Gajic v Victorian WorkCover Authority
[2019] VCC 1372
•2 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03810
| TANYA GAJIC | Plaintiff |
| v | |
| VICTORIAN WORKPLACE AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 February 2019 | |
DATE OF JUDGMENT: | 2 September 2019 | |
CASE MAY BE CITED AS: | Gajic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019 VCC 1372 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the ribcage and/or chest wall manifesting in musculature pain with increased chronic pain and central sensitisation – disentangling from psychiatric injury – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms F Crock | Zaparas Lawyers |
| For the Defendant | Mr P Bourke | IDP Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Grace Children Services Pty Ltd (“the employer”) on or about 18 March 2015.
2 The plaintiff alleges that she suffered injury to her ribcage and/or chest wall leading to a serious long-term impairment or loss of function of her ribcage and/or chest wall and/or spine as a result of a lifting incident on the said date.
3 In order to obtain the necessary leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.
4 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application pursuant to paragraph (a) is the function of her ribcage and/or chest/wall and/or the function of her spine.
6 The plaintiff relied upon two affidavits, sworn 26 April 2018 and 11 February 2019,[1] 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 of the tendered evidence.
[1]Exhibit “A”
Work-related physical injury
7 The plaintiff is aged thirty-seven, having been born in June 1982 in Melbourne. She is married, and has two daughters, aged seven and ten, and lives with them and her husband.
8 Prior to her workplace injuries, the plaintiff swore that she struggled with anxiety and depression early in her life and that sometimes she felt anxious. Despite this, she stated she was able to refocus and continue to manage her symptoms without any disruption to her life. She stated that her condition was entirely manageable with medication. After sustaining her workplace injuries, her anxiety and depression and have significantly worsened.[2]
[2]Exhibit “A”, affidavit sworn 26 April 2018, paragraph 5, PCB 2
9 At the age of ten, the plaintiff’s parents moved back to Serbia, where the plaintiff finished her primary and secondary schooling. In or around 2000, she and her family moved back to Melbourne when she was around eighteen years old. Thereafter, she obtained a number of certificates allied to business administration and early childhood education.
10 The plaintiff commenced the present employment in or around February 2003. The employer is an early learning centre and the plaintiff was employed as an early learning educator. She worked thereat for over ten years and was required to care for, and teach, all age groups, ranging from three months to five years, including after-school care.
11 At the time of her injuries, the plaintiff had been promoted to the role of room leader once she had achieved her Diploma in Early Childhood Education in around 2005 or 2006. As room leader, her responsibilities included planning the curriculum for the room, directing other staff, and setting up the room and outdoor areas for outdoor activities, as well as directly taking care of the children.[3]
[3]Exhibit “A”, affidavit sworn 26 April 2018, paragraph 17, PCB 3
12 The plaintiff took maternity leave twice once in 2008 and again in 2011. When she returned from leave in about 2012, she returned on a part-time basis. In 2015, she was working three days a week as the room leader for a room of children aged three to four years.[4]
[4]Exhibit “A”, affidavit sworn 26 April 2018, paragraph 19, PCB 4
13 The plaintiff swore that on or about 18 March 2015, she was putting a nappy on a child who was about three years old. In order to get onto the nappy change table, the little boy stepped onto a small step. The plaintiff then lifted him from the step and twisted to place him on the change table. As she performed this manoeuvre, she immediately felt a sharp pain on the right side of her ribcage. She thought the pain would go away and she assumed she had a strained muscle. She continued to work through the day, however the pain increased.[5]
[5]Exhibit “A”, affidavit sworn 26 April 2018, paragraph 21, PCB 4-5
14 The next day, the pain in her ribcage continued to increase and spread to her mid to upper back. By the weekend, the pain had become so bad that she was having trouble breathing and she felt she could not get out of bed. She sought treatment from her general practitioner.[6]
[6]Exhibit “A”, affidavit sworn 26 April 2018, paragraph 22, PCB 5
15 The plaintiff was then off work for about two weeks and when she returned to work, she could only remain for approximately a day and a half. She has not returned to work since.
16 On or about 10 April 2015, the plaintiff consulted her general practitioner, Dr Adrian Castro, who, in turn, referred her to Dr Malcolm Ong, pain specialist.
17 Dr Castro also referred the plaintiff to rheumatologist, Dr Lee, and later, to pain medicine physician, Dr Meena Mittal, and thereafter, anaesthetist and pain specialist, Dr Symon McCallum.
18 Dr Ong referred the plaintiff for an MRI scan and bone scan, which revealed a broken rib. She was prescribed medication to help deal with the pain and was referred for physiotherapy.
19 In approximately mid-May 2015, the plaintiff and her family travelled to Serbia for about five months. On the flight over, she struggled with sitting for a long period because of the pain in her chest and mid to upper back. She could not lift luggage and her husband had to handle bags for her. Once in Serbia, she saw a physiotherapist a couple of times to try and assist with the pain but she said it did not help much.
20 While overseas, she was contacted by work and told that her employment had been terminated as a result of her extended leave.[7]
[7]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 27, PCB 5
21 When the plaintiff returned to Australia in around mid-October 2015, the plaintiff again attended Dr Ong, and she was commenced on physiotherapy treatment, and increased her dosage of medication.
22 Although there was delay in obtaining approval, the plaintiff commenced on a pain-management program in August 2016. The plaintiff stated that it helped her cope with her injuries and gave her strategies to manage the pain, but it did not assist in reducing her pain.[8]
[8]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 29, PCB 6
23 Because work in childcare was too physical, and because the pain in her chest and mid to upper back was intense, the plaintiff did not return to this area and began studying office administration in the area of medical practice online. She commenced this in November 2015 and the study involved doing written assignments and learning through online modules. She struggled with sitting for long periods while studying, but she managed to complete the course.[9]
[9]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 30, PCB 6
24 The plaintiff also completed a training course towards the end of 2016 and achieved a Certificate III in Medical Administration and Office Work. This qualifies her to work as a receptionist at a medical clinic, or in a similar role.[10]
[10]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 31, PCB 6
25 The plaintiff swore that throughout 2017, she continued to struggle with chest and upper back pain, and well as increased anxiety and depression. She wanted to return to work at this time but did not feel she had the capacity.[11] At the time of swearing her first affidavit, she was attempting to look for work that fits with restrictions imposed by her treating doctors.
[11]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 32, PCB 7
26 As at April 2018, the plaintiff was requiring ongoing medical treatment from Dr Ong, who was assisting with pain management. She was taking Nurofen twice a day and Panadol twice a day to manage her pain. She was also taking Panadeine Forte once a week when the pain became unbearable. She was also using a Deep Heat packs for her back, which constantly feels tight and restricted.
27 The plaintiff also swore that she used to consult a Dr Irina Kolesnikova, psychiatrist, in Sunshine, for treatment of her psychiatric condition. This was apparently prior to the subject injury. Further, she swore she now consults with Dr Kirthi Kumar, psychiatrist, at the same clinic. The plaintiff further stated that she used to consult with a psychologist, Josie Catania, at the same clinic, for counselling and psychological report. She swore:
“… It is nice to speak to mental health professionals about my psychological and/or psychiatric symptoms purely without delving into the work injuries again and again.”[12]
[12]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 36, PCB 7
28 The plaintiff did not tender in evidence any psychological or psychiatric evidence pre or post the subject injury.
29 Nonetheless, the plaintiff swore that she had suffered from anxiety prior to her accident at work. She had been prescribed medication and had undergone mental health treatment. She stated:
“… However, after my work accident my symptoms have become much worse. I began feeling panicked about my injury and afraid and worrying about how I would cope. I would suffer from panic attacks where I would feel lightheaded, and my heart would race and I would start sweating. I suffered these much more often than I had prior to the accident. I also suffered an increase in depressive symptoms, and would often feel depressed because of the constant pain.”[13]
[13]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 37, PCB 7-8
30 The plaintiff further stated that she continued to suffer pain every day, consisting of sharp stabbing pain in the right side of her mid back between her shoulder blade and spine, as well as aching throughout the same area, extending up to her neck. She also experiences regular headaches and she is often stiff and tight through her mid and upper back.[14]
[14]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 38, PCB 8
31 The plaintiff also swore that her sleep was disrupted because of the anxiety about her injury and pain and the worry about whether she would get better. Her sleep is also disturbed because of the pain in her back and torso, and headaches.[15]
[15]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 40, PCB 8
32 The plaintiff swore, also, that she now struggled with some home duties and that she found vacuuming and mopping difficult because these activities caused her pain. She had to stop her tasks, sit down, stretch, and take a lot of breaks.[16] The plaintiff also struggles carrying items weighing more than 5 kilograms.[17] Further, the plaintiff states she used to enjoy running or going on long walks with friends and she now struggles with that because of the pain. She asserts that she can take easy walks, but struggles with the longer runs or walks that she used to enjoy and that this saddens her.[18]
[16]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 41, PCB 8
[17]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 42, PCB 8
[18]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 43, PCB 8-9
33 The plaintiff also swore that she used to take her daughters to the tennis courts and play tennis with them, and that as a consequence of her work injuries, she actively avoids doing this as it would cause her a lot of pain. The plaintiff also finds that when she goes to the beach with her family she struggles swimming or playing with the girls in the way that she used to or would like to.[19] The plaintiff is also affected in her personal life with her husband and is saddened by the loss of her profession in childcare.[20]
[19]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 44, PCB 9
[20]Exhibit “A”, affidavit sworn 26 April 2018 at paragraphs 46-48, PCB 8
34 In her second affidavit, sworn 11 February 2019, the plaintiff swore that she continues to suffer from the consequences, symptoms and restrictions outlined in her previous affidavit. She continues to be in pain every day and the pain comes and goes throughout the day. It is still a sharp stabbing pain to the right side of her back between her shoulder blade and spine, as well as aching throughout the same area, extending up to her neck. She now often has headaches when she has neck pain.[21]
[21]Exhibit “A”, affidavit sworn 11 February 2019 at paragraph 2 PCB 11
35 The plaintiff’s sleep is disrupted because of pain in her back, and this occurs every night. She takes Panadol and Nurofen about every second day and Panadeine Forte about once a week. She continues to see Dr Ong about once a month, and her general practitioner, Dr Castro, about once every three or four months.[22]
[22]Exhibit “A”, affidavit sworn 26 April 2018 at paragraphs 6-7 PCB 12
36 Further, the plaintiff swore that her anxiety had become worse recently and she had been seeing her psychiatrist, Dr Kumar, regularly. He prescribes her antidepressant medication, as well as a Valium-type medication.[23] Once again, there is no follow-up report from Dr Kumar.
[23]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 8 PCB 12
37 Finally, the plaintiff says she is having trouble finding work because she only really has experience in the childcare field, but she can no longer work in that area because of pain. This, in turn, causes her a lot of stress and anxiety and has a negative impact on her family generally.[24]
[24]Exhibit “A”, affidavit sworn 26 April 2018 at paragraph 11 PCB 13
Identifying physical injury
38 In written submissions dated 14 March 2019, the plaintiff’s counsel have described the injury thus:
“… In essence, the plaintiff claims that following the original fractured rib and soft tissue injuries she sustained, [the plaintiff] developed a central sensitisation which has resulted in at least ‘very considerable’ consequences.[25]
[25]Paragraph 1
39 Counsel further submitted that there was clearly a substantial organic basis for the plaintiff’s condition and, accordingly, disentanglement was not required.[26]
[26]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21]-[22]
40 It was further submitted that if there is no substantial organic basis, then disentanglement is required:
“If however, that first question is not or cannot be answered affirmatively, then the applicant will need to take the next step and disentangle. That is the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological or to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the standard test.”[27]
[27](Supra) at paragraph [22]
41 In that respect, counsel submitted as follows:
“8.The plaintiff submits that the weight of the medical evidence relied upon supports a finding that there is a substantial organic basis for her pain condition. In summary, the following specialists have concluded that the plaintiff is suffering from central sensitization as a result of her workplace injury:
a.Dr Malcom Ong, treating pain specialist, 2 June 2016: ‘Chronic chest wall and shoulder region pain syndrome from musoloskeletal injury and stable rid fracture with inflammatory myofascial and developing neuropathic components. Centralization of pain syndrome.’ (PCB 27)
b.De Meena Mittal, medico/legal pain specialist, 22 February 2017, ‘The underlying sources of the pain include musculature pain with increased tenderness of palpation as well as spreading chronic pain with increased central sensitisation.’ (PCB 50)
c.Dr Malcom Ong, 26 June 2017, ‘Chronic chest wall and shoulder region pain syndrome from musculoskeletal injury and stable right rib fracture with inflammatory, myofascial and developing neuropathic components. Centralization of pain syndrome’ (PCB 33)
d.Dr Symon McCallum, IME pain specialist 19 May 2017, ‘[The plaintiff] currently has intermittent pain which is extremely likely to be related to the rib fracture. I think she has got secondary muscular pain due to this … She may have undergone central sensitisation…[The Plaintiff] has a substantive organic basis for her current pain condition.’ (PCB 87-88)
e.Dr Meena Mittal, tr[e]ating pain specialist, 22 February 2017 ‘Chronic pain syndrome secondary to her initial injury which was a fracture of the ninth rib with intercostal muscle strength. Over time this has resulted in a mysfascial pain particularly in the interscapular region and the paravertebral muscles in the cervical spine. She also now suffers from cervicogenic headaches. There is an element of central sensitisation’ (PCB 55). Dr Mittal also observed trapezius muscle spasm on her examination: an objective sign or organic injury. (PCB 54) This contradicts the Defendant’s submission that neither of Dr Mittal’s reports provide support for a substantial organic basis for injury (DS[72]).
f.Mr Charles Flanc, 14 January 2019, ‘Symptoms are also being influenced by the development of a chronic pain syndrome in which there is a sensitisation of pain pathways casing pain which is greater in severity and distribution that that expected from the physical injury alone.’ (PCB 79)”
(sic)
42 Finally, it was submitted that as the case was put on the basis of paragraph (a), the material thus contained in the Plaintiff’s Court Book was the appropriate material to be considered by the Court.
43 With respect to her psychological symptoms, it was submitted that the plaintiff was candid and forthright with respect of her history but, significantly, it was submitted, her pre-existing psychological illnesses did not significantly impinge upon her earning capacity and thus the Court can more readily find that the consequences from her pre-existing condition are minimal.
44 It was submitted the plaintiff’s evidence that she could work perhaps three or four days a week for four hours a day should be accepted because of her honest and forthright evidence. In support of that contention, the plaintiff relied on the reports of Mr Charles Flanc, general and vascular surgeon, dated 14 February 2019,[28] Dr Meena Mittal, pain medicine physician, dated 2 November 2018 and 22 February 2017,[29] Dr Symon McCallum, pain physician and specialist anaesthetist, dated 19 May 2018[30] (Exhibit “G”) and, finally, Dr Joseph Slesenger, specialist occupational physician, dated 19 December 2018.[31]
[28]Exhibit “F”
[29]Exhibit “E”
[30]Exhibit “G”
[31]Exhibit “H”
45 Accordingly, it was submitted that it was common ground that the plaintiff had been planning to work full time, and therefore if the Court was satisfied that these hours were appropriate, she would have proved a loss of earning capacity of 40 per cent or more.
The Defendant’s submissions
46 The defendant’s primary submission is that the plaintiff’s application must fail because she cannot establish that there is a substantial organic basis for her claimed injury and her case is not capable of being disentangled. This contention appeared to be the main focus of dispute, although the defendant did submit, alternatively, that the physical impairment, in any event, could not be fairly described as “very considerable” and certainly not more than “significant or marked”, and that the pecuniary loss claim was not made out on the evidence.
47 In particular, counsel referred to s325(2)(h) of the Act, which provides that psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
48 If the Court is not satisfied that there is a substantial organic base, then the Court must proceed to disentangle the physical and psychological components of the pain and suffering consequences to determine whether the pain and suffering consequences of the physical injury meet the serious injury test.[32]
[32]Meadows v Lichmore Pty Ltd (supra)
49 Counsel referred to the judgment of Maxwell P in Meadows v Lichmore Pty Ltd[33] at paragraph 29, to the following effect:
“This case illustrates that, when ‘disentangling’ becomes necessary, the state of the medical evidence will largely determine whether it can be done. As this experienced judge said in his reasons, where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by the applicant will need to be in a condition which will enable the Court to clearly identify whether and to what extent the pain and disability has an organic basis. Unless the evidence enables that distinction or differentiation to be made, it will be difficult for an applicant to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.”
(Footnotes omitted.)
[33]Supra
50 In this regard, defence counsel submitted as follows:
“The plaintiff has a complex medical history which was not disclosed in either of her two affidavits or in her court book material and only came to light in the defendant’s court book material and cross-examination. During the plaintiff’s initial cross-examination she denied any significant pre-accident medical problems during the two years prior to the accident.”[34]
[34]Defendant’s submissions dated 4 March 2019 at paragraph 8
51 Defence counsel then submitted that the medical material adduced by the defendant revealed a plethora of symptoms which were anxiety related, from 6 August 2012 up until 16 March 2015, two days before the subject injury.[35]
[35]Defendant’s submissions dated 4 March 2019 at paragraph 9
52 In particular, counsel referred to a consultation with psychiatrist, Dr Irina Kolesnikova, on 20 October 2014, to the effect that the plaintiff presented with a two-and-a-half-year history of significant anxiety. Her anxiety had been escalating and she started on Pristiq, currently 100 milligrams, about four months ago. She was also given Inderal (propranolol), 10-milligram tablets twice a day, but she stopped because of the significant anxiety with dizziness, unsteadiness and feeling unbalanced. A neurologist, two months’ earlier, had diagnosed her with vestibular migraine, for which she was prescribed Epilim. Dr Kolesnikova told the plaintiff that she believed that she had a Generalised Anxiety Disorder and panic attacks and that she believed she would benefit from seeing a psychologist.[36]
[36]Exhibit 13, Defendant’s Court Book (“DCB”) 101
53 In a letter from neurologist, Dr Waterston, to general practitioner, Dr Tagerd, dated 7 November 2014, he wrote the plaintiff had been under a lot of stress and that her symptoms were worse when she was anxious.[37]
[37]Exhibit 12, DCB 103
54 Further, on 16 March 2015, Dr Kolesnikova’s clinical notes stated:
“Zoloft 200mg Changed to Lexapro 10mg in the morning
Fear of having panic attack; no panic attack ???
Butterfly feelings in the stomach …
Still anxious; feeling on edge
Unable to think.”[38]
[38]Exhibit 19, DCB 149
55 Defence counsel therefore submits that the true state of the plaintiff’s pre-accident physical and psychiatric complaints and/or conditions were far more involved than first stated. It was further submitted that the various clinical notes and reports reflect the likelihood that the plaintiff’s complaints were somatic in nature or that they were largely driven by the plaintiff’s anxiety, and that this material was not referred to in any meaningful way by the plaintiff’s medical evidence before the Court.
56 Further, the work injury having occurred on 18 March 2015, the plaintiff saw her treating psychiatrist on 13 April 2015. Once again, she told Dr Kolesnikova that she felt anxious, panicky, lightheaded and unbalanced. The plaintiff was taking Lexapro, 20 milligrams, and using up to three Diazepam per day. She was about to go on a family holiday, but did not mention her work accident or any physical pain in her ribcage.[39]
[39]Exhibit 19, DCB 150; T57, L10 – T58, L26
57 In his written submission Defence counsel relies on the pre-existing medical material that the defendant adduced in evidence to the following effect:
“18.On 17 December 2015, Dr Waterston reported to Dr Tagerd that the plaintiff had seen a Neurologist in Macedonia, who performed an EEG and commenced her on Topamax, which had helped her headaches, but had done nothing for her dizziness. The plaintiff continued ‘to complain of a fairly constant drunk, off-balance sensation, like she is floating’. Dr Waterston stated the following:
‘Although her headaches are likely to be migrainous in nature, I am beginning to suspect that her dizziness is not. There is a condition known as psycho-physiological dizziness or persistent postural-perceptual dizziness which would explain her symptoms quite well. This is felt to be a behavioural syndrome which is often associated with anxiety or depression. It can be triggered by vestibular illness.
The approach to treating this condition is with anti-depressant therapy. Efexor XR has been described as being helpful . . .’
19.On 15 January 2016 Dr Tagerd wrote to Dr Kolesnikova noting that the plaintiff’s Neurologist had recommended changing anti-depressant and that she would leave the decision with her.
20.The plaintiff saw Dr Kolesnikova on 25 January 2016. The plaintiff appears to have told Dr Kolesnikova that she had enjoyed the holiday and felt okay, having good days and bad days, with her dizziness getting worse when she was over-excited. Her job was too stressful. She was unemployed at present and studying office administration in business.
21.The plaintiff saw Dr Kolesnikova again on 22 February 2016. She had felt more anxious over the previous two weeks, but not as anxious over the last 2-3 days. She remained light-headed and dizzy. Her sleep was good (7-8 hours) and she felt refreshed in the mornings.
22.The plaintiff saw Dr Kolesnikova again on 18 April 2016. She had felt more light-headed over the previous 2-3 weeks. She was finding it hard to concentrate, which she agreed could only be due to her dizziness and light-headedness. It appears that the note also contains: ‘couldn’t handle a lot of noise’ and ‘I have my good days and bad days. Some days I’m light-headed’. The plaintiff agreed that her good days and bad days at that time depended on whether or not she was feeling light-headed and dizzy. When asked about her physical pain, she said that she did not talk about her injury from work with the psychiatrist. It was put to her that if it was a significant issue for her, she would have mentioned it to her psychiatrist and that she was talking to her about her hopes for a new career, without expressing any worry about whether or not she would be able to work in that role.
23.On 22 April 2016 the plaintiff complained to Dr Tagerd of ‘fullness in right ear, pain on and off, no cold symptoms’. Her psychiatrist was changing her over to Efexor and she reported Dr Waterston’s opinion as to her psychosomatic disorder.
24.The plaintiff saw Dr Kolesnikova on 31 May 2016. The plaintiff had stopped Lexapro for Efexor and was still on Topamax. She reported that she had: ‘lost 3kgs, no much appetite, sick to stomach, anxious & depressed again, not feeling good. Anxious, butterfly in her stomach. Compare to Lexapro it’s worse. Studying at home. She feels upset. I don’t know what to do anymore. She was off balance on Lexapro. Confused, lack of concentration, the lightheadedness the cause. Emotional. Referral to Josie Catania psychologist for CBT’.
25.In his report dated 2 June 2016, Dr Ong stated the following:
‘Following the consultation on the 10th April 2015, I suggested to Tanya that she will need further investigations and treatments actively. She made some but limited progress with ongoing pain and pain related issues.
Consequently, it became apparent that this lady suffers from chronic pain syndrome due to her injuries.
After a detailed assessment, it became apparent that this lady does suffers from a persistent pain problem and also secondary psychological conditions relating to her injuries.’
26.The plaintiff saw Dr Kolesnikova on 11 July 2016. She had: ‘Started seeing psychologist, Josie Catania. On Efexor 150mg, feels depressed now, lightheadedness, dizziness, floating in the bed. Studying online medical admin till November, going to look for work.’
27.Dr Ong reported that the plaintiff participated in a multi-disciplinary pain program from July until September 2016.
28.Ms Catania reported to Dr Kolesnikova on 5 September 2016 stating, inter alia, the following:
Presenting problem and clinical history
Tanya reports having anxiety for a long period of time and even recalls experiences anxiety as a young child . . . Tanya’s anxiety is characterised by worries pertaining to her light headedness and her health. These worries in which she is experiencing on a daily basis are often excessive or exaggerated and Tanya has difficulty controlling these worries. Tanya also experiences restlessness, she is easily fatigued, has difficulty concentrating, irritability, muscle tension and all of the above has and continues to interfere with her family life, studies and social activities.
Prior to her friend dying from the heart attack Tanya had been experiencing light headedness, difficulties with her balance, and the sensation that she was floating when lying down. This however may be a symptom of her meniere’s disease. Tanya also suffers from migraines. She has subsequently seen a number of specialists and neurologists and is currently on medication to assist with migraines.
Relevant personal history
. . . Tanya is a qualified child care worker however she is currently not working at the child care centre. She described returning to work following her friend’s death as difficult as she had also worked with her. Tanya described that her friend’s death was spoken of daily and she found this difficult to cope with. Tanya also described the director at the centre as difficult to work with. Tanya is now studying office admin and would like to work part time.
Medical history
Manirs (sic) Disease, Ear fluid, Migraines, and Light headedness
Clinical Formulation and Treatment Plan
. . . Whilst Tanya has perhaps always had a tendency to be anxious, it seems as though her friend dying has been a major precipitant in the anxiety that she is experiencing currently. Precipitating the anxiety are Tanya’s concerns for her health as well as her mother’s repeated attempts to contact Tanya . . .
I will be treating Tanya with CBT with the aim of the decreasing her anxiety.
29.On 10 September 2016, the plaintiff told Dr Tagerd that he had ‘ongoing dizzy spells, wants another opinion from ENT, sore right ear for 2 days’.
30.On 22 September 2016, Dr Zahirovic, ENT Surgeon, wrote to Dr Tagerd reporting ‘a 4 year history of episodes of light headiness and general unsteadiness. She reports some right ear fullness and some postural features with dizziness often occurring when she is lying down.’ Dr Zahirovic recommended that the plaintiff increase her physical activities including running if she could manage it.
31.On 5 October 2016, the plaintiff told Dr Edillo GP that she: ‘has neck twitching/spasm early morning today. she was fully aware/awake at that time when the twitching occur. it was occur in bouts for a few minutes had the first time occur last Friday but only mild’. Dr Edillo examined the plaintiff’s neck and found ‘no swelling, no tenderness, no muscle twitching’.
32. On 12 October 2016 the plaintiff told Dr Tagerd that ‘results are good, twitching muscle only brief and once’.
33.On 27 February 2017 the plaintiff reported to Dr Tagerd that she had had: ‘lower back pain for few days. normal activities. sleeping in Sofia’s bed a bit more’. Dr Tagerd conducted a physical examination and found that the plaintiff was ‘not tender at spines, tender at paravertebral muscle, range of movement ok, no leg pain’.”
(Footnotes omitted.)
58 The defendant relies heavily on the absence of any psychiatric or psychological evidence from the treating practitioners which would enable the Court to attempt to evaluate the extent of the pre-existing psychiatric and psychological consequences, as well as the post-injury psychological consequences, in light of the evidence that has been adduced before the Court, which clearly points to the plaintiff suffering a significant degree of ongoing psychological symptomatology.
59 In this regard, I note the following:
(a) Dr Ong, on 20 May 2015:
“significant anxiety and Mild depression developing.
Adjustment Disorder.
…
Mental health monitoring.”[40]
[40]Exhibit “C”, PCB 23
(b) Dr Ong, on 2 June 2016:
“consequently, it became apparent that this lady suffers from chronic pain syndrome due to her injuries.
After a detailed assessment, it became apparent that this lady does suffers (sic) from a persistent pain problem and also secondary psychological conditions relating to her injuries.
…
Presenting Complaint:
…
Stress and anxiety.
…
Impression / Diagnosis:
Chronic chest wall and shoulder region pain syndrome from musculoskeletal injury and stable right rib fracture with inflammatory, myofascial and developing neuropathic components.
Centralization of pain syndrome.
Secondary significant anxiety and mild depression.
Adjustment Disorder.”
…
Rib fracture does not need any specific treatments.
Mental health monitoring important. Her mental state needs close monitoring. She remains anxious and depressed and has ongoing pain focus but she is trying to defocus and slowly progress back to looking for alternate long term work as well as engage in gentle regular activities for the long term.[41]
(c) Dr Ong, on 2 March 2017:
“After the [pain management] program [the plaintiff] returned to see me several more times due to her ongoing pain issues and secondary psychological issues.” [42]
“Currently she is still looking for work but has limited capacity due to both her physical injury and secondary psychological condition, alone or in combination.”[43]
“Currently she still gets her physical symptoms and limitations but is managing her conditions better.
Psychologically she remains apprehensive with anxiety and depression, and requires some medication adjustments and ongoing monitoring.”[44]
[41]Exhibit “C”, PCB 25-27
[42]Exhibit “C”, PCB 29
[43]Exhibit “C”, PCB 30
[44]Exhibit “C”, PCB 30
(d) Dr Ong, on 26 June 2017:
“Presenting Complaint:
Pain in right rib cage with referred pain to upper back and shoulder blade.
…
Depressive and anxiety symptoms.
Stress regarding inability to find alternative employment.
Difficulty coping with long term prognosis.
Difficulty sleeping.[45]
[45]Exhibit “C”, PCB 32
Impression / Diagnosis :
Chronic chest wall and shoulder region pain syndrome from musculoskeletal injury and stable right rib fracture with inflammatory, myofascial and developing neuropathic components.
Centralization of pain syndrome.
Secondary significant anxiety and depression.
Stress regarding unemployment.
Stress regarding financial stability.
Insomnia.
Adjustment Disorder.”[46]
[46]Exhibit “C”, PCB 33
Further, he stated:
“Currently she is still looking for work but has limited capacity due to both her physical injury and secondary psychological condition, alone or in combination.”[47]
[47]Exhibit “C”, PCB 34
Dr Ong then stated:
“… [The plaintiff’s] symptoms are consistent with her injury claims.
Her conditions are accident related. Her employment as a child care worker was a significant contributor to her conditions.”[48]
[48]Exhibit “C”, PCB 35
Further, Dr Ong states:
“… [The plaintiff] does suffer a psychological injury that has an organic base in relation to her body areas where she experiences pain symptoms and mood disorders.
…
From the psychiatric / psychological injury alone stand point, she remains restricted and limited in her capacity and this is likely to persist indefinitely for the foreseeable future.
From the psychiatric / psychological injury alone stand point, she is unable to return to pre-injury status.
From the psychiatric / psychological injury alone stand point, she has limited capacity and will need restrictions as per outlined below.”[49]
[49]Exhibit “C”, PCB 38-39
As to her prognosis, Dr Ong stated:
“… [The plaintiff’s] prognosis remains guarded, but it is likely she will suffer persistent pain symptoms and psychological symptoms, as well as limited capacity for the foreseeable future.
The above prognosis is true from a physical injury point of view alone.
The above prognosis is also true from a psychological injury point of view alone.”[50]
[50]Exhibit “C”, PCB 40
Interestingly, Dr Ong thereafter relates:
“I trust this report is helpful to you and your client. It is a pleasure to be of service.”[51]
[51]Exhibit “C”, PCB 40
(f) Dr Christine Le, a treating rheumatologist, reported on 5 May 2015:
“… Prior to this incident she was well with no pains anywhere.”[52]
[52]Exhibit “D”, PCB 41
(g) Pain physician, Dr Meena Mittal, on 22 February 2017:
“… [The plaintiff] has a previous history of anxiety and previous episode of postnatal depression. Since the injury, she has had an escalation of anxiety including panic attacks. She has initially been assessed by a psychologist at Dr Malcolm Ong’s pain management program. Currently, she is reviewed by her own psychologist fortnightly … .”[53]
[53]Exhibit “D”, PCB 49
Unfortunately, there is no report from either psychologist;
(h)Further, Dr Mittal considered the plaintiff was currently unfit for pre-injury employment:
“… since she has a spreading central sensitisation with development of a chronic pain syndrome. At this stage, her tolerance for sitting, walking, lifting and bending is fairly limited. She is fairly debilitated in her day-to-day life. She is also limited particularly by anxiety and panic attacks, which need to be treated.
… I do not believe that she would be able to return to her previous employment due to ongoing chronic pain as well as secondary psychological implications.”[54]
[54]Exhibit “D”, PCB 51
(i)In her final report dated 2 November 2018, Dr Mittal relates the plaintiff has intermittent occipital headaches that were associated with neck pain. She states:
“… Her symptoms have somewhat improved in the sense that she is now able to engage in deep breathing exercises without any significant issues however she has had progression of the areas and locations of pain extending into the shoulder girdle bilaterally, the neck as well as onset of occipital headaches.”[55]
[55]Exhibit “D”, PCB 53
Further, Dr Mittal reported:
“When I first reviewed her in 2017 she complained of anxiety along with panic attacks. She had been assessed by a psychologist at the pain management program and she had also been regularly reviewed by her psychologist on a fortnightly basis. Over the last 12 to 18 months she reports that her anxiety has worsened. She has also now developed symptoms of depression which include pervasive low mood, and anhedonia, ongoing lethargy, poor sleep, and decreased appetite with loss of weight. She has been describing increasing social isolation. She has not stopped seeing her psychologist but has been seeing a psychiatrist on a regular basis who has been assisting her with medication trials and treatments. She describes her anxiety and panic attacks to have been worsening since she is particularly worried about not working and her financial future. There are no symptoms of self-harm.”[56]
[56]Exhibit “D”, PCB 54
(j)Mr Charles Flanc, general surgeon, reported to the plaintiff’s solicitors on 23 October 2017.[57] He stated:
[57]Exhibit “F”
“… Firstly, it is unusual to sustain a fracture of a rib as a result of this type of injury. Usually, a fracture occurs as a result of direct trauma such as a fall.
… Her main site of pain continued to be more anterior to the reported site of fracture.”[58]
[58]Exhibit “F”, PCB 65
Nonetheless, he considered that it would be reasonable to accept that the incident caused a minor undisplaced fracture of the right ninth rib.[59] In summary, he stated:
[59]Exhibit “F”, PCB 65
“… I consider that the initial muscular strain and fracture of the right 9th rib may have eventually resulted in referred pain into her thoracic spine and rendered her vulnerable to musculoligamentous strain along the thoracic spine. It is also quite possible that her spinal symptoms are being significantly influenced by nonorganic factors.”[60]
[60]Exhibit “F”, PCB 66
(k)Further, Dr Symon McCallum, pain physician, reported on 19 May 2018.[61] He noted a mental health history of Adjustment Disorder with Mild Depression and Anxiety.[62] He further stated:
“… I think it is essential [the plaintiff] continues with psychological care. This may be for a prolonged period of time.
… I think it is also essential she continues seeing a psychiatrist.”[63]
He also thought the plaintiff had a “substantive organic basis for her current pain condition”.[64]
(l)Dr Joseph Slesenger, special occupational physician, reported to the plaintiff’s solicitors on 19 December 2018.[65] He was provided with a number of medical reports concerning the plaintiff’s pre-existing medical conditions, including reports from psychologist, Ms Josie Catania, dated 27 June 2016, 5 September 2016 and 7 October 2016. These reports were not tendered in evidence. Dr Slesenger took a history that the plaintiff, herself, advised him that she had pre-existing Anxiety and Depression, but that the symptoms had deteriorated due to the uncertainty with regard to her symptoms and the chronic pain. Nonetheless, she was seeing a psychologist once a month.[66]
[61]Exhibit “G”
[62]Exhibit “G”, PCB 86
[63]Exhibit “G”, PCB 88
[64]Exhibit “G”, PCB 88
[65]Exhibit “H”, PCB 90
[66]Exhibit “G”, PCB 93
60 Dr Slesenger also had a report from treating psychiatrist, Dr Kolesnikova, dated 20 October 2014, who confirmed a history of anxiety triggered by the death of a young colleague. She was diagnosed with Generalised Anxiety Disorder with Panic Attacks and was treated with Sertraline.[67] In summary, Dr Slesenger notes the plaintiff described residual right posterolateral rib symptoms and associated thoracic spinal and bilateral shoulder symptoms and also advised of an aggravation of pre-existing psychological impairment, “although this is outside my area of expertise”.[68] As well as the physical pain, he noted there was a psychological impairment although it was outside his area of expertise, but it was his opinion that there was a psychogenic element to her presentation.[69]
[67]Exhibit “G”, PCB 97
[68]Exhibit “G”, PCB 99
[69]Exhibit “G”, PCB 100
Conclusion
61 It is clear that the plaintiff had a significant psychological condition prior to the subject injury and has a significant psychological impairment post the injury. She is still undergoing treatment from her psychologist and psychiatrist, neither of whom has provided a report to the Court.
62 In all the circumstances, I am unable to find, on the state of the evidence, that the plaintiff has satisfied the formula set down by Maxwell P in Meadows v Lichmore[70] referred to above, and the application must be dismissed.
[70]Supra
63 I will hear the parties as to any consequential orders.
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