Dumitru v Transport Accident Commission

[2020] VCC 1956

+IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-00344

MARA DUMITRU	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2020
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Dumitru v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VCC 1956

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – impairment to the spine – aggravation – credit

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:            Richards & Anor v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dordev v Cowan & Ors. [2006] VSCA 254; Dumitru v George Weston Foods Ltd [2013] VCC (5 August 2013); Woolworths Ltd v Warfe [2013] VSCA 22

Judgment:     Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R S Stanley with Ms K S Gladman	Patrick Robinson & Co
For the Defendant	Ms D Manova with Ms V McLeod	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1 This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident (“the accident”) which occurred on 30 January 2013 (“the said date”).

2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a):

“Serious long-term impairment or loss of body function.”

4The body function relied upon by the plaintiff in this application is the spine.

5The enquiry under ss(a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. 

6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[1]

[1]Richards & Anor v Wylie (2000) 1 VR 79

7In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described at least “very considerable” and more than “significant” or “marked”.

8The plaintiff relied on one affidavit and gave viva voce evidence.  She was cross-examined.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

9Counsel for the plaintiff acknowledged while there was a pre-existing back problem, it was of a different character to the plaintiff’s accident-related condition as confirmed by a number of medico-legal examiners who had seen her pre accident.  In the accident, “the back is the predominant injury, with pre-existing neck problems taking a far second place”.[2]

[2]Transcript (“T”) 4

10Counsel for the defendant indicated there would be focus on the plaintiff’s pre-accident conditions.  Further, there were some credit and reliability issues.[3] 

[3]T2

The Plaintiff’s evidence

11      The plaintiff is fifty-seven, having been born in June 1962.  She is presently in receipt of a disability support pension.

12      The plaintiff has not worked since 2009, when she was employed by George Weston Foods.  During her working life, she had been a factory worker, a process worker and a machine operator. 

13      The plaintiff gave evidence from her bed at her Hampton Park home.[4]  She explained she was in bed because of her difficulties with prolonged sitting due to her back pain.  If she sat for too long, she would feel her lower back shaking and would “have to come to bed straight away otherwise, [she] would fall”. That situation has never changed since the accident.  If she has been sitting for a while, she starts shaking and “goes on her left leg” and if she does not sit down, she falls.[5]  She loses her balance in her left leg as if someone just knocks it behind the knee.  She never had left leg pain before the accident.[6]

[4]T8

[5]T12

[6]T13

14      Prior to the said date, the plaintiff suffered some prior back issues and made a number of WorkCover claims, mostly minor, while employed by several different employers.  Some of the claims related to neck and back problems.  Others were minor strain issues or head bumps, which she could now barely recall.

15      Although the plaintiff had back problems in the past, she believes they mostly related to her mid back, which was coming down from her neck injury.  She does not deny she had some backache in the past, but never like the current pain she has.  Most of the aches were in her mid-back.[7]

[7]Plaintiff’s affidavit

16      In examination-in-chief, the plaintiff explained that before the accident, the pain never went lower than her neck.  She had never experienced pain in the middle of her back – “the neck and the shoulders only”.[8]  It was just the first two vertebra of her neck.  Before, most of the aches were in the back of her neck.[9]

[8]T6

[9]T7

17      The plaintiff confirmed that before the accident, she just got neck pain that went into her right arm and two fingers, “just numbness”.[10] She was not denying that she might have experienced pain in the lower back but did not remember having done so.  She “might have hurt sometimes, but nothing as serious as now”.[11]

[10]T10

[11]T13

18      There had been no serious pain in the plaintiff’s lower back before the accident.  She might have had lower back pain, but could not remember it, because she kept on working until 2009.  “It was not serious.”[12]

[12]T35

19      The plaintiff denied having been hospitalised with back and left leg pain before the accident, but “she did not know”.  When the 1988 Dandenong District Hospital notes were put to her, she said, “Maybe I did experience some pain like any other human being, but would I have been able to work two jobs until 2009 if I had such back pain?”[13] 

[13]T37

20      It was possible that hospital entry was correct, but it was not serious, because the plaintiff “had continued her activity”.[14]  She might have had nine months of chronic back pain after falling down the stairs at work, but she was able to work from 1988 “all the way to 2009”.  It is possible that it affected her left leg, but it was not serious enough to prevent her from working.[15]

[14]T37

[15]T38

21      The plaintiff then became very upset during the hearing and required a short break.[16]

[16]T39

22      The plaintiff had some previous claims, but nothing serious.  They did not stop her from working.  She had some restrictions, but not really serious, and she continued to work.  She had a claim in 2007, “but nothing serious”.  She then had the injury at George Weston.[17]

[17]T41

23      The claim against George Weston was for an injury suffered on 9 November 2005.  In 2009, the plaintiff stopped work as a result of that injury.  She was given a serious injury certificate for her neck and received a common-law settlement.[18]

[18]Dumitru v George Weston Foods Ltd [2013] VCC (5 August 2013)

24      The plaintiff swore an affidavit in October 2010 in relation to that application.  She deposed that in early September 2007, she was suffering injury and restriction, particularly to her lumbar spine.  She agreed this was the case, but she “continued to work; not seriously”.[19]

[19]T42

25      The plaintiff could not remember wearing a lumbar support belt from 2005, but probably it was true because she “tells the truth in court documents”.  When taken to her list of complaints, including her back, that caused the restrictions described in that affidavit, she explained these were “because of my neck and shoulder”.[20]

[20]T43

26      The plaintiff swore a second affidavit in July 2013, seven months after the accident.  She agreed she did not mention the kind of back pain referred to in her earlier affidavit and concentrated on pains in her neck and the back of her head.[21] 

[21]T43

27      In that affidavit, the plaintiff briefly referred to the transport accident and that she had seen Dr Thornton, but received no treatment.  She had started walking to try and keep fit because she “had had to try hard to keep going”.[22]

[22]T44

28      The plaintiff agreed that pre accident, she was on a large number of medications.  She had taken Mersyndol Forte and Alodorm for many years. She was put on that medication, first by Dr Baldwin and, later, by Dr Thornton, for a range of pain she was having.[23]

[23]T45

29      The plaintiff agreed, in 2009, she was complaining of a sore back on a regular basis, “together with other pains, neck and shoulder”.  A clinical note in 2010[24] that said that her back would seize up with routine chores was wrong, it was after the accident the serious pain started in her lower back.[25]

[24]Attendance with Dr Baldwin on 29 November 2019

[25]T46

30      It was possible, as Dr Baldwin noted on 1 November 2010, that the plaintiff’s pain went from her neck down to her lower back.  It was probably true that on 29 November that year, she reported her back seized up.  She disputed Dr Thornton’s note of 22 August 2011 that she was paralysed and had to crawl around the floor.  If she was paralysed, she could not move.[26] She could remember telling him it was because of her neck.  She would lie on the floor with a pillow under her neck and then get medication.[27]

[26]T48

[27]T49

31      Dr Thornton’s 8 September 2011 note was probably true when he mentioned he told the plaintiff she was taking too many “benzos”.  She thought she had overdosed over the years on painkillers and been hospitalised.[28]  He talked to her about her abnormal liver function tests in late 2011.[29]

[28]T50

[29]T51

32      When Dr Thornton noted on 16 February 2012: “Back pain – does the vacuuming on her knees,” the plaintiff explained this was probably because of back pain but then she added immediately, “No, neck, back and shoulder. I can’t keep my head proper.”  In Romanian they do not say neck and shoulder, they say back.[30]

[30]T36; T53; T84

33      When asked about the May 2009 lumbar CT scan, the plaintiff probably had some back pain, but not that serious like she had after the accident.[31]  It was probably radiating to her left leg, “but not that serious”.[32]

[31]T53

[32]T54

34      The plaintiff was taking nine Mersyndol Forte tablets in March 2012 because her neck and shoulder were very painful.[33]

[33]T52

35      The plaintiff agreed it was correct, if Dr Thornton had noted, that she was having problems during 2012 losing her scripts and he was refusing to give her medication.  He probably told her in August 2012 she was taking too many tablets.  Probably the pharmacy wrote to him advising of its concern with her medication intake.[34]

[34]T56

36      In re-examination, the plaintiff repeatedly said she had kept working before the accident.  She did physical work and did a very heavy job and then had her work injuries.[35]

[35]T84

37      The plaintiff explained the lumbar belt that she wore from 2005 was to take the pressure off her neck.  The restrictions described in her 2010 affidavit were because of her leg and shoulder pain.[36]

[36]T84

38      Pre accident, the plaintiff had also had some psychiatric issues and was seeing a psychiatrist.

The accident

39      On the said date, the plaintiff was injured in the accident when she was a seat-belted driver of a vehicle that was rear ended when stopped at a red light at an intersection.

40      While the ambulance report described the impact speed as 10 kilometres an hour, the plaintiff could not tell at what speed the other driver was travelling.[37]

[37]T23

41      The plaintiff felt immediate pain in her lower back and left leg.  She moved her neck straight away, because she was worried for her neck. 

42      The plaintiff said to the other driver: “What happened? … Did you see the lights?”  He said he was stupid, a stupid idiot and he ‘didn’t see nothing” and after that, she said to him “[m]y low back – my low back” and she started screaming.  She told him she had a sore lower back and he was just apologising.[38]

[38]T14

43      The plaintiff did not look at the damage to the other car because her lower back started to be very painful and she screamed “pain, sore” and “I cannot sit down properly”.  The other driver just gave her his number. 

44      The plaintiff did not look straight away whether there was any damage on her car because of her pain – “It was not that big damage, [she] did not expect this pain and that is it”.  She did not remember if she made a claim because the other driver fixed it.  “He paid.”[39] 

[39]T15

45      When the other driver hit her, he pushed the plaintiff under the wheel.  He hit her – the chair hit her on her lower back and it pushed her under the wheel; she physically went under the steering wheel.[40] 

[40]T15

46      The plaintiff “can’t say it is a big damage”.  She initially said she did not contact the police about the accident, then said she did not remember doing so.  She did not see any police officer; she did not remember telephoning the police.[41] 

[41]T16

47      It was possible that the police had been told about the accident, as the other driver stated, but it was not true that the plaintiff told the police her car was a write-off and that she had to go to hospital.  Hers was a strong car; it was made in 1999.[42] Probably she told the police about the hospital after she came home from the hospital.[43] 

[42]T19

[43]T20

48      The plaintiff did not agree with Mr Griffith’s statement.  Her car was waiting for green.  “When he’s driving, he no stop.  He stop on me …  he drive straight on me.  No stop no wait.”  His version was not true.  It was not true that it was a minor impact, just a bump between the two cars.  She was waiting at the traffic lights and resting her neck against the seat, and he drove on, did not notice the traffic lights, “he just drove into me.  He stopped – his car stopped when it hit my car.”[44]

[44]T17

49      It was not true that the plaintiff did not tell him she was injured.[45]  She started screaming “[o]w, ow, ow, ow.  My lower back, my lower back sore.”  He was not interested and just kept apologising.[46] 

[45]T17

[46]T18

50      The plaintiff was shown a photograph of Mr Griffith’s car which was taken soon after the accident.  She confirmed her version of the accident when it was pointed out there was no damage shown to his car on the photograph.[47] She saw “it’s not big damage to his car”.  There was no major damage to hers, in the sense her car could still be driven.[48]

[47]T20

[48]T21

51      The plaintiff also hurt the right side of her forehead and there was some blood there after the accident.  There was a lump and there was blood, which she showed the nurse at Dandenong Hospital.[49] The lower back was the big problem.[50]

[49]T22

[50]T21

52      The plaintiff deposed she was taken by ambulance to Casey Hospital, where she stayed for observation for a few hours. 

53      The plaintiff actually drove from the accident scene to her pathology appointment.  She was short of breath when she saw the pathologist and explained that that was because of pain.  The pathologist noted she was very pale, and she called the ambulance.[51] 

[51]T23

54      The lady at pathology saw the plaintiff was in great pain.  She asked her what happened, and the plaintiff said “the guy hit [her] car and … [she] did not expect such pain”.[52]

[52]T18

55      The plaintiff “was very big in pain”, and “the ambulance girl, she was very mean and very rude with [her], and [she] screamed and yelled at [her] - We’re not going to help you”.[53]  The ambulance lady knew the accident was not very big, because she looked straight away at the car and “she no want to help [me] at all”.[54]

[53]T26

[54]T27

56      The plaintiff agreed she complained of lumbar pain when seen at Casey Hospital.  She was screaming with pain.  When it was suggested there was no bleeding noted when seen, the plaintiff said they did not check her properly and her daughter had an argument with them about it.  When she was also told there was no bleeding noted at Dandenong Hospital, the plaintiff denied it was something she is now saying to make the accident seem very dramatic and serious.  She did not want to be dramatic or “something like that”.  She was focused on her lower back pain because that was the major issue.  She “believes in God and does not create drama”.[55] 

[55]T25

57      The plaintiff could not remember calling her lawyer while at Casey Hospital. Her current lawyer was acting for her then in her WorkCover case.[56]  At that Hospital, they did not do any x-rays, “they did nothing,” so the plaintiff called her “doctor”,[57] who came and picked her up and took her to Dandenong Hospital.[58] 

[56]T28

[57]Seems to be daughter

[58]T28

58      The plaintiff was not prepared to see a physiotherapist at Casey Hospital because she was in pain and she had not even had an x-ray.[59]  She could not remember being given information about a physiotherapist or a list of private physiotherapists.[60] Her daughter took her to Dandenong Hospital for treatment.  There, she had an x-ray and stayed a few hours, and then was discharged with painkillers.[61] 

[59]T28

[60]T29

[61]T33

59      The plaintiff did not recall calling the TAC when travelling from Casey to Dandenong, as the records indicated, because she was in pain.[62] 

[62]T33

60      At Dandenong Hospital, the plaintiff advised she was in pain with her chest and left shoulder.  She agreed they examined her all over.  When the notes did not record any head injury, the plaintiff said “just a bit of bleeding, but that was all.  Nothing serious, as far as my head was concerned.”  That was why it was not recorded. [63]  When it was suggested she had made it up recently, she said “God forbid”. The issue is her back and she does not see “why the barrister was insisting on [her] head”.[64]

[63]T34

[64]T35

Treatment post hospital

61      Following the accident, the plaintiff was mostly bedridden at home due to pain. In early February 2013, she first saw her general practitioner, Dr Thornton, in relation to the accident.

62      The plaintiff denied she told Dr Thornton on 5 February 2013 she was feeling a bit better.  “It is not true.”  At that time, she had already had an argument with him about her lower back.[65]

[65]T60

63 The plaintiff deposed she lodged a TAC claim, which was accepted,[66] and she has been paid benefits. She was treated for a period with massage therapy, hydrotherapy and over-the-counter painkillers, Panadeine and Panadol Osteo. She had a further lumbar x-ray in June 2013.

[66]The claim was accepted by letter dated 22 February 2013

64      The plaintiff spoke to the TAC after the accident and they sent a claim number to her home address, but she did not lodge the claim until 2014 and “did not ask for a cent from them” until that date.[67] She did not fill out the claim documents until 2014 when she could not put up with the pain any longer.[68]

[67]T29

[68]T30

65      It was not until 2014 that the TAC paid for physiotherapy.  Until then, the plaintiff had to pay for it herself.  She had massages.  She did not keep all the receipts.  After the accident, she went for a massage via Medicare because she did not lodge her claim straight away – “one year”.[69]

[69]T29

66      The plaintiff also saw a chiropractor, and was not sure if she gave her lawyer the receipts.  She was hoping her pain would get better after those treatments and did not make a point of keeping the receipts.[70] 

[70]T31

67      The plaintiff then said she “went with Michael via Medicare” most of the time and then TAC paid the physiotherapy.[71]  She thought she saw Michael in the first year after the accident.[72] If Michael’s notes indicated the first physiotherapy visit was in March 2014, that was probably true.[73]  The plaintiff denied any improvement with physiotherapy over 2015.[74]

[71]T31

[72]T85

[73]        T64

[74]T67 and T68

68      The plaintiff did not recall a discussion with Dr Thornton as he noted on 2 September 2013:[75]

“… WON HER COURT CASE, settlement this month … starting hydrotherapy and physio now and will reduce medication … sore throat.”

[75]T61

69      The plaintiff thought she had treatment with “Michael” before and after the accident.[76]

[76]T62

On 13 January 2014, Dr Thornton recorded:

“WIC  over -- she accapted (sic) a payout  and paid off the house etc....

lost referral  to Dr Gin

Dr Katz  next week ---tell him she is  still on Alodorm and  I have referred her to PMC MMC LBP --

says  after  MVA last year  3111113,  will consider Physio

taking 4-6  Alodorm a night and  Mersyndol  Forte  3-4 a day

Actions:

DOXY 100 TABLET 100mg ceased.”

70      The plaintiff deposed that in early 2014, she changed general practitioners and started to see Dr Wang, who referred her for a lumbar CT scan, which she was told showed a disc protrusion.

71      The plaintiff no longer wanted to see Dr Thornton.[77] She would tell him her lower back was very painful and he said “What do you want me to do about it?”  He did not take the matter seriously.[78]  She denied she changed to Dr Wang because Dr Thornton refused to give her more medication.[79]

[77]T56

[78]T56

[79]T58

72      The plaintiff had a lumbar MRI scan in 2015.  She was told there was a disc abnormality and a tumour in her spine. Dr Wang referred her to a neurosurgeon, Mr Xenos, in 2015.

73      While Mr Xenos made no mention of any pre-accident back problems in his report, she probably did not tell him.  She just told him what he asked her.[80]

[80]T74

74      The plaintiff underwent an L1-2 laminectomy and removal of tumour performed by Mr Xenos on 9 November 2015 at Southern Health.

75      The  plaintiff was a public patient at Monash Medical Centre as the TAC did not accept liability for the surgery.  She saw Mr Xenos a few times post surgery.

76      It was suggested to the plaintiff her back pain was worse after the tumour surgery, but she said nothing changed.[81]  While Mr Bittar had written it was getting worse, it did “probably”.[82]   She then agreed she told Dr Wang that after the surgery her back pain was getting worse, and confirmed this was the case.  If she had known it would be that bad, she would never have had the surgery.[83]

[81]T68

[82]T69

[83]T71

77      Before the surgery, the plaintiff’s back felt bad.  She could not remember taking Tramadol before the accident.  After the surgery, her medication was changed to Tramadol, but she could not remember exactly when.[84]

[84]T86

78      The plaintiff was later referred to Professor Bittar and Dr Gassin for pain management. They recommended she use Medicare to access physiotherapy and other conservative treatments, such as acupuncture and hydrotherapy, and do a pain management program.  She could not remember Dr Gassin telling her he was not going to treat her until she had proper psychological help.[85]

[85]T82

Consequences

79      The plaintiff continues to suffer from significant back pain.  It is constant, but flares up at times.  It is mostly in the lower back, but travels down her left leg.  At times, it has been so severe she has had falls.

80      The plaintiff explained other falls before and after the accident were “in a different way”.[86]

[86]T75, T77 – see paragraphs 266 ff of my Judgment

81      The plaintiff finds pain comes on if she walks any longer than twenty or thirty minutes, and when she is sitting, depending on the type of chair.  When her pain flares up in this way, there is a numb and tingling feeling in her back and left leg.

82      The plaintiff has had back problems in the past, but she is now a lot more restricted in her back movement.  She can no longer bend easily and tends to either crouch a little or get down on her knee if she has to get to the ground for some reason.

83      The plaintiff cannot twist easily, and she cannot run.  She finds stairs very difficult, and is slow to go up and down them if she has to use them.  She also finds driving difficult and uses a lumbar support funded by the defendant.  She finds turning her head very hard.  As a result, she only drives locally and not into the City, for safety purposes.  Travelling to the City is also quite difficult on public transport as she finds the trains very hard on her back.

84      When it was suggested to the plaintiff she did not run before the accident, she said before it, she walked with her neighbour’s dogs.  She now walks “no much like before”. She drives locally, where she needs to go.  She did not drive very far anyway because of her WorkCover injury.[87]

[87]T78

85      At home, the plaintiff is really restricted to only light household duties and can no longer do heavier tasks.  She sticks to lighter cooking as she has trouble with tasks such as moving heavy pots for cooking.  

86      When it was suggested to the plaintiff she did not have to do heavy cooking because she lives alone,[88] she confirmed her cooking is limited and that she had enjoyed cooking before the accident.[89]

[88]T80

[89]T86

87      When the plaintiff flew to Romania in August 2014 to see her mother, she did not look after her.  Her mother started to cook for the plaintiff.  She did not look after her mother, she just wanted to spend time with her.[90]

[90]T66

88      The TAC funded a lighter vacuum to help the plaintiff at home and she bought a reaching tool to use in the bathroom to make cleaning easier, but she still finds both tasks difficult.[91] 

[91]T16

89      The heavier tasks at home, such as taking out the rubbish and gardening, are done by her neighbours.  The plaintiff does a little bit of lighter gardening herself.  Even with her neck pain, she could still do some gardening if she got on her knees.  Now, because of her back pain, her gardening is restricted, which upsets her because she loved gardening.

90      The plaintiff has adapted her personal care routine.  She wears a pull-on bra and pull-on trousers and mostly slip-on shoes so she can dress herself alone without difficulties. 

91      The plaintiff now has a more limited social routine.  She used to go to church, but now finds sitting on the seats difficult on her back.  She does not go out as much as she did previously and has put on weight as a result of less physical activity.

92      The plaintiff has sleep difficulties.  She had some issues pre accident, but it is now worse.  She finds both sides uncomfortable to sleep on and also has nightmares about the accident which disturb her sleep. 

93      The plaintiff ’s sleep now is not really better than pre accident, although she is taking less sleeping medication.  She sometimes has nightmares about the accident.[92]

[92]T80

94      The plaintiff has difficulty travelling to visit her daughter and grandchildren who live about fifty minutes away by car, and her son and new grandchild, who live closer.  If she plays with her newest granddaughter, the plaintiff has to get down on the floor with her, which is hard.  It is really upsetting that her constant back pain limits her ability to play with her grandchildren when she sees them, and she feels like a failure as a grandmother.

95The plaintiff was in bed for the hearing because she cannot sit for too long.[93]  Now she stays day after day in bed.  She is not comfortable any single day.  There are days she cannot put up with the pain and has to take a lot of medication.  She is never free of lower back pain.  Pre accident, with her neck, she could negotiate a position of support, but with her back, there is nothing that makes it better.[94]

[93]T87

[94]       T88

96      The plaintiff has also suffered worsened psychological symptoms since the accident.  She cries more, socialises less and her memory problems are worse.  Her motivation has been affected and she does not feel like doing much of anything since the accident.

The Plaintiff’s medical evidence – treaters

97      The plaintiff’s general practitioner, Dr Wang, reported in October 2015. 

98      The plaintiff’s first post-accident presentation to him was on 11 March 2014, complaining of chronic pain in the low back and both legs.  After the accident, she experienced that pain and was unable to walk.  He detailed her subsequent attendances at Casey and Dandenong Hospital, a referral for physiotherapy and investigations in March 2014.

99      Dr Wang noted that since the first attendance, the plaintiff had been visiting him regularly for the following:

(i)    Chronic low back pain with both legs with onset after the accident.  That pain had been persisting and treated with selfcare and exercise, oral analgesics, Mersyndol Forte and regular physiotherapy. On 29 December 2014, the pain was suddenly worse and investigated by lumbar CT scan which showed no evidence of any new damage;

(ii)   Ongoing depression and anxiety, with onset long before the accident.  The plaintiff had been suffering from anxiety and depression since 2007, treated by Dr Katz, who advised in a letter of 25 May 2014 that she had ongoing issues, including a chronic low-grade Mixed Anxiety and Depressive Disorder, abnormal illness behaviours with chronic fibromyalgia pain.  She was treated with Lexapro, 20 milligrams daily, and was not willing to see a psychologist;

(iii)   Chronic neck and shoulder pain, which was caused by a previous work injury, the symptoms of which still fluctuated;

(iv)   Other medical issues such as skin disease, urinary disorder and other issues which are not related to the accident and do not affect her recovery.  Her obesity was an important factor delaying rehabilitation.  Her low back pain and neck pain significantly affect her physical exercise to lose weight and she had been prescribed medication in that regard.

100     Dr Wang noted the plaintiff’s description of the injury circumstances implicated the defendant, as an insurance company will be responsible for her post-injury conditions in the absence of other possible causative factors.

101     Treatment included “Analgesia, Mersyndol forte, 450/30/5mg 1-2 bd tds prn”, which had been taken for years to treat the plaintiff’s neck and shoulder pain.  Post accident, she was still taking the medication for her low back pain.  She had had prescriptions of Lyrica and Tramadol once; however, she was not feeling well after that medication. He then thought she needed pain management specialist review and a reduction in Mersyndol Forte.  He thought TAC support for a power fit program, physiotherapy, hydrotherapy and gym should continue.

102     At that stage, Dr Wang was not clear for the prognosis.  He noted the plaintiff’s back and leg pain were still ongoing without any significant improvement post accident.  The symptoms had lasted longer than expected and he thought the MRI scan may help to make a clear diagnosis. He considered there were other factors which may influence her recovery.  For instance her mental condition and illness behaviours may affect her pain threshold, therefore regular counselling by a psychologist/psychiatrist may help her rehabilitation.

103     Dr Wang thought the plaintiff was not fit to return to work because ongoing low back pain was not improving, and chronic pain on the neck and shoulder was fluctuating, which affected her work capacity, as did her mental capacity.

104     In his most recent report of November 2019, Dr Wang again described the plaintiff’s complaints of:

(i)    chronic low back pain

(ii)   ongoing depression and anxiety; and

(iii)   chronic neck and shoulder pain.

105     Dr Wang noted that, unfortunately, the plaintiff’s low back and left leg pain had not improved but deteriorated intermittently with time.  She was reviewed by Mr Xenos and Professor Bittar and referred to Dr Gassin.

106     The plaintiff was referred to a psychologist in October 2017 but was not willing to see her for counselling.  Chronic neck and shoulder pain still fluctuate.

107     Dr Wang noted other medical conditions unrelated to the accident are not affecting the plaintiff’s recovery, such as chest pain; however, some medical issues, such as obesity, are significantly impacting her recovery, noting her low back pain and neck pain significantly affect her physical exercise to lose weight.

108     Dr Wang reported there was no record of low back pain previously at his surgery.  He noted the removal of the tumour was not improving the plaintiff’s symptoms, and that obviously, there were other unrevealed reasons to cause her current symptoms.

109     Dr Wang considered the accident and long-time ongoing low back pain and dysfunction were aggravating the plaintiff’s pre-accident mental stress, and her mental problem had been significantly impacting her physical suffering. Her neck, shoulder and upper back sufferings were affecting significantly her work capacity.

110     Treatment at that time was analgesia, Tramadol, 200 milligrams twice a day, and limited physiotherapy under Medicare. A future formal multidisciplinary rehabilitation program was suggested, together with ongoing psychotherapy.

111     Dr Wang thought the plaintiff’s back and leg pain was still ongoing without any significant improvement since the accident, having lasted longer than expected, and the diagnosis was still not clear.  Therefore, the prognosis for the low back and leg symptoms was poor, and the symptoms will continue in the future with a fluctuating pattern.  He thought the prognosis of her mental stress will not be optimistic.  He considered she is most likely permanently incapacitated for work in the future given her various conditions.

112     The plaintiff regularly attended for physiotherapy at AZZ Healthcare from 20 March 2014, throughout 2015 and 2016, once in 2017, eight times in 2018, twice last year, and she saw Mr Melamad most recently on 17 February this year.

113     Dr Gassin, musculoskeletal and pain management physician, wrote to Professor Bittar in September 2017 thanking him for referring the plaintiff.

114     The plaintiff reported she had suffered from severe lower back and left leg pain since the accident, having developed severe pain in that area immediately.  There was the subsequent tumour diagnosis and surgery.

115     The plaintiff advised that despite that surgery, she had suffered from ongoing lower back and left leg pain which had been gradually increasing in intensity.  It was constantly present and had a throbbing, shooting and cramping quality with associated numbness and pins and needles.  She had had a few falls due to loss of balance related to the sensation of weakness in her leg and back.

116     Dr Gassin noted the plaintiff had tried a range of medication over the years, including Lyrica that she had not been able to tolerate. She was then on Tramal and Mogadon, as well as a number of over-the-counter analgesics.

117     On examination, the plaintiff presented as a distressed lady, exhibiting significant abnormal pain.  She had a very limited range of lumbar spine movement in all planes due to severe low back pain.  Straight leg raising was significantly decreased, but much improved in sitting.  She was exquisitely tender to palpation throughout the lower back.  Neurological examination revealed decreased left knee jerk reflex, significant weakness in knee extension and hip flexion – which would not be consistent with her ability to weight bear – and loss of sensation in her stocking distribution up to the waist on the left.

118     Dr Gassin thought the plaintiff’s pain had some characteristic of neuropathic pain; however, the presentation was significantly influenced with non-physical factors, especially a high level distress related to her pain.

119     At that stage, Dr Gassin thought the most appropriate treatment would be for the plaintiff to be assessed by a physiotherapist and psychologist expert in pain management to deal with the psychosocial issues.  In the long term, he thought she may benefit from a multidisciplinary pain program.  Until a level of distress was significantly improved and non-physical factors dealt with, he thought interventional pain management strategies should be avoided.  He thought her current medication was appropriate and had made no arrangements to review her.

120     Professor Bittar reported in January 2019.  Having initially seen the plaintiff in May 2012, he reviewed her for the purpose of providing a neurosurgical opinion and treatment in September and December 2017, March 2018 and most recently, July 2018.

121     At the time of the first examination in 2012, the plaintiff complained of neck pain, bilateral arm pain and numbness and headaches.  She described heavy and repetitive work at George Weston, developing right hand and arm pain and then working on light duties.  There was a subsequent deterioration of her right upper limb pain with a continuation of light duties.  There was a further deterioration at work in 2006 when she complained of neck pain, back pain, right shoulder and right arm pain.  She continued to work on normal duties until she hurt her lower back after striking it against a metallic object in 2007. She did light duties for a period of time before returning to normal work and her lower back pain had since resolved.

122     The plaintiff’s neck pain, headaches and upper limb symptoms deteriorated during the course of her work between 2006 and 2009, and she ceased then due to her symptoms.

123     On the initial examination, the plaintiff’s complaints related to her neck, through to both arms and hands, and she was examined in relation thereto.

124     The next review was in September 2017 for a neurosurgical opinion.  The plaintiff then reported ongoing lower back pain, radiating into her legs, following the accident.

125     The plaintiff advised of the tumour in her lumbar spine and subsequent surgery, following which she had reported worsening pain.

126     Professor Bittar referred her to Dr Gassin.  Subsequent investigations were then undertaken.

127     On re-examination in December 2017, the plaintiff walked with a slow and slightly antalgic gait.  She had severe restriction of lumbar spine flexion and moderate restriction of extension.  There was bilateral lumbar paravertebral muscle spasm and tenderness over the lumbosacral junction on the left.

128     On review in March 2018, the plaintiff reported a further deterioration in her condition following a fall at home on 4 March 2018.  She complained of ongoing left-sided lower back pain radiating into her left leg.

129     Professor Bittar organised a further MRI scan in April 2018 which demonstrated the previous surgery in the upper spine with a broad-based disc bulge at L4-5 and L5-S1.  In July that year, the plaintiff had continued to struggle with low back and left leg pain, and he recommended physiotherapy and psychological treatment.

130     Professor Bittar diagnosed aggravation of cervical spondylosis with neck pain, arm pain and cervicogenic headaches.  This condition was work related, and he had not seen her in relation to her cervical spine since 2012.

131     Professor Bittar noted, on the basis of the summary of the general practitioner’s records, it is clear the plaintiff continued to experience symptoms related to her neck, with pain in her neck, back, shoulders and head being reported in March 2013 and May of that year.  She had a fall in a shopping centre in June 2013 and in November that year, was complaining of a number of symptoms, including neck pain.  No further references to neck or arm pain or headaches were made in the general practitioner’s records after that.[95] 

[95]This is incorrect

132     Professor Bittar thought the plaintiff’s pre-existing work-related neck condition may still be symptomatic; however, he did not have enough information to be able to form that view with any degree of confidence.

133     Professor Bittar also diagnosed aggravation of lumbar spondylosis relating to the accident.  He noted there were multiple entries in the doctors’ records referring to lower back pain following the accident, and based on that information, as well as what he obtained from the plaintiff, he thought the accident remains a significant contributing factor to her aggravation of lumbar spondylosis with ongoing lower back pain and leg pain.

134     Professor Bittar also noted the tumour, which he considered unrelated to the accident or any work injuries, had been successfully treated with surgery.  The plaintiff reported her back pain had been worse since that surgery and he thought it was likely that that surgery was contributing to her ongoing lower back pain and possibly also her left leg pain.

135     Noting the plaintiff was incapacitated for work because of her old neck injury, Professor Bittar thought she remained totally incapacitated for work.  In his view, she experienced a significant degree of disability as a result of her accident-related lumbar spine condition.  She suffers from ongoing lower back and leg pain and can only lift very light weights.  She cannot walk for long distances without aggravating her pain, and cannot sit or stand for more than short periods of time.   He thought her prognosis was poor.

Medico-legal evidence

136     Mr Ash Chehata, shoulder, elbow and wrist surgeon, saw the plaintiff on 7 December 2019. 

137     Having noted her treatment history, Mr Chehata reported that the plaintiff continues to suffer severe ongoing and unremitting pain relating to her back and it is now continuing to require Tramadol.  She is severely incapacitated and unable to sleep at night, bend, stretch and perform normal activities of daily living, and even struggling to mobilise normally.

138     Throughout the consultation, the plaintiff was unable to sit, and walked around.  She had stopped all treatment because of finances.  She was continuing to have severe chronic lumbar spine pain affecting all aspects of her daily living.

139     Mr Chehata noted the plaintiff had a significant past medical history regarding the spine from May 1987, when she suffered injury at Minster Carpets.   At that point she had some back pain, then, subsequently, on 27 July that year, fell down some stairs and again reaggravated her back.

140     The plaintiff was under the care of her general practitioner, Dr Roberts, who ordered investigations in 1987.  He noted the plaintiff required some time off but fully recovered, and then changed jobs, and on 26 June 1989, she sustained a shoulder and back injury, although required no time off work.

141     There was further low back pain following an incident at work in February 1996, June 2000, May 2002 and September 2007. 

142     Mr Chehata noted, while working for George Weston, the plaintiff ultimately stopped work and made a WorkCover claim on 10 November 2009, stopping all work that year. 

143     On examination, the plaintiff could do a straight leg raise on the left to 45 degrees.  She was only able to flex to 5 to 10 degrees in the lumbar spine, and had severe lower back pain with radiating pain down into her left leg and toes.

144     Mr Chehata thought the accident diagnosis was difficult to answer as there were no MRI scans which would be the sole mechanism of explaining whether or not the tumour was present at the time of the accident.  He thought the aggravation of degenerative change was really the primary focus rather than the tumour.  He considered it reasonable to suggest the accident remained a significant contributing factor to the aggravation of lumbar spondylosis and low back and leg pain. 

145     In his view, the prognosis was undoubtedly poor.  The long-term effects from the physical injury to the plaintiff’s lumbar spine alone as a result of the accident and aggravation of lumbar spondylosis have significantly affected her enjoyment of daily living.  She was unable to sit, stand or mobilise in a normal fashion and perform any normal activities such as washing or showering.  She can no longer bend, stretch or perform any activities such as lifting.

146     Mr Chehata noted the plaintiff was previously on significant analgesics, including Lyrica, Amitriptyline and Mogadon, with no improvement in neuropathic symptoms.  He then thought it likely she would remain with ongoing low back and leg symptoms.

Investigations

147     Following a CT scan of the plaintiff’s lumbosacral spine in September 1987, no abnormality was seen.  There was no evidence of spinal canal stenosis, disc protrusion or narrowing of the nerve root exit canal.

148     There was a CT scan of the lumbosacral spine in July 2009.  It was reported there was no significant lesion identified.  There was bilateral multi-level mild facet joint osteoarthritis, more prominent in the lower facet joints.  There was no evidence of disc herniation or canal stenosis.

149     Investigations carried out at Monash Imaging on 30 January 2013 showed anatomical alignment of the lumbar spine with no loss of vertebral height or intervertebral disc space.  There was no evidence of spondylolisthesis and the sacroiliac joints were normal in appearance.

150     There were spinal x-rays of three regions carried out at Monash Imaging in June 2013.  Alignment of the lumbar spine was within normal limits.  The vertebral body heights were maintained, with no fracture. The alignment of the cervical spine was normal, with no paravertebral soft tissue swelling or fracture. 

151     There was an MRI scan of the lumbar spine in December 2015.  There was no relevant previous imaging available for comparison.  It was reported there was linear-like enhancement in the left side in the thecal sac spanning the T12 to L2-3 level.  “This appears to represent a descending left-sided lumbar nerve root.  It raises the possibility of neuritis.”  No definite residual tumour was demonstrated.  There was minor, multi-level disc degeneration and no neural compromise.  In particular, the central canal, subarticular recesses and neural foramina appear adequate throughout.

152     There was an MRI scan of the lumbar spine with contrast in January 2017 following the removal of the tumour.

153     There was an x-ray of the lumbar spine in September 2017 showing only minimal excursion between flexion and extension.  Grade 1 retrolisthesis was noted at L2-3.  Lumbarisation of the first sacral segment was again noted.

154     There was an MRI scan of the lumbar spine in September 2017, following which it was reported there was no evidence of recurrent schwannoma and no definite evidence of neural impingement or stenosis.

The Defendant’s evidence 

Lay evidence 

155     Christopher Griffiths, the other driver involved in the accident, swore an affidavit on 7 November 2019. 

156     Immediately prior to the accident, there was a vehicle in front of him that was stopped at the red lights, intending to turn right.  The lights changed to green and he thought the vehicle in front had moved off; however, she had not, and he moved forward, and a small collision with the back of her vehicle occurred. The impact was minor – just a bump – and did not cause any injury to him.

157     Following the accident, both drivers got out of their vehicles and exchanged details.  The plaintiff did not say she was injured, and to his recollection, she was not restricted in her movements and appeared to be walking fine.

158     The vehicles involved were able to be driven away and continue on their journey.  He did not lodge an insurance claim.  There was no damage to his car, and just a couple of small scratches on hers.

159     Mr Griffiths received a card from Narre Warren police a few days after the accident asking him to contact them.  He did so and told them what happened.  They told him the lady in the other car had claimed her vehicle was a write-off and she had to go to hospital.  Mr Griffiths called into the police station and provided a statement, saying there was only minor damage to the other car and no apparent injury to the driver of that car. 

160     There was the Incident Report from the Traffic Incident System with an attached photograph of Mr Griffith’s car, with no apparent damage. 

Claim documentation

161     There were a number of Claim Forms submitted by the plaintiff between September 1996 and June 2011.  As the plaintiff deposed, she had made a number of WorkCover claims, mostly minor, while employed by several different employers. 

162     The most significant was a WorkCover claim with George Weston Foods involving an injury on 9 November 2005, as a result of which the plaintiff eventually had to stop work in 2009. 

163     The plaintiff’s Injury Claim Form in relation to that injury was signed on 10 November 2009.

164     The plaintiff set out at that the parts of the body affected were injury to the neck, shoulders, arms, hands, headaches, anxiety, depression, back.  Injury occurred as a result of rapid, repetitive and heavy duties as a process worker and machine packing operator.

Pre-accident medical treatment

165     Prior to the accident, the plaintiff had CT scans of her lumbosacral spine in March 1988 and May 2009, a CT scan of her brain in January 2008, CT scans of her cervical spine in July 2008 and May 2010, an x-ray of her cervical spine on 7 July 2009, an MRI scan of her cervical spine in August 2011 and liver function tests in March 2012.

Hospital attendances

166     On 15 September 2007, the plaintiff was attended by ambulance at Tip Top Bakery, who recorded she felt anxious, collapsed and fell to the ground.  “?Faint, pseudo faint.” 

167     The plaintiff was an inpatient at Dandenong and District Hospital from 22 March 2008 for three days. The present illness was “9/12 chronic low back pain after falling 3-4 steps at work .. sensitisation on whole of L leg ... had had episodes of leg sensitisation before.”

168     On 22 January 2010, ambulance records set out the plaintiff had an appointment at “Health Services Australia Ltd” where staff noted her eyes were “flickering, erratic breathing, suffering high stress at present.  Described back pain daily.  Taken to Casey Hospital.”

169     At the Hospital, it was noted the plaintiff had generalised back pain, described as aching, occipital pain, and also generalised neck pain.

170     On 14 October 2010, the plaintiff presented at Southern Health Emergency, having collapsed at home. 

171     The plaintiff has been a patient at Langton Medical Centre in Dandenong, since 1987, initially seeing Dr Baldwin and from December 2010, Dr Thornton.

172     Dr Thornton reported on 7 May 2012 that the plaintiff continued to complain of chronic pain, anxiety, depression and insomnia with all activities of daily living affected.

173     The plaintiff was seen by Dr Katz, psychiatrist, from late 2012.  At that stage, he thought she suffered from a significant depressive illness complicated by chronic pain in the context of ongoing issues in relation to her work and significant bereavement and losses that she had encountered in the last few years.

174     The plaintiff then had difficulties with her sleep, cried a lot and her motivation, energy and concentration had been impaired for a prolonged period. She often saw no future for herself and wished her life came to an end.

175     Dr Katz noted the plaintiff had had a number of physical illnesses over the years and he considered her chronic pain had become further exacerbated by an underlying depression.

Medico-legal pre accident

176     Associate Professor Balla, consultant neurologist, examined the plaintiff in December 2009 on behalf of Allianz.

177     The plaintiff then complained predominantly of neck and upper limb pain. She was depressed. She was then taking six to eight Mersyndol Forte a day, four to six Panadeine Forte a day , two Tramadol, one Mobic, and depression and sleep tablets.

178     As a result of her complaints, the plaintiff did very little at home and may just help her children with some of the housework.  Effectively, she was not able to do anything for long periods of time.

179     On examination, there was no evidence of neurological involvement and particularly radiculopathy. Associate Professor Balla thought the plaintiff’s pain was significantly complicated by no organic factors.

180     Mr Michael Dooley, orthopaedic surgeon, first saw the plaintiff in February 2011 on behalf of the defendant’s solicitors. 

181     The plaintiff then noted ongoing pain in her cervical, thoracic and lumbar spine regions and had been told she had seven bad discs in her spine.  She said she was depressed and anxious.

182     On examination, there was tenderness in the thoracic and lumbar spine regions and limited movement.  SLR on both sides was 50 degrees, at which time the plaintiff noted pain in the lumbar spine, aggravated by hip and knee flexion.  Ankle jerks were symmetrically reduced.

183     Mr Dooley thought it was relevant to be aware of a significant psychological reaction because continuing to treat the plaintiff’s pain as though it was organically based only was futile.  His clinical observation in relation to treating patients was if they had been exposed to significant stressors in the past, then they are more likely to develop a chronic pain syndrome following a soft tissue musculoskeletal injury sustained in a compensable fashion.

184     Mr Dooley accepted the plaintiff had at times aggravated underlying degenerative disc disease of the spine during the course of her work and from an orthopaedic viewpoint alone, he would expect such aggravations to cause symptoms that are relatively short lasting.  In his view, the plaintiff had had a major psychological reaction to her situation and that was responsible for a large majority of her ongoing symptomatology and for her current presentation.

185     Mr Dooley re-examined the plaintiff in April 2012.

186     Since the last review, the plaintiff said she noted ongoing neck and back pain and that she was depressed and stressed.  She “nearly collapses” because of the severity of her pain.

187     On physical examination, there was tenderness of the plaintiff’s lower lumbar spine, SLR was to 50 degrees, with resisted attempts to passively flex the knees and hips beyond that range because of lower back pain.  Power was difficult to assess in the lower limbs because of pain. Ankle reflexes were again symmetrically reduced.  Flexion and extension were limited.

188     Essentially, Mr Dooley’s views remained as outlined in his earlier report.  He thought the plaintiff had naturally occurring age-related degenerative disc disease of the cervical and lumbar spine regions.  He remained of the view she had developed a Chronic Pain Syndrome.  He thought the constancy and intensity of her ongoing pain was out of proportion to her underlying condition and any aggravation of it. He thought her psychological condition overwhelmed her presentation. 

189     From an orthopaedic viewpoint only, Mr Dooley would expect the plaintiff to note some intermittent cervical and thoracolumbar spine pain, which he would not expect to be significant. Essentially her prognosis depended on her psychological condition. 

190     Mr Kenneth Brearley, general surgeon, examined the plaintiff in December 2011 on behalf of her solicitors.

191     The plaintiff then said she felt quite unwell physically and psychologically.  Physically, her main problem was in the back of her neck, which radiated downwards and across the top of both shoulders. These symptoms were present for a few hours every day.  She said she had no problems with her lower back.  There were issues with numbness of her hands and fingers.  Psychologically, she suffered from anxiety and depression.

192     The plaintiff reported she had difficulty with the heavier aspects of the housework and was generally helped by her son.  She was unable to do gardening or lawn mowing, and she had no particular recreational or other interests.  She said she suffered an injury to her back in about 1987 at work, but that was short lived and the injury resolved quickly.

193     On lumbar examination, there was no abnormality.  There was some limitation of movement, but no complaint of pain and no muscle spasm. 

194     Mr Brearley diagnosed mechanical neck pain resulting from aggravation of pre-existing degenerative changes, consistent with the stated cause.  He thought another factor of importance was the development of quite severe anxiety and depression resulting from chronic pain and harassment at work. 

195     Mr Brearley considered the prognosis was not good and that the physical injury to the cervical spine would continue.

196     The plaintiff advised she did not have any problems with her lower back on that examination.  She did suffer from some lower back pain in about 2006, but there was no residual disability from any injury to the lumbar spine. 

197     Mr Brearley considered the prognosis was good and the plaintiff’s problems were confined to her neck and arms. 

198     Mr Kenneth Myers, general surgeon, examined the plaintiff in May 2012 at the request of her solicitors.

199     The plaintiff then said her worse problem was pain in the neck, extending into the upper arms, and associated with restricted movements of the neck and arms, for example doing up her bra.  Both arms were always weak, and she had headaches nearly every day and cried all the time.  She found it very hard to do the housework and her son did the heavy tasks.

200     Mr Myers found it impossible to examine the plaintiff because of exaggerated pain reactions.  There appeared to be minimal movement of the cervical spine and about 50 per cent restriction of all movement of both shoulders, causing her to collapse with apparent pain.

201     Mr Myers diagnosed aggravation of pre-existing previously asymptomatic degenerative cervical intervertebral disc disease and spondylitis caused by work.  He thought the plaintiff required referral to a pain management specialist. In his view, there would be long-term restriction of everyday activities, enjoyment of life and work capacity, setting aside any psychiatric condition. There was evidence of spondylitis, but he was not told of any ongoing significant disability in the lower back.  He thought any disability would be consistent with strains placed upon the back during work.

Psychiatric

202     Dr Nathan Serry, psychiatrist, examined the plaintiff in 2009 at the request of Allianz.

203     The plaintiff told Dr Serry that she tended not to do much at home as she felt so unwell.  She was particularly troubled by headaches and dizziness.  She now felt too unwell to maintain a perfect household as she did pre injury.

204     Dr Serry diagnosed an Adjustment Disorder with Anxious and Depressed features with a prominent somatic focus

205     Dr Nathar examined the plaintiff on behalf of her solicitors in August 2012.

206     The plaintiff then reported continuing to suffer from pain and stiffness.  She had a headache all the time in the back of the head.  She had pain spreading from the shoulders and also down the spine, where there was numbness, and many a time she could not move because of muscle tension.  She struggled with household duties.  She bent down and virtually crawled to do things.  She lived with her son, who was very helpful.

207     Dr Nathar diagnosed a Chronic Adjustment Disorder with Anxious and Depressed Mood and a Chronic Pain Disorder involving psychological factors and general medical conditions, also at a moderate degree.

208     Dr David Weissman examined the plaintiff on behalf of her solicitors in May 2012.

209     The plaintiff then told him she had pain in her neck at the back of her head, upper back to her shoulder blades.  She had pain in both arms, numbness and pins and needles in both hands. 

210     When asked about her leisure activities and hobbies, the plaintiff replied: “It’s hard I no enjoy anything.”  She found showering and dressing difficult, wearing easy clothing.  She did not cook every day like before.  She did light domestic chores only, nothing like before.  She could not do any gardening. She would go grocery shopping mainly with her friends.  She felt tired and weak and her walking distance fluctuated and varied.  She was able to drive, but some days she felt dizzy.  Some days she just felt like staying at home.

211     The plaintiff described her emotional state as bad, sad, upset and crying all the time.  She did not sleep much.  She had lost energy and felt tired. 

212     Based on that examination, Dr Weissman concluded the plaintiff was suffering from a Moderate Mixed Reactive Depressive and Anxiety Syndrome that satisfied the diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity.  On balance, he thought she had also sustained and developed a Chronic Pain Disorder associated with psychological features and a general medical condition. 

213     Dr Weissman thought there had been at least a moderate emotionally and psychologically-based decline and deterioration in the plaintiff’s social, leisure and recreational activities, hobbies and functioning.

214     Dr Ian Jackson examined the plaintiff on behalf of WorkCover in May 2012.

215     The plaintiff then reported always having pain in the back of her neck, both shoulders, both arms and the middle of the back at her bra line.  She described a variable pattern of sleep disturbance.  She also described obsessional brooding, and at times breaking down into tears almost always as to why she had been mistreated at work.

216     The plaintiff told Dr Jackson that, on a day to day basis, if she had had no treatment contact, she spent most of the day in bed, and later resting on the couch.  Friends asked her out but she usually rejected this, but tried to push herself to socialise more.

217     The plaintiff described, but did not present, with chronic depressive type symptoms secondary to pain.

218     Having been told of the plaintiff’s medication intake, Dr Jackson commented, from within his field of expertise, this must amount to addiction and abuse of prescribed medication, which must make a direct contribution to the limited functioning she described, chronic pain and apparent disabilities and depressive type symptoms.  Indeed, her robust, non-depressed and non-sedated presentation suggested that she had habituated to, and was thus physically addicted to her prescribed medication, particularly her narcotic analgesics and night sedative.

219     In describing a variable pattern of sleep disturbance, the plaintiff said she had a need for all the medication she could take the night before because of the appointment, she had taken four or eight Mersyndol Forte, along with her Avanza.  In general terms, she took Mersyndol Forte, usually eight, up to twelve a day, for many years.  She took the hypnotic Alodorm, presumably 5 milligram tablets, four to five a day, and sometimes six to eight.  She took the antidepressant, Avanza, regularly every night.

220     Dr Jackson thought the plaintiff was not suffering from a diagnosable psychiatric condition.  He noted she apparently had a long history of somatic and anxiety type complaints, along with chronic pain of no clear pathological origin, although she clearly associated it with her work. 

221     Dr Jackson thought there was no real evidence of a pain disorder or primary anxiety state.  The plaintiff gave a clear account of severe narcotic and analgesic addiction and abuse, which must make a major contribution to the limited lifestyle and depressive-type symptoms she described.

Post-accident medical treatment

222     Notes from Langton Medical Centre commenced on 5 March 1999 and continued until 20 February 2014. 

223     The plaintiff saw physiotherapist Michael Melamad at AZZ Healthcare on approximately 50 occasions between March 2014 and February this year. There were fewer visits after 2015.

224     There were several attendances in mid 2015 when the plaintiff reported feeling better or “good.” While on 26 June it was noted she was “v sore”, she could walk 20 minutes comfortably.    

225     In September 2013, psychiatrist Dr Katz noted the plaintiff continued to experience significant pain in her shoulder, neck and arm. Following an attendance on 25 November 2013, he thought her presentation was very much of abnormal illness behaviour amongst other issues including still some excessive medication use, depression, personality and cultural issues.   

226     In his report of February 2017, Mr Xenos noted the plaintiff’s presentation was chronic with regards to mechanical back pain and intermittent left leg symptoms of a neuropathic nature.  It was in the process of her general practitioner investigating with a CT scan and a subsequent MRI scan that the tumour was found.

227     While Mr Xenos was aware of the accident, his understanding was that no major spinal injury was sustained at that time and the plaintiff did not require hospitalisation, investigation or surgical treatment at that time.

228     Mr Xenos thought from a contributing factor point of view, there is a possibility that the tumour may be incidental, but there is still a real possibility that some of the back pain and left leg pain with sensory disturbance may be related to the growth of this tumour causing nerve compression.

229     Conversely, there was the possibility that if the plaintiff did have pre-existing lumbar spondylosis, that sustaining the accident where she was struck from behind, could have also aggravated her spinal condition, not only to cause lower back pain, but also to cause some left leg pain from a neuropraxia point of view. 

230     Further, if indeed the plaintiff already had a pre-existing small schwannoma there, the trauma sustained in the accident may also aggravate the nerve roots in the context of them already being somewhat squashed in regards to the presence of the tumour.  Thus, either way, both the spondylosis and the tumour in part could be contributing to the plaintiff’s lower back and leg symptoms.

Medico-legal evidence

231     Mr Dooley re-examined the plaintiff in May 2013, four months after the accident.

232     The plaintiff advised that since the last review in 2012, her condition had not changed.  Neck pain and shoulder girdle pain persisted.  She had occipital headaches.  A lot of the time she was crying and upset.  She stopped taking Mersyndol Forte because of the result of liver tests.  She said that “for around two years her existence consisted of to bed, to shower, to couch, to bed.”

233     The plaintiff advised that in the accident she was struck from behind and taken by ambulance to Berwick. She said she struck her forehead in the accident and afterwards was aware of a frontal headache.  She noted some lower back pain. 

234     On examination, there was tenderness of the lumbar spine.  There were identical findings to pre accident examination with lateral flexion and rotation to the left and right 10 degrees, flexion to 30 and extension to 10 degrees. Findings related to SLR and reflexes were also identical. The plaintiff withdrew from the SLR examination complaining of low back pain.

235     Mr Dooley confirmed that essentially diagnosis and findings remained as previously, and that the large majority of the plaintiff’s presentation related to her psychological condition. He again pointed out continuing to treat her condition as though it is organically based in the main is pointless, any ongoing physical treatment will only tend to reinforce the invalid role.  From an orthopaedic viewpoint only, he would expect her to note some intermittent neck and back pain.  From an orthopaedic point of view (re the work accident) there had been a minor loss of cervical and lumbar spine function.

236     Mr Peter Gard, orthopaedic surgeon, examined the plaintiff in November 2019.

237     The plaintiff described the accident circumstances when her stationary car was struck from behind at a red light.  As a result, she described hitting her head, probably on the steering wheel, which resulted in some head or facial bleeding, and also that she was driven underneath the steering wheel.  She specifically told Mr Gard that she had never had any lower back pain up until that accident, but at the time, she developed lower back and left leg pain, left more than right.

238     The plaintiff reported that after the accident she drove to the pathology lab where the nurse thought she felt unwell and an ambulance was called.  She was offered physiotherapy, but declined, and left the area and went to the Dandenong Hospital, where she was assessed. The history was that she was then recommended to follow up with her general practitioner.  She told him of ongoing lower back pain, but he was unsupportive, and she changed general practitioners to Dr Wang in March 2014.

239     The history was also that Dr Wang undertook an MRI scan and recommended some physiotherapy, hydrotherapy and gym, which was funded by TAC. By that time, the plaintiff reported that she found her legs to be generally swollen and the MRI scan revealed a benign incidental lesion in the high lumbar spine, for which the plaintiff had surgery in 2015. 

240     The plaintiff reported that surgery made no difference to her symptoms which, by that time and continuing to the present, consisted of back and leg shaking.  She reported she had had many falls and sometimes had no feeling in the entirety of her left leg.  There was also constant lower back pain which fluctuated in intensity, and was never absent, and sometimes severe.

241     The plaintiff advised she used Tramadol; Panadol Max, Nurofen and Voltaren cream.  She had previously been on Lyrica and Mersyndol Forte, which had not been stopped.

242     On examination, the lumbosacral spine had only a fair range of movement without undue discomfort.  Neurologically, the examination was normal.

243     Mr Gard noted that while the plaintiff had no recollection of lower back pain prior to the accident, she clearly had a long history of complaints regarding the lumbosacral spine and there was ample evidence for pre-existing early degenerative changes in that area, well summarised in Mr Dooley’s 2012 report before the accident.

244     Mr Gard concluded that in the accident the plaintiff had suffered a temporary aggravation of degenerative change in the lumbosacral spine without any lumbar fracture, disc pathology or neural impingement.  He noted she had suffered an incidental lesion in the form of schwannoma, which had been surgically treated, but made no difference to her back pain and symptoms.

245     Mr Gard would conclude that the physical injuries sustained in the accident had long since resolved and what the plaintiff is experiencing is the natural history of mild degenerative change in the lumbosacral spine.  He thought her symptoms were in excess of what may be expected from the extent of the accident and the relatively low level findings on many CT and MRI scans since.  He could not explain the excessive symptoms over the apparent low level pathology, other than to say the plaintiff is obviously experiencing some pain, but in excess of what would be expected.  He did not think there were any residual physical injuries from the accident.  The physical injuries that were pre-existing included degenerative changes to the cervical spine and shoulders. 

246     Overall, Mr Gard thought the prognosis for the physical injuries suffered in the accident is good, in that there appears to be no permanent damage and the mild degenerative change in the lumbosacral spine has not been accelerated.  He thought the physical injuries attributable to the accident would not have been expected to have had a significant effect on activities of daily living beyond a temporary exacerbation, which had long since resolved.  The effect of the physical injuries of the accident would have had a temporary effect on the plaintiff’s work capacity and the effect of that had long since resolved.

247     Mr Gard considered it was likely that the pre-existing unrelated physical injuries had had an effect on the plaintiff’s daily activities and work capacity in that she needed to move to a disability support pension rather than continuing work.  Since stopping work, those symptoms had not progressed significantly and perhaps slightly improved since the lack of repetitive movements she would have had to do at work.

Psychiatric

248     Dr Weissman re-examined the plaintiff in May 2013.  When asked if there had been any change since last seen, the plaintiff advised she was getting worse.  There were moments when her body got stuck and she could not lift up her head. She advised- “ Every move (I) make, I’ve tried everything in (my) power.’

249     Dr Weissman thought this was an extremely complex and difficult case because the plaintiff was an extremely difficult historian, there was a very complex interplay between her physical injury at work and alleged bullying that followed, and also because of her pain and pain presentation.  There is definitely a chronic pain disorder component with marked pain focus, pain pre-occupation, elevated health concerns and pain spreading from the original site of injury.

250     Diagnostically, Dr Weissman thought the plaintiff seemed to be suffering from at least a moderate mixed depressive and anxiety syndrome with worrying passive suicidal ideation, together with a chronic adjustment disorder with depressed and anxious mood of at least moderate intensity to severity. It was also quite clear she had a chronic pain disorder associated with psychological factors and a general medical condition which was significant and substantial.

251     The plaintiff did not complain to Dr Weissman of back pain. She did not mention the accident although it was less than three months earlier.

252     Dr Gregor Schutz examined the plaintiff in December 2019.

253     Dr Schutz considered a large amount of medical material, both pre and post- accident, from treaters and medico-legal examiners.

254     The plaintiff said her vehicle was stationary at the time of the accident and she heard a bang.  She was able to get out of the car but was in pain.  She stated she had gone under the steering wheel, there was blood on her head, she went to hospital, and she was in terrible back pain. She told him the ambulance paramedic screamed at her.

255     Dr Schutz noted the plaintiff had continued to see a psychiatrist, Dr Katz, on a regular basis.

256     Dr Schutz thought the plaintiff appeared strongly disability focused on examination.

257     The plaintiff claimed that she continued to ruminate in relation to the accident.  She reported a degree of hypervigilance.  Dr Schutz thought there were inconsistencies within her account and between her account and that of other sources in relation to the nature and extent of her psychiatric symptoms, as well as the timeline thereof.

258     Dr Schutz thought there was compelling contemporaneous evidence of substantial psychiatric pathology preceding the accident. While it would be overly speculative to diagnose a personality disorder on one examination, he considered there was strong evidence to indicate the plaintiff has substantial personality pathology. 

259     It had been noted by several parties that the plaintiff presented in an histrionic manner.  She was noted to have a history of abnormal illness behaviour. Dr Schutz thought it likely she had longstanding histrionic borderline and paranoid personality traits. She had a tendency to portray herself in the most favourable light to externalise responsibility and to have high levels of aggrievement and resentment.  She was disability and compensation focused and there was an associated high level of litigiousness.  She had a general perception of being mistreated, put down, not taken seriously and mocked.  He thought her personality style was likely to significantly impact on her interactions with others and perception of events.

260     Dr Schutz noted the plaintiff had longstanding and significant mood and anxiety difficulties, confirmed by her general practitioner as well as her psychiatrist, that would be best described as a chronic dysthymic disorder, an unspecified anxiety disorder, or chronic adjustment disorder with anxious and depressed mood. That had arisen in the context of several stressors, including claimed physical injuries, claimed bullying and harassment and a WorkCover claim.  There were also a number of bereavements which were likely to have predisposed her to the development of depression and dysphoria.

261     Dr Schutz also noted there was clear evidence of problematic medication use to the extent of a substance use disorder, the plaintiff having been on very high doses of Mersyndol Forte and Nitrazepam.  There had been evidence of drug seeking behaviour, as noted by her general practitioner and Dr Katz, and there was insufficient evidence that was in remission.

262     Having given careful consideration to the matter, Dr Schutz thought there was insufficient evidence as to whether any of these conditions had been exacerbated by the accident.

The Plaintiff’s serious injury affidavits

263     The plaintiff swore two affidavits in support of her s134AB application.

264     In her first affidavit, sworn on 25 October 2010, the plaintiff deposed that she was seeking a serious injury certificate on the basis of an impairment to her spine as a result of injury to her back, neck, shoulders, arms and psychiatric state.

265     Having worked at Buttercup, Sunny Crust, Tip Top – George Weston, the plaintiff returned to normal duties and 2006 developed pain in her neck, back, right shoulder and arm, for which she received treatment from Dr Baldwin and also physiotherapy.

266     In early September 2007, the plaintiff was suffering injury and restriction, particularly to her lumbar spine.  There were then periods of light and normal duties.

267     The plaintiff deposed that by January 2009, she was struggling to continue with her work as a result of the injury she had sustained to her neck, back, right shoulder and right hand, and being constantly criticised by her supervisor and team leader.

268     The plaintiff had worn a lumbar support belt under her clothes at work since 2005.

269     The plaintiff had not returned to work since 7 January 2009.  She collapsed on 8 May, when taken by ambulance to hospital, and she was subsequently attended by the CAT psychiatric team over three weeks.

270     The plaintiff currently had pain and restriction in her neck, shoulder, arms, hands and back. She was depressed and anxious and had sleeping difficulties.  She was restricted in her ability to lift objects of any weight and move her arms above head height.

271     The plaintiff swore a further affidavit on 19 July 2013.

272     Since her earlier affidavit, the plaintiff had continued to have pain in the neck and back of her head, with the pain worse on the right side.  She also had suffered numbness in the fingers of both hands.  She had frequent headaches and had weakness in her arms and suffered pain when she used them in daily activities.

273     The plaintiff’s injuries had caused severe difficulties in attending to her day to day activities.  Because she was a widow, she had to put up with pain to perform light cooking and cleaning.  Her son still lived with her and was of great help in performing heavier tasks at home and helping with the shopping.  She had a car and could drive when necessary, but occasionally suffered dizziness, which worried her.

274     The plaintiff was involved in a car accident in January that year and taken to Dandenong Hospital. She suffered lower back pain and hit her had on the right side. She saw Dr Thornton, but received no treatment.  She had started walking to try and keep fit and had to try hard to keep going.

275     The plaintiff was also being treated for anxiety and depression and referred to Dr Katz and was under his care.  She had seen Dr Lee from the Melbourne Pain Group, who recommended she attend Southern Health Pain Management, which was publicly funded. 

276     On 11 June 2013, the plaintiff fell to the floor in a shop, hitting the right side of her head and knee.  She was taken by ambulance to Dandenong Hospital, where she had a scan of her neck and brain, which she understood showed nothing significant as a result of the incident and she believed she had recovered from the effects of the fall.

277     Because of the pain that she suffered, the plaintiff had to take a lot of medication, despite warnings from Dr Thornton and Dr Katz that she may cause harm to herself.  She was prescribed Mersyndol and Mersyndol Forte, Alodorm and Lexapro.

The accident

Ambulance

278     It was noted on 30 January 2013:

“50 Y OF WAS DRIVING CAR STOPPED AT RED LIGHT, THE CAR BEHIND HAS DRIVEN UP THE REAR OF HER CAR, APPOX 10KM/HR, SCRATCHES TO REAR OF CAR. NIL DAMAGE.  PT ATTENDED PATHOLOGY FOR THE BLOOD TEST, STATED TO PATHOLOGIST SHE FELT SOB, AV CALLED, SEATBELT WORN, NIL LOC, PATHOLOGIST STATED PT WASN’T AS DRAMATIC WITH PAIN WHEN SHE CALLED AV. O/A TO CASEY HOSP, STAFF STATED PT COMES TO THIS HOSP REGULARLY WITH MENTAL HEALTH ISSUES.

… Lumbar region pain described as aching, radiating to (L) leg aggravated by movement & palpitation; able to weight bear; grips strong bilaterally; no other abnormalities detected”

279     It was noted back pain, post-minor motor vehicle accident, muscular - soft tissue pain.

280     The Casey Hospital Emergency Department read:

“… Stationary at traffic lights when struck from behind, Nil damage to pt’s car. The driven on to have pathology test and stated she was SOB post MCA. States has lumbar pain. Nil c spine tenderness. Pain all over head. Nil obvious injuries. Pain to L) upper chest wall and shooting pain down left leg. 3 mls penthrane phx mental health.”

281     The “History of presenting problem”, set out:

“PT states she was in serious car accident (ambulance report differs) where a car hit her from behind. Minor damage to car. Pt able to drive to pathology appointment. Reported feeling increasingly in pain and SOB. BIB ambulance.

PT reports 10/10 sharp lumbar back pain radiating bilaterally to hips and L) leg. Associated tingling/numbness in L) leg. Also describes pain all over head and sharp pain over L) shoulder and anterior chest.

Reports dizziness and difficulty maintaining balance, but able to walk with assistance

Previously well … .”

282     In terms of mental status psychiatric examination, it was noted “Preoccupied with MCA. Observed conversing normally in little distress with friend. GCS score 15/15.”

283     On lumbar examination, there was “nil redness, swelling, skin changes. Pt reluctant to attempt movements due to pain. +++ tender over back on light palpation.”

284     The provisional diagnosis was “Psychosomatic pain/minor MCA-related back strain”. The management was analgesics and reassurance, with general practitioner follow up.

285     “Progress Note 1” from physiotherapy set out the plaintiff had presented to Emergency post motor vehicle accident:

“low speed, varying speed and damage to the car … Has been walking after incident too and attended pathology appointment with nil significant issues.”

286     It was also noted that the plaintiff lived with her son, who was currently working in Bendigo. She normally ambulated independently with nil aids. She was independent in all activities of daily living and nil falls. There was a history of chronic neck pain:

“Reports she never had LBP. A supportive friend was in attendance -she reports she is able to help pt with DADLs and CADLs. Indep with PADLs.”

287     The patient reported no red flags, no leg or neuropathic pain.  She wanted to have a scan. There were no issues with sit to stand, there were no abnormalities on sitting balance, the plaintiff was able to ambulate short distances.  She was able to flex to the knees, only limited by general tenderness. There was no leg or buttock pain.  There was generalised tenderness paravertebral right and left.

288     The plaintiff was told about the importance of mobilising regularly and also changing position regularly.  She was happy with this and her friend also agreed that was required.  She was provided TAC information about accessing private physiotherapy and also provided with a private physiotherapy list. She was instructed to see a physiotherapist at the beginning of the next week.

289     “Progress Note 2” set out a history from “ambos” of a 10-kilometre per hour rear end impact.  The patient then went to have pre-arranged blood tests with no apparent problems or pain, then asked for an ambulance to be called and insisted on going to the Emergency Department:

“Informed by staff pt already contacted her lawyer re accident and waiting time in ED (second hand information).

Mild left SIJoint pain.

Able to independently mobilise in and out of chair post analgesia

…”

Southern Health

290     On 30 January 2013 at 21.49, it was noted:

“pt represents due to ongoing pain after being seen at Casey ED this afternoon post low speed MVA.”

291     In terms of past medical and psychiatric history, it was noted the plaintiff had:

“chronic neck + shoulder pain due to disc disease

Anxiety

Cholesterol.”

292     The history of the presenting problem was as follows:

“-    pt reports at approx 1230 being stationary in her vehicle at a red light at an intersection

-    another car rear-ended her car (at low speed)

-    she was able to get out of car, exchange details with other driver, proceed to a pathology appt.

-    while at pathology appt, developed upper chest and lower back pain and advised pathology clinic to call an ambulance.

-    presented to Casey ED for medical review

-    no significant injuries found and pt discharged w/ oral analgesia, pt frustrated as no xrays done, was in contact w/ TAC who suggested she represent given ongoing symptoms

-    pt reports she wants another review due to ongoing pain in upper chest and lower back

… .”

293     It was observed the plaintiff appeared well and was mobilised. The provisional diagnosis was strain of lower back and soft tissue injury to the upper chest from the seatbelt. Management was x-ray of the lumbar spine and analgesia.

294     On the Discharge Summary, it was noted:

“the pt states that she was in a serious car accident(ambulance report differs) where a car hit her from behind, Minor damage to the car….. Pt reports 10/10 sharp lumbar back pain… preoccupied with MCA. Observed conversing normally in little distress with friend.”

Post-accident ambulance and hospital attendances

295     On 11 June 2013, the plaintiff was seen by the ambulance after she had collapsed from a standing height onto a tiled floor at Food Works. Symptoms had resolved prior to the ambulance arrival.

296     The plaintiff also was attended by ambulance on 26 June 2013.  She had walked from home to the pharmacy when she felt strange and weak in the store, and an assistant contacted the ambulance. It was noted there was nil fainting or LOC. She stated she had had chronic pain issue for up to ten years, including headaches for six years. She had pain all over. It was noted her pain would increase with clinical questioning.

297     The plaintiff presented at Casey Emergency on 13 September 2016 for back pain. She was doing back stroke with a float under her, just kicking, and developed sharp pain in the lower back and legs.

Overview

298     There is no dispute that the plaintiff injured her lower back in the accident. However, the extent of any impairment related to that accident is in issue.[96]

[96]T118

299     The consensus of medical opinion is that the plaintiff suffered an aggravation of degenerative change in the lumbo sacral spine in the accident. While Mr Xenos diagnosed mechanical back pain, no fracture, discal pathology or neural impingement has been identified. Mr Gard is the only examiner who considered any aggravation had ceased.[97]

[97]T134

300     In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the accident is serious and permanent.

301     In Petkovski v Galletti,[98] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[98][1994] 1 VR 436

302     Also, in this case, the plaintiff has a number of other health issues.

303     In Peak Engineering & Anor v McKenzie,[99] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[99]supra

304     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[100]

[100]At paragraph [1]

305     The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[101]

[101]at paragraph [2]

306     Counsel for the defendant submitted this was a difficult, if not impossible task for the Court because of the credit issues, the nature and extent of the plaintiff’s non-organic and abnormal illness behaviour, and her collapses and drug-seeking behaviour which existed prior to the accident and continues to this day.

307     Issues of credit and the plaintiff’s pre accident back condition are closely interwoven in this case.

308As Maxwell P said in Haden:[102]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[102](supra) at paragraph [12]

309     Counsel for the defendant criticised the plaintiff in terms of the accuracy of her histories to doctors such as Dr Wang, Mr Xenos, and also Mr Gard that she had not had any back pain until the accident.[103]  

[103]T116

310     In contrast to the plaintiff’s denial, she was an inpatient at Dandenong Hospital in 1988 for low back and referred leg pain, she had a WorkCover claim for low back pain in 2007 and was on restricted duties due to that low back pain,

311     Further, in her 2010 affidavit, the plaintiff deposed to the development of neck and lumbar and right shoulder pain in 2006 at work, and suffering injury and restriction in her lumbar spine, so much she had been wearing a lumbar brace since 2005 and placed on restricted duties. However during the hearing, she explained the brace was for her leg and shoulder.

312     In her second s134AB affidavit, sworn just after the accident, the plaintiff then limited her back pain to upper back with no explanation, referring to the accident and seeking leave to commence proceedings for “damages my injuries.” While at  the serious injury hearing she limited her application to the neck, she had originally sought leave to bring proceedings for back, neck, shoulder and psychiatric injury.

313     It was also submitted there were issues as to reliability of the plaintiff’s account of the nature and extent of pain upon her functioning. For example, she stated that since the accident she could not sit at the table because of her back shaking and then falling; however, she was able to fly to Romania to see her mother, who was sick with cancer, in late 2014.[104]

[104]T105

314     Further, the plaintiff’s account of being unable to walk immediately post-accident as noted by Dr Wang was inconsistent with the ambulance notes and at Casey Hospital, where it was recorded the plaintiff had been walking after the accident.

315     In this case where it is suggested the plaintiff is fabricating or exaggerating the effects of her injury in terms of pain and suffering consequences, counsel for the defendant submitted her credit impacts heavily on the Court’s ability to make a determination about the nature and extent of the consequences

316     In response, counsel for the plaintiff submitted the plaintiff is a witness of truth. She clearly had difficulty in comprehending all of the matters put to her but nevertheless did her best.  It was submitted that “her life had thrown her two life altering injuries, and that should not of itself earn the distrust that is apparent in this case.”[105]

[105]T132

317     It was submitted the plaintiff’s pre-injury life was that of a hardworking immigrant who, despite suffering the tragic loss of her daughter in 2001 and husband in 2003, continued to work.

318     It was submitted the case put against the plaintiff is that she has “masterminded a fraud by hiding a pre-existing back complaint, deceptively underplaying the effects of her neck and shoulder condition “ through countless physiotherapy and medical appointments and dishonestly exaggerating her back to the point of undergoing back surgery.[106]

[106]T133

319     I do not have to accept that the plaintiff has masterminded a fraud to be critical of her credit and reliability. In my view, she was an unreliable witness. Her intense focus on any accident related back condition resulted in a denial of significant back problems and other restrictions pre accident and also a failure to acknowledge the effect of non-related conditions to the present date.

320     I do not accept the plaintiff’s explanation that she used a lumbar brace from 2005 for her neck nor is it believable that the restrictions she complained of in her 2010 affidavit did not involve her back as she had deposed was the case.[107]

[107]T84

321     I do not accept the plaintiff’s explanation that the word “back” in Romanian encompasses other parts of the body as she claimed.[108]

[108]T102

322     The plaintiff’s evidence as to the accident circumstances, was a clear example of her tendency to exaggerate the consequences of what was on any view a minor car accident at low speed.

323     While I accept there is no medical evidence that the accident impact could not have resulted in injury to the plaintiff,[109] her account of the impact and her behaviour in the hours thereafter, raise significant credit issues. 

[109]T117

324     In this respect, as counsel for the defendant submitted, there was the unchallenged evidence of Mr Griffiths that his car was stationary at the lights and simply bumped the plaintiff’s vehicle.[110] His evidence was of no complaint of back pain contrasted with her florid account of screaming “my low back; my low back. Further, there was no damage to his car and a couple of scratches on the plaintiff’s car and no insurance claim was ever made, which is to contrasted with her evidence that his insurance paid (and the photograph of the car).[111]

[110]T98-99

[111]T99

325     Further, the plaintiff alleged the impact forced her under the steering wheel, causing her head to bleed. However, Mr Griffiths made no mention of this and ambulance officers and staff at two hospitals did not observe any bleeding.   The plaintiff’s evidence that she still had blood on her face when she attended Dandenong seven hours after the accident was not corroborated by any record;[112]

[112]T100

326     At the time of the accident, the plaintiff gave an account of no damage to her car or only scratches to ambulance and hospital staff.  She even claimed the ambulance officers had screamed at her and told her “Go by yourself; we are not helping you.  This isn’t a big accident.”[113]

[113]T27

Pre-accident back condition

327     Counsel for the defendant submitted the plaintiff’s pre accident back and referred left leg pain complaints were numerous and significant. 

328     The plaintiff had been hospitalised and treated with Mersyndol Forte and Mogadon for the work-related back, neck and shoulder conditions. Issues with the back and left leg were first noted in 1988 when the plaintiff was an inpatient at Dandenong Hospital.[114] 

[114]T37

329     Further, on numerous occasions over the years, the plaintiff attended Langton Medical Centre for back pain and investigations of her back:

·        2001 – Back sore

·        2005 – Sore back.  Unable to go to work

·        2009 – At least six attendances for sore back when Mersyndol Forte and Mogadon had been prescribed.

·        2009 – CT scan undertaken for lumbar pain and referred left leg pain.

·        2010 – At least twelve attendances for sore back when Mersyndol Forte and Mogadon were prescribed. 

·        2011 – Attendances for sore back and one entry of alleging she was paralysed and crawling around on the floor.

·        2012 – At least three attendances specifically for back pain.  Other attendances for pain generally.

330     The plaintiff also complained of back pain to IME Mr Dooley, on two occasions before the accident, on examination in 2011 and 2012. It was submitted the plaintiff’s complaints to him and his examination findings were significant given their close proximity before and after the accident, when he saw her in May 2013. 

331     On examination in February 2011, the plaintiff described pain in back, lower limb pain and lumbar region pain.  In 2012, there was tenderness and restricted flexion.  Examination findings and range of lumbar movement were identical on these examinations and also in the post-accident examination in 2013.

332     Notably, in 2013, the plaintiff complained of pain and withdrew from the examination.  In 2012, she resisted attempts to passively flex her knees and hips beyond the range because of low back pain. Counsel for the defendant submitted that was a component of the plaintiff’s emotional or psychiatric presentation and not attributable to physical causes.[115]

[115]Peak Engineering & Anor v McKenzie [2014] VSCA 67; T108

333     In response, counsel for the plaintiff submitted the plaintiff’s back complaints were “fleeting” prior to the accident. Reliance was placed on her latest affidavit and her viva voce evidence.[116] 

[116]T7, T11- see paragraphs [14-18] of my Judgment

334     While the Particulars of Injury dated 15 September 2011 included the back, the successful serious injury application before Judge Lawson was limited to the cervical spine.[117]

[117]Dumitru v George Weston Foods Ltd [2013] VCC (5 August 2013)

335     When seen by Mr Brearley in December 2011, the plaintiff said physically her main problem was pain in the back of the neck and that she then had no problems with the lower back.[118]  He noted she suffered a back injury at work in about 1987 but that was short lived and the injury resolved completely. 

[118]T119

336     On examination, there was no abnormality of the back, there was some limitation of movement but no complaint of pain and no muscle spasm. While the plaintiff did suffer some low back pain in about 2006, Mr Brealey thought there was no residual disability from any lumbar spine injury.[119]

[119]T119

337     In May 2012, while he considered there was evidence of spondylosis, Mr Myers was not told of any ongoing significant disability in the low back.[120]

[120]T120

338     Further, in May 2012, the plaintiff told Dr Weissman of pain in a wide range of areas but made no complaint of lower back pain. She reported to Dr Jackson that month that her current symptoms were pain in the back of her neck, both shoulders and arms, and the middle of her back at her bra line.

339     It was submitted the considered, specific and fulsome descriptions provided by these reporting medico-legal practitioners should be preferred over clinical notes.[121]

[121]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]

340     It was also submitted if Dr Thornton’s February 2012 note that the plaintiff had to vacuum on her knees because of back pain was reflective of a low back complaint, it was inconceivable that such complaints would have been repeated to other medico-legal practitioners. Further, it was submitted the plaintiff’s explanation of the language difficulty associated with the Romanian word for “back” has veracity in the circumstances.[122]

[122]T121

341     Counsel for the plaintiff submitted that the plaintiff’s evidence was that in the period immediately before the accident, when her shoulder and neck consequences were most acute, she was able to manage her pain so as to function in a more productive manner than she can now.[123] She used to walk with the neighbours, with dogs and had no problem.[124]

[123]T121

[124]T13

342     Counsel relied on Professor Bittar’s 2012 examination where he focussed on the plaintiff’s neck complaints. That was to be contrasted with his post-accident examinations from 2017 which related principally to her lower back. When last seen in July 2018, Professor Bittar considered the plaintiff experienced a significant level of disability as a result of her accident-related back condition. She suffered from ongoing lower back pain and leg pain and could only lift very light weights. She could not walk distances without aggravating her pain and could not sit or stand for more than a short period.[125]

[125]T125

Findings

343     While the plaintiff may have not complained of lumbar pain in the year or so before the accident to the examiners relied upon by the plaintiff, she did report a significant level of restriction and incapacity.

344     In December 2011, the plaintiff told Mr Brearley she had difficulty with the heavier aspects of the housework and was generally helped by her son.  She was unable to do gardening or lawn mowing, and she had no particular recreational or other interests. 

345     The plaintiff told Mr Myers in May 2012 that her worst problem was pain in the neck, extending into the upper arms, and associated with restricted movements of the neck and arms, for example doing up her bra.[126] Both arms were always weak, and she had headaches nearly every day and cried all the time.  She found it very hard to do the housework and her son did the heavy tasks.

[126]A problem she later attributed to her back

346     When seen by Dr Weisman in May 2012, the plaintiff told him “it’s hard I enjoy nothing.” Showering and dressing were difficult and she had problems with housework. Her ability to walk distances fluctuated. She also told Dr Jackson in that month, on a day to day basis, if she had had no treatment contact, she spent most of the day in bed, and later resting on the couch.  Friends asked her out but she usually rejected this, but tried to push herself to socialise more.

347     In August 2012, the plaintiff told Dr Nathar she continued to suffer from pain and stiffness.  She had a headache all the time in the back of the head.  She had pain spreading from the shoulders and also down the spine, where there was numbness, and many a time she could not move because of muscle tension.  She struggled with household duties.  She bent down and virtually crawled to do things.  She lived with her son, who was very helpful.

348     There is no description of the plaintiff’s complaints and restrictions in Professor Bittar’s 2019 report when he simply detailed the 2012 examination which focussed on the plaintiff’s neck complaints.

349     I am mindful of what was said by the Court of Appeal in Dordev v Cowan[127] in relation to a plaintiff’s credit in this type of case. 

[127][2006] VSCA 254

350     As Chernov JA said,[128] a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[128]At paragraph [14]

351     Accordingly, in this case, what appear on their face to be medico-legal opinions, and Dr Wang, supportive of the plaintiff’s claim, accepting she had no back complaint prior to the accident, must be looked at in the light of my views as to the plaintiff’s credit.[129]

[129]T93

352     As noted earlier, the plaintiff made complaint of significant lumbar problems when seen by Mr Dooley before the accident. In April 2012, she told him she “nearly collapses” because of the severity of the pain.[130]

[130]T106

353     When seen in May 2013, three months after the accident, she told Mr Dooley her condition had not changed. She mentioned the accident but did not report a change in symptoms. He then noted for around two years that her existence has consisted of “bed to shower to couch to bed”. Lumbar examination findings were identical on all three examinations.

354     In my view, the plaintiff was functioning at a very low level before the accident. Her medication regime was significant. She was injury focussed and suffered from widespread pain, diagnosed by a number of practitioners as abnormal illness behaviour.

355     Neck and shoulder problems have continued as Dr Wang confirmed as do issues with depression and anxiety. Further, in his view, “obviously other unrevealed reasons cause the plaintiff’s current lower back symptoms.” Further, while the plaintiff maintained that she has had falls since the accident, she had them before.[131]

[131]See paragraph [80] of my Judgment

Pain

356     In Haden Engineering Pty Ltd v McKinnon,[132] President Maxwell set out the evidentiary basis of pain assessment will include the plaintiff’s account of pain, treatment undertaken, medical opinion about extent and intensity of pain and objective evidence about the disabling effect of the pain.

[132](2010) 31 VR 1

357     The plaintiff deposed to significant constant pain which flares up - travelling down her left leg, so severe she sometimes falls. While giving evidence, she described her situation in even more dramatic terms advising she could not sit for long enough to give evidence and had to be bedbound, otherwise she would collapse.

358     The plaintiff described her pain in similar terms on the most recent medico legal examinations with Mr Gard and Mr Chehata late last year.

359     There is no physical explanation for extraordinary level of pain from which the plaintiff claims to suffer. There has been the flavour of abnormal illness behaviour from an early time.[133]

[133]T109

360     Pre accident, both Associate Professor Balla in 2009 and later Mr Dooley in 2011 and 212 thought examination findings were no longer consistent with musculoskeletal pain and there were significant emotional factors involved. Mr Dooley thought continuing to treat the pain as though it was organically based was futile. In his view, the intensity and constancy of the plaintiff’s symptoms were out of proportion to her underlying condition and any aggravation thereof.

361     On examination in May 2012, Mr Myers found it impossible to examine the plaintiff because of her exaggerated pain reactions.

362     Dr Katz, in November 2013 and 2014, thought the plaintiff’s presentation was very much abnormal illness behaviour. Dr Schutz also noted abnormal illness behaviour in 2019. 

363     As counsel for the defendant submitted, significantly, pain specialist, Dr Robert Gassin, thought there was an inconsistent presentation on examination and that the plaintiff’s presentation was significantly influenced by non-physical factors and that interventional pain management should be avoided until her level of distress was significantly improved and those non-physical factors dealt with.[134]

[134]T114

364     Further, as of 2019, even Dr Wang thought that the plaintiff’s symptoms had lasted longer than expected and the diagnosis was not clear. He thought, obviously, there were other unrevealed reasons that caused the plaintiff’s current problems.[135]  He considered the plaintiff’s mental condition and illness behaviours may affect her pain threshold. There was ongoing depression and anxiety and the prognosis of the plaintiff’s mental state will not be optimistic.

[135]T114

365     As counsel for the defendant submitted the plaintiff’s drug-seeking behaviour and addiction make it difficult for the Court to undertake a proper analysis of the extent of the plaintiff’s pain as it was clear the doctors were encouraging her to reduce the medication in circumstances where they believed she did not need such high dosages to maintain her pain.[136]

[136]T103

366     This drug-seeking behaviour and drug misuse was noted by Dr Katz in November 2011 and 2013; Dr Thornton’s notes about drug-seeking behaviour and his refusal to prescribe any more medication on 12 February 2014, and the pharmacy letter to Dr Thornton of 30 July 2013, with the plaintiff soon thereafter changing to Dr Wang.

367     When considering the consequences of the compensable injury, I am also required to make findings about all the pain and suffering consequences which are operative at the date of hearing.[137]

[137]Peak Engineering (supra)

368     In my view, in addition to psychiatric factors and illness behaviour, the plaintiff’s neck and shoulder pain continue to play a part in her current presentation as Dr Wang confirmed – conditions which were said by the plaintiff to be causative of serious injury consequences in terms of her Workcover application.

369     As counsel for the defendant submitted there appears to be much less of a focus on these conditions by the plaintiff – and even a claimed recovery- following settlement of the WorkCover case when the plaintiff accepted a payout and paid off her house.[138] Since then, her focus has been primarily on her back, denying these other conditions play any role in her current presentation, although general practitioner attendances for neck and shoulder pain continued until 2015.

[138]T112

370     In his 2019 report, Dr Wang noted that both low back pain and chronic neck pain significantly affected the plaintiff’s ability to exercise and that chronic neck and shoulder pain still fluctuate.  

371     In 2019, Professor Bittar diagnosed aggravation cervical spondylosis and cervical headaches and thought the neck might be symptomatic still but did not have enough information to comment further.

372     When considering the cause of the plaintiff’s present lumbar pain another relevant matter is the laminectomy for removal of schwannoma[139] which all specialists agree had no causal relationship to the accident. 

[139]T115

373     The plaintiff’s evidence in Court was contradictory at times, shifting between there being no change in her pain after that surgery, to saying her condition had worsened, and if she had known it would have been as bad as it was, she would never have had the surgery.[140]

[140]T115

374     The plaintiff told Professor Bittar of post-surgery worsening of symptoms and that surgery was contributing to the ongoing lower back and left leg pain. She  told Mr Gard that surgery made no difference to the back pain, which was to be contrasted with her account to Dr Wang and Mr Bittar and in Court that her pain worsened after the surgery.[141]

[141]T115

Treatment

375     Counsel for the plaintiff submitted the plaintiff’s recent treatment has been predominantly focused on her back, relying on the physiotherapy treatments at Az Health. Further, she attended her gp from soon after the accident.[142]

[142]T124-5

376     The plaintiff also underwent surgery from Mr Xenos which was both therapeutic and diagnostic. It was submitted highly relevant that Mr Xenos operated to remove the non-compensable intradural tumour, presumedly convinced the plaintiff’s back symptoms had an organic origin.[143]

[143]T129

377     While counsel for the plaintiff did not rely on the need for pain medication as a consequence of the accident injury, it was submitted that the prescription of Targin some time after the accident was relevant.[144]

[144]T128

378     In response, counsel for the plaintiff submitted there was little treatment in the year after the accident. There was no evidence the plaintiff undertook any physiotherapy that year as recommended by Casey Hospital. The plaintiff has not provided any report from any treater who allegedly treated her in 2013. Physiotherapy commenced after the finalisation of her WorkCover case, when she expressed an intention to consider physiotherapy, as Dr Thornton confirmed.

379     Further, it was submitted the physiotherapy notes demonstrate an improvement in function, with an ability to walk comfortably for twenty minutes, and increasing exercise tolerance and recommendations for increased activity, all prior to the tumour surgery.  On 26 June 2015, it was noted the plaintiff could walk for twenty minutes comfortably.

380     It was also submitted the plaintiff’s current medication regime is greatly reduced from what she was taking for her WorkCover injury.

381     The plaintiff agreed she was on a large amount of medication before the accident .[145]

[145]T45

382     In 2009, Associate Professor Balla noted the plaintiff’s heavy medication regime.  On 6 March 2012, Dr Thornton reported that on average the plaintiff was having around nine Mersyndol Forte a day.  Later that year, in August, she was taking 100 Alodorm a month, only at four per night.  In January 2013, she was taking one to two Mersyndol Forte tablets three times a day and Alodorm, 5 milligrams, four nocte.

383     The first mention of the accident in the general practitioner’s notes was on 5 February 2013, when it was noted the plaintiff was “feeling better”.  Eight days later, no medication was prescribed.

384     On 7 March 2013, it was noted the plaintiff had reduced Mersyndol and was off Panadeine Forte.  Later that month, she was requesting Mersyndol Forte and had cut back the Alodorm.

385     From 14 March 2014 onwards, the plaintiff was taking two Alodorm and Mersyndol Forte, tablets three times a day, but the Alodorm at lower doses, one daily – increasing to four daily on 14 April 2014.  In April 2014, Mersyndol was reduced to two tablets twice a day but increased again later that month.

386     There was a further change in the plaintiff’s treatment regime following the tumour surgery:[146]

[146]T109

(i)    On 26 November 2015, Targin and Tramadol SR were prescribed;  

(ii)   On 13 March 2016, Mogadon was prescribed;  

(iii)   On 1 April 2016, Endone was prescribed.

387     In September 2016, liver function tests were all normal and Mogadon was reduced to three tablets at night.  Over 2016 to 2017, Tramadol and Endone were prescribed.  Over 2017 to 2018, Mogadon and Tramadol were prescribed at constant doses.

388     Dr Wang noted, as of 3 December 2019, the current treatment was Tramadol twice a day and physiotherapy.

389     While counsel for the plaintiff focused on the amount of physio treatment, that did not commence for a year later. The plaintiff first saw “Michael” in March 2014 although her claim had been accepted at an early stage and physio suggested at the Hospital.

390     I am not satisfied the plaintiff had any accident related treatment before that time. Treatment for her back commenced after her Workcover claim had settled as her treater at that time, Dr Thornton confirmed. I am not satisfied there was any confusion about the plaintiff’s entitlement to medical and like expenses after the accident.[147]

[147]T135

391     The plaintiff did not see Professor Bittar in relation to any back complaint until September 2017, over four years after the accident on referral from Dr Wang for a neurological opinion.  He suggested conservative treatment and referred her to Dr Gassin for pain management. Dr Gassin however was not prepared to commence that treatment until the plaintiff’s psychological state settled.

392     While the plaintiff underwent surgery, as counsel for the defendant submitted, absent the tumour, there was no evidence whatsoever that she would have been operated upon.[148]

[148]T136

Other activities

393     Counsel for the plaintiff submitted the plaintiff in her most recent affidavit described a more limited and social routine post-accident and not going out as much. In re-examination, she described the reduction in cooking, increased need to be bedbound and the comparison of pain levels from her neck and shoulders to her current back condition.[149]

[149]T122

394     In my view however, a number of activities the plaintiff claims have been affected by her accident back injury were significantly compromised before the accident.

395     As a result of her headaches, neck and shoulder problems, the plaintiff had significant issues with general mobility, gardening, housework, cooking, personal care,[150] driving, walking, sleep and visiting family.

[150]Told Mr Myers in May 2012 problems doing up bra due to neck pain

396     Taking into account all the evidence, I am not satisfied the consequences of any accident related aggravation of her lumbar spine condition are serious.

397     Accordingly, the application is dismissed.

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