Hagose v Transport Accident Commission
[2021] VCC 1783
•17 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00897
| SARA HAGOSE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 20 October 2021 | |
DATE OF JUDGMENT: | 17 November 2021 | |
CASE MAY BE CITED AS: | Hagose v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1783 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to left wrist in transport accident – fracture to the radial styloid which subsequentially healed – development of Chronic Regional Pain Syndrome – whether injury organic and whether accident related – permanency – nature and extent of consequences
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Arnold Thomas and Becker |
| For the Defendant | Mr J Ruskin QC with Ms L Burke | Wisewould Mahony |
HIS HONOUR:
Preliminary
1The plaintiff, Ms Sara Hagose, is now thirty-three years of age. She was born in Sudan and came to Australia in 1999 at the age of ten. She completed Year 12 and eventually qualified as a Division 2 Nurse. She had hoped to go on to further study to qualify as a Division 1 Nurse.
2Around 2013, while employed as a childcare worker, Ms Hagose developed some neck and left shoulder pain, but nothing that prevented her working. In 2017, she experienced some ongoing stiffness in the neck and shoulder, and pain in her left wrist, including undergoing an MRI scan in May 2017.
3Ms Hagose was involved in a transport accident on 16 February 2018. A short time before that, she had reduced her work hours in preparation for commencing studies to become a Division 1 Nurse. In the accident, there was significant damage to her vehicle. She suffered an injury to her left wrist and had pain in her neck, back and chest. An x-ray of her left wrist revealed an undisplaced fracture of the radial styloid, with some surrounding soft-tissue damage. Subsequently, the fracture healed.
4In June 2018, Ms Hagose was referred to Mr Stephen Tham, hand surgeon, and despite an excellent range of movement, she was still complaining of pain in the wrist. He considered a small ganglion cyst may be responsible.
5In November 2018, her general practitioner, Dr Ashraf Ebrahim, referred her to Mr Steve Csongvay, orthopaedic surgeon, with complaints of ongoing left wrist pain. He noted intermittent discolouration of the left hand with an altered sensation. His feeling was Ms Hagose had developed Chronic Regional Pain Syndrome (“CRPS”). Mr Csongvay referred her to a pain management program through Advance Healthcare, which she undertook between January and April 2019. She also had ongoing physiotherapy.
6Ms Hagose attempted to undertake her studies to qualify as a Division 1 Nurse, but had to stop after about two weeks because of ongoing pain in her left wrist and hand. Initially, she deferred the studies for twelve months, but at the end of that period, felt she found she could not resume those studies. She said, in any event, because of the pain and restriction in her left wrist, she would not be able to work as a nurse.
7In 2019, she developed pain in the left shoulder and was diagnosed with mild subacromial bursitis, although I am not satisfied this was accident related.
8Ms Hagose remained under the care of her general practitioner and Mr Csongvay. Mr Csongvay said that CRPS was the “main diagnosis”.[1]
[1] Plaintiff’s Court Book (“PCB”) 40
9The practitioners at Advance Healthcare involved in the pain management program concluded Ms Hagose had moderate CRPS.
10In 2020, Mr Csongvay referred Ms Hagose to Dr Peter Keogh, pain specialist physician and anaesthetist. He also diagnosed her as suffering CRPS. Dr Keogh noted Ms Hagose was taking strong opioid pain medication, which concerned him. He tried a range of other medication, including Gabapentin, and referred her for further pain management and rehabilitation at Donvale Rehabilitation Hospital.
11In August 2019, Ms Hagose was diagnosed with tuberculosis. She underwent a course of antibiotics and the symptoms of the disease were largely relieved. She has check-ups with a specialist from time to time and suffers some mild ongoing symptoms.
12At the present time, Ms Hagose said she experiences ongoing pain in the left wrist, radiating to the elbow and shoulder. She is restricted in the use of the wrist, which she says feels weak and prevents her from any lifting. The condition affects her sleep. She is able to drive her vehicle, but for short distances. She takes opioid pain medication, OxyNorm each day. That medication makes her drowsy.
13She says her left hand becomes hot and cold, sweaty and changes colour. She has numbness in the wrist.
14She is unable to do the heavier domestic duties at home. The exercise she enjoyed before the accident is much restricted. She used to enjoy various types of exercise, ice skating, bowling, billiards, horse riding and go-kart driving, all of which she says are lost to her. She says she socialises less and the injury interferes with the practise of Islam.
15She has not returned to any form of employment and receives fortnightly Centrelink payments.
The application
16This is a serious injury application. Leave is sought pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings. The body function said to be lost or impaired is the left wrist.
17Mr Ruskin, counsel for the defendant, eloquently identified the questions to be resolved in the application as:
· What is the nature of the injury or condition Ms Hagose currently suffers? (“injury”)
· Is that injury or condition accident related? (“accident related”)
· Is the injury or condition permanent? (“permanency”)
· What role does the tuberculosis, with which Ms Hagose has been diagnosed, play? (“tuberculosis”)
Injury
18The determination of the nature of the injury suffered by Ms Hagose requires, largely, an examination of the opinion of the medical experts. Further, it relies upon the credibility and reliability of the evidence of Ms Hagose. I found her an impressive, forthright witness. There were no major credit issues put to her. Some practitioners found inconsistencies in the course of examination, but I am satisfied that relates rather to the nature of the CRPS, which I have concluded she suffers. It was said by Mr Ruskin that Ms Hagose regarded the outcome of the pain management course as less successful than the practitioners involved. Further, that she disagreed with the findings of Dr David Vivian, musculoskeletal physician. I am not satisfied these are matters of any real significance in assessing her credit.
19Ms Hagose was responsive in cross-examination and impressed me as a credible witness attempting to truthfully answer questions. I have little difficulty accepting her evidence as reliable.
20According to her affidavits and evidence, Ms Hagose said that she was taken to Monash Hospital suffering pain in a number of areas, including her left wrist, immediately after the accident. An undisplaced fracture of the radial styloid was found. She undertook physiotherapy over a number of months. A wrist ganglion was aspirated by Mr Tham.
21Between January and April 2019, she underwent an intensive pain management program through Advance Healthcare in Dandenong. She was eventually discharged after follow up in October 2019.
22At the present time, she takes OxyNorm and Panadol on a daily basis, and Nurofen as required. She says she can no longer sweep and mop because of left wrist pain. She finds cooking difficult, including cutting vegetables. Lifting heavier items, such as rubbish, results in pain. As a Muslim, she would normally pray five times per day, using her hands to support her. She now predominantly uses only her right hand.
23Ms Hagose continues to experience pain and restriction in the left wrist, which radiates to the elbow and shoulder. She said that her left hand becomes hot and cold and swells up. It becomes sweaty and has a purple coloring. She occasionally experiences electric-shock sensations in her left hand, which she says feels weak.
24It was suggested by Dr Keogh that she consider a Ketamine infusion, but was concerned about the side effects. She undertakes hydrotherapy and physiotherapy from time to time.
25In August 2021, she commenced rehabilitation at Donvale Rehabilitation Hospital. Treatment has included physiotherapy, hydrotherapy, occupational therapy, exercise physiology and psychological treatment. She said the course has not made any real difference to her pain, but she has received guidance in how to deal with it.
26In his report of March 2021, Ms Hagose’s treating general practitioner, Dr Ashraf Ebrahim, noted that after the transport accident, Ms Hagose’s wrist remained painful and mildly swollen. He observed no apparent skin changes, nor mottling. Examination revealed diffuse tenderness. He considered that her wrist had remained painful, with limited function. Dr Ebrahim considered Ms Hagose could not work as an aged care worker. He said she could possibly work in a sedentary, clerical role, but her capacity to type using both hands would be impaired.[2]
[2] PCB 35
27In a report of November 2018, the treating orthopaedic surgeon, Mr Csongvay, said he first saw Ms Hagose in November 2018. He received a history of ongoing pain in the left wrist, radiating into the forearm, and some intermittent swelling. She reported discoloration of the left hand, as well as a generalised altered sensation. Upon examination, there was a full range of movement in the left wrist. Mr Csongvay said:
“My feeling is that Sara has a mild form of CRPS. She does have localised tenderness around the radial styloid from her styloid fracture but I do not believe that this injury completely explains all of her symptoms … .”[3]
[3]PCB 39
28In subsequent reports, Mr Csongvay said CRPS was the “main diagnosis”. In a final report of October 2020, Mr Csongvay said the ongoing symptoms in her left arm related to an underlying CRPS.[4]
[4]PCB 42
29Mr Csongvay referred Ms Hagose to Advance Healthcare for a pain management assessment and course. The report from that institution said Ms Hagose suffered from features indicative of CRPS, including a range of symptoms which satisfied the “Budapest Criteria”.[5] The report noted:
“On assessment Miss Hagose presented with signs of moderate severity complex regional pain syndrome according to the Budapest criteria following radial styloid fracture. There was a mixed pain picture, with features also of central sensitisation and neuropathic pain.”[6]
[5]PCB 46
[6]PCB 48
30A discharge report from Advance Healthcare of May 2019 noted Ms Hagose had completed an eight-week intensive pain management program. The report said Ms Hagose reported that she was better overall, with mildly improved pain, improved strength through an exercise program and the ability to increase activities with her left wrist.[7] In the course of cross-examination, Ms Hagose did not agree with this assessment, although accepted the program provided her with better understanding of the condition, and how to deal with it.
[7] Defendant’s Court Book (“DCB”) 75
31A further report from Dr Aston Wan, a specialist pain physician with Advance Healthcare, noted that upon assessment in December 2018, her left wrist showed reduced sensation to touch, with dysaesthesia. He said the left wrist appeared paler and colder, with mild swelling. Thicker hair over the wrist was observed. He said:
“… Her appearance is consistent with left wrist complex regional pain syndrome. She also has some secondary myofascial change. This is on a background of someone who was previously active and very keen to return to work.”[8]
[8]PCB 51
32As stated, Ms Hagose was referred to Dr Keogh in October 2020. To that practitioner, Ms Hagose said that her left wrist felt tight and stiff, with swelling and intermittent discoloration. On examination, he noted global allodynia up to the level of the shoulder, but observed no obvious colour change or increased hair or nail growth. He diagnosed her as suffering CRPS, meeting the “Budapest criteria”. He expressed concern at her ongoing strong opioid use.[9]
[9] PCB 52-53
33On review in March 2021, Dr Keogh noted Ms Hagose had failed a trial of Gabapentin because of side effects. Pain levels and function of the left wrist had not changed since his previous examination.[10]
[10] PCB 55
34Dr Glareh Arfaei, another pain specialist, provided a report after the referral of Ms Hagose to Donvale Rehabilitation Centre. Ms Hagose gave a history to that practitioner of pain in the wrist, including tingling, burning and shooting pain. She also described swelling, colour change and reduced movement. He noted that with those symptoms she fulfilled the criterial for CRPS.[11]
[11] PCB 56
35The plaintiff was examined by Mr Ash Chehata, consultant orthopaedic surgeon, in April 2021. He said Ms Hagose was difficult to examine:
“… due to recurrent spasming and flexion and extension of the fingers, even on gentle flexion and extension of the wrist.
The examination findings are very confusing … .”[12]
[12]PCB 62
36To Mr Chehata, Ms Hagose reported changes of colour, although this was not present on examination. He considered she was suffering CRPS, although noted her presenting symptoms were very odd. He said there was a clear relationship between the transport accident and the development of her Pain Syndrome. He considered she could not return to work as a nurse, nor any other form of employment, without significant improvement in her symptoms.
37Ms Hagose was examined by Dr Peter Blombery, vascular physician, and an acknowledged expert in CRPS, in July this year.[13] She complained of ongoing pain, sensations of hot and cold in the wrist with swelling, and sweating. There were changes in colour of a purple appearance. Upon examination, Dr Blombery said Ms Hagose presented without exaggerated pain behaviour.[14] He measured the temperature in each hand, finding the left hand 2.5 degrees cooler than the right and somewhat darker in appearance. He said these features, both reported and observed on examination, were consistent with the diagnosis of CRPS Type 1. He said she fulfilled the Budapest criteria.[15] He said she had no capacity for her pre-injury duties as a nurse and given the severity of her ongoing pain and the need for opiate analgesics, she would not be able to undertake any job which required manual use of her left arm.
[13] PCB 67
[14] PCB 69
[15] PCB 72
38Ms Hagose was examined by Mr Damian Ireland, specialist hand surgeon, on two occasions, in 2020[16] and 2021.[17] Ms Hagose complained of ongoing left-wrist pain, eased by painkillers and massage. Upon examination in 2020, Mr Ireland found the palm of the left hand more moist than the right.[18] Mr Ireland found no evidence of swelling nor colour, temperature, nail or hair growth changes. He diagnosed mild wrist dysfunction as “resolving complex regional pain syndrome”.[19] He thought the prognosis was good. He said she would be fit to return to work on a graduated basis, returning to full time within six months.
[16] DCB 52
[17] DCB 61
[18]There appears to be a clerical mistake at DCB 55. The “left hand” should read “right hand”
[19] DCB 55-56
39In his second report, of August 2021, he again did not observe any swelling, and found a full range of active movement in the wrist, which he said was pain free. He was not able to diagnose any physical problem with the left wrist and considered that Ms Hagose had fully recovered from a mild CRPS. He said she was capable of a graduated return to work as a nurse, with restrictions on lifting of patients and transfers.
40Dr David Vivian, musculoskeletal physician, provided reports of November 2020[20] and August 2021.[21] Dr Vivian was provided with extracts of Ms Hagose’s general practitioner’s notes. He considered a range of entries from July 2011 to the time of the transport accident. In his first report, he diagnosed Ms Hagose as suffering: “Exacerbation and perhaps aggravation of chronic primary pain, with intermittent features of CRPS.”[22] As an associated condition, he also said she was suffering pre-existing conditions, “hypermobility spectrum disorder; somatic dysfunction manifested by at least headache, irritable bowel syndrome and anxiety”.[23]
[20] DCB 2
[21] DCB 21
[22] DCB 9
[23] DCB 9
41Dr Vivian described Hypermobility Spectrum Disorder (“HSD”) as a congenital condition characterised by “the ease and frequency of soft tissue injury, typically instability related, and enhanced pain, with a specific tendency to develop nociplastic pain following somatic injury … and neuropathic pain because of an increased incidence of entrapment neuropathies”.[24] Evidence of this disorder, he said, was made out on the basis of her attendances upon her general practitioner in the several years before the transport accident. He said that if Ms Hagose did not have HSD, then the CRPS from the transport accident would not have developed. He considered an apportionment of 70 per cent to the pre-existing HSD, and 30 per cent to the transport accident. He further considered that Ms Hagose had an underlying pre-existing psychiatric disorder which had been aggravated by the transport accident and contributed to her pain-related disability.
[24] DCB 10
42Dr Vivian said that he had seen many patients with HSD. He said the condition was very common in young women who sprain their ankle. He said there was a link between HSD and CRPS.
43In his second, again lengthy, report, he said he had adjusted his view of Ms Hagose’s condition. He said he no longer considered she had CRPS or any significant musculoskeletal disorder. He said she may or may not have the pain she describes, but even if it existed, it was unrelated to the transport accident. He said the clinical findings were consistent with HSD.
44On both occasions he examined her, he noted she sat with her left arm held by her right. He said he performed a sharp touch test with a blunt instrument on the arm, and when distracted, he stroked the fingers and palm of the left wrist, which she did not notice; but when undistracted, even to light touch, she exhibited pain behaviour. This appears to me to be a rather bizarre test and a strange conclusion to draw from it.
45In relation to Dr Vivian’s reports, Mr Brett, Counsel for the plaintiff, in a succinct and insightful submission, pointed out Ms Hagose’s pre-accident history covered seven years and involved attendances on a general practitioner on thirty-seven or so occasions; that is, five times per year. He said it was clear that she had a number of problems, including abdominal difficulties with gallstones, issues with her neck and left shoulder, and possibly brachial neuritis over a period of twelve months which was successfully treated. At one point there was an issue with weight and another with vertigo. She had painful feet diagnosed as plantar fascia. All in all, said Mr Brett, these were no more than one would expect of a person with illnesses and conditions from time to time, attending her general practitioner for treatment. With respect, I accept entirely Mr Brett’s submission. I could detect nothing unusual about Ms Hagose’s pre transport accident attendance on her general practitioner. It is difficult to understand how Dr Vivian came to the conclusion that she was “hypermobile” based upon these attendances.
46Moreover, despite his view that this is a common condition, particularly amongst young women, no other doctor, either treating or consultant, came to the conclusion Dr Vivian did, nor even mentioned HSD. He is quite out of step with the other opinions. For these reasons, I reject the assessment and opinions of Dr Vivian.
47Most significantly, in my view, all of Ms Hagose’s treating practitioners, in particular, the specialist pain practitioners, and those at Advance Healthcare, diagnosed CRPS in varying degrees of severity. Even Mr Ireland, the defendant’s treating hand surgeon, diagnosed it on the first occasion, although not the second. He said she had recovered.
48Based upon those opinions, I accept that while the initial injury to Ms Hagose’s left wrist was a relatively modest fracture which healed, she developed CRPS, which has continued to cause pain and disability in the area of the left wrist to the present time.
49In this assessment, the manner in which Ms Hagose gave evidence is important. As stated, I found her a straightforward and honest witness. I accept her evidence of colour and temperature changes. I have little difficulty accepting her complaints of pain and restriction in the left wrist, and the effect upon her employment and activities of daily living. I accept this restricts her in a range of domestic and social duties and undertakings, as set forth in her affidavits. I accept that she is unable to resume work as a Division 2 Nurse, and, at least for the present, prospects of further study and advancing to a Division 1 Nurse are beyond her.
50All in all, I am satisfied the consequences to Ms Hagose of the CRPS meet the “very considerable” test the authorities refer to.
Accident related
51There is no doctor, save Dr Vivian, who is of the view that the CRPS is related to anything other than the transport accident. I accept Ms Hagose’s evidence that, prior to the transport accident, she was relatively fit and active, employed as a Division 2 Nurse, and with the ambition to study for a Division 1 position.
52The only other practitioner to suggest Ms Hagose suffers no current disability is Mr Ireland, in his second report. Again, I prefer the opinions of the longer-term treating practitioners, in particular, Mr Csongvay and Dr Keogh. They have seen and examined Ms Hagose on many occasions and their opinions should be respected.
53If a comparison were made between Ms Hagose’s state before the transport accident, and then in the years after, there is clearly a close temporal relationship between the onset of the CRPS. I am satisfied it is accident related.
Permanency
54It is now more than three years since the transport accident. Ms Hagose has undergone a raft of treatment from a number of practitioners. She has undergone two significant pain management programs, neither of which have provided any long-term relief. She takes strong opioid medication and has tried other areas of treatment in respect of the CRPS. None have been particularly successful.
55She is a relatively young woman with the prospect, at some time in the future, of resuming some area of employment. It is difficult to see that area of employment, being as a nurse, given the physical demands of that job upon her left wrist.
56There is no practitioner, with the possible exception of Mr Ireland, suggesting that she has the capacity to return to full-time employment.
57The authorities provide that a court must be satisfied that an injury or condition is likely to remain “for the foreseeable future”. Given the length of time Ms Hagose has suffered ongoing pain and restriction, and the failure of treatments to provide any significant relief, I am satisfied she suffers this criterion. I am satisfied the CRPS is permanent.
Tuberculosis
58In 2019, Ms Hagose contracted tuberculosis. It was treated at the Infectious Diseases Clinic at Monash Medical Centre. She was treated with a range of antibiotics. In December 2020, the reports note she had an ongoing productive cough and exertional dyspnea. It was suggested Ms Hagose be reviewed in six months’ time. There is no evidence she remains on any form of treatment, other than regular reviews.
59I accept Ms Hagose’s evidence that while she does suffer some ongoing issues, including breathing difficulties and coughing, they are not significant and there is no real disentangling exercise required in relation to the symptoms of CRPS.
60In the scheme of things, her contraction of tuberculosis is a matter of little significance in assessing the consequences from the transport accident.
Conclusion
61I am satisfied Ms Hagose suffered a relatively modest injury in the transport accident which subsequently developed into CRPS. I accept the diagnosis of most of her treating practitioners to this effect.
62I accept her evidence that she suffers significant and debilitating ongoing pain and restriction in the left wrist and arm as a result. This has restricted her in various ways, including in her employment, domestic and recreational activities.
63I am left in little doubt the consequence as a result of the CRPS meet the “very considerable” test. Leave will be granted to bring common law proceedings.
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