Cupsa v TAC

[2025] VCC 1213

a\

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-25-00252

MARIA CUPSA	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 13 August 2025
DATE OF JUDGMENT:	29 August 2025
CASE MAY BE CITED AS:	Cupsa v TAC
MEDIUM NEUTRAL CITATION:	[2025] VCC 1213

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION

Catchwords:              Serious injury – sub-paragraph (a) of the definition of “serious injury” – injury to the cervical spine – pecuniary disadvantage – pain and suffering

Legislation Cited:      Transport Accident Act 1986

Judgment:                  Application granted under sub-paragraph (a)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Pilipasidis KC C Shambrook	Arnold Thomas & Becker Lawyers
For the Defendant	S Pinkstone Y Al-Azzawi	Hall & Willcox

HER HONOUR:

1Maria Cuspa seeks leave under subparagraph (a) of section 93(17) of the Transport Accident Act 1986 (“the Act”) for leave to bring proceedings to recover damages in respect of the sequelae of a transport accident on 16 September 2022.[1] She says that in the transport accident she suffered an injury to her neck in the form of a disc bulge at L6/7 with radiculopathy which has resulted in a permanent impairment of the function of her cervical spine. She says that the result of that impairment is that she is permanently incapacitated from all work and is permanently restricted in her domestic and recreational activities. She takes strong medication daily but suffers constant, severe neck pain, which interrupts her sleep and has caused her to limit her activities in terms of outings to undertake necessary shopping, attend medical and other appointments, or otherwise attend to the needs of her ten year old daughter. She has self-funded three injections to the neck which only provided her with short-term relief from pain but struggles financially to fund further treatment recommended to her by pain specialists in terms of further injections and/or branch block procedures. She says that the consequences of the permanent impairment of her cervical spine meet the narrative test for serious injury.

The issues

[1] At the hearing, plaintiff’s counsel abandoned the claim under sub-paragraph (c) and disclaimed reliance on Richards v Wylie [2000] VSCA 50 in respect of any psychological sequelae of her physical injury.

2The defendant impugns the plaintiff’s credit on a number of grounds. First, that she was a hesitant, vague and evasive witness in cross-examination. For example, she was unable to recall her current medication but had no difficulty doing so in re-examination. Second, that her evidence about her attendance at the Goodlife gym was at odds with the records obtained from that business, and that her evidence about attendances at other gyms was unbelievable. Third, that the surveillance material showed a range of mobility of the cervical spine which was completely at odds with the restrictions of movement present at various examinations by specialists and bespeaks a deliberate exaggeration by her of her neck pain and restrictions. In this regard, the defendant relies particularly on the opinion of orthopaedic surgeon, Mr Gary Speck.[2] Fourth, that the plaintiff has complained of lower back and hip pain, unrelated to the transport accident, for which she has been taking strong pain medication, and for which she was referred for scans in 2023 and 2024. Fifth, some months after the transport accident the plaintiff reduced her working hours from full-time to once day per week, but it is unclear whether this was due to her deteriorating mental state or her back and hip pain rather than any issues with her neck. 

[2] The defendant also notes that two medico-legal psychiatrists who viewed the footage, Dr Steven Adlard and A/Professor Abdul Khalid, revised their opinions in the light of that footage. For the sake of completeness, I note that while the plaintiff does not rely on sub-paragraph (c) of the definition of serious injury, the defendant relied on the second medico-legal psychiatric report provided by each of these two psychiatrists. In their first reports dated 29 May 2025 and 6 July 2025 respectively, each of them diagnosed the plaintiff with major depressive disorder, recurrent; post-traumatic stress disorder; and somatic symptom disorder (chronic pain disorder) as a result of the transport accident and each of them considered that she permanently had no work capacity on psychiatric grounds (PCB 98 and DCB 82). After reviewing the surveillance footage, each of them revised their diagnoses, doubting the presence of a major depressive disorder or post-traumatic stress disorder, and concluding instead that the more likely diagnosis now is “not particularly severe Adjustment Disorder with mixed anxiety and depressed mood, and possibly some features of traumatisation” (PCB 106 and DCB 90).  I have not included in my summary of their respective opinions the observations or comments these psychiatrists made about the plaintiff’s neck and back injury, because these matters lie outside their expertise as psychiatrists.

3The defendant relies on the opinion of Mr Speck to the effect that the injury to the cervical spine suffered in the transport accident was in the nature of a soft tissue injury, which resolved, and that there were no radiological or clinical signs of disc prolapse or radiculopathy. The defendant says that the right shoulder issue is unrelated to the neck issue. The defendant says that given the exaggeration by the plaintiff of her cervical spine symptomatology and her apparent lack of restriction as shown in the surveillance footage, the consequences she relies upon do not meet the narrative test for serious injury either in terms of pecuniary disadvantage or pain and suffering.

The hearing

4The plaintiff gave evidence and was cross-examined. Extracts of video surveillance totalling 60 minutes and 23 seconds, taken on six days in April and June 2025, was shown in court. The footage shows the plaintiff driving, reversing her car, filling her car at various petrol stations, walking between cars, sitting in her car and at a café, leaning into her car, carrying some items in her left hand and some in her right hand. On many of these occasions she is seen freely moving her neck fully left and right, up and down, without apparent restriction. The defendant admitted that the total amount of surveillance conducted was 47 hours and 15 minutes.

5No other witnesses were called to give evidence. The parties filed court books and made oral submissions at the conclusion of the hearing. I have taken into account all of the evidence as well as the oral submissions of counsel.

The plaintiff

6The plaintiff’s evidence and that of her treating doctors was to the following effect. She is 50 years old and right-handed. She was born in Romania and educated there to Year 10. She worked as a medical receptionist and childcare assistant before migrating to Australia at the age of 18. She has three adult children, who live independently, and a daughter aged 10 who lives with her. She completed short courses in medical reception, working with children, and pharmacy assistance, before completing a pathology course in 2021.

7Her pre-accident medical history included right wrist pain in 2017 which required steroid injections and hand therapy; some short-term neck pain after falling from a scooter in October 2021; and depression in the context of a marriage breakdown.

8On 4 April 2022 she started working full-time, Monday to Friday, with Melbourne Pathology at Cabrini Malvern.

Cervical spine symptoms

9On 16 September 2022, she was stationary at a red light when her vehicle was rear-ended by another vehicle. The airbags in her vehicle did not deploy, and her upper body hit the steering wheel, causing her immediate pain in the neck, right wrist and right shoulder. She hoped the pain would improve but it worsened to the point where she attended her treating general practitioner, Dr Ganegoda, on 7 November 2022, and was prescribed Mobic and Temazepam.[3]  

[3] Plaintiff Court Book (“PCB”) 8.

10An MRI scan on 11 November 2022 was reported as showing, among other things, at C6/7 “small disc bulge. Small annular tear. Foramina unencumbered”.[4] The report’s conclusions were:

No acute traumatic injury identified.

No large disc protrusion. No neural compromise is evident.

[4] Ibid 107.

11A right shoulder x-ray and ultrasound on 18 November 2022 were reported as normal. [5]

[5] Ibid 108.

12She returned to work full-time after the transport accident for a few months but found she was struggling too much with the neck and right arm pain, and reduced her hours to 3 days per week. In mid-2023, due to her neck and right arm pain, she further reduced her work to 1 day per week, working on a Sunday and in a hospital. The work was lighter, and often it was not busy.

13Her neck pain became severe in early December 2022, however an ultrasound of the neck on 6 January 2023 did not reveal any pathology.

14Her mental health declined in early 2023 and she had six consultations with a psychologist in relation to the symptoms of anxiety and depression arising from her neck pain and right arm symptoms. She was prescribed Cymbalta for her psychological symptoms and Tramadol for her neck pain.

15In mid- 2023, she was referred to a physician, Dr Farshad Ghazanfari, for her neck and right shoulder pain. She saw him on 16 June 2023.[6]

[6] Ibid 43.

16She continued to experience significant neck and right shoulder pain with numbness down the right arm into the fingers of her right hand and was referred by her rehabilitation physician to a pain specialist, Dr Hamedani, who she saw on 17 October 2023. [7] Dr Hamedani reported on that day her complaints of severe, chronic pain in the cervical spine with localised radiation to the right shoulder and occasional distal radiation of paraesthesia. He noted the MRI findings on 11 November 2022 of “lordosis straightening with minimal disc bulge and small annular tear at C6/7”[8] and diagnosed chronic whiplash associated disorder and chronic cervicogenic headaches. He noted that her condition significantly impacted her personal, social and vocational functioning as well as her mental state. He recommended ongoing medication with Tramadol and Cymbalta, enrolment in a multidisciplinary pain programme as well as nerve blocks and medial brank blocks of the upper cervical facet joint.

[7]Ibid 116.

[8]Ibid.

17On 3 November 2023, the plaintiff was assessed at the request of the TAC by occupational physician, Dr Joseph Slesenger, in relation to proposed physiotherapy treatment as well as her work capacity. In his report dated 9 November 2023, Dr Slesenger noted the plaintiff’s complaint of neck pain after the transport accident which persisted and deteriorated, with symptoms radiating into the right arm, with some weakness and numbness in the right hand. She told him that she gradually reduced her work hours to one day per week. She was having regular physiotherapy.  On examination, he noted restrictions of movement of the cervical spine (which appeared to improve when she was distracted), severely weakened right hand, and some sensory loss in the right arm. Dr Slesenger opined that due to the delay in seeking treatment, she had suffered a cervical spine soft tissue injury which had resolved. He noted a number of non-organic signs including absence of wasting around the right shoulder, non-myotomal weakness, non-dermatomal sensory loss, and improved range of right wrist movements upon distraction.[9] He considered that there were significant psychological issues affecting her presentation and that her “current impairment is non-physical”.[10] He considered that she was capable of returning to pre-injury duties and hours.[11]

[9] Defendant Court Book (“DCB”) 19.

[10] Ibid.

[11] Ibid 20.

18On 24 January 2024,[12] the plaintiff’s general practitioner, Dr Danushi Ganegoda, reported that the plaintiff was suffering ongoing chronic severe neck pain following the transport accident and was incapacitated for all work.

[12] PCB 29.

19As at 12 August 2024,[13] the plaintiff stated in her affidavit that she suffered from constant neck pain, mostly on the right, worse at night, which radiated into the right shoulder and down the right arm to the fingers of the right hand, with pins and needles in the three middle fingers of the right hand. The neck pain worsened when lifting even light items, or when looking up and down or rotating to the right. She avoided using her right hand. Her neck and right arm pain interfered with her ability to get to sleep, to lie on her right side or back, and the pain would wake her a few times at night. She persisted with domestic activities in spite of this pain because she had no choice. She tried to shop more frequently so that she could buy fewer items to carry and avoid pushing a trolley. Her mother was helping her with cooking and cleaning about twice per week. Her neck and right arm pain made it difficult for her to physically manage the visits to her home by her older son, who is 30 years old and suffers from psychosis and schizophrenia.

[13] Ibid 6.

20The plaintiff also stated in that affidavit that, prior to the transport accident, she was a member of a local Goodlife gym and attended three to four days per week.[14] She enjoyed doing different classes. After the transport accident she worried that working out would worsen her neck and right arm pain and cancelled her membership. But for this neck and right arm pain, she would be able to use the gym, even with her back pain.

[14] See paragraph 28 below.

21In cross-examination, the defendant put the plaintiff’s attendance record at the Goodlife gym to her. The gym’s attendance records reveal that there were 23 visits in 2021. The plaintiff said that a few times she went into the gym without scanning her pass. It was put to her that even with those additional attendances, she was not attending gym three to four times per week prior to the transport accident as stated in her first affidavit. The plaintiff responded that, even when she worked full-time, she kept training, whether by jogging around the block at night, or training outside, or doing steps. 

22On 15 October 2024, Dr Ali Aminazad, sleep physician, wrote to Dr Ghazanfari in relation to the plaintiff’s sleep issues following the transport accident.[15] He noted a complaint of snoring, occasional apnoea, nightmares of the accident, sleep interrupted frequently with anxiety and palpitation, and waking with headaches. Dr Aminazad recommended further investigation of her apnoea.

[15] DCB 171

23Dr Ghazanfari wrote to the TAC on 31 October 2024,[16] noting that the plaintiff was suffering in relation to the neck and right shoulder pain, “right C7 radiculopathy; right carpal tunnel syndrome; and right shoulder subacromial bursitis”.[17] He sought approval for various therapies. He wrote to Dr Ganegoda on 30 January 2025[18] that he was seeking approval from TAC for physiotherapy, nerve root injections and occipital nerve blocks.

[16] PCB 120.

[17] Ibid.

[18] Ibid 122.

24On 3 December 2024, Dr Slesenger provided a further report to the TAC in which noted the plaintiff’s ongoing complaints concerning her neck and right arm and hand. He noted the medications she was taking and the treatments she was receiving. He noted that she struggled with the demands of work before reducing her hours to one day per week, and had ceased work in around October 2024 due to persistent symptoms. He examined her fully. He repeated the opinion given previously that she suffered an initial soft tissue injury after the transport accident, and this had resolved, that there was a non-physical basis for her current impairment and associated disability and that “a significant psychological impairment”[19] prevented her from working. He considered that on physical grounds, she was capable of full-time, pre-injury employment,[20] and did not require further treatment.

[19] DCB 44.

[20] Ibid.

25By letter dated 9 December 2024, TAC denied the request for medial branch/occipital nerve blocks made by Dr Hamedani, on the basis of the assessment of Dr Slesenger, occupational physician, “that your transport accident related injuries have resolved and your current impairment is more likely related to pre-injury states rather than the injury under consideration”.[21] I return to Dr Slesenger’s reports below.

[21] PCB 126

26On 7 March 2025,[22] Dr Ghazanfari wrote to Dr Ganegoda noting that he had performed a second PRP injection and that the plaintiff had reported a few weeks of relief after the first injection.

[22] Ibid 124.

27On 18 March 2025,[23] Dr Ganegoda reported that the plaintiff continued to suffer from chronic ongoing neck pain, as well as lower back pain. He considered that she had no work capacity. He deferred to specialist opinion concerning the permanence of her injuries.

[23] Ibid 40.

28Dr Ghazanfari reported on 29 April 2025 that on the basis of her clinical presentation, the mechanism of injury and the radiological investigation, he diagnosed her with “chronic whiplash-associated disorder, radiculopathy and myofascial pain syndrome”.[24] He considered that in spite of treatment with medication and trigger point injections, her condition had become chronic, “with central sensitisation and secondary fibromyalgia”.[25]  He noted that due to her pain and restrictions she had reduced her work commitments to one to two days, had difficulties maintaining her recreational, domestic and social responsibilities, as well as her gym attendance. He recommended that TAC fund nerve root injections and PRP therapy to the trapezius and scapular trigger points, as well as occipital and facet nerve blocks, physiotherapy and hydrotherapy.

[24] Ibid 43.

[25] Ibid.

29In her affidavits she stated that she found it difficult to stand for long periods in the cold due to her neck and right arm pain, and uses a heat bag at home.[26]  

[26] Ibid 13.

30As at 14 July 2025, she stated that she spends most of her days resting and doing household tasks a bit at a time.[27] She rarely socialises and does small grocery shopping during the week. She is unable to work or to be engaged and active with her daughter. As at the date of the hearing, she continues to receive the Centrelink single parent’s pension.[28]

[27] Ibid 24.

[28] Ibid 18.

31She continues to see her general practitioner and obtains some prescriptions for medication from Dr Ghazanfari. She funds all her treatment and medications. She has had a few physiotherapy sessions. For her neck and right arm pain, she takes Naprosyn and Palexia twice daily, two Panadol and 2 Nurofen tablets up to three times per day, and Gabapentin as needed, once to twice daily for her neck and right arm pain.[29] She has had 3 PRP injections for her neck and right shoulder pain, which have each provided some weeks of relief. She is saving up for further injections and nerve blocks.

[29] Ibid 23.

32The plaintiff was cross-examined in detail about the histories given to medico-legal examiners and her presentation to them with significantly restricted range of motion in the cervical spine. She said that she did not like being touched and when physically examined by Dr Weekes she was tense and afraid of being hurt, and may have tensed up her neck.

33In relation to the video surveillance footage, she said that she had to do things at times, such as driving and shopping, and took strong medication before doing these activities. She said she could not afford to take Ubers everywhere and had no partner to drive her around to her appointments or to do things for her daughter. She agreed that the footage showed her moving her neck left and right and up and down but said her neck pain was always there.

34She agreed that she told Dr Weekes on 12 May 2025 that her neck pain was constant and up to a level of 10 out of 10 and said this is the case.[30]

Unrelated back and hip pain

[30] Ibid 85. For the sake of completeness, I note that the plaintiff was involved in a second transport accident on 24 June 2024 when her car clipped a vehicle in front of her. She was with her daughter. Neither were injured or required treatment, but she was stressed out of concern for her daughter.

35In the first half of 2023 she had lower back pain and hip pain, which led to radiological investigations. An X-ray of the hips revealed no abnormality. In cross-examination, the plaintiff agreed that she saw a surgeon in 2024 for her hip pain, had tests, and was told by her general practitioner that there was nothing to worry about in relation to her hips but that she needed to lose weight. 

36As at 12 August 2024, the plaintiff stated that she was suffering from daily mild low back pain, with exacerbations 2-3 times per week, but this pain rarely woke her at night. A CT scan of the lumbar spine on 5 April 2023 revealed disc bulges at L4/5 and L5/S1.[31] As at 1 May 2025,[32] the plaintiff stated that her back pain worsened in early 2025 and she avoided squatting or bending because of back pain and right hip pain. The right hip pain was present if she sleeps on her right side.[33]

[31] DCB 282.

[32] PCB 17.

[33] Ibid 18.

37As at 14 July 2025, she stated that her low back and right hip pain is not constant, but is present a few days per week in the morning and evening.[34]

[34] Ibid 22.

38In cross-examination, the plaintiff agreed that in relation to her lower back issues she presented to a hospital emergency department in February 2025 and to Dr Weekes in May 2025 with severe lower back pain but said that these were only episodes, possibly related to a colonoscopy she had, and that her back pain comes and goes. When her back pain is bad, she does not go to gym. She said that when she saw Dr Adlard in May 2025 she was having hip pain, but said that this pain comes on for a week and then goes away.

39In re-examination she said that her neck and right shoulder pain, and not her back pain or hip pain, affect her ability to work and to perform domestic and recreational activities.

Earnings

40The taxation summary provided by the plaintiff indicates gross earnings as follows:[35] 2020:$22,253 (Department of Human Services); 2021: $28,799 (Department of Human Services); 2022: $18,065 (Department of Human Services) and $9,527 (Melbourne Pathology); 2023: $40,878 (Melbourne Pathology); 2024: $15,882 (Melbourne Pathology) and $19,400 (Department of Human Services) and $19,264 (Transport Accident Commission); and 2025: $4,180 (Melbourne Pathology) and $25,219 (Department of Human Services).

Medico-legal reports

[35] Ibid 112.

41The plaintiff relies upon three reports of orthopaedic surgeon, Dr Phillip Sheard, and two reports of pain specialist, Dr Gavin Weekes.

42Dr Phillip Sheard reported on 15 April 2024[36] receiving a complaint from the plaintiff, in relation to the neck, of:

[M]ostly central neck pain radiating to the right which presents all the time, worse in the morning, for which she takes painkillers, but also with activities it worsens in the evening, she has difficulty turning her neck to the right and prefers not to move it. She also has pain radiating down right arm into all fingers with an associated numbness of the fingers.

[36] Ibid 54

43He noted the plaintiff’s report that her mother was helping her with most daily activities including vacuuming, shopping and cooking, and that she was limited to driving locally. She told him that due to her neck pain she was unable to return to jogging, yoga and Pilates or dancing.

44On examination, he noted that her right rotator cuff was intact and there was no muscle wasting in the right shoulder. He noted restricted range of motion of the neck, slightly reduced power in the right arm, but otherwise no neurovascular deficit. He reviewed the documentation provided to him. He concluded that as a result of the transport accident, the plaintiff suffered “C6-C7 disc prolapse with radicular type pain” and “right shoulder subacromial bursitis”.[37] He considered that her symptoms were “significant” and that her work capacity “is affected significantly, she has marked reduction in the range of movements of her neck with increased pain on looking in any direction”.[38] He considered that her symptoms would be present for the foreseeable future.

[37] Ibid 58.

[38] Ibid.

45In his second report, dated 12 May 2025,[39] Dr Sheard noted that the plaintiff had stopped work completely in November 2024. He repeated the history, examination findings and diagnosis as per his first report, and concluded that the plaintiff’s diagnosed conditions “do have an organic basis”,[40] and that her injuries “are consistent with the accident described”. [41] Dr Sheard considered that due to her neck and right shoulder pain and restriction the plaintiff had no work capacity, but deferred to an occupational physician’s assessment of that capacity.

[39] Ibid 61.

[40] Ibid 66.

[41] Ibid.

46In his third report, dated 6 August 2025,[42] Dr Sheard noted that he viewed the surveillance footage relied on by the defendant, as well as the report of Mr Gary Speck, orthopaedic surgeon. Dr Sheard stated that the footage did not cause him to alter his opinion. He commented:[43]

The surveillance footage does show Ms Cupsa rotating her neck, but the surveillance footage is of brief snaps during the day and it is noted that symptoms will vary during the day, and you client has to turn her neck in certain situations, particularly for things such as looking at the petrol bowser dial. Many occasions will be unconscious, and your client may have taken her recent painkillers. You may find your client has worsening of the symptoms due to these movements.

[42] Ibid 67.

[43] Ibid 69.

47Dr Sheard repeated his opinion that the plaintiff also had a right shoulder injury in the form of subacromial bursitis.

48Mr Gavin Weekes, pain specialist, reported on 12 May 2025[44] a complaint from the plaintiff of “chronic pain affecting her neck and lower back following”[45] the transport accident. He noted her report that the back pain was a constant “burning, sharp pain”,[46] with a pain score of up to 10 out of 10. She reported radiation of that pain down the right arm, down to all of her fingers, with “neurological symptoms including paraesthesia and numbness”.[47]

[44] Ibid 84.

[45] Ibid.

[46] Ibid 86.

[47] Ibid 85.

49Dr Weekes noted the radiological findings. On examination, he found “no focal neurological deficits of upper and lower limbs”[48] but noted that “both flexion and extension of her cervical and lumbar spine exacerbated her pain”.[49] He noted her functional limitations secondary to her injury in terms of limited walking, sitting and driving tolerances. He also noted that her back, neck and right arm pain were aggravated by pushing and pulling, and that her mother was helping her with cooking and cleaning.

[48] Ibid 86.

[49] Ibid.

50He diagnosed the plaintiff with an organic condition, namely, “chronic cervical and lumbar pain secondary to cervical and lumbar spondylosis”.[50] He based his conclusion that her condition is organic on her symptoms, signs and radiological evidence. He considered that her lumbar and cervical spine injuries were caused by the transport accident. He considered that her lumbar and cervical pain contributed equally to the functional restrictions he identified, that those restrictions are permanent, and that the plaintiff would permanently have no work capacity. He felt that her prognosis was poor.[51]  

[50] Ibid.

[51] Ibid 87.

51In his second report, dated 7 August 2025,[52] Dr Weekes noted that he had viewed the surveillance footage. He concluded:[53]

Overall on review of this footage, it does not change my opinion that I have expressed in my previous report. The footage is of a short period of time, it does involve Ms Cupsa bending her neuraxis and multiple examples of her repetitively using her right upper lim. On no occasion did Ms Cupsa say that she could not perform these tasks but that these tasks have been reported to be associated with pain. The footage is representative of a short period of time, I am unsure whether or not Ms Cupsa would have taken analgesic medications before performing these tasks and how much pain these tasks would have caused Ms Cupsa.

The nature of chronic pain is that it can be variable and patients can report good days and bad days. On overall review of this footage, I am not in a position to change the opinion I previously expressed in my previous report without further consultation with your client.

[52] Ibid 88.

[53] Ibid 89.

52Mr Speck provided two reports to the defendant’s solicitors. In his first report, dated 17 July 2025,[54] he noted the plaintiff’s complaint of neck and right shoulder pain since the transport accident, with pain extending down the right arm and numbness down to the fingers of the right hand. The pain was worsened by lifting and by sitting or standing for prolonged period. On examination, he found restricted movements of the cervical spine, which were slightly less restricted when observed incidentally. He found restricted movements of both shoulders.

[54] DCB 91.

53Mr Speck viewed the radiological reports and imaging provided to him. In relation to the nerve conduction study, he noted that the imaging did not identify any nerve root compression. He considered that there was no clinical evidence of carpal tunnel syndrome or cervical radiculopathy. In relation to the MRI of the cervical spine on 11 November 2022,[55] he at first omitted to refer to the reported findings at C6/C7 (see paragraph 10 above), but then later in his report[56] noted it did not “indicate any radicular compression or narrowing of either the foraminae or the spinal canal to indicate radiculopathy or myelopathy being a consideration and is consistent with a negative clinical examination”.

[55] Ibid 105.

[56] Ibid 114.

54Mr Speck disagreed with the diagnoses of Dr Ghazanfari and stated that “the correlation of imaging and investigations with the symptoms does not support specific C7 radiculopathy, carpal tunnel syndrome or tendinopathy”.[57]

[57] Ibid 112.

55Mr Speck considered that the imaging of the cervical spine “identifies constitutional degenerative change and there is no clinical evidence of any relevant nerve root impingement”. [58] He considered that her current presentation of right neck and shoulder pain “is consistent with having had a soft tissue injury to the region at the time of the subject transport accident but with ongoing symptoms related to a somatic symptom disorder without evidence of ongoing pathology from the transport accident”. [59] He deferred to psychiatric opinion as to the presence of a somatic symptom disorder. He concluded that there was no “ongoing spinal injury”[60] and that the soft tissue injury “to the neck and adjacent chest area would have resolved within 6 to 12 weeks”[61] of the transport accident. However, he acknowledged that her physical symptoms “may be best helped in a multidisciplinary pain management program”.[62]

[58] Ibid 123.

[59] Ibid 124.

[60] Ibid 125.

[61] Ibid 126.

[62] Ibid.

56After reviewing the video surveillance footage, Mr Speck provided a supplementary report[63] in which he stated that the movements of the neck and right arm were much freer in the footage than when he examined her, and indicated a “true greater range of movement of the right shoulder and neck”.[64] He maintained the opinion expressed in his previous report, noting that the footage reinforced his view “that there is no ongoing organic injury”[65] from the transport accident and that there may be either no organic basis for her ongoing pain or that she was consciously or unconsciously exaggerating her restrictions.

Findings and reasons

[63] Ibid 130.

[64] Ibid 134.

[65] Ibid.

57I found Ms Cupsa to be a straightforward witness. I accept her evidence concerning the onset of neck pain at the time of the transport accident which worsened over time, led to referred symptoms down the right shoulder, arm and hand and fingers, and caused her to seek medical treatment. I accept her evidence concerning the pain and restrictions caused by her neck-related symptomatology. I accept her evidence concerning the medication she takes daily for her neck pain and associated symptoms. Nowhere in her evidence or the histories given to doctors did she deny being able to drive, shop, walk, move her neck (whether up or down or side to side), lift her right arm, carry items or sit in a café. I accept the plaintiff’s evidence that she would take her medication, particularly when going out.[66] I note the plaintiff’s concession in cross-examination that she was afraid of being hurt when examined by specialists and may have been tense and more restricted during those consultations. I consider the video footage shown in court to be a mere snapshot of her daily life, which does not undermine the credibility or reliability of her evidence concerning her pain, its interference with her activities of daily living and its impact on her occupational, recreational, social and domestic activities.

[66] PCB 11, T46 L24-26.

58I note that the plaintiff has gone to enormous lengths in seeking, and self-funding, ongoing treatment to relieve her neck pain and associated symptoms from pain specialists and other practitioners, and I consider that this, in addition to the opinions of her treating pain specialists and other medico-legal specialists, to which I refer below, reinforces the existence of a permanent organic impairment of the cervical spine.

59I prefer the opinions of Dr Sheard and Dr Weekes, to those of Dr Slesenger and Mr Speck for the reasons outlined below.

60I note that the opinions of Dr Sheard and Dr Weeks are clearly based on the radiology and their clinical assessments of the plaintiff’s cervical spine symptoms, and their opinions were unchanged after viewing the surveillance footage. They opined that as a result of the transport accident the plaintiff suffered an organic injury to the cervical spine in the form of a C6/C7 disc prolapse with radicular type pain, which has led to a permanent impairment of the function of the cervical spine with sequelae including pain requiring daily medication, reduced capacity to perform a range of domestic and recreational activities and a serious impact on work capacity. 

61Mr Speck relied heavily on the absence of radiculopathy based on the absence in the radiological reports of impingement or compression of the C7 nerve. However, he ignored the significance in the diagnostic process of the finding of radicular type pain found by Dr Sheard and other treating specialists, which is consistent with the plaintiff’s complaints. I consider that he went beyond his area of expertise in positing a psychiatric basis for what he asserted were non-organic symptoms. I consider that his conclusion that the plaintiff suffered a soft tissue injury to the cervical spine which has resolved bears an air of unreality in the face of the opinions of Dr Sheard and Dr Weekes and the plaintiff’s uncontradicted evidence concerning her persistent, intrusive, neck pain and referred right arm and hand symptoms, which require her to take strong daily medication, interferes with all aspects of her daily life and work capacity, and has had her self-funding ongoing treatment including injections to the neck.

62I consider that Dr Slesenger’s expertise as an occupational physician is confined to assessing work capacity. I reject his opinion that the plaintiff suffered a soft tissue injury to the cervical spine which had resolved, as this is inconsistent with the plaintiff’s evidence, which I accept, and with the findings of Dr Sheard and other pain specialists. I note in any event that his reports were superseded by the more recent reports of Dr Weekes and Dr Sheard, and I consider that the reports of Dr Weekes and Dr Sheard best encapsulate the nature of the plaintiff’s cervical spine impairment and it’s sequelae at the time of the hearing.

63I acknowledge that the plaintiff has experienced issues with her back and hips over the years since the transport accident, but I do not consider that these issues preclude the conclusions expressed below in relation to the cervical spine.

64On all of the evidence before me, I consider that as a result of the transport accident, the plaintiff has suffered an injury to the cervical spine in the form of a disc prolapse at C6/C7. This injury has led to a permanent impairment of the function of the cervical spine in the form of persistent daily neck and referred pain and other sensory symptoms down the right shoulder through the right arm to the fingers of the right hand. The consequences of this impairment include:  persistent, daily neck and right arm pain requiring strong analgesic and other pain medications; interference with sleep; restrictions in undertaking many domestic and recreational activities; and a further reduced (if not extinguished) work capacity.

65I consider that, taken together, the pain and suffering and pecuniary disadvantage flowing from this permanent impairment meet the narrative test for serious injury.   

Conclusion

66Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the cervical spine suffered in the transport accident on 16 September 2022.

67Costs reserved.