Felli v TAC
[2016] VCC 1913
•13 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06520
| Kathryn Felli | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17-18 November 2016 | |
DATE OF JUDGMENT: | 13 December 2016 | |
CASE MAY BE CITED AS: | Felli v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1913 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: TRANSPORT ACCIDENT – s.93(17) of the Transport Accident Act 1986 (Vic) – serious long term impairment of cervico-thoracic spine – severe long term behavioural disturbance
Legislation Cited: Transport Accident Act 1986 (Vic)
Judgment: Leave is granted to the plaintiff to issue common law proceedings in respect of the injuries sustained in the transport accident on 7 November 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Spitaleri | Slater and Gordon |
| For the Defendant | Mr P Rattray QC with Mr P Gates | Transport Accident Commission |
HER HONOUR:
1 The plaintiff, who is 46 years old, applies under s.93(17) of the Transport Accident Act 1986 (Vic) (“the Act”) for leave to issue proceedings for the recovery of damages in respect of a serious long-term impairment of the function of the cervico-thoracic spine and a severe long-term behavioural disturbance resulting from injuries sustained in a transport accident which occurred on 7 November 2009 (“the last transport accident”). The plaintiff had previously been involved in three other transport accidents. There were no relevant sequelae of the second and third transport accidents. The relevant sequelae of the first transport accident were such that the application in respect of the last transport accident is put as one of aggravation of soft tissue injury to the cervico-thoracic spine, with resulting neck pain and some cervico-genic headaches. As part of the sub-paragraph (a) application, the plaintiff also relies on a mild Chronic Adjustment Disorder with Depressed and Anxious Mood flowing from the physical sequelae of the last transport accident. In relation to the application under sub-paragraph (c) of the definition of “serious injury”, the plaintiff relies on mild chronic post-traumatic stress and anxiety symptoms and a Chronic Pain Disorder (also known as a Somatic Pain Disorder).
2 The defendant says that the plaintiff’s application should fail for a number of reasons. Firstly, that few of the treating or examining doctors were made aware that the plaintiff had been involved in four, rather than two or three transport accidents, and none of them disentangle the consequences in respect of the first and last transport accidents. Some even ascribe more importance to the first transport accident. The plaintiff bears the burden of demonstrating the extent of the additional organic and psychological impairment, if any, flowing from the last transport accident, and she has failed to discharge that burden. Secondly, the sequelae of the organic and the psychological impairments do not meet the necessary threshold. In relation to the impairment of the function of the cervico-thoracic spine, taking the plaintiff’s case at its highest, the defendant relies on the conclusions of Mr O’Brien[1] and Mr Dickens[2] that she suffers some mild non-specific thoracic pain, which is influenced by psychosocial factors, but that she is physically capable of the modified duties she is doing and is minimally limited in her general, social, domestic and recreational activities. The defendant also relies on the medico-legal opinions of Mr Boys[3] and Mr Fraser[4] to the effect that the physical examination findings are normal, that any soft tissue strain symptoms must have resolved, and that her physical complaints are entirely due to non-organic factors.
[1] PCB p.64c; 64h-i
[2] PCB p.64q
[3] DCB p.12
[4] DCB p.23
3 In relation to the psychological impairment, the defendant relies on the assessment of Dr Entwistle[5] that, as at 10 November 2015, the plaintiff did not present with any diagnosable mental illness or disorder, and that, if previously diagnosed, any depressive, anxiety or post-traumatic symptoms were in remission with treatment. In relation to the opinion of Dr Weissman, the defendant relies on his conclusions[6] that, from a psychiatric perspective, the psychiatric conditions flowing from each of two transport accidents (the first and the last) would be closer to mild than moderate, and that the plaintiff retains a full capacity to study and/or perform suitable work.
[5] DCB p.20
[6] DCB p.20
4 I turn to the plaintiff’s background, education and work history. She left school in 1986 after completing Year 10, completed a hairdressing apprenticeship and worked as a hairdresser for a year before marrying and having children. They are now aged 21 and 19. She separated from her husband in 1995 and began doing temporary agency work around her parenting commitments. By 2008, she was ready to look for more work, and did some full time casual picking and packing work for Specsavers at their warehouse. She accepted a full time position there in late July 2008 as a Warehouse/Dispatch Operative. She was earning about $40,000 per annum. She currently lives with her mother and daughter in a bungalow at her mother’s house.
5 The plaintiff has been involved in four transport accidents. The first was on 29 2 May 2008, when the car she was driving was struck from behind at considerable speed and pushed into the car in front. Her car was written off. The second and third transports accident on 3 June and 3 August 2008 were minor ones, causing no ongoing sequelae.[7] The last transport accident occurred when she was sitting in her parked car in Werribee and a Learner driver crashed into the side of her car while he was trying to park. Her car suffered minor damage.[8]
[7] PCB p.8-9 paras.9-11
[8] DCB p.150
Sequelae of the first transport accident
6 She suffered immediate pain in the neck and head, and stated in her first affidavit [9] that she suffered a “whiplash type injury” in this accident. The next day, she saw a doctor, and complained of some neck and upper back pain at that time but no medication was prescribed. She was referred to have x-rays of her neck, but did not have them done. She took some pain killers but otherwise had no treatment at that time. However, she continued to have some ongoing upper back pain, and saw her doctor, Dr Stesin, in April 2009. He ordered some x-rays which showed loss of height at T6. She was having some trouble at work due to ongoing upper back and neck pain, but was determined to keep working and avoided having any treatment.[10]
[9] PCB p.8
[10] PCB p.13
7 In cross-examination, the plaintiff agreed that she told Dr Stesin on 28 April 2009[11] that she had a sore back and neck for a long time and agreed that this might have been the case since the first transport accident. She agreed that she thought she received a crush fracture at T6 in the first accident, but only became aware of this alleged fracture after October 2009.
[11] DCB p.70
8 There is no mention in the plaintiff’s affidavit material of any psychological sequelae of the first transport accident. The plaintiff said that apart from a headache at the time of the collision, she had no headaches at all after the first transport accident.[12]
[12] Transcript p.27
9 The plaintiff’s daughter, Ashlee Felli, provided an affidavit[13] in which she stated that after the first transport accident the plaintiff had very little medical treatment, continued to work at Specsavers and, shortly thereafter was appointed to a full time position there in the warehouse. She and the plaintiff worked together at Specsavers doing similar duties for around 6 months, and she did not observe the plaintiff being restricted in carrying out her duties. She stated that the plaintiff continued to work full time after the second and third transport accidents.
[13] PCB p.19
Situation immediately prior to the last transport accident
10 In cross-examination, the plaintiff agreed that she was having trouble at work in the month or so before the last transport accident, saw Dr Stesin in relation to the back pain, but also sought clearance from him to work full time and overtime. Dr Stesin provided her with a report to this effect.[14]
[14] PCB p.111a
11 In re-examination, the plaintiff said that, for the period between the first transport accident and the last transport accident, she was working full-time and overtime on normal duties,[15] not getting regular treatment for her neck or upper back, and not taking any medication.
[15] Transcript p.54, ln.27-29
Sequelae of the last transport accident
12 On 11 December 2009, the plaintiff attended her doctor complaining of “pain in the spine” which she attributed to the last transport accident. She was prescribed Panadol Osteo and referred for CT scan of the thoracic spine which was taken on 18 December 2009[16] and which was reported[17] with the following conclusion:
Conclusion: There is some degenerative spondylosis seen in the mid and lower thoracic spine. No compression fracture seen.
[16] DCB p.93
[17] PCB p.112
13 She attended the doctor again on 21 December 2009, who noted[18]:
…Had another MCA on 7/11/2009, and then had pain in base of neck. C/O pins and needles in legs and pain in back of neck after walking 300 metres. She feels her body is shutting down. O/E tender all over spine. S1 scoliosis and ? s1 kyphosis. SLR and slump tests normal. Ankle jerks normal. X-rays show degenerative changes throughout spine. Try Brufen.
[18] DCB p.94
14 She then changed general practitioners and commenced seeing Dr Waid. She had some time off work between December 2009 and January 2010. In February 2010 she returned to work on modified duties but found that pain in her upper back became worse.[19] In early April 2010 Specsavers asked her to go on unpaid leave until she was fully fit for work. She had some physiotherapy.[20] She was unable to return to work and on 29 July 2010 her employment was terminated.
[19] PCB p.10
[20] PCB p.10
15 The plaintiff completed a Pain Management Program between August and October 2010. She had ongoing back pain[21] and on 2 December 2010, she had an MRI scan of the cervico-thoracic spine which was reported as normal.[22] She continued having physiotherapy.
[21] PCB p.10
[22] PCB p. 10; 116
16 Between August and October 2011 she worked through a recruitment agency as a picker/packer of clothes. She performed a similar, albeit heavier role, 40 hours per week, with Kmart, between November 2011 and February 2012, but could not continue due to upper back symptoms.[23]
[23] PCB p.11
17 In February 2012 she started receiving counselling from her then general practitioner, Dr Malekzadeh, who referred her to Dr Stephen de Graaff, whom she first saw on 25 May 2012[24] for pain management. Dr de Graaff prescribed Cymbalta and referred her to a Pain Management Program which she completed in mid-2012.
[24] PCB p.36
18 Between November 2012 and March 2013, the plaintiff worked 40 hours per week for Harris Scarfe doing modified, light duties. This work aggravated her pain.[25] As at the time of her first affidavit, in October 2013, the plaintiff had completed a Security Certificate 2 and was receiving a Newstart allowance.[26]
[25] PCB p.11
[26] PCB .11-12
19 Between mid-January and late April 2014, the plaintiff did security work on a casual basis at Etihad Stadium, mainly checking bags and doing patrols. She ceased this work when she was asked to work night doing 14-hour shifts outdoors.
20 She commenced psychological treatment in November 2015, first with Mr Aris, with whom she attended only 3 of 5 sessions[27], and then Ms Marianne Love[28] with whom she attended 5 sessions in October and November 2016.[29]
[27] PCB p.51
[28] PCB p.18b
[29] PCB 53b
21 On 17 December 2015, the plaintiff completed a refresher course in hairdressing, hoping to work part-time as a hairdresser. She found that elevating her arms aggravated her pain.[30] She then enrolled in a 6-month Certificate IV hairdressing course commencing in March 2016, but left the course after two months because she could not focus due to neck pain and headaches.[31] She then realised she would not return to work as a hairdresser.[32]
[30] PCB p.17
[31] PCB p.18c
[32] Transcript p.31
22 She commenced seeing a neurologist, Dr Yerra in April 2016, in relation to her headaches.
23 Between 1 September and October 2016, she obtained some casual work picking and packing at Mecca Cosmetics, but that work ran out. In October 2016, she started doing casual work 24 hours per week between 6am and 2pm at Coles Warehouse using a motorised trolley to gather items.[33] The work is light, but she continues to experience neck and upper back pain. However, the plaintiff said in cross-examination that she would work more hours if they became available.
[33] PCB p.18c
24 As to the sequelae of the last transport accident, the plaintiff stated in her first affidavit that “the pain has been much worse. I have stronger, constant pain. That pain was what initially caused me to stop work.[34]” In her second affidavit, the plaintiff stated that she continued to suffer pain in the neck and upper back. She stated that she was:
never pain free but the level of pain fluctuates. When it is bad, I would describe it as being 8/10. I would describe the pain as chronic. Some days are better than others but there is always some pain in my neck and upper back. The neck is the main problem and when I have back neck pain, I often get a headache. When I am in pain I have trouble concentrating and need to take painkillers and lie down.[35]
[34] PCB p.13
[35] PCB p.16
25 She was continuing to see a psychologist. She had been to Bali.
26 As at 19 October 2016, when she swore her third affidavit,[36] she stated that she continued to “suffer constant pain in my neck and upper back”[37], with the level of pain fluctuating but being “8/10 on bad days”[38]. She was taking Amitriptyline (prescribed by Dr Yerra for her headaches), Cymbalta and Lyrica. She felt depressed every day.[39] She was able to perform normal domestic chores but had difficulty with heavy tasks such as gardening. She was able to walk 10-15 minutes per day. She was not going out much, nor socialising with friends, because of her “pain and suffering”[40].
[36] PCB p.18b
[37] PCB p.18b
[38] PCB p.18b
[39] PCB p.18b
[40] PCB p.18c
27 She said that before the last transport accident she had a mortgage and was paying off some land she had bought. After the last transport accident, when she reduced her working hours down to 22 hours, she had to sell the land.
28 In cross-examination, the plaintiff insisted that her headaches began after the last transport accident, but became worse in 2011. She said that Dr de Graaff referred her to a neurologist, Dr Yerra, in relation to her headaches, and mentioned the possibility that botox injections might be considered to alleviate them. She agreed that Dr Waid’s clinical notes did not reveal any mention of headache, but said that she had told him she had “head tension”[41].
[41] Transcript p.43
29 In her affidavit, the plaintiff’s daughter stated that, after the last transport accident, the plaintiff “has not been the same person since that day. From that time, I have frequently seen my mother in physical pain and have witnessed the steady demise of her emotional state”[42]. She stated that the plaintiff did not work as often, was attending for medical treatment, and no longer did the gardening or taking her own mother to appointments. Finally, she noticed that there has been a marked decline in the plaintiff’s general appearance and pride.
[42] PCB p.19
Medical Evidence
Cervico-thoracic impairment – Treating Practitioners
30 Dr Saville Waid, general practitioner, has treated the plaintiff from 22 December 2009, and provided 5 medical reports[43] between 22 October 2010 and 11 October 2016. His clinical note of the first consultation was in the following terms:
[43] PCB p.23-32l
She has long history of back pain and has been under care blackshaws rd gp
Mva2008-whiplash at the time-probable cause of t6 vertebral crush #
Further mva 7/11/09 with increased pain as a result
She prefers and we agree need a spinal review
She is now on brufen and Panadol
31 In his first report, Dr Waid stated that the last transport accident “caused a substantial aggravation of pain, leading her to requiring time off work”[44] and seeing a doctor. She presented with persisting lower thoracic back pain. Examination confirmed reduced mobility of the lumbar and thoracic spine levels. She was referred for x-ray, neurosurgical opinion and for physiotherapy. Her pain levels increased during 2010. She was referred to pain management. She developed “some post traumatic anxiety/adjustment disorder” and was referred to a counsellor.[45] She told Dr Waid that “the pain and loss of mobility continued to restrict substantially all her ADLs[46]”. Dr Waid was unable to offer a long term prognosis for her.
[44] PCB p.23
[45] PCB p.24
[46] PCB p.24
32 Dr Waid’s second report, dated 23 July 2012, included an update in terms of treatment and referrals but was in largely similar terms.[47] His report of 24 July 2013[48] noted that she was suffering ongoing neck and shoulder pains requiring Panadol and Ibobrufen analgesia and physiotherapy. She was working part-time. She was taking anti-depressants (Cymbalta). In December 2015, Dr Waid reported[49] that her condition was unchanged, with ongoing neck and shoulder pain and low mood. On 11 October 2016, Dr Waid reported[50] that her headaches had become more severe in recent months. She was seeing a neurologist for the headaches. She required ongoing pain management from her specialists and ongoing psychological treatment.
[47] PCB p.26
[48] PCB p.29
[49] PCB p.32
[50] PCB p.32a
33 Dr Stephen de Graaff, Medical Director of Pain Services, at Epworth Rehabilitation, saw the plaintiff on 25 May 2012 and wrote to Dr Waid on that date.[51] He noted a history of two transport accidents, one in 2008 and one in 2009, in which she was hit from behind. He noted that she “sustained a compression fracture of T6 as well as a whiplash injury and has suffered with post-traumatic stress disorder”[52]. She had rehabilitated herself after treatment and was working full time in February 2012 doing warehouse duties when, on 10 February, she suffered a severe flare up of her pain at home comprising neck pain, upper back pain, paraesthesia in both upper limbs, as well as associated headaches and dizziness. He noted that it was not clear why the pain evolved, but that it had essentially continued unabated since that time. Prior to the flare-up, her pain was at the level of 4/10. When he saw her, it was at the level of 6-8/10. He noted that she ceased work at the time of the flare up of her pain and had not returned. She complained of significant neck stiffness, headaches and sleep disturbance. On examination of the cervical spine, he found tenderness and mild reduction of range of motion in all directions of around 10%. He found decreased range of motion by around 30% in the thoracic spine, with tenderness, particularly at the T6 level. He recommended a trial of Cymbalta for her pain and psychological symptoms.
[51] PCB p.36
[52] PCB p.36
34 On 8 March 2013, Dr de Graaff reported to Dr Waid[53] that the plaintiff had completed a pain management program, with “improvement in her pain profile”,[54] such that she was working full time. She was still having some issues with neck and shoulder pain. He recommended referral to a psychologist.
[53] PCB p.38
[54] PCB p.38
35 On 21 February 2014, Dr de Graaff reported to Dr Waid[55] that the plaintiff was working part-time in security work. She was continuing to suffer “mechanical neck pain with radiation of both upper limbs and associated cervicogenic headache”[56]. She had ceased taking Cymbalta and Brufen and was only taking Panadol Osteo. He recommended ongoing psychological support for her ongoing pain issues.
[55] PCB p.40
[56] PCB p.40
36 On 13 August 2014, Dr de Graaff reported to Dr Waid[57] that the plaintiff continued to suffer with thoracic pain during the day, but was more concerned with the neck pain overnight which was disturbing her sleep and giving her less than four hours total sleep. She was taking Cymbalta, Brufen and Panadol Osteo. He recommended a trial of Lyrica, some physiotherapy and counselling. On review on 3 December 2014, Dr de Graaff noted that Lyrica had helped the plaintiff sleep as well as function during the day. On 9 December 2015, Dr Graaff noted[58] that she was continuing to have neck and shoulder pain particularly at the end of the day, and was managing this with exercises.
[57] PCB p.42
[58] PCB p.47
37 On 24 February 2016, Dr de Graaff reported to the plaintiff’s solicitors[59] that the plaintiff “clearly has chronic pain involving neck and shoulders with associated headaches”[60] which have not been resolved by medication and pain management strategies. She continued to look for work. He felt that her condition was essentially stabilised, but that her prognosis is guarded given that she has suffered the headaches and neck pain for 6 years, in spite of treatment. He felt that work wise, she would be limited in her ability to sit or stand for long periods, work on a computer or above chest height. He felt that she was unlikely to be able to work full time but might manage appropriate part-time roles with a supportive employer.[61]
[59] PCB p.48a
[60] PCB p.48a
[61] PCB p.48b
38 Dr Raju Yerra, neurologist, has been treating the plaintiff for her headaches. He wrote to Dr Waid on 26 April 2016[62] that he felt that she was suffering from posttraumatic migraines “and there could be an element of cervicogenic headaches”[63]. In his medico-legal report dated 9 November 20160,[64] Dr Yerra noted that the plaintiff’s headaches worsened after the last transport accident. He felt that she suffered whiplash injuries in the first and last transport accidents leading to post-traumatic migraines, with “an element of cervicogenic (arising from the neck pain) headaches”[65]. He hoped that Botox injections might improve her headaches. He opined that “perhaps some element of cervicogenic headaches could be related to some underlying degenerative condition”[66]. On 4 October 2016, Dr Yerra wrote to Dr Waid that he had sought approval from TAC for botox injections for the plaintiff.[67]
Cervico-thoracic impairment - Medico-legal Reports
[62] PCB p.32g
[63] PCB p.32h
[64] PCB p.48c
[65] PCB p.48d
[66] PCB p.48e
[67] PCB p.48g
39 Mr John O’Brien, orthopaedic surgeon, reported on 29 December 2010[68] taking a history of two transport accidents (the first and the last). The plaintiff told Mr O’Brien that at the time of the last transport accident she was able to get out of the car and was not aware of any substantial injuries, but two days later suffered quite severe upper thoracic pain. Mr O’Brien concluded that the plaintiff had some restriction of movement in the cervical spine and “very definite tenderness[69]” in the upper half of the thoracic spine. He noted that x-rays confirmed a segment of Scheuermann’s disease with subsequent thoracic spondylosis extending from T5 to T8. He did not consider that there had been any traumatic fracture. He concluded that it was likely that the pre-existing thoracic spondylosis had been aggravated initially by the first motor vehicle accident and further aggravated by the last motor vehicle accident.[70] He concluded that her condition was stable, and could be managed with pain management, an active exercise program, and medication. He felt that it was possible the plaintiff could develop chronic cervico-thoracic pain, but stated that she presented with “mild disability” in relation to her general function.[71] She could not return to unrestricted employment and could not cope with any physical duties. He felt that each of the first and last transport accidents contributed half of her current level of impairment.
[68] PCB p.54
[69] PCB p.57
[70] PCB p.57
[71] PCB p.57
40 Dr Jonathan Hooper, orthopaedic surgeon, reported on 5 June 2011[72] that the plaintiff complained of neck pain, shoulder pain and arm pain.[73]
[72] DCB p.50
[73] This report was only relied on for evidence of complaints by the plaintiff.
41 Dr Robyn Horsley, occupational physician, reported to the plaintiff’s solicitors on 4 April 2012[74] that the plaintiff presented with ongoing mechanical cervico-thoracic pain and severe anxiety and depression. Dr Horsley felt that the thoracic dysfunction had resulted in a regional pain syndrome. At that time, Dr Horsley felt that the plaintiff’s primary disability was her psychiatric status and that at that time she had no work capacity on psychiatric grounds, but that in any event on physical grounds she would have to avoid her previous repetitive lifting and pushing and pulling and more into a more administrative role.
[74] PCB p.105
42 On 4 December 2012, Mr O’Brien reported[75] to the plaintiff’s solicitors that the plaintiff was working, but complained of constant pain in the upper back as well as frontal headaches. He concluded:
…Thus I would conclude that the patient has non-specific thoracic pain likely related to aggravation of some pre-existing thoracic spondylosis. I do consider that this problem which I believe is mild is in fact influenced by definite psycho-social factors with described flare-ups of pain, apparently being related more to increased stress levels than physical factors.
[75] PCB p.60
43 He felt that she had a fairly mild physical disability, and was capable of continuing to work in employment not involving heavy physical duties. He felt that she was “minimally limited in her general, social, domestic and recreational activities”[76].
[76] PCB p.63
44 Mr Robert Dickens, orthopaedic surgeon, reported on 14 August 2014[77] taking a history that the plaintiff had sharp pains in the head and neck after the first accident. She told him that her whiplash was aggravated in the last accident and she returned to work for 6 months but had a flare up in April of 2011 “for no apparent reason” after which she had ongoing pain in the neck and shoulders and thoracic spine. She told him the thoracic spine pain, which rated 7-8/10 was worse than the neck pain.[78] Mr Dickens diagnosed a soft tissue injury to the cervical spine as a result of the two transport accidents. He felt that the changes to T6 may be related to Scheuermann’s kyphosis. He felt that the last accident may have aggravated the underlying pathology producing symptoms but he did not consider that the compression itself was an accident-related problem. He considered that the first transport accident caused a soft tissue injury in the cervical spine which was aggravated in the last accident. In addition, the last accident caused a soft tissue injury to the thoracic spine which aggravated the underlying pathology in the thoracic spine.[79] In this regard, he noted:[80]
….unfortunately people who have Scheuermann’s changes in the thoracic vertebra when sustaining an injury sometimes go on to have prolonged pain in that area. I suspect that this is what is occurring in this patient. She has now developed what I would regard as a chronic pain situation.
[77] PCB p.64j
[78] PCB p.64m
[79] PCB p.64q
[80] PCB p.64r
45 Mr Dickens noted plaintiff’s inability to walk more than 20 minutes because of thoracic spine pain, inability to drive long distances because of pain, fatigue and anxiety, an ability to groom herself, to cook, wash and hang clothes out. She was not socialising much. He felt that she was capable of performing sedentary work. He felt that self-management along with medication was the appropriate strategy and no other treatment was required.
46 Dr Peter Boys, orthopaedic surgeon, reported on 11 November 2015[81] a complaint of neck pain with difficulty on rotation, and thoracic daily “low grade” pain.[82] He found full range of motion of the cervical spine and the thoracic spine. He diagnosed minor soft tissue injury to the neck and back resulting from the jarring which occurred during the last transport accident. He concluded that there was no evidence of an “ongoing musculoskeletal condition” which can be attributed to any of the three transport accidents she reported. He felt that she presented with chronic neck and mid back strain symptoms. He felt that the radiological evidence was of widespread degenerative changes which were consistent with Scheuermann’s disease. There was no evidence of an acute fracture suffered in any of the transport accident. He felt there “was no apparent functional incapacity”[83]. He concluded:
…I believe this lady’s principal disabilities at this time do relate to psychological issues.
[81] DCB p.6
[82] DCB p.10
[83] DCB p.12
47 Dr Kevin Fraser, rheumatologist, reported on 16 October 2015[84] that physical examination of the cervical and thoracic spine was normal, although she complained of some discomfort at the extremes of the range of cervical movement and of some local tenderness in the mid-thoracic region. He found “only a very mild mid-thoracic kyphosis”[85]. He conceded that she may have suffered soft tissue injuries and temporary symptomatic aggravation of the pre-existing degenerative changes as a result of the first transport accident, and that she may have suffered “further soft tissue strains in the last motor vehicle accident but at this stage it is inconceivable that they have not long since resolved”[86]. He concluded that there was no “ongoing transport accident related injury in this case” and that her current symptoms “are probably entirely due to non-organic factors[87]”.
[84] DCB p.21
[85] DCB p.22
[86] DCB p.23
[87] DCB p.23
48 On 23 February 2016, Mr O’Brien reviewed the plaintiff and reported[88] that she was managing the activities of daily living including shopping but was not doing gardening. She was not working. He again reported that she again demonstrated minimal physical signs and concluded:
…There is noted to be basically unrestricted range of the cervical and thoraco-lumbar spine, reported tenderness in the upper thoraic and cervical area. This is certainly not diagnostic of significant skeletal pathology and I would again conclude that the patient continues to present with chronic non-specific upper thoracic and cervical pain. Indeed the signs continue to suggest the overall clinical presentation is influenced by psycho-social factors.
[88] PCB p.64a
49 On 7 September 2016, Mr O’Brien reported[89] the plaintiff complained of similar symptoms, which she described as being constant and of a severity of 8/10 on the Visual Analogue Scale, which was aggravated by prolonged sitting and standing and by stress. She was taking Cymbalta and Lyrica. She was working full-time. He repeated the conclusions as summarised at paragraph 48 above.
Psychological Impairment – Treating Practitioners
[89] PCB p.64f
50 Dr Malekzadeh, general practitioner, provided psychological assessment and treatment of the plaintiff on 19 occasions between 15 February and 20 December 2012. He reported on 4 February 2013[90] that the plaintiff was suffering moderately severe anxiety/depression. He felt that she had “improved a lot” from a psychological point of view[91] but needed ongoing medication in the form of anti-depressants, and that she needed referral to a psychiatrist and dietician for her eating disorder.
[90] PCB p.33
[91] PCB p.35
51 The plaintiff attended Anthony Aris, psychologist, for treatment on 3 occasions but cancelled the two subsequent appointments. Mr Aris reported on 29 January 2016[92] a diagnosis of Major Depressive Disorder.
[92] PCB p.49
52 The plaintiff then attended Marianne Love, psychologist, for five sessions in October and November 2016. Ms Love reported on 6 November 2016[93] that she received a history from the plaintiff of “two car accidents that caused intense ongoing pain that has limited her ability to work and impacted significantly on her physical and emotional wellbeing”[94]. She was working about 25 hours per week, and managed the pain on workdays without medication. On a good day, the pain level would be 6 out of 10. Ms Love diagnosed a “major depressive disorder with moderate anxious distress”[95] as a result of the 2009 accident. She noted that the plaintiff was extremely depressed in the 18 months after November 2009 when the pain levels were at the ten out ten, and has struggled to manage the pain since then. She recommended that the plaintiff continue working and continue therapy.
Psychological Impairment - Medico-Legal Reports
[93] PCB p.53a
[94] PCB p.53c
[95] PCB p.53f
53 Dr Timothy Entwistle reported to the TAC on 10 November 2015 receiving a history of three transport accidents from the plaintiff. She told him that after the first transport accident she suffered persistent upper back but returned to work, and that after the last transport accident she had investigations which revealed an “undisplaced compressed fracture of her thoracic vertebrae”[96]. She complained of pain in the neck and a spot over the thoracic spine “at the fracture site”[97]and of headaches. She described a normal range of activities and ADLs. She did not describe any traumatising symptoms, but there “were themes of chronic pain”[98]. At the time of his assessment, he did not find any symptoms of post-traumatic stress and anxiety or reactive depression. To the extent that other doctors had found such symptoms earlier, he concluded that “those symptoms were in remission with treatment” and that she “does not present with psychological symptoms which occur at a clinical level at the time of my assessment”[99].
[96] DCB p.17
[97] DCB p.18
[98] DCB p.19
[99] DCB p.20
54 Dr David Weissman, psychiatrist, provided four reports to the plaintiff’s solicitors[100]. In his first report[101] dated 7 February 2011, he noted taking a history from the plaintiff of two transport accidents on 29 May 2008 and 7 November 2009), the first of which was “more significant and major for her”[102]. She told him that she kept working until the last accident and was experiencing ongoing back pain and neck pain but not receiving any treatment. She told him that in the last accident, she sustained neck pain and aggravation of her thoracic pain. She was taking Brufen and Panadol. She was experiencing headaches which interrupted her concentration and memory. She told him that her leisure activities and hobbies were limited after the last accident, and that she had worked up to seven days a week before it, saving to buy a house and land package. Since the last accident, she had to remain living with her mother and two children, which depressed her. She was not doing anything and tended not to leave the house. She was able to walk and drive for up to half an hour but then suffered pain. Her sleep was disturbed at night due to pain. She was irritable and frustrated because of constant pain. She thought about the first accident every day, and had bad dreams about it, as well as seeing images of it. She felt that it changed her life. She also had images of the last accident. Dr Weissman noted that she “came across as very straightforward, honest, genuine historian”[103] and as a “very stoical, resilient, robust, determined, hardworking person”.
[100] DCB p.65-104n
[101] PCB p.67
[102] PCB p.67. Note that in cross-examination, the plaintiff said that this was incorrect.
[103] PCB p.71
55 Dr Weissman concluded[104]:
From the claimant’s perspective, the first transport accident on 29 May 2008 was more traumatic for her, emotionally and physically.
However, the second transport accident (which occurred on 7 November 2009) was also emotionally traumatic for the claimant to a certain degree, and also led to an aggravation of her neck and back pain that eventually led to her ceasing work in late July 2010.
The claimant is suffering from mild to moderate primary or direct post-traumatic stress and anxiety symptoms and features of traumatisation due to both transport accident, the first transport accident more than the second.
She is also suffering from moderate, mixed reactive depressive and anxiety symptoms, signs and features as a consequence of, or secondary to, her accident-related pain, injuries and disabilities, slightly more the first accident than the second accident.
[104] PCB p.73
56 Dr Weissman felt that, on purely psychiatric grounds alone, the plaintiff was not able to perform full-time work. He felt that she would benefit from taking antidepressant medication. He felt that since the transport accidents there had been “at least a mild to moderate decline and deterioration in all aspects, facets and modalities of her lifestyle and functioning, occupational capacity and mental health”[105].
[105] PCB p.76
57 In his second report dated 7 January 2013[106], Dr Weissman noted that the plaintiff was working full-time. He did not consider that she was suffering a “full blown Post-Traumatic Stress Disorder”[107], but felt that she was ”still suffering from a moderate mixed reactive depressive and anxiety syndrome as a consequence of, or secondary to, her accident-related pain, injuries and disabilities, slightly more the first transport accident than the subject transport accident”[108]. He also felt that she “sustained and developed a moderate, chronic Adjustment Disorder with Depressed and Anxious Mood consequential to both transport accidents”[109]. Finally, he felt that she had developed some symptoms and features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition.
[106] PCB p.78
[107] PCB p.86
[108] PCB p.87
[109] PCB p.102
58 Dr Weissman re-assessed the plaintiff in February and September 2016. In his report of 17 February 2016[110], he noted that the plaintiff felt that the first transport accident caused her injury, and the last transport accident “put me out”[111]. His diagnoses were in similar terms to his earlier report, albeit that he now described the first two conditions (post-traumatic stress and anxiety, Adjustment Disorder) as being chronic in nature. He felt that she required ongoing psychological treatment, referable to both transport accidents, for the balance of 2016, after which her condition could be reviewed. He felt that she had a full capacity, on psychiatric grounds, for study and or suitable work, but noted that her mood state, cognitive dysfunction, diminished self-esteem and confidence, and the effects of her sleep disturbance would potentially interfere with some aspects of her work.[112]
[110] PCB p.92
[111] PCB p.97
[112] PCN p.103
59 In his most recent report dated 27 September 2016, Dr Weissman noted that the plaintiff said she was able to drive, cook and clean and do the laundry and shopping and that she walked 10-15 minutes per day. She felt paranoid when driving. She reported feeling very depressed and anti-social. She felt that the first transport accident was slightly worse than the last transport accident, but that the latter was probably physically worse for her because “it changed everything. I had to sell up everything. I couldn’t work and I ended up with chronic pain and suffering”[113]. Dr Weissman concluded that her psychiatric symptoms were largely the same as in his previous assessment and he reached similar conclusions as outlined in his previous report.
[113] PCB p.104f
Findings and reasons
60 I have considered all the evidence and the submissions of the parties.
61 I accept the plaintiff’s account of the impact of the last transport accident upon her. Her account was largely uncontradicted. It is clear from her evidence and her work history since the accident that she is motivated to work as much as she can, notwithstanding her compromised psychological condition, the daily pain she suffers, the medication she takes and the interference with her sleep occasioned by the pain. I consider that she is a relatively stoic person.
62 I consider that in the first transport accident the plaintiff suffered soft tissue injury to the cervico-thoracic spine of a relatively minor nature, resulting in upper back and neck pain but no regular treatment or pain medication, and with no adverse psychological sequelae or adverse impact on quality of life or on work capacity. I note that immediately prior to the last transport accident, she was working full-time in a permanent position on normal duties, not taking any pain medication, and not receiving any regular treatment. She had a mortgage and hoped to build a house.
63 After the last transport accident, however, the picture changed greatly. She suffered daily ongoing pain in the neck and upper back as well as daily, partly cervicogenic headaches.[114] She required medication and referral to pain management and other specialists, has been taking painkillers and anti-depressant medication (Amytriptiline, Cymbalta, Lyrica, Nurofen) daily, and continues to regularly see her general practitioner, neurologist, pain management specialist and treating psychologist. At home, she cannot do heavy domestic chores or gardening. She is in pain, depressed and does not go out much. She has been in and out of the workforce, has had to sell her land, remain living with her mother, and has been assessed as being permanently incapable of doing repetitive work which involves leaning, pushing, pulling or lifting anything other than very light weights, and as being permanently limited to light physical or administrative work.[115] She was earning around $44,000 when working for Specsavers in 2009. The most she has been able to earn since then was in 2012 when she earned around $23,000. Currently she is working 24 hours per week at Coles, and says that she would work more if she could.
[114] I ignore the post-traumatic migraine diagnosed by Dr Yerra, as that is not relied upon by the plaintiff.
[115] By Mr O’Brien, PCB p.64i; Mr Dickens, PCB p.64r; Dr de Graaff, PCB 48a-b; Dr Horsley, PCB p.10.
64 I acknowledge that Mr O’Brien, Mr Boys and Mr Fraser each concluded that the plaintiff was suffering a chronic pain condition which was influenced by psycho-social or non-organic factors. However, I reject the conclusion of Mr Fraser that it was “inconceivable[116]” that the soft tissue strains sustained in the last transport accident had not resolved, as the report does not set out the basis of this reasoning. I accept that most recent examiners found a largely unrestricted range of motion of the cervical and thoraco-lumbar spine, and that this indicates an absence of significant skeletal pathology. However, the weight of the medical evidence was to the effect that the radiological changes at T6 were related to Scheuermann’s disease, and that the last accident may have aggravated this underlying pathology and rendered it symptomatic.[117] Furthermore, I accept Mr Dicken’s opinion that, once the underlying pathology has been aggravated, some people develop prolonged or chronic pain in that area, and that this is what occurred with the plaintiff.
[116] DCB p.23
[117] PCB p.64p; DCB p.23;
65 In addition, I accept the conclusions of Dr Weissman, who has assessed the plaintiff four times since 2011, most recently in late September this year, that, among other things, the plaintiff has suffered an Adjustment Disorder with Depressed and Anxious mood partly as a result of the pain suffered in the last transport accident. This conclusion is consistent with the comments made by Ms Love, the current treating psychologist, that the ongoing pain suffered since the last transport accident has impacted significantly on the plaintiff’s emotional wellbeing.[118] I consider that Dr Weissman’s reports, the last two of which postdate the opinion of Dr Entwistle, are of more assistance than that of Dr Entwistle.
[118] PCB p.53c
66 In accordance with the authorities,[119] the consequences of the plaintiff’s Adjustment Disorder are to be taken together with the consequences of the plaintiff’s long-term impairment of the spine for the purpose of the application under sub-paragraph (a) of the definition of “serious injury”.
[119]Rodda v TAC [2007] VCC 1036
67 Taking into account the whole of the evidence, I am satisfied that the consequences, in terms of pain and suffering and/or pecuniary disadvantage of the plaintiff’s transport accident related long –term impairment of the spine, are more than considerable when compared with other cases in the range of long-term impairments of the spine.
68 In light of my conclusions, it is not necessary for me to consider that part of the application made under sub-paragraph (c) of the definition of “serious injury”. However, for the sake of completeness, I indicate that, having regard to the reports of Dr Entwistle and Dr Weissman, I would be unable to reach the conclusion that, as at the date of the hearing, the plaintiff suffers from a severe long-term mental disturbance as a result of the last transport accident.
Conclusion
69 Leave is granted to the plaintiff to issue common law proceedings in respect of the injuries sustained in the transport accident on 7 November 2009.
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