De Ponte v Transport Accident Commission
[2018] VCC 2121
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02631
| De Ponte | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | His Honour Judge Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 10 December 2018 | |
DATE OF JUDGMENT: | 18 December 2018 | |
CASE MAY BE CITED AS: | De Ponte v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2121 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Identification of injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; Richards v Wylie [2000] VSCA 50.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC and Ms C Kusiak | Zaparas Law |
| For the Defendant | Mr S Smith SC and Ms A Wood | Transport Accident Commission |
HIS HONOUR:
1 In this application plaintiff seeks leave to commence a proceeding claiming damages for injuries sustained by her as a result of the motor vehicle accident which occurred on 1 July 2014.
2 In the application the plaintiff relies upon:
· affidavits sworn by her on 12 December 2017 and 26 November 2018;
· an affidavit of her partner Tony De Ponte dated 26 November 2018; and
· an affidavit of Belinda Foss sworn 22 November 2018.
3 In addition the parties rely upon medical and DVD evidence tendered in this case
4 In the course of his opening on behalf of the plaintiff Mr Brett QC made it clear that it was the plaintiff’s position that the precise nature of the injury suffered her in the transport accident had been difficult to diagnose but that the consequences of that injury have been to cause the plaintiff to suffer continuing symptoms particularly in the lumbar area of her spine.
5 For the reasons set out below I am satisfied in this instance that:
(i) in the transport accident the plaintiff suffered soft tissue injuries most probably to her spine and to her left sacroiliac joint; and that
(ii) the effect of the above injuries has been to cause the plaintiff to develop an organically based chronic pain syndrome involving the sensitisation of pain pathways which gives rise to an impairment of function of the spine.
What approach should be adopted in the identification of the injury and the resulting impairment of body function?
6 Whilst it is put on behalf of the defendant that some degree of particularity must be achieved in identifying the nature of the injury suffered by the plaintiff in the transport accident, I am satisfied that the approach which I should adopt in my analysis in this instance is that described by the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd[1] in which the Court explained in clear terms the analysis required in applications of this type as follows;
[1] [2012] VSCA 179 at 58-60 and 68
58 It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected. Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition.
59 It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences. Section 134AB(38) then goes on to make ‘elaborate provision’ for the assessment of those consequences.
60 In turn, it will be possible to determine whether a worker has suffered a serious injury by reference to a specific impairment of a body function, despite the fact that it may not be possible to determine which individual component or what combination of components of the compensable injury are causing that impairment.
and further
68 The human body is a complex multi cellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB. The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad commonsense way.”
Analysis of the medical evidence for the purpose of the identification of the injury, the nature of the medical condition which the plaintiff presents and the consequences of that injury.
7 There is no issue that:
a. the plaintiff attended upon the medical practice of her local doctors on 2 July 2014 with a history of being involved in the subject motor vehicle accident as a result of which she complained relevantly of the presence of:
(i) back pain; and
(ii) a sore pelvis.
b. it was not until March 2015 that the plaintiff re-presented to the practice with a complaint of left sided thoracic back pain which in the past month had been getting worse such that it was interfering with her ability to sleep and manage the care of the house and her children. At that time the plaintiff attributed her symptoms to her July 2014 motor vehicle accident and provided a history that she had employed paracetamol and heat packs and gel rubs in management of her condition with no improvement.
c. by July 2015 the plaintiff’s continuing complaint of pain had caused her general practitioner Dr Pereira to refer her to a pain specialist.
d. eventually through that process the plaintiff came under the care of Dr Simon McCallum, a pain physician and specialist anaesthetist who first consulted with the plaintiff on 17 March 2016 and thereafter has been primarily responsible for the management of her condition.
8 In his report dated 26 October 2016 Dr McCallum opined that the plaintiff presented with a mixed mood disorder which had arisen in the context of chronic pain which at that time manifested itself in chronic “left sided thoracic, rib and lower back pain and left-sided sacroiliac joint dysfunction.”
9 Dr McCallum:
· described the transport accident as being responsible for the plaintiff’s current pain condition; and
· opined that the plaintiff’s prognosis was guarded due mainly to her psychological and psychiatric state and that she would hopefully benefit from a radio frequency neurotomy and a multi-disciplinary pain rehabilitation program.
10 At the request of Dr McCallum the plaintiff was examined by Dr Meena Mittal, a pain physician and specialist anaesthetist for the purpose of obtaining a second opinion as to her presentation and management.
11 In the course of her report dated 30 May 2017 Dr Mittal confirmed that she had examined the plaintiff on that date at which time the plaintiff presented with low back pain radiating to the left side of the thoracic region but commencing generally in the lower lumbar spinal region.
12 Dr Mittal provided a comprehensive summary of the treatment and management up to that time which included:
·a raft of medications in the form of Pregabalin, Amitriptyline, Tapentadol and Targin[2];
[2]Each of these drugs are well recognised as being designed to provide pain relief for the presence of significant neurological pain
·a procedure in the form of a left sacroiliac joint diagnostic injection; and
·a procedure in the form of a left L5/S1 radio frequency neurotomy.
13 Dr Mittal opined that:
· the majority of the plaintiff’s pain was muscular in origin, noting that at the time of her examination the plaintiff presented with paravertebral muscle spasm on the left side extending throughout the thoracic spine and lumbar spines; and
· the way forward for the plaintiff was to target her muscular spasm and pain, and she should be encouraged to participate in a multidisciplinary pain management program, commenting that a bilateral L4/5-L5/S1 medial branch block may be of some benefit to the plaintiff as a treatment option of last resort.
14 Dr Mittal concluded her report with the comment;
Fiona took the information that I provided her today really well. She understands the rehabilitative model and is quite motivated to pursue along those lines.
15 In a report dated 27 July 2018 Dr McCallum commented:
1. I do not believe Fiona’s low back pain will resolve spontaneously. If we take a biopsychosocial approach to her case, I think working eight hours in a physically active job is not going to be possible.
2. I have given her a link to a chronic pain app developed by Precision Brain, Spine and Pain Centre to help the patients with low back and leg pain.
3. I think it is essential she continues with the gym and swimming.
4. She must stop smoking. If she does not, she is not a candidate for spinal cord stimulation.
16 In his most recent report dated 14 September 2018 Dr McCallum:
· commented that the plaintiff presented with ongoing central low back pain going to the left back and buttocks together with left sided thoracic paravertebral muscle pain. He said that the plaintiff suffered from chronic pain syndrome and the cause of the pain was mainly muscular in origin; and
· opined that the plaintiff presented with a ‘chronic pain syndrome’ commenting:
a) as at 17 October 2017 the plaintiff had undertaken a “pain rehab program and it has helped her to increase her level of activity and accept her chronic pain” and that the plaintiff’s mood had improved;
b) that as at March 2018 the plaintiff was “going well after the pain rehab program she was keen to return to work and walk more. She was walking 45 minutes a day. She was going to join a gym program”;
c) that as at June 2018 the plaintiff was not employing medication, was job hunting, was less grumpy and seemed more optimistic and less anxious but was still struggling with the pain in her lower back and buttocks; and
d) that as at July 2018 the plaintiff was going to the gym and going swimming and feeling good. She was losing weight by being a bit more active and mentally felt that she was improving. The plaintiff was still struggling with lower back pain extending to the buttocks. She was unable to carry weights above 5 kg.
17 Dr McCallum concluded his September 2018 report with the following comments:
(i) Overall I think Fiona unfortunately has a very low capacity for work. I think it is extremely unlikely that she will be able to find employment that she can do in a regular and reliable manner. This is due to her pain and her psychological status;
(ii) Fiona has been struggling since July 2015. She has had improvements with her function in pain. Unfortunately I do not think she is going to get rapidly better spontaneously soon. I think overall the prognosis is quite guarded.
18 I am satisfied that Dr McCallum, as the plaintiff’s treating specialist who has seen the plaintiff on numerous occasions, has had the opportunity to assess:
· the plaintiff’s progress and response to the procedures undertaken under his care; and
· the plaintiff’s response to the pain program she has undertaken,
and is best placed in this instance to opine definitively as to the nature of the plaintiff’s condition and its likely consequences given his expertise in pain management and his diagnosis that the plaintiff presents with a chronic pain syndrome.
19 In my opinion, that Dr McCallum chose to refer the plaintiff for a second opinion by Dr Mittal demonstrates the care applied by Dr McCallum to both test and ensure the accuracy of his diagnosis.
20 In turn the opinion by Dr Mittal buttresses the strength of the diagnosis and opinion of Dr McCallum.
21 For these reasons I am satisfied that I should accept the evidence of Dr McCallum that the plaintiff presents with an organic pain syndrome with symptoms of the severity of those accepted by Dr McCallum in his reports and which impact upon the plaintiff’s capacity for activity in the manner which is described by Dr McCallum in his reports.
22 In making that statement:
(i) I take into account the opinion of the plaintiff’s treating general practitioner which is largely in agreement with that of Dr McCallum in describing the plaintiff’s current level of symptoms and incapacity; and
(ii) I do so being satisfied that the impact of the condition as described by Dr McCallum is consistent with my expectation as to the influence which such as condition would be likely to have.
23 Given the treatment which the plaintiff has undergone as described above I am satisfied that the chronic pain syndrome with which the plaintiff presents in this instance is of the type described by Mr Flanc in his report of 4 July 2016 as involving a “sensitisation of pain pathways causing pain which is in greater severity and distribution than that expected from the physical injury alone.”[3]
[3] JCB 78. This opinion is in turn supported by a largely identical opinion expressed by Mr Bittar in his report of 23 August 2018.
24 I am equally satisfied that the totality of the psychiatric evidence in this case is consistent with the presence of a psychological disturbance which arises in response to the presence of that chronic pain syndrome.
25 I make that finding taking into account:
· the opinion expressed by Mr Flanc at PCB 78; and
· the totality of the psychiatric evidence which does not support the presence of that the development by the plaintiff of a psychiatric condition other than that of the type described by the Court of Appeal in Richards v Wylie[4];
[4] [2000] VSCA 50
26 Whilst Dr Clayton Thomas, a consultant in rehabilitation and pain management, takes issue with whether the plaintiff presents with an organic chronic pain syndrome, I am satisfied having regard to the complexity of that condition and the opportunity which Dr McCallum has had to see the plaintiff on numerous occasions, that I should prefer and rely upon the opinion of the latter as to the cause and ongoing impact of the plaintiff’s transport accident related symptomology and incapacity.
27 In making that statement I do so taking into account the fact that the two reports by Mr Thomas were authored after one single examination of the plaintiff, and the unexplained inconsistency in opinions expressed in those two reports which arises by reason of the fact that:
(i) in his first report Mr Thomas described the plaintiff as presenting with nociplastic pain and described his examination findings as not revealing any non-organic components in her presentation;
(ii) in his second report Mr Thomas opined that the plaintiff presented with a significant non-organic presentation.
The presence of these factors cause me to prefer the opinions of the plaintiff’s treating pain specialists to that of Mr Thomas.
Findings as to the plaintiff’s reliability as a witness
28 I approach my analysis as to the reliability of the plaintiff’s evidence on the basis of the findings which I have made as to the nature of the condition with which the plaintiff presents and its likely consequences.
29 It is put on behalf of the defendant that the plaintiff presents as an unreliable and manipulative witness, both of those positions made out by reason of inconsistencies in both her affidavit and viva voce evidence.
30 As I commented in the course of the hearing it is clear that the plaintiff presented as an extremely unsophisticated person who was clearly unfamiliar with the court process.
31 In my view, in assessing the viva voce evidence of the plaintiff, it is appropriate to take into account the fact that the plaintiff has had a very limited education having left secondary school at a very early age and has thereafter been employed in unskilled work and as a mother.
32 In my opinion insight into the difficulty which the plaintiff was likely to have in expressing herself clearly and succinctly is demonstrated by the content of her written application for the review of her carer allowance which she completed on 15 November 2017, and in particular her writing at PCB 198.
33 Notwithstanding the obvious importance to the plaintiff of the content of that document, she failed to express herself adequately as to the needs and disability of the son.
34 It is beyond argument that the plaintiff demonstrated a tendency to interrupt the questioner so as to answer questions before they been totally formulated and to at times make statements in the course of her cross examination which were non-responsive or inconsistent with previous statement made by her.
35 On a close examination of her evidence the latter issue arose primarily in circumstances where summary positions were put to the plaintiff in the course of cross examination and she accepted those positions.
36 An example of the above involved the discrepancy in the plaintiff’s evidence between T 85 L31 and T 87 L2 in the course of which the plaintiff first described symptoms associated with washing her car manifesting themselves later in the evening but also being responsible for her cessation of that activity.
37 A further example arose in the passage of evidence between T60-L10 and T 67 L5. Taking an overview of that evidence I am satisfied that the plaintiff was maintaining a position that notwithstanding the care needs of her son she would have returned to work. That position is in turn supported by the fact that she has sought to return to work.
38 A simple acceptance of the concession made by the plaintiff at T 67-L3 namely:
Question : And you are also separately saying that because of his health care needs you just cannot work and take care of him, correct?
Answer: Yes
would in my opinion result in an inappropriate analysis of the totality of the plaintiff’s evidence on this issue which was to the contrary.
39 A further illustration of this issue is the evidence relied upon by the defendant between T 50 L 17 and T 52 L1.
40 Whilst the cross examination commenced with evidence given by the plaintiff as to activities associated with the washing machine and clothes dryer, the cross examination then focused upon general activity undertaken near the ground.[5] The plaintiff, however, continued to respond as to activities undertaken by her with her dryer and washing machine.[6]
[5] T 51 L5
[6] T 51 L 22
41 In my opinion to suggest that the plaintiff was making unequivocal statements that when undertaking any activity which involved squatting she always moved from a squatting position to a kneeling position, is not a position borne out by the evidence with any degree of certainty.
42 Whilst I accept the defendant’s position that there were a number of inconsistencies in the plaintiff’s evidence I do not accept the position that she was by any means a totally unsatisfactory witness or that the majority of her evidence could be challenged on the basis of being inconsistent or unreliable
43 In particular I am not satisfied that the plaintiff has been demonstrated as being manipulative, deceptive or untruthful.
44 I do accept that the presence of inconsistency in the plaintiff’s viva voce evidence in the course of cross examination requires me to analyse her evidence carefully and to determine any issue which arises on the basis of evidence given by the plaintiff which I find to be persuasive because it is consistent with other evidence which I find to be independently persuasive.
45 In reality however I am satisfied that I should take a realistic whole of evidence approach to my analysis of the case.
46 In doing so I do not lose sight of the fact that:
A. in my opinion, the plaintiff has exhibited an admirable compliance with the recommendations made by her treating practitioners:
(i) first to undergo invasive procedures in treatment of her condition the performance of each of which carry the potential for complications;
(ii) second to employ prescription strength medication the use of which generated adverse side-effects[7];
[7] Dr Mittal DCB 63
(iii) third to undergo a pain management course,
B. the plaintiff has made attempts to return to the workforce; and
C. the plaintiff has weaned herself off medication.
47 This behaviour by the plaintiff is, in my opinion, consistent with the behaviour which might be expected of someone who is doing her best to minimise the impact of her accident related incapacity upon her life and lifestyle rather than someone who is exaggerating that impact.
48 I do not find it surprising:
· that the plaintiff would have been counselled in her pain management course to attempt to wean herself off medication completely but that she may well have been reluctant to do so; nor
· that it would have taken some time for the plaintiff to come to terms with the fact that should she cease her medication her ongoing symptoms would not be dramatically influenced, and that she may have persisted for a period in using medication notwithstanding that its use had no discernible impact on her.
49 I do find the fact that the plaintiff did cease her use of medication prior to the hearing of this application to be inconsistent with someone who is approaching the hearing of the application with an attitude of exaggerating her level of pain or degree of incapacity.
50 In reality, had the plaintiff chosen to give false evidence that she required the use of over-the-counter medication to control her symptoms that position could never have been effectively challenged by the defendant.
51 As to whether the plaintiff’s cessation of medication tells against the severity of her symptoms, I note that at the time at which Dr McCallum authored his report in September 2018 in which he describes the ongoing symptoms associated with her chronic pain syndrome he did so in the context of the previous history obtained by him that the plaintiff had discontinued the use of medication as at June 2018. [8]
[8]JCB 54 and 55
52 It is put on behalf of the defendant that the DVD evidence[9] demonstrates the plaintiff being involved in activity which is inconsistent with her stated level of incapacity.
[9]Exhibit 2
53 It is further put that the plaintiff’s second affidavit is contrived when it refers to the plaintiff having good days and bad days, that this evidence is inconsistent with the totality of the evidence in the case and is manufactured in order to explain the level of activity which the plaintiff undertakes on the DVD evidence.
54 I am that satisfied that there is no merit in each of these positions for the following reasons:
(i) First, on 23 October 2018, prior to becoming aware of the existence of the DVD evidence, the plaintiff provided a history to Prof Peter Dougherty that the level of her pain varied;
(ii) Second, the plaintiff’s evidence that her capacity for activity varied is supported by the independent evidence of Ms Foss which describes the plaintiff as having good days during the period between mid-2016 and early 2017.
(iii) Third, when the plaintiff saw Dr McCallum in June and July 2018, notwithstanding the fact that she was still “struggling” with pain in her lower back and buttocks, the plaintiff was nonetheless going to the gym, going swimming and feeling good, and having attempted to return to work as a waitress. In my opinion these statements by the plaintiff are consistent with the presence of symptoms which wax and wane but none the less significantly interfere with her life;
(iv) Fourth, is the unequivocal opinion of Dr McCallum (who is in my opinion best placed to opine upon the issue as to whether or not the plaintiff is an accurate historian given the number of occasions he has seen the plaintiff) that the DVD evidence did not cause him to alter any of the opinions expressed by him in his earlier medical reports.
(v) Fifth, in so far as the plaintiff appears to be exhibiting normal lumbar flexion in the DVD evidence her ability to do so was documented by Dr McCallum in May 2017[10] and Dr Mittal in May 2017 and September 2018.
[10] JCB 60 in May 2017 and JCB 64 in September 2018 at which time the plaintiff's lumbar flexion was recorded as being normal notwithstanding the presence of paravertebral muscle spasm on the left side extending throughout the thoracic and lumbar spine.
55 For these reasons I am not satisfied that the DVD evidence operates to diminish the reliability of the opinion expressed by Dr McCallum as to the plaintiff’s level of symptoms or her capacity for activity, which opinion largely accords with the plaintiff’s affidavit evidence and her viva voce evidence when her responses are analysed carefully in the totality of the evidence.
56 It follows that I am satisfied that:
· I should approach the assessment of the plaintiff’s evidence on the basis that I should accept the evidence of the presence of any incapacity which is consistent with the statements made by Dr McCallum as to the consequences to the plaintiff of the impairment of function of the spine by reason of the chronic pain syndrome from which she suffers; and
· that the adoption of that approach provides a reliable basis upon which to decide the plaintiff’s entitlement to the leave she seeks in this case.
Has the plaintiff established her entitlement to the leave sought in this application?
57 For the reasons set out above I am satisfied that the plaintiff:
(i) would like to work in some form of suitable employment but that she has lost any capacity to work in full-time employment and is most probably unlikely to secure suitable employment in any field in which she is appropriately qualified and trained by reason of issues which arise as to her lack of reliability by reason of the symptoms from which she suffers; and
(ii) suffers from physical a condition which continues to:
a) cause paravertebral muscle spasm in the spine notwithstanding the period of time which has elapsed since the subject transport accident;[11]
[11]See the finding by Dr Mittal made in May 2017 (JBC 64) and also the finding by Mr Bittar in August 2018 (PCB 144)
b) limit her to carrying weights under 5 kg;
c) impact upon her such that she is constantly exposed to modest levels of pain but is prone to exacerbations of pain such as to cause her to struggle in coping with her pain, and
d) limit her ability to maintain her house in the fastidious manner which she exhibited prior to her injury and to undertake the domestic duties in respect of which she has provided affidavit evidence,[12]
and that the consequences to the plaintiff of the impairment of function the subject of this application are appropriately described as being more than significant or marked and as being at least very considerable.
[12]In making each of these findings I do so on the basis of specific statements made by Dr McCallum or my satisfaction that the relevant finding is consistent with the evidence of Dr McCallum as to the stabilised capacity with which the plaintiff presents.
58 For these reasons I am satisfied that the plaintiff is entitled to the relief sought in this application and I will hear the parties as to costs.
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