from the marijuana being smoked in a “bong” migrated to the lung. She was warned apparently that failure to give up the marijuana would see her dead in five years.
The doctor continued:
“She has continued to remain very pre-occupied with her poor financial status, her inability to cope, has periodic suicidal thinking, low self esteem, poor confidence and against the background of these symptoms, her boyfriend decided to leave her as he could not cope with her psychiatric symptoms. This led to another overdose in March ’11 leading to an ambulance being called out and she being admitted to the Royal Melbourne Hospital, in March ’11.”
Towards the end of his report the doctor said:
“The effects of her work-related injury and motor vehicle accident, on her mental state were significant, contributed to acute deterioration of her mental state needing inpatient admission, change of medications, increased psychological support. Over time, pain, restriction of movements, inability to find a job and thereby improve her financial situation have continued to be the effects of her work-related injury and have served as perpetuating factors for her chronic moderately severe depressive and anxiety symptoms. It appears to me that the effects of her work-related injury and on her mental state may have stabilised.”
44 The doctor also provided a report to the Transport Accident Commission (“TAC”) dated 27 May 2009. This report unsurprisingly covered similar ground to the other report and included the following significant observation:
“…the acute deterioration of her mental state for which the transport-accident was a major contributory factor, has responded to treatment. Ms Collins has gone back to having moderately severe anxiety and depressive symptoms as prior to the accident.”
45 In cross-examination by junior counsel for the TAC, Dr Das ultimately endorsed that opinion. (T 172, L 27-30).
46 Dr John Russo is one of the other practitioners at Gladstone Park Medical Clinic who was referred to by Dr McCarthy in some of her reports. Dr Russo, who is a general practitioner with a specific interest in musculo-skeletal medicine, in a report addressed “To Whom It May Concern” and dated 12 October 2006, noted that he had been treating Ms Collins since February 2006 when she saw him “for an opinion and possible musculo-skeletal therapy.” He observed:
“Her injury related to her right shoulder, neck and arm on the right, has responded intermittently to Acupuncture and she should continue this treatment to assist recovery.”
He noted that Ms Collins had referred pain “to the right elbow, hand and forearm all related to shoulder tendinopathy and impingement.”
47 In late 2008, Dr McCarthy referred Ms Collins to neurosurgeon Mr Brendan O’Brien. According to Dr McCarthy this referral was made after Ms Collins had finished with the “pseudo sciences” of chiropractic and osteopathy. The referral to Mr O’Brien was with respect to ongoing neck pain. He referred to the transport accident which occurred on 27 January 2007 noting that Ms Collins “arrives with crutches” and described her neck pain as “quite severe” and “constant”. He said she became upset “in regard to questions related to the accident”. Mr O’Brien reported on an MRI scan which was conducted of Ms Collins’ neck on 8 November 2008 as follows:
“She has undergone an MRI scan of the cervical spine on the 08/11/2008. This demonstrates no evidence of any specific disc herniation, central canal stenosis or foraminal narrowing. I discussed this with Megan today. Currently she has significant paraspinal muscle pain in the posterior cervical region. This radiates towards both scapular [Scil scapulae]. There is no evidence of any myelopathy or radiculopathy to examination today.”
48 Mr O’Brien considered that surgery was neither “required [nor] indicated.” He referred Ms Collins to Mr Paul Verrills at the Metro Spinal Clinic. Dr Verrills, whose qualifications include a Masters in Pain Medicine, noted that in 1990 Ms Collins had been “rear ended” and suffered “severe whiplash”. He said that she was in a brace for three months. The treatment offered by Dr Verrills entailed injections known as “medial branch blocks”, the therapy being known as “radiofrequency neurotomy”. Dr Verrills was of the view that “Ms Collins’ neck pain and cervical facet joint pain occurred as a direct sequelae of [the transport] accident.” He said she had a poor response to the treatment and “developed a complication of severe neuropathic pain.
49 Ms Collins next came under the care of Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. Dr Thomas had managed Ms Collins’ rehabilitation following her work accident in 1997. In a report to Ms Collins’ solicitors dated 22 September 2011, Dr Thomas noted that he examined her on 28 April 2010 at which time “she reported neck pain and lower back pain.” She reported headaches. She reported that the major problem was neck pain. The pain was in the interscapular region.
50 Dr Thomas observed:
“Cervical spine range of movement appeared to be better indirectly observed than directly observed as were shoulder movements. On formal assessment of her shoulder she was only able [to] abduct to about 70 degrees, but passively, the right shoulder had full range of movement as did the left although the left was more painful than the right.” [My emphasis].
He found that the leg and arm movements neurologically were normal. He observed:
“Neck movements formally, were far more restricted than informally and likewise to the lumbar spine.”
51 Dr Thomas said that he formed the impression that Ms Collins “was suffering from a diffuse and widespread pain syndrome.” He accepted that there may have been a “hyperalgesic” response to the radiofrequency neurotomy but said:
“Non organic factors were clearly heavily influencing her. The pre-existing problems seem to be marked and these were a major concern.”
He continued:
“I noted that she had yet to undergo formal rehabilitation. I supported her in this. Nonetheless, in view of her mental health issues, her poor coping strategies, she had a tendency to passivity and a tendency to catastrophising, both of which were working against her adopting appropriate pain management strategies.”
He said the overwhelming issue “was one of a diffuse and widespread pain syndrome.”
52 By letter dated 6 May 2011 Ms Collins’ solicitors referred her to orthopaedic surgeon Mr Russell Miller for orthopaedic assessment and medico legal report. He responded in a letter dated 16 June 2011. On examination, Mr Miller found marked limits in range of motion of the neck, particularly of left and right rotation and lateral flexion. He also found restrictions in the right shoulder and the lumbar spine which had flexion and rotation to the left and right were quite marked. As to her capacity for work, Mr Miller concluded that she could not return to pre-injury work that involved repetitive arm action, lifting weights of more than five kilograms and “could only undertake sedentary work.”
53 Mr Miller provided an addendum dated 6 September 2011. It does not appear that he conducted a further assessment of Ms Collins, rather, he was provided with additional medical reports from a number of quarters including Mr O’Donnell and Dr Verrills. He concentrated his attention on the sequelae of the 2007 transport accident. He said:
“I believe she had pre-existing problems with the right shoulder from which she has made essentially a full recovery.” [My emphasis].
He said further that Ms Collins has:
“…some symptoms in the cervical spine and this appears to relate to the motor vehicle accident in January 2007.”
54 Ms Collins’ solicitors also had her assessed by Dr David Middleton who is an occupational health and rehabilitation consultant. He assessed Ms Collins on 15 September 2011 taking a detailed history and surveying a large number of reports and investigations. Putting to one side matters relative to the knees which are not an issue in this proceeding, he said:
“Ms Collins mainly complains of headaches in the left parietofrontal region, thumping in nature and associated with photophobia and therefore of a vascular nature. In general, these headaches last for 1-3 hours.”
In regards to the spine, she complains of agonising pain varying in intensity extending from the base of the skull to the base of the spine in the sacral area. At best, the pain levels are 6/10 on an analogue scale and at worst, 10/10. She describes the pain as an aching, sharp and burning pain stating that the cervical and lumbar spine areas seem to be more severe and result in restriction of movements of the back, but against this is eased by postural change. Ms Collins describes this pain as very draining. …”
In regards to her mind, Ms Collins remains depressed and anxious and feels she has been denied her ability to contribute, feeling somewhat useless and having suicidal thoughts. She questions her presence on this earth riddled with pain, having no life and having to contend with epilepsy. She also complains of noticing “weird smells of burning” which occur quite regularly every week.”
55 He described her as having a “very flat personality” and feeling “poorly done by life”. She was a poor historian and he had difficulty obtaining a chronological history. Again he found significant limitations and range of motion of the right shoulder and the neck and worse restrictions in the lumbar spine. He observed:
“Assessing range of movement, I noted Ms Collins tended to vocalise the level of pain, associated with grimacing and finally, crying after the examination was complete.”
56 Dr Middleton found that she suffered:
“a closed head injury with a haematoma identified in the left temporoparietal region intercranially and this injury resulted in the onset of grand mal epilepsy, recognising that the use of marijuana may have increased the risk of such a head injury to cause epilepsy.”
He said:
“As a result of the motor vehicle accident, Ms Collins has ongoing lumbosacral spine pain extending into the hips and thighs with symptoms of numbness and pins and needles extending into the lower calves. It is my opinion that the initial injury resulted in a chronic straining of these spinal levels and now form part of Ms Collins’ chronic pain syndrome with the range of movement being similarly restricted.”
He said:
“It is also likely that this head injury in part contributes to the vascular type headaches Ms Collins continues to experience.”
57 Ms Collins’ solicitors also referred her to Dr David Weissman, consultant psychiatrist, who conducted an assessment on 8 August 2011 and responded in a letter of report of the same date. Dr Weissman diagnosed Ms Collins as:
“…suffering from an aggregation of a pre-existing chronic, recurrent Major Depressive Disorder – moderately severe to severe – contributed to, roughly equally, by the work injury and by the transport accident.”
He also identified:
“Symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition, contributed to by both the work injury and the transport accident.”
He said her prognosis was “very uncertain and guarded and possibly negative and unfavourable.” He said she was suffering “from at least a moderately severe group of psychiatric conditions or mental injuries.” Her work incapacity, he said, was attributable to both the work injury and the transport accident but:
“Possibly, her transport accident psychiatric conditions or mental injuries are slightly more significant contributing factors to her overall psychiatric state/mental state compared with her work-related injury...”
58 The TAC referred Ms Collins for assessment to Mr John F O’Brien, orthopaedic surgeon. Mr O’Brien reported:
“Currently Ms Collins states that she has constant pain extending from her neck to the posterior aspect of the cervical, thoracic and lumbar spine, the severity of which is 7-9/10 on a visual analogue scale. This pain is aggravated by prolonged station and sitting. She has difficulty undertaking repetitive tasks with her arms such as doing the dishes or washing a car. She also states that domestic tasks such as vacuuming, ironing and making a bed aggravates the pain, as does walking her dog and mowing the lawn. The patient indicated there is some associated vague right arm pain and some sensory change; described in a constant sensation of a sleeve covering the whole of the right arm.”
59 Mr O’Brien described Ms Collins as having a “somewhat flat affect” but he says he observed her to “move quite freely”. He said on formal examination of the neck:
“…the patient indicated she could not move her neck in any direction without causing severe pain. However, she was noted to lie supine with 40 degrees of cervical flexion and some 60 degrees of rotation bilaterally. There was a major reaction to palpation over the posterior aspect of the cervical spine with the patient describing quite marked tenderness along the upper aspect of both scapulae.”
He said:
“There was full elbow, wrist and finger movement in the right arm. There was no evidence of any abnormal neurology in the upper limbs.”
He noted marked limitation in lumbar flexion and extension. He said he could “find no evidence of any neurological deficit in the lower limbs.” He concluded:
“The patient now describes spinal pain as disabling, however from the history it is difficult to define the true extent of the patient’s disability. Miss Collins clearly remains capable of all the activities of daily living and it would appear she is also capable of undertaking the activities required for independent living. She was not working at the time of the [transport] accident and has not worked since the accident and now [is] in receipt of a Disability Support Pension, which would seem to relate to factors not directly related to the motor vehicle accident.”
60 His examination did not, he said:
“…appear to indicate any organic pathology related to the accident that would on a physical basis preclude her from employment.”
61 Mr O’Brien re-examined Ms Collins on 15 August 2011. On that occasion he noted a “full range of movement present in both shoulders and full function of the joints of both upper limbs.” He said “powers and reflexes in the lower limbs were intact although the patient reported some sensory change to light touch over most of the right foot.”
62 Mr O’Brien said:
“I would again conclude from this examination that there is no evidence of specific spinal pathology, which could in fact explain this patient’s current distribution of pain. I would conclude from the current history, symptoms and signs that this patient now demonstrates a chronic pain syndrome, which I have no doubt is influenced by psychosocial factors.”
63 The TAC also referred Ms Collins to Dr Chris Baker, a specialist in occupational medicine for medico legal assessment. Dr Baker observed:
“Her main impediment to returning to work relates to her complaints of neck pain and lower back pain. However, I note that she was able to move about freely and was wearing high heels when she attended for the examination, unlike the crutches which she appeared to need when seeing Mr O’Brien. She also sat in a relaxed manner and was able to give a good account of herself without any obvious discomfort or comment in regards to severe pain relating to the neck.”
He continued:
“It is not possible to exclude some physical component to her neck pain without further investigations but I believe a significant component is related to her psychological state and psychosocial factors.”
He said:
“…there could be an underlying component but I believe the majority of her symptoms relating to the neck relate to non-physical factors. There appears to be a significant difference in her presentation when she attended my rooms to when she attended Mr O’Brien [Scil Mr Brendan O’Brien]. She does have pre-existing psychological problems and she did have a pre-existing right shoulder condition which has now resolved. My advice in regards to treatment would be to return her to the workforce where she can meet normal fit, healthy individuals and not be enmeshed in the medical/rehabilitative process or the compensation process. It is noted that she is fully recovered from her WorkCover injury and the claim has been closed.”
In short, Dr Baker found that Ms Collins’ problems were overwhelmingly of a psychological nature though he could not “exclude some minor damage in the neck of a physical nature.”
64 The TAC also required Ms Collins to attend Dr Nicholas Ingram for a psychiatric assessment on 26 April 2009. Dr Ingram provided a report to the TAC dated 26 May 2009. He observed of Ms Collins:
“Her main problem has been a persistent, severe pain in her upper back and neck. She said this pain had been with her most of the time and had become worse with any activity, including driving her car, which she could not do for more than ten minutes at a time without there being an exacerbation of the pain.”
Dr Ingram found that Ms Collins was “mainly suffering from a bipolar disorder”. He said she also had a “chronic adjustment disorder with depressed mood, which is a secondary consequence of her chronic pain and physical limitations …”.
65 Associate Professor Richard Stark, a neurologist, assessed Ms Collins on 10 August 2009 for medico legal purposes at the request of the TAC. Professor Stark observed of Ms Collins:
“Her main ongoing problems are related to pain in the neck and lower back. These are not associated with any evidence of radiculopathy.”
He said the transport accident:
“could cause a jolting injury to the neck and lower back (but) it is possible that her background history of depression makes her more susceptible to a persisting pain syndrome after an injury of this type.”
He concluded however that:
“…there is no evidence of impairment arising from organic brain injury.”
He noted continuing restriction of neck movement and ongoing problems with the neck observing “There are no signs to suggest radiculopathy.” He said there were “no neurological features to contribute to impairment from the spine.”
He observed “(f)undi, cranial nerves, power, tone and reflexes were normal. Sensation was normal.”
66 Mr Gale, a general and trauma surgeon, assessed Ms Collins on behalf of the Workcover insurer on 10 June 2009 for medico legal purposes. He observed that at that time Ms Collins had “minor ongoing symptoms relating to the right shoulder” for which she was receiving no particular treatment. He said she told him that the transport accident did not worsen her right shoulder. Mr Gale said:
“Although the worker does have some minor neurological symptoms, there was no neurological abnormality on physical examination today.”
He said he was unable to demonstrate “any other pathology affecting the right upper limb.”
67 The Workcover insurer also required Ms Collins to be assessed by Dr Roy Karna, a rheumatologist. It seems that he conducted an assessment at a relatively early stage of this chronology, apparently giving a report in August 2006. This report was not put in evidence before me. Apparently, as evidenced by a supplementary report to the insurer dated 20 March 2007, he expressed the view that the right shoulder injury was “not work related.” There was a re-assessment by Mr Karna conducted on 30 June 2011. He made inter alia the following observation:
“It is noteworthy that through the interview phase of the examination [Ms Collins] demonstrated unrestricted neck movements and when indicating the areas where she had the spinal injections administered by Dr Verrills clearly indicated using her right arm in a full internal rotation whilst pointing to the left periscapular and medial scapular region and medial neck region where she had the injections administered.”
He also observed a:
“normal keratinisation pattern consistent with ongoing use and to direct measurement there was no reduction in forearm or indeed upper arm circumference between the right and left arms. There was no shoulder girdle muscle wasting on either side.”
He said:
“Active movements of the right shoulder were restricted albeit neither clinically reproducible nor objective even within the one examination sitting. Initially 90 degrees of abduction and 90 degrees of forward elevation were only allowed, suffice it to say that when redressing she clearly indicated more abduction than was actively allowed. She allowed only 20 degrees with internal rotation actively, yet spontaneously during the interview phase of the examination clearly demonstrated full internal rotation. With her arm extended external rotation was full whereas with her elbow flexed external rotation was markedly limited.”
He said that he could find “no evidence of major structural abnormalities of the right shoulder or distally in the right arm.”
68 The Workcover Authority required Ms Collins to be assessed by Dr Gary Davison whom she attended on 11 December 2007. He furnished a report to the insurer dated 2 January 2008. Dr Davison observed:
“The range of active motion of the right shoulder was unrestricted in all directions. Resisted rotator cuff movements did not reproduce typical pain.”
He concluded that:
“Ms Collins has very mild impairment of right shoulder function having undergone presumably a rotator cuff repair procedure in April 2007.”
He said that:
“There was little evidence of shoulder impairment on examination today. There is some functional impairment with repetitive or prolonged use of the right arm above chest height.”
69 Shortly afterwards on 15 January 2008 Ms Collins attended Dr Barrie Kenny, consultant psychiatrist, for assessment at the direction of the Workcover insurer. Dr Kenny says he took the following history inter alia:
“She has had long periods out of work because of her psychiatric problem. She ‘just gets that sick’ that she becomes housebound or hospital bound and estimates that she has only worked 30 per cent of the time since leaving school. She said she is normally on a Disability Pension.”
The doctor diagnosed Ms Collins as suffering Bipolar Disorder. He said:
“From a psychiatric perspective I think we have to see her psychological/psychiatric reaction to her physical injury as a separate condition and is probably best described as an Adjustment Disorder being her reaction to her persistent symptoms, the disruption to her lifestyle, concerns about the Workers’ Compensation process and concerns about her future.
I don’t believe though that this injury will have had a long term effect on her overall psychiatric status.”
70 Ms Collins also attended Dr Richard Ball for a psychiatric assessment at the request of the Workcover insurer. Again, like Dr Kenny, Dr Ball diagnosed Ms Collins as having an underlying Bipolar Disorder and also:
“…an adjustment disorder consequential upon her industrial injury and also her TAC injury.”
71 In addition to the assessment which Mr Gale carried out for the Workcover insurer reported in his letter of 8 May 2006 which was included in the Plaintiff’s Court Book, Mr Gale also provided a later report on a re-assessment conducted on 10 June 2009. This assessment was for the purpose of providing an impairment assessment in accordance with the Fourth Edition of the AMA guide. Mr Gale recorded Ms Collins at that time as having:
“…minor ongoing symptoms relating to the right shoulder.”
He said:
“There was no restricted use of the right shoulder girdle during this consultation.”
He found limitations of movement in the right shoulder on formal examination but:
“Neurological examination of the upper limbs revealed no definite objective abnormality.”
72 Mr Brendan Dooley, orthopaedic surgeon, assessed Ms Collins on 8 August 2011 at the request of the Workcover insurer. He found:
“…mild to moderate limitation of movements [in the right shoulder] but with discomfort at the extremes of movement, with active and passive flexion to 130 degrees, extension to 50 degrees normal abduction to 110 degrees, adduction to 40 degrees, internal rotation to 60 degrees and external rotation to 60 degrees.”
He said:
“I believe the physical injury sustained as a result of landscape gardening in February 2006 was minor.”
73 Also in 2011 the Workcover insurer had Ms Collins assessed by Associate Professor George Mendelson. Professor Mendelson took a detailed history. Under the heading “Current Symptoms” he records:
“When I asked Ms Collins about her present symptoms and health-related problems, she referred to ‘my depression and my arm’. She told me that because of persistent pain in her right arm and shoulder she is not able to lift her right arm above shoulder level.”
The Professor said:
“It is … my opinion that Ms Collins’ overall prognosis is that of her physical condition, and that there is no psychiatric contra- indication to her undertaking gainful employment within limitations of her current physical condition if that is considered feasible.”
Conclusion
74 It is a somewhat daunting task to seek to disentangle the various misfortunes which afflict Ms Collins. Much was made in cross-examination on behalf of the two defendants of the omission to mention injuries flowing from the one accident or the other in particular assessments. In my view, these failures are of significance but too much should not be made of them. It would be unsurprising for instance, if a medical practitioner assessing for the Workcover insurer being aware of the Workcover injury the subject matter of the claim which has led to the assessment, would concentrate his or her attention on that matter to the relative exclusion of other injuries. Likewise, Ms Collins, as she presented before me, was discerning enough to know whether a particular defendant’s medical assessor was assessing relative to the work injury or the transport accident and would unsurprisingly concentrate her history and description of symptoms on the subject injury to the relative exclusion of the other. I make these observations without suggesting any conscious desire on her part to mislead.
75 Ms Collins was criticised both in cross-examination and in closing address by Mr Ryan on behalf of Workcover, for failing in the initial affidavits which he filed in these proceedings, to mention the significant shoulder injury which she suffered in 1997. Mr Gorton and Mr Brett on behalf of the plaintiff however, observed that the existence of this 1997 injury was disclosed to Mr Gale, who, it will be recalled, conducted two assessments on behalf of the Workcover insurer. Most people with as complex a medical and surgical history as Ms Collins would find it easy in the plethora of accidents, injuries and illnesses to omit something important without any particularly malign intent. The array of medical assessments which this lady, already a frequent attender at hospitals and clinics for treatment, underwent could easily overwhelm the staunchest personality. One might easily conclude that attendance for medical and surgical assessments has become almost a full-time occupation for Ms Collins. As at least one examiner (Dr Chris Baker) commented that this process in itself must be exceedingly demoralising.
76 In these unhappy circumstances and against the background of the somewhat tragic life of Ms Collins, I now turn to setting out my conclusions.
Industrial injury
77 In accordance with s.134AB(38)(j) and s.134AB(19)(a) leave to bring a damages proceeding must not be given unless as at the date of hearing it is shown that Ms Collins suffers a serious injury as defined in the Accident Compensation Act 1985. For these purposes, reliance is placed solely on paragraph (a) of the definition of serious injury (T 15, L 12-14).
78 Whilst there are reports, and particularly in early years of pain and disability in the wrist and thumb and the forearm either as a result of the surgery carried out by Mr O’Donnell in April 2007 or the passage of time, these seem to have abated.
79 The only physical injury relied on for the purpose of the leave application in the Workcover proceeding is the “capsulitis” diagnosed by Mr O’Donnell. In his report of 7 March 2012. It will be recalled that Mr O’Donnell in his earlier report believed that the 2007 surgery had led to a full recovery. Regrettably Mr O’Donnell, despite requests by both defendants for him to be available for cross-examination, did not give evidence at the hearing before me. Defendant TAC made a request for his attendance 20 days before the hearing. The Workcover Authority made its request a few days prior. In setting the two matters down for a concurrent hearing, Judge Saccardo required these requests to be made 28 days before hearing. The Workcover Authority sought an adjournment of the hearing if Mr O’Donnell’s reports were to be relied on. The TAC wished to cross-examine but did not wish to disturb the hearing date. The plaintiff wanted to press on without Mr O’Donnell’s availability to give viva voce evidence and be cross-examined. For reasons which I then gave I ruled in favour of the plaintiff. The unhappy result however is that in the circumstances I am deprived of the potentially vital evidence of Mr O’Donnell. Had he given evidence I would have asked him to explain the nature of the “persisting capsulitis” which he diagnosed in 2012, whether he expected it to continue in its persistence and what the basis for his diagnosis was. There were no further investigations referred to in his report so presumably he reached his conclusion based on signs and symptoms rather than on the basis of any scan or X-ray much less than arthroscopic investigation.
80 Mosby’s Medical Nursing and Allied Health Dictionary, Sixth Edition, defines capsulitis as “an inflammation involving any anatomic capsule”. Presumably Mr O’Donnell’s diagnosis refers to a capsule or capsules in the patient’s right shoulder.
81 Even although I do not place undue weight upon a failure to mention the shoulder injury to a number of examiners for reasons explained above, it is not entirely without significance. Moreover, Ms Collins told some examiners that the right shoulder problems had simply resolved. The examiners’ reports are replete with observations as to discrepancies between ranges of movement on formal and informal examination. These are also consistent with the view that there is no serious persisting shoulder injury and that Mr O’Donnell’s view that the 2007 surgery had largely resolved the problem or at any rate remitted it to the situation immediately prior to January 2006, was probably correct.
82 There are also a significant number of observations by examiners including for instance, Mr John O’Brien on behalf of the TAC, but also treating practitioner Dr Clayton Thomas to the effect that Ms Collins suffers from a chronic pain syndrome. That being the case, in accordance with s.134AB(38)(h), any functionally driven elements of Ms Collins’ shoulder presentation would have to be put to one side for the purposes of her Workcover claim in light of its being based solely on paragraph (a) of the definition of “serious injury”. In my view, a significant portion of her complaints of pain and restrictions in the right shoulder are functionally driven.
83 Mr Ryan on behalf of the Authority and the employer, submitted that the preponderant reference in senior counsel for the plaintiff's closing submissions to the transport accident represented an implicit acknowledgement on his part that the case against Workcover and the employer was relatively weak. I accept that submission.
84 This plaintiff, prior to the accidents in question in this proceeding, had not demonstrated an ability to perform full-time work. Her employment history was uncertain. The tax returns put into evidence by the defendant supported the submission that her employment was at best sporadic. In 1997 she was working only 15 hours a week and this was her realistic limit. In working for Mr Marks in early 2006, independently of any traumatic events or problems with the system of work, her undertaking what appeared to be full-time semi-labouring work was problematic in itself given her previous employment capacity. The evidence of Ms Collins and the account she gave examiners indicated that she was able to carry out the ordinary range of activities of daily living to groom herself and so forth, and to undertake heavier tasks such as lawnmowing. When cross-examined as to her willingness to take employment such as that of a console operator at a service station she replied, in effect, that such work was beneath her having regard to the qualifications which she now held in horticulture and landscape gardening. In re-examination she told Mr Gorton QC that her objection to such work was that it was repetitive and as such would inflict pain on her and the necessity to remain in the same position, either sitting or standing for extended periods of time, would render such employment inappropriate. It is likely in my view that the first response was the more candid one. Acknowledging that there is some physical impairment in the right shoulder, it represents a relatively minor constraint on Ms Collins’ employability in comparison to the major restriction constituted by her endogenous psychological problems.
85 Ms Collins complained that she now lives like a hermit since her injuries. The evidence disclosed however that she has remained active, attending motor shows around the State, competing and winning and judging tattoo contests and the like. She has her own sites on social media Facebook and Flicker about which she was cross-examined. Acknowledging that Ms Collins has throughout her adult life suffered greatly emotionally, I reject the view that these accidents have turned her into a hermit. Again, the suggestion that her ability to drive has been much constrained by the injuries sustained in these accidents must be rejected in light of the video surveillance footage which demonstrates an ability to drive without apparent hardship.
86 Mr Gorton QC, commenting on the significance or otherwise of the “capsulitis”, said that the correct analysis was to consider not intrinsic seriousness of the injury but the seriousness of its consequences. In my view it is impossible to say that the injury to the right shoulder has consequences as required by s.134AB(38)(c) which are “more than significant or marked, and … at least very considerable”.
87 The application with respect to the work injury failed.
The transport accident
88 Mr Gorton QC and Mr Brett in the case of the transport accident relied on paragraphs (a) and (c) of the definition of serious injury. In closing submission Mr Gorton QC conceded that the confirmation in cross-examination by junior counsel for the TAC, Ms Britbart, by treating psychiatrist Dr Das, that Ms Collins’ Bipolar or Depressive Disorder had improved to its pre-accident levels by 2009, necessarily precluded any contention that an aggravation of those underlying disorders could constitute a serious injury for the purposes of s.93 of the Transport Accident Act 1986.
89 I turn first to the considerations relative to paragraph (a) of the definition of serious injury.
90 The predominant references by various examiners to pain and restrictions appear to relate to the neck and head and therefore to the transport accident. An initial question is whether there is any physical pathology to account for the pain and restrictions complained of. Whilst the codifying provisions of s.134AB(38) of the Accident Compensation Act 1985 have no application to the injuries sustained in the transport accident, nevertheless the same broad principles govern by virtue of the decision of the Full Court in Humphries v Poljak and the Court of Appeal in Richards v Wylie. That is, with respect to paragraph (a) of the definition, no account may be had to pain and restrictions which are functionally as distinct from organically driven.
91 The TAC’s medical examiners, including persons such as Mr John F O’Brien, are of the view that there is little or no organic basis for the pain and restrictions in the head and neck deriving from the spine generally.
92 According to her evidence before me, Ms Collins suffers pain from one end of her spine to the other. This pain distribution described by some examiners as “diffuse” points away from its having an organic basis. Practitioners other than the defendant’s medico-legal examiners are supportive of the view that Ms Collins suffers a chronic pain syndrome, that is, pain which is driven by psychological and not organic factors. See the analysis of Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46. A major divergence between presentation on formal assessment by examiners and what may be observed informally is indicative either of a chronic pain syndrome or functional overlay or outright malingering. It is not, so far as I am aware in these proceedings, alleged that Ms Collins is a malingerer and I intend to make no such finding, but the major divergence between formal and informal presentation observed by many examiners is supportive of the view that her pain derives not principally from any organic cause but rather from psychological ones. I am fortified in that view by the video surveillance material which was produced.
93 This video surveillance material was not of the most striking kind. It was not possible to observe, as one sometimes does, the head and shoulders of a subject in the driving compartment of a car displaying a full 80 degrees of neck rotation when backing out of a supermarket car park. The plaintiff here is depicted in the supermarket car park but the light falls in a manner which does not render her head and shoulders within the car’s driving compartment, visible, as she undertakes manoeuvres such as backing out of a car parking space. Nevertheless, sufficient is shown to demonstrate a much free-er range of movement than she demonstrated to the examiners and a much free-er range of movement than she demonstrated in the witness box and during her attendance at the proceeding generally. She is shown in the surveillance material for instance, displaying a full and unrestricted flexion of the lumbosacral spine despite marked restrictions shown to some examiners on formal examination.
94 These considerations and the absence of any clear evidence of pathology in the spine lead me to conclude that whatever persistent injury there is in Ms Collins’ spine, does not have the “very considerable” type required for the definition adopted in Humphries v Poljak [1992] 2 VR 129, 141. Since there is no significant physical injury, whatever restrictions in employment and lifestyle this plaintiff is subjected to are psychologically driven and therefore not such as are properly to be considered with respect to paragraph (a) of the definition of serious injury.
95 As a fall-back position, Mr Gorton and Mr Brett submitted that Ms Collins could be regarded as suffering a severe behavioural disturbance or disorder in terms of paragraph (c) of the definition. The evidence in cross-examination of Dr Das necessarily precluded any contention that there was an injury under paragraph (c) representing a worsening of the underlying or depressive disorder.
96 In submissions and reply Ms Britbart, junior counsel for the TAC said it would be improper to make any findings under paragraph (c) in the absence of any diagnosis along these lines by any psychiatrist. In my view, the premise of Ms Britbart’s submission is not made out. It will be recalled that Dr Weissman referred to Ms Collins as suffering a chronic pain syndrome.
97 Senior counsel for the TAC, Mr Middleton SC, submitted that, were Ms Collins’ endogenous psychiatric problems capable of being attributed to a transport accident or an industrial accident, they would meet the requirements of paragraph (c) of the definition of serious injury, being of the necessary severity. I accept that submission. He did not however, contend that a person suffering what would in another context amount to a serious injury to his or her psyche, could not suffer a further serious injury to the psyche from some distinct cause such as an industrial or transport accident.
98 I accept that Ms Collins suffers a behavioural disturbance as a result of the transport accident which might be described as either a chronic pain syndrome or an Adjustment Disorder. The effect is to magnify or prolong symptoms when the original organic cause of the musculoligamentous strain has ceased to operate or would, operating alone, cause only much lesser pain or restrictions than are demonstrated.
99 The effect of this pain syndrome has not however, been to work a complete paralysis of Ms Collins’ life as some of her statements would suggest. As explained earlier, I do not accept that she lives the life of a hermit, nor do I accept that within the context of a limited weekly pre-accident work capacity such as 12 hours or 15 hours per week that all employment is denied to her. I do not accept that work as, for instance, a console operator at a service station would preclude regular changes of posture to minimise pain. Such a role would not entail the heavy repetition of a machinist or typist role. The video surveillance demonstrate a person who is generally able to function in society. Ms Collins’ admissions as to her ability to carry out the activities of daily living and findings to that effect by a number of examiners are to like effect. In those circumstances I do not accept that the Disorder or syndrome rises to the level that success for Ms Collins in this proceeding would require, namely that the disorder be severe.
100 The application for leave under s.93 of the Transport Accident Act 1986 to bring a damages claim failed.
0
3
0