Hansen v Transport Accident Commission
[2017] VCC 808
•23 June 2017
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00431
| SHARON MARIE HANSEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 7 and 8 June 2017 | |
DATE OF JUDGMENT: | 23 June 2017 | |
CASE MAY BE CITED AS: | Hansen v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 808 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of the lower back – impairment to the right hip – credibility of the plaintiff – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79
Judgment: The application for serious injury in respect of the right hip injury is dismissed. Leave is granted to the plaintiff to issue proceedings for damages in respect of the impairment of her spine, in particular, the low back.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R Morrow | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr P B Jens QC with Mr J L Batten | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 8 February 2016. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 6 September 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under ss(4)(d) unless it is satisfied that the injury is a ‘serious injury’.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“a serious long-term impairment or loss of a body function; … .”
4 The plaintiff in this case has sought leave to bring damages in respect of two body functions. The first body function relied upon is injury to her spine, particularly the low back. The second body function relied upon is injury to the right hip.
5 The inquiry under s93(17) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by ss17(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.[1]
[1]Richards v Wylie (2001) 1 VR 79
7 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by a comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2][1992] 2 VR 129
8 The plaintiff swore and relied upon four affidavits dated 14 July 2015, 13 October 2016, 24 February 2017 and 18 May 2017. The plaintiff also relied upon an affidavit sworn by her partner, Alan Gibson, dated 6 June 2017, and an affidavit sworn by Janette Griggs, dated 6 June 2017.
9 The plaintiff gave evidence and she was cross-examined by Mr Jens QC for the defendant.
10 In addition to the sworn affidavits and sworn evidence of the plaintiff, both parties relied upon medical reports and other material tendered during the course of the proceeding. I have read all of the tendered medical material. None of the medical practitioners were called for cross-examination in this application.
11 The tendered evidence in this proceeding was as follows:
·The plaintiff tendered the following documents:
§Exhibit A – the Plaintiff’s Court Book (“PCB), pages 6-35, pages 44-92A, page 93, pages 97-114, pages 128-138;
·The defendant tendered the following documents:
§ Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 1-54
§ Exhibit 2 – a medical certificate by Dr Anthony Farnbach dated 27 November 2008.
Issues identified by the parties
12 The issues to be decided in this application were identified by Mr Jens QC, for the defendant, as follows:
(a)Is the injury and impairment of the body function of the right hip is not related to the transport accident?
(b)Whether the plaintiff’s injury to her back is properly described as in “the range of cases considered as a whole to be a ‘serious injury’ under the Act”;
(c)The credit of the plaintiff and bona fides of the plaintiff are very much put in question;
(d)Whether or not the aggravation of the plaintiff’s pre-existing spine or low-back injury meets the “serious injury” test.
The Plaintiff’s background
13 The plaintiff was born in 1968 and is now forty-nine years of age. The plaintiff lives with her partner, Alan Gibson. The plaintiff has three children, aged twenty-four, eighteen and seventeen. The youngest child lives with the plaintiff at Barnawartha.[3]
[3]PCB 6
14 The plaintiff was educated to Year 10 at St Albans High School. The plaintiff’s most recent education has been for a Certificate III in Patisserie at the Wodonga TAFE. This course was undertaken by the plaintiff in 2016.
15 The plaintiff, in her affidavit dated 14 July 2015, set out her work history. In her evidence, the plaintiff stated that her work history set out in that affidavit was incorrect.
16 In the period 2007 to 11 November 2008, the plaintiff worked for Australia Post as a mail sorter. The plaintiff then had a period of time on Centrelink payments.
17 Between October 2009 and April 2010, the plaintiff worked as a picker and packer for Corporate Express Australia Limited. This employment involved picking and packing books, predominantly for school children orders.
18 On the day of the transport accident, the plaintiff commenced work for Crown Packaging. This was a labour-hire company and the plaintiff had been directed to work at Mattel Toys as a picker and packer. The plaintiff was on her way home from work on that day when she was injured in the transport accident. The plaintiff has not been in paid employment since that time.
19 Since the date of the accident, the plaintiff has either been in receipt of Department of Social Services payments or weekly payments from the Transport Accident Commission. The plaintiff is currently in receipt of a Newstart Allowance and lives with her partner and son in Barnawartha.
The transport accident involving the Plaintiff
20 The plaintiff set out the circumstances of the transport accident in her first affidavit dated 14 July 2015 as follows:
“9.The transport accident occurred on my first day of employment with Crown Packaging when driving home from work in my 1990 Nissan Skyline sedan. It was about 2.30pm when I was hit from behind when I was slowing down at traffic lights. The van hit me at full speed and my vehicle was a write-off. The driver’s seat collapsed underneath me in the collision and as a result I was lying down when the vehicle came to a full stop. I got out of my car but when I stood I felt severe pain throughout my body.”[4]
[4]PCB 8
21 In the course of her evidence, the plaintiff was cross-examined about the extent of the damage to the car in the transport accident. The plaintiff described it as “the back of the car was smashed … up into the passenger side – in the back”.[5]
[5]Transcript (“T”) 26 Line (“L”) 19-20
22 The plaintiff also gave evidence of a bizarre sequel to the accident. She stated that while she was still lying in the car, the seat having given way under her as a result of the accident, the other driver involved in the accident asked her: “You want to sponsor me?”[6] The plaintiff was then taken by a friend who attended at the accident to the Werribee Hospital.
[6]T27-28, L18-19
The Plaintiff’s impairment or loss of body function
The right hip
23 At the commencement of this proceeding, the plaintiff was seeking a serious injury certificate for impairment for her loss of body function in respect of her right hip. The plaintiff stated that as a result of the transport accident, her right hip was injured and she was suffering pain in that area of her body.
24 On the day of the transport accident, the plaintiff attended at the Werribee Mercy Hospital for treatment. At the time of her attendance at the hospital, the plaintiff did not complain of any hip symptoms on the right side. Her complaints were of right hand injury, lower back pain and left foot pain.[7]
[7]PCB 34
25 The plaintiff attended upon her general practitioner on 11 September 2010 and her only complaint was of soft-tissue injury to her hips and knees, together with symptoms in relation to her neck, thoracic spine and back. The symptoms in relation to her hips were less prominent injuries than the back injury.
26 The plaintiff attended upon Dr Maher Alsabti, general practitioner, at Rao Medical Centre in Tocumwal. Dr Alsabti referred the plaintiff to Mr Ian J Critchley, orthopaedic surgeon, for examination and diagnosis in respect of the plaintiff’s pain in her right hip and groin area.
27 Mr Critchley took a history from the plaintiff that she had pain in her right hip and groin area from the moment of the impact in the transport accident.[8] Mr Critchley, in his report dated 25 September 2014, accepted the plaintiff’s history of the onset of her pain to the right hip and diagnosed her as suffering from a labral tear.[9] His opinion was that the labral tear to the plaintiff’s right hip was probably a result of the transport accident.[10] Mr Critchley noted that the MRI examination had shown a labral tear and a small paralabral cyst, with some gluteus medius tendinopathy without signs of CAM lesion which is often associated with hip impingement.[11]
[8]PCB 26
[9]PCB 27
[10]PCB 27
[11]PCB 27
28 Mr Critchley qualified his opinion in relation to the causation of the right hip symptoms for the plaintiff in the following way:
“I think Miss Hansen’s symptoms are due to a soft tissue injury in her right hip. She did not have any of these symptoms prior to the accident, so it seems reasonable to assume that this problem had either been caused, or exacerbated by the accident. This type of MRI appearance however is often seen in the absence of any traumatic event. … .”[12]
[12]PCB 28
29 Mr Critchley referred the plaintiff to the specialist orthopaedic surgeon, Mr Phong Tran, for treatment to her hip. The plaintiff tendered three reports from Mr Tran dated 15 August 2011, 11 August 2015 and 9 March 2017. Mr Tran did not express any opinion as to the cause of the right hip symptoms complained of by the plaintiff. In his latest report, Mr Tran stated:
“The diagnosis of Sharon’s condition is difficult to make and it is uncertain. The MRI reported both trochanteric bursitis and a labral tear, however she did not respond to the diagnostic injections.
…
Sharon underwent a diagnostic hip arthroscopy into her right hip joint. The findings were a partial tear of her ligamentum teres but no tear of the labrum and excellent cartilage surfaces. The partial tear of the ligamentum teres underwent debridement. During the same operation an iliotibial Band Release and Bursectomy were performed.
The operation was performed at Western Health and Sharon was then referred to post operative physiotherapy at Western Health. Since the operation I have not had the opportunity to further review Sharon. I am unable to comment on her current capacity to work in the future. Further examination and review would be needed to make a comment on these specific questions.
…
… At the time of last seeing her it was difficult to ascertain the cause of her pain, therefor it makes the estimated prognosis quite difficult.”[13]
[13]PCB 83-84
30 The plaintiff was examined on behalf of the defendant by Mr Peter L Isbister, orthopaedic surgeon. In his report dated 15 November 2011 he stated:
“The Right Hip condition however in my opinion has no evidence of relationship to the Motor Vehicle Accident. Her symptoms have occurred later and she is obese.”[14]
[14]DCB 5
31 In his report dated 8 March 2012, Mr Isbister stated:
“My main reasons for this are that the nature of the collision is unlikely to cause a hip injury”[15]
[15]DCB 10
32 In his opinion, the right hip injury was not related to the transport accident.
33 The plaintiff had surgery on her right hip on 16 January 2014.[16] It is unclear and unknown who the surgeon for the plaintiff was on that occasion. There was no medical report relating to the operation to the plaintiff’s hip. The lack of a medical report from the treating surgeon in respect of the right hip has not assisted the plaintiff’s application for serious injury in respect of that injury.
[16]PCB 50
34 In conclusion, I am not satisfied that the plaintiff’s right hip pathology and symptoms are as a result, or caused by, the transport accident on 6 September 2010. The preponderance of the medical evidence and opinions is that the transport accident did not cause the injury to the plaintiff’s right hip. The plaintiff, immediately after the accident, at the Werribee Hospital, did not make any complaint relating to her right hip.
35 The application by the plaintiff for a serious injury certificate in respect of the impairment of the body function of the right hip is dismissed.
The low back
36 At the commencement of this proceeding, the plaintiff was seeking a serious injury certificate for impairment to her loss of body function to the spine, in particular to the low back. The plaintiff stated that as a result of the transport accident, her low back was injured and she was suffering pain in that area of her body.
37 The starting point in an assessment of the plaintiff’s application for serious injury in respect of her low back is the plaintiff had fractured her coccyx in 1991. The plaintiff, in her affidavit, stated that she had had occasional pain in her tailbone since that time.[17]
[17]PCB 7, paragraph 3
38 The plaintiff had been treated by Dr Gerard Christian, chiropractor, for low-back complaint in 2005. Dr Christian referred the plaintiff for an x-ray of the cervical, thoracic and lumbar spine. In respect of the lumbar spine, in a report dated 7 October 2005, the following was found:
“No spondylosis of spondylolisthesis is event. There is some loss of disc space height at L4/5 and there is some lower lumbar facet joint arthropathy. A mild scoliosis convex towards the left side is present. No bony abnormalities are seen in the pelvis. The sacroiliac joints have a normal appearance.”[18]
[18]PCB 93
39 On 27 November 2008, the plaintiff obtained a medical certificate from Dr Anthony Farnbach, general practitioner, stating that she was fit to do community work although, as a result of a back injury, she had restrictions. The restrictions were set out in the medical certificate which became Exhibit 2 in the hearing. It was clear from the evidence that the plaintiff had some symptoms in her lower back from time to time in the years leading up to the transport accident. Nevertheless, the plaintiff was able to obtain and engage in full-time employment from time to time. In the period from 2007 to the time of the transport accident, the plaintiff had been employed at Australia Post and Corporate Express Australia Limited. I accept that prior to the transport accident, the plaintiff had had some symptoms in her spine and lower back but those symptoms had not been persistent and consistent to the extent that she was unable to engage in full-time employment, and live a normal life.
40 On the day of the transport accident, the plaintiff attended at the Accident and Emergency Section of the Werribee Hospital. At the time of her attendance at the hospital, the plaintiff complained of a right hand injury, low-back pain and left foot pain.[19] The plaintiff gave a history of back pain which dated back to November 2009. The plaintiff was examined and tenderness was noted in the lumbar spine, particularly the L3-L5 area. The plaintiff was x-rayed and the x‑rays reported as normal, with no fractures evident.[20]
[19]PCB 34
[20]PCB 35
41 The plaintiff then attended her general practitioner, Dr Mathew Hargreaves, on 11 September 2010. Dr Hargreaves, in his report dated 7 January 2011, noted that the plaintiff had a long history of mild chronic lower back pain; however, it did not appear to have been aggravated as a result of the transport accident.[21] The plaintiff’s evidence was that she was prescribed Panadeine Forte at this time by her general practitioner.
[21]PCB 23
42 The plaintiff then changed her place of residence from Werribee to Tocumwal. She then attended Dr Maher Alsabti, general practitioner, at the Rao Medical Centre in Tocumwal. The plaintiff first attended Dr Alsabti on 24 February 2011 and reported that she had ongoing back and neck pain. She was treated by Dr Alsabti for a period of two years and eight months for pain to her back and neck. Dr Alsabti’s opinion was that the plaintiff was unable to manage employment without deterioration in her condition.[22]
[22]PCB 155
43 Dr Alsabti certified the plaintiff as unfit for work or study from June of 2014 until September 2014.[23]
[23]PCB 156
44 In the course of treatment by Dr Alsabti, the plaintiff was referred to Mr Ian Critchley, orthopaedic surgeon, for treatment in respect of her hip. The plaintiff was also referred to Dr Brett A Todhunter, specialist in anaesthesia and pain medicine. The plaintiff underwent an operative procedure consisting of diagnostic facet joint blocks to the L5-S1 level of the lumbosacral area of her back on 21 November 2013.[24]
[24]PCB 30
45 The plaintiff then moved to Barnawartha. She changed her general practitioner to Dr Brendan Pitts. Dr Pitts first examined and consulted with the plaintiff on 16 July 2014.[25] Initially, Dr Pitts prescribed MS Contin, 30-milligram tablets, one tablet twice a day.[26] Dr Pitts then administered injections to the plaintiff’s back on 18 July 2014, 25 July 2014 and 5 September 2014.
[25]PCB 62
[26]PCB 63
46 The plaintiff’s last attendance on Dr Pitts was on 19 September 2014. Dr Pitts noted as follows:
“September 19th
I examined her lower back again and now all the clinical tests done made her back pain worse. This was an astonishing finding. I have been examining patients with low back pain and sciatice [scil sciatica] for over 50 years and I have not seen such a phenomenon previously. The tests included spinal flexion. spinal extension, side flexions to each side, a dural test, hip flexions while lying down. straight leg raising; these were all reported as being painful. I also tested her isometric dorsiflexion of the left great toe and this quite remote test in a person who had never had lower limb pain was also alleged by her to be painful.”[27]
(sic)
[27]PCB 63
47 This visit was the last visit by the plaintiff to Dr Pitts. The plaintiff’s evidence is, and I accept, that she re-attended at the Albury Wodonga Medical Clinic where Dr Pitts had been practising, to be confronted with a sign saying that Dr Pitts no longer worked there and that the clinic was closed.
48 In the course of argument, Mr Monti QC submitted that the Court should ignore the opinion of Dr Pitts, because he had been practising for some fifty years. Mr Jens QC, on behalf of the defendant, referred to Dr Pitts’ report and in particular, Dr Pitts’ opinion that the plaintiff’s symptoms were exacerbated by hysteria or neurosis. Dr Pitts also mentioned the plaintiff may be motivated by a secondary gain.
49 I do not accept the plaintiff was motivated by secondary gain in this matter. Dr Pitts has treated the plaintiff by prescribing MS Contin tablets and the use of injections to block the pain in the plaintiff’s back. The fact that Dr Pitts, on his final examination, stated that the findings were “astonishing” does not change the fact that he saw fit to actively engage in pain treatment for the plaintiff.
50 In October of 2015, the plaintiff attended a pain management program to reduce her chronic low-back pain. The program was conducted by Albury Wodonga Health and the plaintiff attended as an inpatient between 11 and 30 October 2015.[28] At the end of the inpatient program, the plaintiff had successfully ceased taking MS Contin and reduced her Panadeine Forte intake from two tablets four times a day to two tablets twice a day. The plaintiff’s evidence was that she had, at the end of the pain management program, completely weaned herself off all medication.[29]
[28]PCB 75
[29]T46
51 The plaintiff did not attend a general practitioner until 1 March 2016. The plaintiff’s evidence is, and I accept, that she attended at the Indigo Family Medical Centre in Havelock Street, Barnawartha on 1 March 2016.[30] I note from the records of the practice at that time that the plaintiff gave a history of chronic back pain resulting from a transport accident in 2010. The history also noted that the plaintiff had been on multiple medications but after doing the pain management program, she had been able to stop all medications.[31]
[30]PCB 129
[31]PCB 129
52 The plaintiff continued to attend at that practice for respiratory tract infections and the like.
53 On 26 September 2016, the plaintiff attended the general practitioner, Dr Colin Cameron, complaining of low-back pain. Dr Cameron took a history from the plaintiff that at that stage, she had been taking six Panadeine Forte tablets every second day. Since September 2016, Dr Cameron has been regularly seeing the plaintiff up until 31 May 2017.[32]
[32]PCB 135
54 The plaintiff is now prescribed the following medications by Dr Cameron:
§ Amitriptyline 50-milligram tablet, one before bed
§ Celebrex, 200-milligram capsule, one daily
§ Targin, 15-milligram; 7.5-milligram tablet, one twice a day.
55 The plaintiff gave evidence during the hearing that she had a prescription in her bag for filling for the Targin medication that day.[33] The plaintiff’s ongoing treatment regime for those medications is to continue for the foreseeable future.
[33]T67
56 There was no medical report from Dr Cameron setting out his opinion in respect of the plaintiff’s current condition.
Medical opinions
The Plaintiff’s doctors
The Werribee Mercy Hospital
57 The plaintiff tendered the medical report dated 24 February 2014 from the Werribee Mercy Hospital. The plaintiff attended the hospital on the afternoon of the transport accident the subject of this application. At that time, she was complaining of low-back pain which was radiating to her left side. At the time of the examination at hospital, the plaintiff had slight tenderness in the midline in the C6-C7 area, as well as in the thoracic T8-T9 area and in the lumbar L3‑L5 area. The x-ray images did not display any evidence of fractures.[34]
[34]PCB 34-35
58 The plaintiff was discharged with a medical certificate and given Panadeine for pain relief. The plaintiff did not attend the hospital again.
Dr Mathew Hargreaves, general practitioner
59 Dr Mathew Hargreaves prepared a report dated 7 January 2011. Dr Hargreaves diagnosed the plaintiff as suffering from “whiplash”. The predominant symptoms when the plaintiff attended Dr Hargreaves was the neck and thoracic region of her spine. Dr Hargreaves noted that the plaintiff had a long history of mild chronic low-back pain but it did not appear to have been aggravated in the transport accident.[35]
[35]PCB 23
Dr Maher Alsabti, general practitioner
60 Dr Alsabti prepared a report dated 25 October 2013.[36] Dr Alsabti first saw the plaintiff on 24 February 2011 when she reported ongoing back and neck pain. He treated the plaintiff for her pain condition for more than two-and-a-half years and noted that she was unable to manage employment without deterioration in her condition. In Dr Alsabti’s opinion, the plaintiff’s ongoing pain was a barrier to her employment.[37]
[36]PCB 155
[37]PCB 155
61 For the period of June 2014 to September 2014, Dr Alsabti gave the plaintiff a medical certificate for “back pain post car accident” for the purposes of Centrelink.[38]
[38]PCB 156
Dr Brendan Pitts, general practitioner
62 Dr Pitts prepared a report dated 21 November 2014. Dr Pitts first saw the plaintiff on 16 July 2014. I accept the evidence of the plaintiff that she went to see Dr Pitts at the Albury Wodonga Medical Clinic after she had moved to Barnawartha. Dr Pitts found, on examination, that the plaintiff’s lumbar spine showed painful limitation of extension and forward flexion movements. He noted that the plaintiff exhibited some pain in the lower back centrally under iliac pressure. I have previously set out in these Reasons the treatment given by Dr Pitts over a short period of time from July 2014 to 19 September 2014. That treatment included the prescription of MS Contin, 30-milligram tablets twice per day, and the use of injections to the plaintiff’s back.
63 In his report, Dr Pitts stated he was “astonished” at his findings on 19 September 2014 and gave the opinion that the description of pain by the plaintiff was allied to hysteria or neurosis. He went on to say that he thought that there were no secondary gains in her pain situation.[39]
[39]PCB 64
64 I accept the plaintiff’s evidence that when she re-attended at the clinic subsequent to 19 September 2014, that Dr Pitts had moved from that clinic. It was clear that in the short time of treatment given to the plaintiff by Dr Pitts, he saw it necessary to prescribe significant pain-relief medication and engage in the administration of injections to her back for pain relief on at least three occasions. I do not accept Dr Pitts’ opinion that the pain response or complaints by the plaintiff were suddenly as a result of hysteria or neurosis.
Dr Brett A Todhunter, specialist in anaesthesia and pain medicine
65 Dr Todhunter prepared reports dated 23 September 2013, 22 November 2013, 14 April 2014, 18 July 2014 and 23 January 2015.
66 Dr Todhunter was of the opinion that the plaintiff’s low-back pain and symptoms had come on after the transport accident in September 2010. Dr Todhunter took the history from the plaintiff that she had broken her coccyx some twenty years prior to the accident. He noted as follows:
“… She does have facet joint arthropathy and low back pain and therefore the facet joints may be involved in her pain hence the request to undertake test blocks to see whether blocking the nerves to the facet joints relieves her pain or not. … .”[40]
[40]PCB 29
67 On 22 November 2013, Dr Todhunter performed the diagnostic facet joint blocks bilaterally to the L5-S1 level. He diagnosed lumbosacral pain – mechanical.[41]
[41]PCB 30
68 Dr Todhunter sought permission from the Transport Accident Commission to undertake a trial of superior cluneal nerve stimulation as being the only direct way to reduce the plaintiff’s pain to her back.[42]
[42]PCB 32
69 Dr Todhunter ultimately supervised and recommended the plaintiff attend at the Cognitive Behavioural Pain Management Program in Wodonga.[43]
[43]PCB 32
70 Dr Todhunter’s opinion was that the plaintiff’s back pain and complaints were caused by the transport accident.
Albury Wodonga Health – Dr Esther Langenegger
71 The plaintiff tendered a report from the Albury Wodonga Health Pain Management Program dated 30 October 2015. The plaintiff attended at the Pain Management Program from 11 to 30 October 2015 with chronic low-back pain. She was an inpatient at that program.[44]
[44]PCB 75
72 As a result of the Pain Management Program, the plaintiff had successfully ceased taking MS Contin medication and had reduced her Panadeine Forte from two tablets four times a day to two tablets twice a day, and meloxicam to 7.5 milligrams on alternative days.[45]
[45]PCB 76
73 It is to be noted that the plaintiff presented for a review, having ceased all analgesic and or pain-related medications, as well as having quit smoking. The reviewing nurse described this as a significant achievement and that the plaintiff is to be commended for her efforts in achieving these goals.[46]
[46]PCB 80
74 The comment by the registered nurse, Nicole Yakovlev, is consistent with the plaintiff’s evidence that she had in fact reached a stage where she was not taking any pain-relief medication after completing the pain management program at Albury Wodonga Health.
Dr James Rowe, occupational physician
75 Dr James Rowe examined the plaintiff for the purpose of medico-legal reporting on behalf of the plaintiff. Dr Rowe saw the plaintiff prior to her attendance at the Pain Management Program at Albury Wodonga Health. Dr Rowe took a history from the plaintiff that she had no prior history of injury to her lower back.[47]
[47]PCB 46
76 The plaintiff complained to Dr Rowe both about her low-back pain and right hip pain. In respect of the low-back injury, the pain was low in the back. Dr Rowe noted that in the lumbosacral spine there was a loss of range of movement, particularly on the right side.[48]
[48]PCB 46
77 Dr Rowe noted as follows:
“… She suffered a soft tissue injury to her spine, …
…
An MRI scan of the lumbosacral spine shows some disruption of the L4-L5 disc, which is more than likely related to the accident. … .”[49]
[49]PCB 46
78 Dr Rowe’s opinion was that the plaintiff required ongoing treatment for both her back and hip.
79 Dr Rowe’s opinion is now some two-and-a-half years old and is not based on a full history of the plaintiff’s prior fractured coccyx.
Dr Ron Brooder, consultant neurologist
80 Dr Brooder examined the plaintiff for the purposes of medico-legal reporting. In this case, Dr Brooder prepared two medical reports dated 3 February 2015 and 14 March 2016.
81 In his initial report, Dr Brooder examined the CT scans and MRI scan of the plaintiff’s lumbar spine. He noted that in respect of the CT scan taken on 22 August 2012, there was reported mild disc protrusion at L3-L4 in the plaintiff’s back.[50]
[50]PCB 50
82 The plaintiff had an MRI scan of the lumbar spine on 18 October 2012. Dr Brooder noted that it demonstrated minimal bilateral L5-S1 facet joint arthrosis and a tiny area of high signal in the annulus fibrosis of L4-5 disc at the right foraminal region, suggestive of annular tear. The conclusion was linear right foraminal annual tear at L4-5, no evidence of neural impingement and minimal L5-S1 bilateral facet joint arthrosis.[51]
[51]PCB 50
83 Dr Brooder also examined the plaintiff for her right hip complaints. Dr Brooder took a history from the plaintiff that she had been subject to intermittent somewhat variable aching low-back pain; however, her intermittent low-back pain had not been associated with any disability.[52]
[52]PCB 51
84 Dr Brooder diagnosed the plaintiff as follows:
“Miss Hansen’s diagnosis concerning her persistent low back pain is consistent with her having sustained a musculoligamentous injury involving the supporting structures of her lumbosacral spine associated with aggravation to the degenerative changes involving the facet joints at the L5-S1 level.”[53]
[53]PCB 53
85 In Dr Brooder’s opinion, the plaintiff’s prognosis was “guarded”.[54]
[54]PCB 53
86 Dr Brooder examined the plaintiff after she had completed the Pain Management Program at Albury Wodonga Health. In respect of the Pain Management Program, Dr Brooder noted as follows:
“On 12 October 2015 Miss Hansen had undertaken a pain management programme. I would refer to the Pain Management Program Review Report, dated 15 January 2016 for the full details. The program had involved an exercise program, hydrotherapy and counselling. Undertaking the program had resulted in an overall improvement in her ability to manage her pain and a slight improvement in her persistent low back pain. It had also been possible to withdraw the morphine and reduce her requirement on Panadeine Forte.
At the time of reassessment of Miss Hansen on 2 March 2016 and over the further period of almost 15 months since the time of her initial assessment, although there had been a slight improvement in her pain, she remained aware of persistent low back pain.”[55]
[55]PCB 58
87 Dr Brooder noted that the plaintiff continued to be awakened through the night from increased pain and that she was dependent upon intermittent use of Panadeine Forte of one to two occasions each week.[56]
[56]PCB 58-59
88 Dr Brooder diagnosed the plaintiff as follows:
“Miss Hansen’s diagnosis remains consistent with a musculoligamentous injury involving the supporting structures of her lumbosacral spine associated with aggravation to the early degenerative changes involving her facet joints at the L5-S1 level. … .
… I would consider that Miss Hansen’s prognosis remains somewhat guarded. She has now been subject to persistent pain over a period of 5½ years and her pain has persisted despite a prolonged period of conservative treatment and also undergoing right hip arthroscopic surgery. … .
…
… She is permanently limited in her ability to undertake further employment that is of a heavy physical nature or any employment that involves prolonged standing or prolonged sitting.”[57]
[57]PCB 59-60
Mr Kenneth Brearley, orthopaedic surgeon
89 The plaintiff was examined by Mr Brearley for medico-legal reporting. A report dated 27 October 2016 was tendered on behalf of the plaintiff. Mr Brearley examined the plaintiff both for her right hip complaints and her low-back complaints. He noted that the plaintiff was, at that time, taking two Panadeine Forte tablets four times a day and Targin, 5 milligrams, twice daily.[58]
[58]PCB 87
90 In respect of the plaintiff’s back, Mr Brearley’s opinion was that the plaintiff had suffered a mechanical lumbar back pain resulting from aggravation of a pre-existing degenerative change in her lumbar spine.[59] Mr Brearley’s opinion was that she was unfit to return to her former work of a picker and packer, nor could she do any physical work of a heavy type. In his opinion, the work incapacity would continue into the foreseeable future.
[59]PCB 89
91 Mr Brearley was more positive about the plaintiff’s capacity to work, in the pastry cooking area, as long as she was not required to do any heavy lifting or other heavy work.
Indigo Family Medical Centre
92 The plaintiff is currently treated by Dr Colin Cameron, general practitioner, at the Indigo Family Medical Centre. Unfortunately, there was no report tendered on behalf of the plaintiff from Dr Cameron setting out his opinion and current treatment. The plaintiff, instead, relied upon tendering pages of the patient health summary. The patient health summary covered the period from 1 March 2016 until 31 May 2017.
93 The plaintiff attended at the Indigo Family Medical Centre on 1 March 2016 for treatment in respect to her hearing. On that occasion, she gave a history to her general practitioner of a transport accident where she had injuries to her hip and back. She complained of chronic back pain and stated that she had been on multiple medications but after the pain management program, had been able to stop using them. As at March of 2016, that was a correct history to be giving to her general practitioner.
94 The plaintiff attended at that practice on Dr Colin Cameron on 4 July 2016 and 13 July 2016 in respect of upper respiratory tract infections.
95 On 26 September 2016, the plaintiff attended Dr Cameron for complaints of chronic low-back pain. The plaintiff gave a history to Dr Cameron of taking six Panadeine Forte every second day at that time.
96 On 3 October 2016, the plaintiff was prescribed Panadeine Forte, two tablets four times per day.[60] She was prescribed Celebrex and Nexium. By 10 October 2016, the plaintiff was prescribed Targin for the first time. At this stage, the plaintiff was prescribed Targin and Panadeine Forte.
[60]PCB 130
97 The plaintiff has continued to attend her general practitioner and been prescribed Targin and other pain-relief medication up until April of 2017. The plaintiff was then placed on Norspan patches. By May of 2017, the plaintiff’s Norspan patches were ceased.[61]
[61]PCB 134
98 In the most recent medical notes of 31 May 2017, the plaintiff was prescribed Amitriptyline, 50-milligram tablets, one before bed; Celebrex, 200 milligrams, one capsule a day, and Targin, 15 milligrams; 7.5-milligram tablets, one tablet twice a day.
99 The plaintiff’s dosage of Targin between 10 October 2016 and 31 May 2017 has increased threefold.
100 The overall consensus of medical opinion from the plaintiff’s medical treaters and medico-legal advisors is that the plaintiff suffers from mechanical low-back pain as a result of the transport accident in September of 2010. The treatment currently is for pain-relief medication to continue into the foreseeable future.
The Defendant’s medical opinions
Dr Anthony Farnbach, general practitioner
101 Dr Farnbach prepared a medical certificate dated 27 November 2008. The defendant tendered this exhibit and it became exhibit 2 in the proceeding. The defendant relies upon this certificate to show the extent to which the plaintiff’s prior condition of her back affected her capacity to perform work. The certificate states that the plaintiff is unable to stand for more than 20 minutes and cannot repeatedly bend or lift more than 10 kilograms.
102 The plaintiff was also unable to use a Whipper Snipper, a lawnmower or pick up items from the ground, like rubbish.
103 The purpose of this medical certificate was for production at the Corrections Office relating to unpaid community work the plaintiff had been ordered to perform. There was no evidence in this hearing what medical treatment the plaintiff was receiving in around November 2008 for her low back. The evidence did show that the plaintiff had been employed at Australia Post as a postal worker throughout the period of 2007 up to 11 November 2008.
104 I do not accept that this one-off medical certificate for production at the Corrections Office sets out or shows a baseline incapacity or disability for the plaintiff as at November 2008.
Mr Peter I Isbister, orthopaedic surgeon
105 Mr Isbister examined and reported on the plaintiff’s condition on three occasions: 15 November 2011, 8 March 2012 and 26 June 2012. Mr Isbister’s opinion was that the plaintiff had sustained a musculoligamentous strain of her cervical spine and her thoracolumbar area in the transport accident on 6 September 2010.[62] As previously noted in these Reasons, Mr Isbister disputed the right hip condition was a result of the transport accident. In his first report, Mr Isbister noted that the plaintiff would be unlikely to continue with her job as a picker and packer due to her symptomology.[63]
[62]DCB 5
[63]DCB 8
106 The latter two reports of Mr Isbister predominantly concentrate on the right hip injury which has been dealt with earlier in these Reasons.
Dr David S Elder, occupational physician
107 Dr Elder prepared five reports for the purpose of medico-legal reporting on behalf of the defendant. The reports are dated 9 March 2011, 20 April 2011, 2 August 2016, 14 December 2016 and 9 May 2017.
108 In his first report after examining the plaintiff, Dr Elder’s opinion was as follows:
“… I believe that she has had soft tissue injury to the cervical and lumbar spines, which is resolving and I would expect that to continue to resolve. … .”[64]
[64]DCB 16
109 Interestingly, Dr Elder noted that he would accept the injury to the hip was as a result of the transport accident.[65]
[65]DCB 19
110 Dr Elder examined the plaintiff on 2 August 2016. He took a history from the plaintiff at that time that her current symptoms were neck pain, and low-back pain radiating to her right hip. He noted that she described independent right hip pain.[66] Dr Elder noted in that report that the plaintiff was taking Panadeine Forte, two tablets per day, and Celebrex on an “as required” basis.[67] He also noted that she saw her general practitioner “intermittently at present as she is still establishing that relationship”.[68]
[66]DCB 24
[67]DCB 24
[68]DCB 24
111 Dr Elder noted that the plaintiff still complained of continuing low-back pain but it was not as severe as when he had first seen her.[69]
[69]DCB 26
112 Dr Elder’s conclusion was:
“She now presents with mild mechanical low back pain and mild right hip dysfunction. The prognosis is very good given the fact that she has essentially been turned around by doing [a] pain management programme. This has been of great benefit.”[70]
[70]DCB 28
113 Dr Elder next examined the plaintiff on 14 December 2016. On that occasion, he took a history from the plaintiff that she was now taking medication of Celebrex daily and Amitriptyline, 25 milligram at night, and had commenced on Targin of 10-milligram, 5-milligram twice daily. In his report, Dr Elder stated as follows:
“She tells me the only thing that changed in the last 3.5 months approximately is that her solicitor gave her medical advice to see a doctor who would give her treatment. I confirm that that is what she said.”[71]
[71]DCB 31
114 Dr Elder was told by the plaintiff that she was worse due to the stress of her court case.[72]
[72]DCB 32
115 In Dr Elder’s opinion, the plaintiff had no reason for any further physical symptomology which required the increase in medication.
116 Dr Elder took a history from the plaintiff that she now suffers severe low-back pain and right hip pain associated with decreased movement. The plaintiff stated that she is now only getting two hours of sleep per night.[73]
[73]DCB 32
117 Dr Elder expressed the opinion that the plaintiff’s presentation was dominated by psychosocial issues. He could find no physical reason why her condition had gone down so quickly. He assessed the plaintiff’s presentation as not being straightforward.[74]
[74]DCB 34
118 The final report from Dr Elder dated 9 May 2017 was a reaffirmation of his opinion that the plaintiff was displaying abnormal illness behaviour.[75]
[75]DCB 37
Dr Peter Boys, consultant orthopaedic surgeon
119 Dr Boys prepared two reports dated 30 November 2015 and 26 April 2017. In his initial report, Dr Boys notes that the plaintiff suffers central mechanical low-back pain without radiculopathy. He noted that she has a Chronic Pain Disorder with narcotic dependency.[76] Dr Boys was of the opinion that there was no specific incapacity for employment by the plaintiff at this stage.
[76]DCB 43
120 Dr Boys examined the plaintiff again on 21 April 2017. He noted, at that time, that the plaintiff had been prescribed Amitriptyline and Norspan patches by Dr Cameron. He stated that the plaintiff had ceased to use oral medication of Panadeine Forte and Targin.[77] Dr Boys gave his opinion as follows:
“Ms Hansen currently experiences central mechanical low back pain. Her complaints are non specific occurring in association with morbid obesity and radiological evidence of lower lumbar degenerative disease (facetelotal (sic) osteoarthrosis). This lady’s current level of complaint would appear to be stable. There would not appear to be any current risk that she will suffer any future deterioration of function.”[78]
[77]DCB 50
[78]DCB 52
121 Each of the defendant’s medical examiners, Dr Isbister, Dr Elder and Dr Boys, accept that the plaintiff has suffered a muscular ligamentous strain to her low back area and has mechanical low back pain. The defendant’s medical experts dispute the level of the plaintiff’s incapacity. I accept the plaintiff’s evidence and the history given to her treating medical practitioners in combination with the opinions of Mr Brearley, Dr Brooder and Dr Todhunter. The transport accident occurred nearly seven years ago and the plaintiff continues to require active medical treatment for her back symptoms. I accept the condition is permanent.
The credit of the Plaintiff
122 At the commencement of this case, Mr Jens set out that the bona fides of the plaintiff have been very much put in question in this case.[79]
[79]T7
123 In the course of this case, it emerged that the basis for the attack on the plaintiff’s credit revolved around her attendance upon Dr Elder in August of 2016 and subsequently, in December 2016. In between those two visits to Dr Elder and his examinations at those times, the plaintiff had been to see her new general practitioner, Dr Cameron, and had been prescribed more significant pain-relief medication. It is important to note that at the time of the plaintiff’s attendance on Dr Elder in August of 2016, the plaintiff gave him a history of taking Panadeine Forte, two tablets a day on an “as required” basis. The plaintiff also told Dr Elder she was taking Celebrex.
124 In his later report dated 9 May 2017,[80] Dr Elder has taken the starting point that the plaintiff had gone from a position of no medication for pain relief when he first saw her, to Celebrex, one tablet daily, Amitriptyline, 25 milligrams at night, and had been recommenced opioid medication of Targin, 5 milligrams twice daily, and Omeprazole for gastric cover. The change in medication was the addition of Amitriptyline and the substitution of Targin for Panadeine Forte. It is unfortunate that the plaintiff’s increase in opioid-related pain-relief medication has increased, but to say that it was commenced after the August examination by Dr Elder is not correct. It was clear, on the history taken by Dr Elder at that time, the plaintiff was taking Panadeine Forte and Celebrex.
[80]DCB 35
125 The final submissions relating to the plaintiff’s credibility by the defendant was that she was open to suggestion or guidance. The inference was that the guidance was coming from her legal advisors.
126 I have had the advantage of seeing the plaintiff give evidence and being cross-examined extensively. The plaintiff is a simple and unsophisticated person. I accept her as being an honest witness who was doing her best to tell the truth. I do not accept that she was trying to exaggerate her symptoms or disabilities.
127 The plaintiff has engaged with a pain management course and diligently applied the lessons she learned from that course. Unfortunately, her pain levels had increased to a stage where she could no longer “maintain the line” and resorted to medications which she had been prescribed in the past. The plaintiff stated that she is not a “tablet person”.[81] The plaintiff was very positive about the Pain Management Program and encouraged anyone to undertake such a program. She said it gave her an opportunity to get rid of what she described as “the black dog”.[82] I accept the plaintiff’s evidence that, in part, her motivation for trying to quit all medications was driven by the overdose death of her former partner.
[81]T60
[82]T60
128 The plaintiff was asked what happened that she went back on full medications when seeing Dr Cameron. The following evidence was given:
A:“I was in just pain. The meditation wasn’t working. So I sat the kids down and told the kids, ‘This is what I’m going to do’. My partner at the time, our - he was telling me I need to go see a doctor, because I can’t keep on doing this. So that’s when I just went back and seen the doctor and told him where I am, and the kids were fine about that.
Q:And you’re back on the medication?‑‑‑
A:Yep. I’m not a tablet person. So if I can’t - I mean, I tried patches, but I didn’t like the patches.”[83]
[83]T63, L31 – T64, L9
129 I accept the plaintiff’s evidence that she has taken the medication because of the pain in her back.[84]
[84]T64
130 There was no video surveillance film shown of the plaintiff that could provide a basis for challenging the plaintiff on her abilities or credibility. The plaintiff gave clear evidence that she tries to do as much as she can, and I accept that that is the case. In conclusion, I accept the plaintiff as an honest and reliable witness.
Consequences of the low-back injury to the Plaintiff
131 The plaintiff swore and relied upon four affidavits dated 14 July 2015, 13 October 2016, 24 February 2017 and 18 May 2017. The plaintiff also gave evidence and was cross-examined in this application. In the course of her evidence and the affidavit material, the plaintiff has set out the consequences of the low-back injury to her.
Pain
132 In her first affidavit, the plaintiff sets out that she suffers constant low-back pain which is often severe.[85] In her affidavit sworn in May 2017, the plaintiff stated that her back pain is constant and quite severe.[86] In the course of her evidence, the plaintiff adopted these statements as true and correct and in response to questions relating to medication, stated that she took the medication because of the pain in her back.
[85]PCB 10, paragraph 16
[86]PCB 21, paragraph 3
133 I accept the plaintiff’s evidence that she has constant low-back pain. I accept that on occasion that pain can be very severe and unrelenting. The plaintiff has consistently complained to medical practitioners, both those treating her and those examining her for the purposes of this application, that she suffers pain in the low back.
134 I find that the pain suffered by the plaintiff as a result of the injury to her back is more than significant or marked and at least a very considerable consequence for her.
Sleep
135 The plaintiff, in her affidavit material, stated that her sleep is disturbed by her back pain. She also states that the hip pain causes her difficulty with sleep. Mr Brooder took a history from the plaintiff that her sleep was disturbed as a result of her pain.[87] In the medical notes from Indigo Medical Clinic, the plaintiff was complaining of interruption to her sleep due to the pain in her back.[88]
[87]PCB 51 and 58
[88]PCB 131
136 I accept that the plaintiff’s sleep is disturbed by the pain in her back. Dr Elder noted that the plaintiff was complaining of interruption to her sleep as a result of pain in December 2016. I accept that the plaintiff’s sleep will be interrupted into the foreseeable future and that her inability to enjoy uninterrupted sleep would constitute a very serious diminution of enjoyment of her life, making her tired and unable to fully participate in and enjoy the activities of daily life. I find that the interruption to the plaintiff’s sleep as a result of the pain to her back is a very considerable consequence for her.
Medication
137 The plaintiff is currently on the medications of Targin, 15 milligrams per day; Celebrex, 200 milligrams per day and Amitriptyline, 50 milligrams per day. The plaintiff, in the course of time from the transport accident to the present, has regularly used pain-relief medication. That medication has included the current Targin medication and in the past, Panadeine Forte and Norspan patches. Each of these forms of medication are very significant pain-relief medications. Whilst I accept that the plaintiff was able to achieve a position where she was not taking any medications after her pain management program, I accept that she was unable to maintain that position. For the foreseeable future, it is clear the plaintiff will continue to take pain-relief medication to deal with her symptoms. The necessity to take the medication allows her to continue in part with some of her activities of daily life.
138 I find that the need for the plaintiff to be taking pain-relief medication for the foreseeable future to be a very considerable consequence for her.
Employment
139 The plaintiff has a past work history which has reasonably long periods of unemployment within it. However, since the transport accident in 2010, the plaintiff has been unable to engage in the workforce in any manner. Of recent times, the plaintiff has undertaken a patisserie course and achieved a Certificate III in that trade. She is currently awaiting the results of a search for employment. The fact that the plaintiff, at a relatively young age, has been taken out of the full-time work market as a result of the injury to her back in the transport accident is a very considerable consequence for her.
140 It is possible that the plaintiff will be able to obtain work as a pastry cook on a part-time basis into the future but at this stage, that is speculation. I accept that the plaintiff has lost her ability to engage in the workforce, either on a part-time basis or full-time basis, as a picker and packer and other labour-related type employment. The plaintiff is a relatively unsophisticated and uneducated woman and her employment opportunities are limited. I find that the diminution of the plaintiff’s ability to engage in paid employment as a result of her low-back injury is a very considerable consequence for her.
Sporting activities
141 The plaintiff gave evidence that she was unable to partake in fishing or ten-pin bowling as a result of the injuries she received in the transport accident. I do not accept that the plaintiff’s inability to engage in fishing and ten-pin bowling are consequences for her that achieve the level of being a very considerable consequence as a result of the transport accident. I accept her abilities to engage in sport, including fishing and or ten-pin bowling, are reduced; however, she has a non-transport related hip injury and is morbidly obese, which are factors impinging upon her ability to engage in sport.
Conclusion
142 In conclusion, I find that the plaintiff has satisfied the test, in respect of her low back, that the aggravation of the symptoms and the consequences of pain and suffering to her as a result of the transport accident are very considerable and more than significant or marked. I find that these consequences will persist for the foreseeable future.
143 I grant leave to the plaintiff to commence proceedings for damages arising out of injuries she received to the low back in the transport accident on 6 September 2010.
144 I dismiss the application for leave to bring proceedings for damages in respect of the right hip injury.
145 I will hear the parties on costs.
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