Hauge v Transport Accident Commission
[2017] VCC 583
•19 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00441
| SONJA HAUGE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 February 2017 | |
DATE OF JUDGMENT: | 19 May 2017 | |
CASE MAY BE CITED AS: | Hauge v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 583 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for leave to recover damages – alleged injury to left shoulder and cervical spine in transport accident - previous transport accident – pre-existing injury- causation of left shoulder condition - reliability of histories received by doctors – extent of impairment suffered from injury to either body function
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] VR 436; De Agostino v Leatch [2011] VSCA 249; Transport Accident Commission v Zepic [2013] VSCA 232; Dordev v Cowan [2006] VSCA 241; Peak Engineering & Anor v McKenzie [2014] VSCA 67.
Judgment: Leave granted to recover damages for injury to the spine only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Walsh with Ms N. Crowe | Slater and Gordon |
| For the Defendant | Ms A. Magee QC with Ms J. Clark | Transport Accident Commission |
HER HONOUR:
Introduction
1 I propose to grant the application to commence common law proceedings pursuant to section 93 (4)(d) of the Transport Accident Act 1986 (the Act) to recover damages for injury to the spine arising out of a transport accident but not the further application for leave in respect to injury to the left shoulder.
2 The plaintiff, Sonja Hauge, is 65 years of age. Currently, she has two granddaughters, aged 8 and 15 respectively in her care. They are children of a daughter, who had problems with drugs and has spent time in custody. The eldest child has lived with the plaintiff for most of her life and, more recently, the plaintiff fought for and won the right for these children to remain in her care.
3 Having previously been employed until March 2014 as a personal care attendant, the plaintiff now receives the aged pension.
4 On 11 February 2010, a vehicle in which the plaintiff was travelling as a front seat passenger collided with a vehicle attempting to execute a right-hand turn (the transport accident). Leave was sought under paragraph (a) of the definition of ‘serious injury’ for injury to 2 separate body functions, the left shoulder and the spine, particularly the cervical spine.
5 The application was complicated by the presence of long-standing pre-existing conditions involving both body functions at the time of the transport accident. Notably, as a result of an earlier transport accident, a head-on collision between a vehicle driven by the plaintiff and another vehicle on 27 February 2005, the plaintiff was hospitalised for 4 days. The injury alleged included injury to the cervical and thoracic spine and to the left shoulder (the first transport accident).
6 Mr Walsh and Ms Crowe, both of counsel, appeared on behalf of the plaintiff. Ms Magee QC and Ms Clark, both of counsel, appeared on behalf of the defendant, the Transport Accident Commission (TAC).
7 The case was opened by Mr Walsh on the basis that the main problem was the plaintiff’s left shoulder. The injury was said to involve injury to the labrum and the rotator cuff and aggravation of the underlying structures of the shoulder and osteoarthritic changes. Mr Walsh specifically relied on pathology revealed by MRI imaging obtained on 1 December 2010. The radiologist relevantly reported damage to the labrum, namely a moderate bucket-handle superior labral tear extending into biceps anchor (SLAP type IV) and extending into adjacent anteriosuperior glenoid articular cartilage; damage to the rotator cuff, namely a moderate full thickness tear of the anterior fibres of the supraspinatus tendon, with underlying moderate to severe supraspinatus tendinosis; and symptomatic change to the structures involving mild tendinosis of the subscapularis, moderate subacromial bursitis, small joint effusion, moderate tendinosis of the proximal intrascapular part of the long head of the biceps tendon and moderate osteoarthritic changes in the AC joint.[1]
[1]Exhibit P1, Plaintiff’s Court Book, (PCB) 27-28 and Transcript (TN) 9-10, 92-93 and 95.
8 Treating orthopaedic surgeon, Mr McQueen apparently recommended surgery. The surgical procedure eventually performed in July 2013 was reported as having involved an arthroscopic biceps transfer with an open excision of the outer end of the clavicle and a rotator cuff repair.[2] Subsequent radiology showed evidence of a complete re-tear. In May 2014 the plaintiff underwent a repeat repair and LARS graft. In his final report dated 11 May 2016, Mr McQueen expressed the view that the plaintiff’s “further problem in 2013 which required re-operation was directly related to her original compensable injury in 2010”.[3]
[2]Mr McQueen’s report, PCB 101-102 and the report of TAC’s medico-legal specialist, orthopaedic surgeon, Mr O’Brien, who viewed the operations notes, Exhibit D1, Defendants Court Book, DCB 52
[3]PCB 102.
9 The decision of the Court of Appeal in Transport Accident Commission v Zepic[4], among other things, confirms that the spine is a single body function and, it follows, the consequences of injury suffered in the transport accident to various segments of the spine may be aggregated to establish serious injury.
[4][2013] VSCA 232 [11]
10 Whilst the plaintiff’s case was opened on the basis that the transport accident had also involved injury to the thoracic spine, as I understood the case made on behalf of the plaintiff in the course of the hearing, the leave application was for injury to the left shoulder as described above and for injury to the spine, specifically at the level of the cervical spine. The latter involving aggravation of pre-existing degenerative changes and cervical spine pathology. The plaintiff drew particular attention to pathology at the C5-6 and C6-7 levels, as revealed in the results of X-rays and MRI imaging obtained on 21 October 2014 and 24 November 2014 respectively.[5]
[5]TN 13 and 94-95.
11 The X-ray results were reported as: “Multilevel cervical degenerative spondylitic change…. Degenerative spondylitic change at C5/6 and C6/7 may be associated with cord compression and neural foraminal compression, the former most markedly at the upper level, the latter most likely on the left”. The MRI results reported were: “Right C4-5 paracentral protrusion and mild cord flattening and moderate left C6-7 foraminal narrowing”.[6]
[6]Exhibit P1, PCB 37 and 38-39.
12 As to injury to the spine, the plaintiff also relied on the diagnosis of the TAC’s medico-legal specialist, orthopaedic surgeon, Mr O’Brien. In February 2017, Mr O’Brien found no clinical evidence of significant restriction of movement of the thoracolumbar spine. He opined that the transport accident had aggravated symptomatic cervical spondylosis, effectively producing an increase in the severity of chronic neck pain.[7]
[7]Exhibit D1, Defendant’s Court Book, DCB 55.
13 Section 93(17)(a) of the Act defines ‘serious injury’ as: “serious long-term impairment or loss of body function”.
14 In this application, the plaintiff was required to prove serious long-term impairment of each body function, the upper left limb and/or the spine arising from the transport accident. She was required to establish that, when considered globally, the consequences of injury to each body function caused by the transport accident could be fairly described as at least very considerable. As to the consequences of each injury, the plaintiff also relied on her mental response to physical impairment or loss of function affecting each body function.[8]
[8]Richardsv Wylie (2000) 1 VR 79.
15 Where, as in this case, it was alleged that the plaintiff had suffered further injury to the left shoulder and the spine, in particular, the cervical spine, it was common ground that the task of the Court was to identify the injuries to each body function and the impairment consequences of each injury before and after the transport accident.[9] In short, the Court was required to assess whether any additional impairment met the test for serious, long-term impairment of the left shoulder and/or the spine.
[9] Petkovski v Galletti [1994] 1 VR 436 and De Agostino v Leach [2011] VSCA 249.
16 The TAC did not dispute the consequences alleged to have arisen from the plaintiff’s left shoulder and neck conditions. It did, however, contest the application for leave. The areas of dispute were as summarised below.
17 Firstly, Ms Magee submitted that the plaintiff’s left shoulder problems were not caused by the transport accident; alternatively, any aggravation injury suffered as a result of the transport accident did not itself satisfy the test for serious injury.
18 Secondly, Ms Magee submitted that the aggravation injury to the plaintiff’s cervical spine as a result of the transport accident did not itself satisfy the test for serious injury.
19 Thirdly, the TAC pointed to what it submitted was a failure by the plaintiff to ‘disentangle’ the various contributors to her pain and disability so as to: identify the physical injury sustained in the transport accident and the impairment of either spinal function or left shoulder function attributable to those injuries; identify the pain and suffering consequences attributable to injury-related impairment of either spinal function or left shoulder function; and establish that those consequences were at least very considerable and certainly more than significant or marked.[10]
[10]Transport Accident CommissionvZepic [2013] VSCA 232 and Peak Engineering & Anor v McKenzie [2014] VSCA 67 [23]-[28].
20 Fourthly, whilst not challenging the plaintiff’s credit, the TAC, nonetheless, challenged the reliability and accuracy of the plaintiff’s evidence and, as a consequence, the probative value of various reports, in particular, Mr McQueen’s reports, where the histories/information recorded were demonstrably inaccurate.[11]
[11]Dordevv Cowan [2006] VSCA 241.
21 In this case, when assessing the evidence overall, it was appropriate to allow for a history recorded and reported in medical records kept over many years. These depict a woman who, in her time, has faced some very challenging circumstances. The plaintiff’s circumstances included a long and complex history of medical conditions and procedures, injury sustained in the two transport accidents and the, no doubt, extremely distressing experience of a 19 year old daughter being murdered by a third party in 1997.
22 Allowing for the plaintiff’s history, I have accepted (as did a number of treating and medico-legal doctors[12]), that the plaintiff was properly described as stoical in her approach to life, having shown motivation to move on with her life, continue working and so on, despite injury and adversity. As to the latter, it could never be said of this plaintiff that she ever surrendered to the vicissitudes of life.
[12]As for example, general practitioner, Dr Bates and psychiatrists, Dr Hayman for the TAC (Exhibit D1, DCB 75-81) and Dr Serry for the plaintiff (Exhibit P1, PCB 156-164).
23 That said, my impression of the plaintiff as a witness was that, whilst she appeared to do her best to accurately answer the questions posed, her recall of more distant events was often based on a good deal of reconstruction.
24 Lastly, the TAC contested any reliance on the concession made that the TAC paid for left shoulder surgery performed by Mr McQueen in 2013 and again in 2014. Ms Magee informed the Court that the payment was made under a claim for the first transport accident and without admission of liability in respect to the left shoulder for the transport accident. In opening Mr Walsh specifically disavowed any reliance on the payment for surgery as an admission made against interests for the transport accident. [13]
[13]TN 10 and 24-25.
25 The matter was not pursued until final submissions, at which time Mr Walsh sought to rely on Mr McQueen’s opinion linking the need for surgery to the transport accident in 2010. As the transcript shows, I rejected any suggestion that Mr McQueen’s opinion on causation was strengthened by the absence of evidence from the TAC to show that the surgery was funded under the earlier claim.
26 As already foreshadowed, Mr McQueen’s opinion on causation in 2016, when read in conjunction with his earlier report dated 17 March 2011, the latter predating the surgery, was clearly based on an inaccurate understanding of the history of the two transport accidents and the injury and symptoms suffered. I will discuss the implications of this and the weight of the treating specialist’s evidence in determining causation, shortly.
The evidence
27 Affidavits sworn by the plaintiff on 24 February 2015 and 24 February 2017 respectively and an affidavit sworn by the plaintiff’s daughter, Sheree Cataina on 11 July 2016 were tendered. Apart from correcting an error in the spelling of her name, the plaintiff adopted the content of her affidavits as true and correct. The plaintiff was cross-examined.
28 Copy radiological reports relating in the main to imaging of the spine and left shoulder and copy medical reports from treating health professionals and medico-legal specialists obtained before and since the transport accident and contained in the Plaintiff’s Court Book were tendered together with a copy of the Claim for Compensation Form signed by the plaintiff on 17 March 2010.[14]
[14]Exhibit P1.
29 Further tender on behalf of the plaintiff included 15 extracts from treating general practitioner, Dr Bates’ clinical notes made in the period between 25 July 2007 and 13 January 2010;[15] and a copy of a letter dated 10 February 2010 from the plaintiff’s solicitors, Slater and Gordon in which the opinion of medico-legal specialist, orthopaedic surgeon, Mr Doig was sought on the causal relationship, if any, between the transport accident and pathology revealed by the MRI obtained by the treating surgeon Mr McQueen on 1 December 2010.[16]
[15]Exhibit P2.
[16]Exhibit P3.
30 The material tendered on behalf of the TAC in some instances duplicated that tendered by the plaintiff. From the Defendant’s Court Book, the tender comprised copy radiological reports and copy medical reports from treating health professionals and from medico-legal specialists, obtained before and since the transport accident and further extracts from Dr Bates clinical notes made in the period between 18 February 2010 and 27 October 2010.[17]
[17]Exhibits D1 and D4 respectively.
31 The TAC also tendered reports from the Plaintiff’s Court Book on which the plaintiff was cross-examined; namely reports of two of the plaintiff’s medico-legal specialists, psychiatrist, Dr Glaser and orthopaedic surgeon, Mr O’Loughlin.[18]
[18]Exhibits D2 and D3 respectively.
The affidavit evidence
32 As mentioned, the plaintiff adopted the content of her affidavits. In the first of these, sworn in February 2015, the plaintiff relevantly sought leave in respect to the left shoulder injury only. The plaintiff deposed to:
Ø the circumstances of the transport accident and the injuries sustained. These included “Injury to the left shoulder, including pain, weakness and significantly reduced range of movement”, “Stiffness, pain and reduced range of movement of the cervical spine” and “Psychological injuries including chronic adjustment disorder with anxious and depressed mood and features of traumatisation”.[19]
[19]Exhibit P1, PCB 3, paras 2-4.
Ø The treatment received and the medications used, further indicating that she continued to experience “a myriad of symptoms and restrictions”[20] –
[20]Ibid, PCB 3-4, paras 5-7.
o Repair of the left rotator cuff undertaken by Mr McQueen on 23 July 2013 and again in May 2014;
o Physiotherapy, hydrodilatation and trigger point injections;
o Nerve blocks in the cervical spine which had not relieved symptoms;
o Without indicating the symptoms and injuries for which the medications were prescribed, medications used were said to have been Endep (an antidepressant and pain killing medication), Valpro (an anticonvulsant) and pain killing Durogesic patches and Cymbalta (an antidepressant). The plaintiff said she was then being prescribed Durogesic patches and an antidepressant, Dothep.
Ø The condition of the left shoulder before and after the first transport accident, in which she sustained injury to her left shoulder and the state of her health generally before the transport accident[21] -
[21]Ibid, PCB 4, paras 8-9.
o Undergoing surgery to her left shoulder in 1988, from which the plaintiff deposed she had made “a good recovery” with a full range of movement and function in the shoulder and arm prior to the first transport accident;
o Increasing pain (but not, she said, neurogenic weakness or paralysis) and restriction over time following the first transport accident, such that the plaintiff struggled to raise her arms above her head but was still able to perform housework, drive a car, work as a personal care attendant and socialise;
o Ultrasound investigation of the left shoulder in 2006, the results of which were “normal”.
Ø The fact that “the injury” to her left upper limb became more significant following the transport accident, the pathology identified and the surgical procedures undergone following the transport accident[22] -
[22]Ibid, PCB 4, paras10-13 and 35.
o Before the transport accident she was “in good health, and was able to undertake a minimally restricted range of social, domestic, recreational, work and sporting activities”.
o MRI imaging on 1 December 2010 identified “a large SLAP lesion and a full thickness tear of the supraspinatus and subacromial bursitis”.
o Two surgical procedures to relieve left shoulder symptoms. The surgery in July 2013 was said to have led to constant excruciating pain. The second procedure in May 2014 “did not particularly improve” the plaintiff’s symptoms.
o Now struggling to raise the arm to the front or to the side due to weakness and pain “The range of movement of the shoulder and arm is now far more restricted … The shoulder causes constant pain and I experience electric shock sensations and pain radiating down my left arm”.
Ø The mental and extensive physical consequences of ongoing pain and impairment involving the left shoulder, for the time being, best summarised in the statements “My incapacity for work and my restricted function has affected my personality and mental state. I consider myself to be a stoic individual, but struggle with depression that fluctuates in severity…” and “I am now incapacitated for work and I am significantly restricted in my capacity for self-care, domestic duties, social, recreational or sporting activities”.[23]
[23]Ibid, PCB 4-7, paras 15-35, which contain details of the restrictions imposed and the levels of pain experienced in respect to injury to the left shoulder injury only.
33 In her affidavit, sworn in June 2016, the plaintiff’s daughter, Ms Cataina relevantly supported her mother’s application for leave in respect to the left shoulder injury. Ms Cataina:
Ø Contrasted her mother’s capacity following the first transport accident in which she “sustained injuries” (she continued to work, maintain her home and socialise with friends and family) with her mother’s capacity following the transport accident (“all that changed … My mother sustained multiple injuries ….including a significant left shoulder injury”).[24]
[24]Ibid, PCB 8, paras 3-4.
Ø Contrasted the amount of assistance her mother required from her following the first transport accident (“my mother was still able to perform many household duties such as changing bed sheets or doing ironing” and “she remained independent at home and was able to keep working at her job, which she very much enjoyed”) with that required either from her daughter or granddaughter following the transport accident (“I clean the floors, toilet and shower, change the bed sheets and do any other tasks required“ and “I believe that her granddaughter assists her with daily tasks such as stacking and unstacking the dishwasher, or setting the table” and “Because I am aware of the pain and difficulty certain activities cause mum, I undertake much of the household cooking, cleaning and housework” and “Although she tries her best to attend to the household duties, when she does so any pushing or pulling motions exacerbate her back pain and the use of her left shoulder to lift objects also increases her pain symptoms”).[25]
[25]Ibid, PCB 8-9, paras 3, 5–10 and 15.
Ø Deposed to further consequences of the transport accident involving[26] –
[26]Ibid, PCB 9-10, paras 10-16.
o Deterioration in the plaintiff’s mental state.
o Withdrawal from social activities.
o An inability to look after her grandchildren and great grandchildren.
o Sleep disturbance.
o Incapacity to work (“The most important thing in Mum’s life which I believe to have affected her is incapacity to work (sic). In early 2014, she felt as though she was forced to leave her much loved job, as the movement in her left shoulder and arm was limited by her pain and weakness to the extent that she could no longer use her left arm to perform the inherent duties expected of her at work”).
Ø Depicted her mother as stoical in nature - an individual not given to complaining or seeking help even where this was needed.
34 Despite the focus of the earlier affidavit evidence as summarised above, the plaintiff’s second affidavit, sworn shortly before the hearing in February 2017, also sought to emphasise the consequences of impairment of the spine, that is to say the mid-back and cervical spine, allegedly caused by injury to the spine in the transport accident. As mentioned, the application and submissions made at hearing were directed to the consequences of impairment of the cervical spine. The TAC contested the extent of the impairment suffered from injury the TAC submitted involved aggravation of symptomatic degenerative changes in the cervical spine.
35 Without repeating here in detail the content of the second affidavit, in summary the plaintiff relevantly deposed to:
Ø Ongoing neck symptoms (stiffness) and pain (aggravated by certain movements). The plaintiff described pain (usually around 4/10 on the analogue scale) that ran along the mid-line of the neck and down into the lower part of her back.[27]
[27]Ibid, PCB 7.2, para 4.
Ø Severe and constant pain in the left shoulder (usually around 6/10 on the analogue scale) which varied in intensity. The plaintiff described weakness in her left arm and restriction of left shoulder movement as extreme (“I’m unable to lift my arm without significantly aggravating the level of my shoulder pain. Reaching forward also aggravates my shoulder pain”).[28]
[28]Ibid, para 5.
Ø Ongoing depression and anxiety due to the level of neck, mid-back and left shoulder pain and the physical restrictions these conditions impose.[29]
[29]Ibid, PCB 7.3, para 6.
Ø Investigations and treatment of neck and left shoulder symptoms and pain subsequent to the transport accident.[30] In addition to a range of radiological investigations, the plaintiff described assessment and treatment; by pain management specialist, Dr McCarthy between May 2010 and April 2012, which she deposed had not provided ongoing relief from neck or mid-back pain; by a Dr Bala at the Yarra Ranges Pain Management Clinic for neck, mid-back and left shoulder pain on “around” 1 March 2011; by Mr McQueen, who when last consulted by the plaintiff in March 2015 had advised her that she “would need a total shoulder replacement in time”; for neck pain by neurosurgical consultant at the Austin Hospital, Mr Gonsalvo, who apparently advised further physiotherapy; and by her general practitioner, Dr Bates who continued to provide prescriptions and referrals.
[30]Ibid, PCB 7.3-7.4, paras 8-15.
Ø Medications currently prescribed in the treatment of neck, mid-back and left shoulder pain, namely, Durogesic patches, Dothep and Mersyndol (another pain relief medication) and Effexor, the latter for depression and anxiety. The plaintiff also recalled medications previously prescribed: Panadeine Forte, Lyrica, Valpro and Endep for pain and Cymbalta for depression and anxiety.[31]
[31]Ibid, PCB 7.4, para 16.
Ø Incapacity for work as a result of neck, mid-back and left shoulder pain, since ceasing work in 2013 as a personal care attendant, albeit having previously returned to only light duties for the same hours of work, following the first transport accident.[32]
[32]Ibid, PCB 7.4-7.5, paras 17-20.
Ø The impact of neck and mid-back and left shoulder pain on sleep, driving, domestic and daily activities, socialising and interacting with the plaintiff’s family including grandchildren and great grandchildren.[33]
Ø The ongoing assistance provided in the performance of domestic tasks by her daughter and the two granddaughters who currently live with the plaintiff (“Before the transport accident of February 2010, I was able to do most things around the house without significant restriction. Mopping, hanging washing and lifting did aggravate my left shoulder pain, but I was still able to do these tasks” and at least once a week her daughter “cleans the floors, toilet and shower and changes the bed sheets and doona. I am unable to do these chores due to the pain and weakness in my left shoulder and because my neck and mid-back pain is aggravated by repetitively leaning over and looking downwards. Vacuuming also aggravates my neck and mid-back pain due to the requirement to repetitively lean forwards and look downwards. I’m able to do some light cooking, but I am unable to lift or move heavy pots or pans with my left arm due to the pain and weakness in my left shoulder and arm”).[34]
[33]Ibid, PCB 7.5-7.7, paras 21-29.
[34]Ibid, PCB 7.5-&.6, paras 23-25.
36 For the purpose of this application, it is not necessary to set out in any detail the plaintiff’s medical history other than the relevant recorded medical history before and since the transport accident. It was apparent from the records kept that, in addition to the earlier surgery to the left shoulder, symptoms affecting the left shoulder were investigated and treated at various times in the five year period between the first transport accident and the transport accident.
37 Importantly, in the months preceding the transport accident, left shoulder pain and symptoms were investigated (an ultrasound on 20 January 2010, which revealed pathology including a “significant full thickness tear” of the rotator cuff) and treated with medication and, on 8 February 2010, the plaintiff underwent a further hydrodilatation procedure.
38 Based on the recorded history and the evidence as a whole, irrespective of whether or not the TAC accepted that the first transport accident was a cause of pathology found in the left shoulder, the probability, so far as this shoulder was concerned, was that the plaintiff’s left shoulder was not symptom or pain free during 2009 or early 2010. As a result, I could not accept the accuracy of the impression conveyed by the affidavit material to the effect that, in the months preceding the transport accident, the plaintiff’s lifestyle and enjoyment of life had not been “particularly” affected by the condition of the left shoulder.
39 Further to the above, until the plaintiff swore her second affidavit in February 2017, other than a passing reference to injury to the cervical spine in her first affidavit, the affidavit evidence of the plaintiff and her daughter in 2015 and 2016 respectively did not address the condition of the plaintiff’s neck before the transport accident. Again, the medical evidence summarised in due course suggests that cervical spondylosis had been symptomatic in the period before the transport accident.
The plaintiff’s relevant medical history prior to the transport accident
40 For convenience, I have summarised in point form the plaintiff’s relevant medical history as it relates to injury to and treatment of conditions affecting upper limbs and the spine and to treatment of a likely chronic pain disorder.
Prior to the first transport accident on 27 February 2005
41 Before the first transport accident:
Ø 1976 - Lumbar laminectomy for back pain.
Ø 1986 - Carpel tunnel release on the left side.
Ø 1988 – Referral to Mr McQueen in December 1988 to treat a left shoulder problem, with no effect following injection of hydro cortisone. On 21 December 1988 the surgeon performed arthroscopic excision of the coracoacromial ligament to decompress the subacromial bursa. On 26 January 1989, treating general practitioner, Dr Bates was doubtful that the plaintiff would ever make a full recovery from her long term complaints of chronic pain, which included aching wrists from time to time (the left more than the right). Of most concern, however, was the plaintiff’s elbow (left) and shoulder.[35]
Ø 1996 – Referral to Mr McQueen in April 1996 for treatment of ongoing left shoulder problem, which had never totally returned to normal following the earlier surgery. He reported that ultrasound investigation had shown significant impingement of supraspinatus tendon during abduction. The surgeon had recommended a further procedure, arthroscopic subacromial decompression.[36]
[35]Exhibit D1, DCB 3-5.
[36]Ibid, DCB 6.
42 As I understood the evidence, the recommended procedure had not been undertaken prior to the first transport accident.
Between the first transport accident and the transport accident on 10 February 2010
43 The plaintiff was the driver of a motor vehicle involved in a head-on collision on 27 February 2005. She was hospitalised and, as a result of injuries suffered, did not returned to her employment as a personal care assistant for some 8 months and only then to light duties. The plaintiff continued to perform these duties on a full-time basis until shortly before undergoing surgery in July 2013.
44 The injuries diagnosed in February and March 2005 included a fractured sternum, six fractured ribs on the left side, a compression fracture at the T11 level of the thoracic spine and injury to the right little finger. It appears that treatment of injuries to the sternum and the right little finger involved a number of operative procedures over the next couple of years, the latter involving tendon transfer and ligament stabilisation.
45 Investigation, medical assessment and treatment of injury to the cervical spine and left shoulder following the first transport accident included:
Ø 27 February 2005 – X-rays of the cervical spine the pelvis and lumbosacral spine, the sternum and right hand and CT scans of the abdomen and cervical spine. The x-rays and CT scans of the cervical spine relevantly reported: “Changes of osteophytosis, with prominent anterior osteophytic lipping, are present at the C5-6 level. There is no evidence of bone injury or other significant skeletal abnormality. Prevertebral soft tissues, however, appear to be somewhat prominent” and “No evidence of bone injury can be identified. Some degenerative change can be identified involving the facet joint on the right side of the C2-3 level. Anterior osteophytosis is present at the C5-6 level”.[37]
[37]Exhibit P1, PCB 11 and 13.
Ø 19 March 2005 – A bone scan ordered to investigate “continuing rib pain and back pain” reported results consistent with fractured ribs and a superior vertebral end plate compression fracture of the T11. It also reported increased uptake within the cervical spine consistent with degenerative-type change.[38]
[38]Ibid, PCB 59.
Ø In a report dated 9 August 2005, addressed to the TAC, the plaintiff’s treating general practitioner, Dr Bates described the injuries investigated and diagnosed following the first transport accident and the treatment received. The latter included referral to physiotherapist, Andrea Dowling. At that stage, there was no mention of treatment for any transport accident related injury involving the cervical spine or the shoulders.[39]
[39]Ibid, PCB 41-42.
Ø 9 June 2005 – In a report dated 4 March 2011 Ms Dowling confirmed that she treated the plaintiff between 9 June 2005 and 8 June 2007. The referral initially involved treatment for injury to the plaintiff’s sternum and thoracic spine. To commence with the plaintiff complained of pain around the chest, thoracic spine and ribs and generalised neck pain. Assessment, in mid-June 2005 apparently revealed poor control of the scapula and weakness of the lower trapezius muscles with reduction in and complaint of pain on all movements of the neck. On 16 July 2005 the plaintiff reported a gradual increase in right sided neck pain. The physiotherapist diagnosed soft tissue strain of the cervical facets and discs (at C3-5 in particular) secondary to the first transport accident. The plaintiff commenced her return to work as a personal care attendant in August 2005. Physiotherapy treatment between July and December 2005 appears to have been directed to ongoing cervical and thoracic spine issues. However, on 7 January 2006, the plaintiff reported “increasing left shoulder clicking and pain with radiation into the left upper arm, aggravated by lifting her arm. Ms Dowling diagnosed “the beginnings of adhesive capsulitis”, the symptoms of which she said had failed to respond to further physiotherapy treatment.[40]
[40]Ibid, PCB 87
Ø 31 January 2006 – The plaintiff underwent ultrasound and x-ray examination of the left shoulder. The former reported “The biceps tendon is normally situated within the bicipital groove. The rotator cuff tendons are of normal thickness and texture with no evidence of a tear. The subacromial bursa appears normal. Abduction is limited to 90 degrees as a result of pain”. The x-ray results reported “The glenohumeral articulation appears normal. There is no evidence of rotator cuff calcification nor of spurring of the acromion. The soft tissues appear normal. The AC joint is unremarkable”.[41]
[41]Ibid, PCB 15.
Ø 27 February 2006 – The plaintiff underwent left shoulder hydrodilatation.[42] The physiotherapist’s report records improvement in the left shoulder symptoms and further records that physiotherapy treatment between March 2006 and June 2007 was mainly for complaints relating to injury to the sternum (in the treatment of which the plaintiff underwent a further operative procedure in October 2006) and for complaints involving ongoing problems in the thoracic spine.
[42]Ibid, PCB 16.
Ø 2 June 2006 - Notably, in reports dated 2 June 2006, 9 May 2007 and 18 June 2007 Dr Bates outlined injuries he believed were related to the first transport accident. One such injury was injury to the left shoulder, which the doctor theorised had not been “apparent at the time of the originally injuries, as these other injuries were more painful”, adding “I feel that she was not aware of all of her injuries initially in view of the severe sternal and chest pain that she had been troubled with. As that partially settled the other injuries and disabilities became more apparent to her as they complicated her recovery”. However, whilst the hydrodilatation procedure had improved the condition of the shoulder, in May 2007 the general practitioner reported that this procedure had only provided short-term relief. He, nonetheless, understood from the plaintiff that, despite this problem, the plaintiff had been able to manage normal home duties but was aware of “clicking in the joint at times”.[43]
[43]Ibid, PCB 43- 56.
Ø April 2007 to June 2007 – Ms Dowling recorded that in April 2007, the plaintiff reported left more than right anterior chest pain aggravated by overhead arm movements, with shoulder flexion reproducing both chest and shoulder pain. Notably, following her last attendance on the plaintiff in June 2007, Ms Dowling’s diagnoses (as reported by her in March 2011) included “soft tissue whiplash injury to the cervical spine involving the discs and facets. This was based on the plaintiff’s generalised reduction in cervical range of motion and tenderness on palpitation of the soft tissues, facet and central joints in her neck. Furthermore, the mechanism of injury being a head-on collision is more likely to produce a whiplash type injury” and left shoulder capsulitis due to “significant and worsening reduction in range of movement, stiffness in the accessory glides of the glenohumeral joint and increasing pain. Her ultrasound did not demonstrate damage to any other joint structures and she responded positively to hydrodilatation”. At the time, the physiotherapist expressed optimism about the prognosis for the left shoulder “This was last treated in 2006 and I would expect that it would have fully recovered over the following months. Mrs Hauge also had some shoulder pain that appeared to be referred from or related to her thoracic spine and chest injuries…”.[44] Ms Dowling did not offer a prognosis for the neck condition because this had been treated by her colleague in March 2008.
[44]Ibid, PCB 87-89.
Ø 4 July 2007 – Dr Bates reported to the TAC that, in view of the passage of time and the number of failed operative procedures, he considered the plaintiff’s injuries had probably recovered as much as they were going to and any deterioration was “likely to be slow with degenerative ageing changes exacerbating her residual injuries over time”.[45]
[45]Ibid, PCB 57.
Ø 25 and 27 July and 8 August 2007 – Entries made in Dr Bates clinical notes on these dates recorded complaints which were confined to complaint of pain in shoulder, back and sternum, which the plaintiff apparently reported could be generated by “arm movement peeling potatoes hanging washing has to hold chest when rolling over in bed esp with shoulders rounded a little Present every day (sic)…” and “More severe pain (L) shoulder work with it restricted Range of movement shoulder ++” and “Not sleeping well pain is shoulder (L) when rolling on (R) side reduced Range of movement hypersensitivity to touch”.[46] On 27 July 2007 Dr Bates ceased prescribing the neuropathic pain medication, Tegretol CR and an anti-inflammatory medication, Prexige but added the anti-inflammatory, Voltaren to existing medications, the pain killing medication, Capadex and the benzodiazepine, Valium.
[46]Exhibit P2.
Ø 31 July 2007 – The plaintiff was assessed on this date by psychiatrist, Dr Glaser at the request of her solicitors, Slater and Gordon. Under cross-examination, among other things, the plaintiff confirmed a number of matters relating to pain and the consequences of injury suffered as a result of the first transport accident, as reported by the psychiatrist. Firstly, that following the first transport accident, as reported, she returned to light duty work only “Essentially, she and her colleagues have divided up the work so that she now gives out all the medications while her colleagues “carry me” and perform heavier tasks such as showering patients, putting them on commodes, etc”. Secondly, that the physical problems as at the date of the examination involved pain over the centre of left side of her chest, left shoulder and the left side of the middle of her back. Thirdly, that pain was aggravated by lifting heavy objects, hanging out the washing, vacuuming and similar activities”. Fourthly, that pain, including left shoulder and chest pain, was aggravated by sleeping on either side of her body. As a result, pain often woke the plaintiff at night.[47] As to the plaintiff’s psychological state and response to her injuries and impairment, Dr Glaser diagnosed an adjustment disorder with anxiety and depressed moods.
[47]Exhibit D2 PCB 123-124
Ø 31 July 2007 – The plaintiff was assessed by orthopaedic surgeon, Mr O’Loughlin at the request of her solicitors, Slater and Gordon.[48] The report dated 3 August 2007 indicated that, at the time, the plaintiff viewed sternal pain as her main problem. The doctor:
[48]Exhibit D3, PCB 111-116.
o understood from the plaintiff (wrongly as the medical history earlier summarised shows) that following the shoulder surgery in 1988 (“apparently for tendon problem”) the plaintiff had not had any problems with her left shoulder until the first transport accident.
o Obtained a history of “quite significant” left shoulder pain and “quite a lot of neck pain” after the first transport accident, with complaint that the left shoulder had been “a lot more painful” recently, although a cortisone injection had helped.
o Was informed that the left shoulder was sore and, whereas prior to the first transport accident the plaintiff had reported full movement despite previous surgery, the plaintiff was not then able to move her arm above shoulder level. Under cross-examination the plaintiff agreed she had reported these matters as described but explained that, she had tolerated the pain and, with the passage of time she had been able to do more by working around the restricted movement. In re-examination when asked by Mr Walsh how her shoulder was between 2007 and 2010, the plaintiff, nonetheless, replied “It got worse. I had less – I was restricted more”.[49] Accordingly, whilst I have accepted that there may have been a period or periods of improvement in left shoulder pain and restriction, allowing for the symptoms and restrictions recorded in the months preceding the transport accident, I concluded that the response obtained during re-examination likely better explained the condition of the left shoulder in this period.
[49]TN 72.
o Was informed that the plaintiff was taking anti-inflammatory medication and Mersyndol (when the pain was severe) as well as Valium, but had given up physiotherapy because this had worsened her symptoms.
o Was informed that the plaintiff avoided overhead activities with her left upper limb due to pain and avoided any heavy lifting or strenuous work because it aggravated chest, neck and upper back pain.
o Noted that x-ray and ultrasound of the left shoulder on 31 January 2006 had not reported any obvious abnormality.
o Was informed that the plaintiff’s main problem at the time was sternal pain, which was aggravated by heavy housework including mopping and sweeping and by coughing and sneezing.
o Was informed that the plaintiff had pain in the upper back radiating to the base of her neck between her shoulder blades, which was present to some degree all the time and was aggravated by movement.
o Diagnosed soft tissue injury to the cervical spine and left shoulder in addition to the injuries to her sternum, ribs, thoracic vertebrae and right little finger as a result of the first transport accident.
o Noted clinical evidence of rotator cuff dysfunction. Mr O’Loughlin attributed this to further soft tissue injury involving the rotator cuff, for which he thought the plaintiff may require further surgery.
o Was optimistic that the cervical spine injury would likely recover with the passage of time and a good self-regulated exercise program. Whilst later events indicated that neck pain had not resolved, as had been anticipated in mid-2007, it was apparent from this report and the physiotherapist’s report that between the first transport accident and mid- 2007 the disabling consequences of alleged injury were generally attributed by the plaintiff to pain and impairment involving shoulder, sternum or thoracic spine injury.
o Was not optimistic about the plaintiff’s prognosis due to the lack of improvement in pain management in the two years since the first transport accident.
Ø 6 August 2007 to 26 September 2007 – Pain management specialist, Dr Timothy McCarthy commenced treating the plaintiff on referral from Dr Bates. In two reports dated 17 August 2007 and 4 September 2012 respectively, Dr McCarthy recorded complaint of left cervical, left shoulder and left bicep pain with constant nagging thoracic pain causing shortness of breath. When examined by Dr McCarthy, the plaintiff reported she was working full-time on light duties. The plaintiff reported the hydrodilatation procedure in 2006 but apparently added that pain had spread from the shoulder region radiating to the chest and neck. The approach taken by Dr McCarthy was to treat the neck pain first. He concluded that the plaintiff had suffered from a whiplash injury and possible cervical facet syndrome.[50] Subsequently, on 15 September 2007, MRI imaging of the cervical spine ordered by Dr McCarthy relevantly reported “No focal marrow signal abnormality. No paraspinal soft tissue mass. No destructive bony process. Mild loss of normal alignment. Multilevel disc signal loss consistent with desiccation and degenerative disc disease. There is no cord defect and the cord signal is uniform throughout”; a “normal” finding at the C2-3 level, a “preserved” finding at the C3-4 and C4-5 levels; “Broad based discophytic ridge, indenting the thecal sac, no effect upon the cord, left greater than right foraminal narrowing but no evidence for exiting compromise” at the C5-6 level; “Minor discophytic ridging, particularly on the left-hand side, narrowing the foramen and but without good evidence for exiting neural compromise” at the C6-7 level; and “Minor right paracentral discophytic ridge, no apparent effect” at the C7-T1 level.[51] Dr McCarthy considered the radiological findings normal for the plaintiff’s age. The plaintiff later reported that left C4/5/6 dorsal ramus blocks performed on 21 September 2007 and 26 September 2007 had reduced and significantly improved pain.
[50]Exhibit D1, DCB 8-9 and Exhibit P1, PCB 90-95.
[51]Exhibit P1, PCB 18. Notably this report consisted of an unsigned single page report only.
Ø 13 February 2008 – Dr Bates recorded complaint of occasional cracking in the neck with ongoing left shoulder and chest pain.[52] Dr Bates ordered a CT scan of the cervical spine. The report dated 19 February 2008 recorded clinical indications of radicular left shoulder pain with reduced range of movement. The radiologist, who had not identified any paravertebral soft tissue abnormality, any disc protrusion or herniation or problems with the thecal sac and exiting nerve roots, did not, however, exclude the possibility of disc protrusion at the C6/7 and C7/T1 where the “contents of the spinal bony canal” at these levels were said to be poor. Otherwise, the scans were said to indicate degenerative changes; osteophytic lipping at the level of C5/6 encroaching upon the spinal bony canal to a minor degree, osteophyte lipping at the level of C6/7 but to a lesser degree; and minor degenerative changes of the facet joints at the levels C3 to C7, the changes most marked at the level of C3/4 and C4/5 levels. Notably, the plaintiff later reported the sudden onset of right shoulder pain and symptoms in March/April 2008, which, as the summary below shows, were investigated and treated during 2008.
[52]Exhibit P2.
Ø 26 February 2008 to 6 March 2008 – Radiofrequency denervation was performed on 26 February 2008. Dr McCarthy reported that, on review in March 2008, the plaintiff complained that the right side had become more painful. Dr Bates’ clinical notes record that on 4 March 2008, despite the procedure, the plaintiff continued to report left shoulder pain with restricted neck movements, especially on rotation to the right.[53] The plaintiff was referred for physiotherapy. On 6 March 2008 she was seen by physiotherapist Ms Reid. The plaintiff apparently reported left scapula and neck pain. She presented with a reduced cervical range of rotation on the left and right and reduced flexion with acute tenderness on palpitation from C3 to T4 centrally. According to the report the plaintiff was treated with cervical traction and, despite a request to do so, failed to report the response to treatment or attend for further treatment.[54]
[53]Ibid.
[54]Exhibit P1, PCB 88.
Ø 3 June 2008 to July 2008 - Dr McCarthy next requested approval for right C4/5/6 radiofrequency denervation, which was carried out on 3 June 2008. This was followed-up with a repeat MRI imaging of the cervical spine on 16 July 2008. According to Dr McCarthy, this had not shown any significant change from the previous MRI.[55] Notably, the only MRI study in the materials tendered for 16 July 2008 was for the thoracic spine. This study was reported as an “unremarkable study” with “no cause for thoracic pain shown”.[56]
[55]Ibid, PCB 92.
[56]Ibid, PCB 21.
Ø August 2008 to September 2008 – The tendered clinical note for 12 August 2008 recorded complaint of pain into the neck, in the treatment of which the plaintiff was using two Durogesic patches at a time. Dr Bates recorded that he found “some shoulder wasting”.[57] The plaintiff was referred to orthopaedic surgeon, Mr Holland, it being recorded that pain in the right shoulder had commenced after the first transport accident in 2005 “when (the plaintiff) was shaking a doona”.[58] In reports dated 23 and 30 April 2010 Mr Holland relevantly informed the plaintiff’s solicitors, Slater and Gordon, as follows:[59]
[57]Exhibit P2.
[58]Exhibit P1,PCB 75.
[59]Ibid, PCB 75-79
o He saw the plaintiff on 22 August 2008 and again on 4 September 2008.
o Initially, the plaintiff reported experiencing neck pain radiating into both shoulders from the date of the first transport accident, although she also described an incident in April 2008 in which she experienced “a snap in her right shoulder and not been well since”. The plaintiff described poor power in the shoulder with an ache that radiated to the mid arm, sleep disturbance and further indicated that she avoided using the arm in the overhead position.
o The plaintiff was then on a pain management program using medications that included Duragesic patches, Endep and Mersyndol. Among other things, Mr Holland noted that the plaintiff already had symptoms of chronic regional pain syndrome for which she had been treated by Dr McCarthy. At the time, he did not exclude the possibility that cervical pain radiating to the shoulders may have been mistaken for some of the plaintiff’s symptoms early on.
o Radiological investigations included an ultrasound in April 2008 and MRI imaging in September 2008. The latter reported “a ruptured and retracted long head of biceps tendon, severe supraspinatus tendinopathy, high-grade partial thickness tearing of subscapularis with tendinopathy, infraspinatus tendinopathy, moderately severe subacromial and subdeltoid bursitis, moderate AC joint degenerative change and mild glenohumeral joint degenerative change”.
o He “cautiously” (evidently because of ongoing pain management issues) advised surgery in the form of arthroscopic assessment and a debridement and possible rotator cuff repair. As it turned out, on 5 May 2009 the TAC wrote to Mr Holland stating that they were unable to fund the surgery because the TAC considered the problems with the right shoulder to be unrelated to the first transport accident.
o Whilst not ruling out the possibility that the first transport accident caused injury to the right shoulder, giving rise to the need for surgery, Mr Holland considered it unlikely that, on the balance of probabilities, the right shoulder injury resulted from the first transport accident.
Ø 17 November 2008 – In a report to the TAC, Dr Bates sought to link the condition of the right shoulder to the first transport accident. Among other things, Dr Bates:[60]
[60]Ibid, PCB 58-59
o Hypothesised (as he previously had in respect to the left shoulder) that the plaintiff’s right shoulder symptoms following the first transport accident could have been overwhelmed by so many other persistent symptoms relating to missed fractures and left shoulder pain following the first transport accident.
o Noted that the plaintiff had been suffering ongoing pain and restricted movements since the first transport accident, although she had been able to return to normal hours on restricted duties.
o Described the circumstances in which the plaintiff reported the onset of sudden pain in her right shoulder after overstretching in March 2008, the symptoms of which had improved following an injection of steroid and local anaesthetic. However, within a week the plaintiff reported a “snap” in a shoulder and had developed a bruise on her upper arm.
o Considered it “reasonable to surmise that (the plaintiff) suffered a partial tear of a shoulder after a major motor vehicle accident that resulted in her multiple documented fractures. It (was) also reasonable that she has other injuries that have also, at this stage, not manifested themselves.…”.
Ø 10 February 2009 to 15 April 2009 and 11 March 2010 – As is apparent from the earliest of the 11 reports submitted between February 2009 and February 2017, by the TAC’s medico-legal orthopaedic specialist, Mr O’Brien, these reports were focussed on the right shoulder condition and any causal link between the pathology in this shoulder and the first transport accident. This specialist relevantly recorded the following matters:[61]
[61]Exhibit D1DCB 21- 30.
o The plaintiff reported experiencing “quite severe anterior chest pain, particularly on the left side, plus pain in the left shoulder and neck pain that radiated across the top of both shoulders” following the first transport accident.
o The plaintiff reported that referral by her local doctor for physiotherapy due to continuing neck pain had not helped her pain.
o The hydrodilatation procedure for the left shoulder in 2006 had “resulted in definite improvement in pain and movement. In fact the patient stated that currently she has no left shoulder pain”. Notably, the statement attributed to the plaintiff accords with the physiotherapist’s understanding of the progress of the shoulder condition following the hydrodilatation procedure. Although, if, the statement also accurately described the status of the left shoulder at the time, as Ms Magee submitted, the evidence, nonetheless, established that the condition of the left shoulder had likely deteriorated during 2009.
o In February 2009 the plaintiff complained of constant anterior chest pain over the sternum and to the left side as well as burning-type pain in the mid to lower thoracic spine, the severity of which she said was 8/10 on a visual analogue scale. Pain was “aggravated by physical activities such as peeling potatoes, mopping the floor or doing any vacuuming, indeed when using arms. She also described fairly constant neck pain, the severity of which is 3-4/10. This is associated with some stiffness and she is unaware of any specific aggravating factors. Ms Hauge also described constant pain over the superior and anterior aspect of the right shoulder, which can extend into the anterior aspect of the right upper arm.…”. At this juncture it is appropriate to make a number of observations. Firstly, the plaintiff told the Court that, whilst the problems with the right shoulder had also been aggravated by the described activities, the bruising on the right arm and other symptoms had eventually resolved altogether, However, I was not able to conclude from the evidence as a whole that right shoulder symptoms were fully resolved before the transport accident. Secondly, the physical activities the plaintiff said aggravated chest and thoracic spine pain were not also said to aggravate neck pain. Thirdly, whilst at hearing the plaintiff conceded her assessment of the severity of neck pain in February 2009 was almost identical to the assessment given in her affidavit sworn in February 2017 (“usually around a 4/10”), the plaintiff explained (and I have accepted as reasonable this explanation) that, currently, pain was more severe if she did “things that aggravated it”.[62] During re-examination the plaintiff further explained that, even when seated in Court, she experienced pain in trying to hold up her head. Whilst the pain level could drop to less than 4/10 (“not very often”), the plaintiff said the pain level exceeded 4/10 several times per day and that’s why she needed to lie down.[63] I propose to discuss what physical activities the plaintiff now says aggravate the neck condition in due course.
[62]TN 41.
[63]TN 72-73.
o Injury suffered in the first transport accident involving fractured sternum, multiple fractures of the left ribs anteriorly, compression fracture of the T11, rupture of the radial lateral ligament of the right 5th metacarpophalangeal joint, cervical spondylosis and capsulitis of the left shoulder.
o Clinical evidence of symptomatic cervical spondylosis and of some restriction in left shoulder movements (“the patient has required ongoing treatment for symptomatic cervical spondylosis and has had successful hydrodilatation of the left shoulder, which appears to have resolved the capsulitis with the patient now describing the shoulder as asymptomatic although there clinically remains some mild restriction of both flexion and abduction of the left shoulder. Also despite the complaint of persistent thoracic pain the patient now demonstrates a satisfactory range of thoracolumbar movement without any evidence of local pathology”).
o Whilst supportive of Mr Holland’s recommendation for surgery, found no causal relationship between right shoulder pathology and injury suffered in the first transport accident.
o That the overall prognosis in relation to the injuries sustained in the first transport accident was “reasonable” and further that the plaintiff “only reported a very mild disability in relationship to the injury sustained in the February 2005 accident. She returned to employment, albeit for any heavy physical tasks. Nevertheless, the patient has been able to work her pre-injury hours and I have little doubt Ms Hauge will continue with her current employment. Indeed overall the patient remains reasonably active with only a restriction in heavy physical tasks. I would suggest this situation will continue and would consider this patient will continue to lead a quite active lifestyle”.
Ø 11 June 2009 to 23 July 2009 – The clinical note made on 11 June 2009 records complaint of a painful hip, worsening pain, the Durogesic patch not lasting three days, depression and, without identifying which shoulder, discussion of “shoulder” with a note suggesting the possibility that this had been weakened in the first transport accident. Accepting for the moment that the clinical note referred to a hip condition (said to have been relieved by an injection in July 2009) and probably also referenced the right shoulder condition, Dr Bates’ report to the TAC in July 2009, nonetheless, confirmed that the left shoulder remained symptomatic and was, at the time, contributing to the plaintiff’s pain levels. He relevantly advised that:[64]
[64]Exhibit P2 and Exhibit D2, DCB 11-12.
o since the first transport accident the plaintiff had suffered left shoulder pain and was then suffering from some discomfort with her left shoulder, although this was not the cause of most of her pain.
o The plaintiff was currently using narcotic patches and Epilim to control pain “to a point where she can at least function”.
o The plaintiff’s prescribed medication included Cymbalta, Durogesic patches, Endep, Epilim (an anticonvulsant medication), Somac (a medication for reflux) and Temazepam (a medication to assist sleep).
Ø 9 September 2009 to 9 December 2009 – Whilst focused on the shoulder condition, the clinical notes and reports made during this period also indicated that pain management relating to, arm, shoulder, chest, back and neck pain was an ongoing concern. Further to his report dated 23 July 2009, Dr Bates informed the TAC that the plaintiff continued to suffer from a pain disorder, she remained on medication and she had been re-referred to pain specialist, Dr McCarthy. [65]
Ø 13 January 2010 to 8 February 2010 – The clinical note of 13 January 2010 recorded increasing discomfort in the left shoulder over the last months “esp with internal rotation No obvious trigger Has not changed medications (sic)”. Examination revealed “abduction limited to shoulder height” and “some restriction internal rotation”. It is apparent from the note kept that, at the time, the general practitioner suspected pathology in the left shoulder involving “Tears” or “entrapment”. At the request of Dr Bates, the plaintiff underwent further left shoulder ultrasound investigation, which was followed by a left shoulder hydrodilatation procedure on 8 February 2010, with only two days between the procedure and the transport accident.[66]
[65]Exhibit P2 and Exhibit D2, DCB 12.1.
[66]Exhibit D1, PCB 22-26.
46 The results of the ultrasound investigation in January 2010 were important to the application for leave for the shoulder because they helped establish likely pre-existing pathology involving, among other things, the rotator cuff, howsoever, this may have been caused. The results were reported as:
Findings: Fluid around the biceps tendon is noted. There is seen to be thickened, irregular and hypoechoic in keeping with associated tendinopathy.
The remainder of the rotator cuff demonstrates no loss of contour and suggests a significant full thickness tear. There is however known thickening and heterogeneous appearances to the supraspinatus tendon in keeping with tendinopathy. Fluid and thickening of the subdeltoid bursa is seen.
This demonstrates bursal bunching.
Also noted limited external rotation in keeping with presumably a degree of adhesive capsulitis.
Degenerative changes of the acromioclavicular joint are also noted.
Comment: There is evidence of biceps tendinopathy.
Subdeltoid bursitis and bursal bunching on the functional studies as well as limited external rotation suggesting adhesive capsulitis.
47 Accordingly, whilst the hydrodilatation procedure on 8 February 2010 was, no doubt, intended to treat radiological and clinical signs of inflammation and adhesive capsulitis, the radiologist had also identified changes consistent with the presence of a significant full thickness tear. Moreover, it was apparent from the records and reports made and the investigations undertaken that:
Ø In the months preceding the transport accident the condition of the left shoulder had deteriorated.
Ø By mid-January 2010 the clinical evidence indicated restrictions in the range of movement in the shoulder, with abduction limited to shoulder height.
Ø The investigation had confirmed pre-existing pathology in the shoulder, including evidence suggesting a tear.
Ø The medication regime for pain control and to aid sleep in the latter months of 2009, involving narcotic patches, Epilim and Temazepam, had not altered before the transport accident. The plaintiff conceded that the medications mentioned were also required in the treatment of left shoulder pain and symptoms.
Ø The plaintiff had been re-referred to pain specialist, Dr McCarthy for treatment of a pain disorder.
48 I infer from the evidence as a whole that, firstly, left shoulder pain and symptomatic cervical spondylosis were then contributing to the pain disorder described in the medical material and, secondly, that pain and restriction in the range of movement of the shoulder and arm/arms likely interfered with physical activity requiring the use of the plaintiff’s upper limbs. That said, based on the affidavit and radiological evidence and the medical evidence and record of complaints reported by the plaintiff, particularly in the year preceding the transport accident:
Ø I was not satisfied that pathology in the spine, particularly cervical spondylosis, was then (or now) a cause of the pain and restrictions limiting the use of the plaintiff’s upper limbs.
Ø Consistent with the affidavit evidence, I was satisfied that pathology in the spine, particularly cervical spondylosis, had not had any appreciable impact on the plaintiff’s ability to perform light duties as a carer or to maintain her home and socialise.
49 Under cross-examination the plaintiff was at a loss to explain why, having mentioned earlier treatments, in her affidavits and in consultation with treating and medico-specialists she failed to also mention the further investigation of left shoulder symptoms and the hydrodilitation procedure shortly before the transport accident. If this omission was due to oversight, or was deliberate in the sense that, as the plaintiff claimed, she believed the doctors would have received notification of this investigation and treatment history beforehand, the problem for the plaintiff was that the medical material was not as helpful as it might otherwise have been in establishing a causal link between the transport accident and pathology identified in the left shoulder, either as a result of imaging, clinical examination or surgery, after October 2010.
50 To summarise then, had this application simply involved aggravation injury to the left shoulder, the evidence did not contain expert analysis of the likely progress of the left shoulder condition absent any further injury, or expert analysis based on the known history and radiological results, which also identified the nature of the injury suffered to the shoulder as a result of the transport accident.
51 As to the application relating to injury to the spine, particularly the cervical spine (the latter in the context of a likely earlier unresolved whiplash injury), it follows from my discussion of all of the evidence in due course that I was satisfied that the plaintiff was likely also suffering from symptomatic cervical spondylosis at the date of the transport accident. As mentioned, the TAC had conceded this aggravation injury and, to the extent that it could be said that symptomatic cervical spondylosis caused or contributed to the consequences alleged, these were also conceded, without also conceding that, when viewed globally, the consequences of this injury met the serious injury test.
Post transport accident: Treatment and assessment of the left shoulder and spine, in particular the cervical spine
2010
52 Dr Bates examined the plaintiff following the transport accident on 18 February 2010. He recorded “some pain rotation to (R) neck pain on springing chest and (R) upper abdo (sic)”. I think it fair to conclude from the evidence discussed below that, in the months that followed the transport accident, investigations and treatment were focussed on the sternum and neck pain of which the plaintiff complained and, despite any belief expressed by the plaintiff to the contrary, until 27 October 2010 when Dr Bates recorded the re-emergence of left shoulder problems: “L) shoulder getting worse again”, she had not also reported left shoulder problems to her doctor.[67]
[67]Ibid, DCB 17.
53 This is not to deny, however, that clinical records made in this period by Dr Bates contained entries indicative of problems either with lifting or raising the plaintiff’s arms, albeit in association with ongoing chest pain (as for instance, on 11 March 2010 and 24 March 2010[68]) and clinical findings reported by Mr O’Brien in August 2010, which also indicated restricted movement and tenderness in both shoulders.
[68]Ibid, DCB 15.
54 Dr McCarthy, who had not seen the plaintiff since August 2008 re-examined her twice in 2010; on 17 May 2010 and again on 17 November 2010. A bone scan obtained on 30 May 2010, ostensibly to investigate ongoing sternal pain and bilateral cervical pain was reported by the radiologist as having revealed no “definite abnormal sternal, rib or cervical spine activity to account for the cause of the patient’s pain”.[69]
[69]Exhibit P1, PCB 96.
55 Dr McCarthy’s report dated 4 September 2012 did not record complaint of or treatment for any left shoulder injury or symptoms in 2010. That said, the report was short on detail. For instance, the report had not mentioned the bilateral thoracic nerve blocks, to which Dr Bates referred in a clinical note dated 5 August 2010, with the further notation that this procedure had not improved the plaintiff’s pains.
56 In summary, whilst the limited medical evidence available for this period tells us that there was some clinical evidence of restricted movement involving the left upper limb, the evidence did not also consider the relationship, if any, between these clinical signs and the radiological and clinical status of the left shoulder prior to the transport accident. Importantly, Dr Bates’ hypothesis that other injuries suffered masked further injury to the left shoulder, about which I will say more shortly, never directly addressed this issue.
57 The General Claim for Compensation form (the claim form) signed by the plaintiff on 17 March 2010, some weeks after the transport accident was also relied on by the TAC on the issue of causation of the left shoulder condition.[70]
[70]Ibid, PCB 202-13.
58 At hearing, whilst the plaintiff confirmed that the handwritten and diagrammatic entries in the claim form were made by her, she was not able to recall who was responsible for entering the typed information or, recall whether she had been asked these questions, much less whether she had provided any of the answers.
59 The plaintiff’s responses during cross-examination and re-examination about the content of the form, however, helped reinforce my impression that much of her evidence about the condition of the left shoulder in the months immediately following the transport accident was based on reconstruction, not recall.
60 The plaintiff was taken to various answers to questions in the claim form, none of which mentioned the left shoulder. She sought to explain these answers in the following way:
Question 17 This question required the plaintiff to list all her injuries from the transport accident. As with a number of the responses given to questions throughout the claim form, the response to Question 17 was partly typed and partly handwritten. On this occasion, the typed entry was “(Pain of sternum), (Neck pain) (Right), (Abdominal pain)”, under which the plaintiff had written “FRACTURED STERNUM”.
Notably, the response given mirrored the injury and symptoms recorded by Dr Bates in the clinical notes kept by him prior to 17 March 2010. At hearing, the plaintiff was not able to provide any, or any satisfactory, explanation for the failure to record injury to the left shoulder in the claim form. Indeed, when taken to the same question during re-examination and asked to recall whether she had right-sided neck pain the plaintiff indicated that the entry was incorrect because it should have referred to her right shoulder. She later added that immediately after the transport accident her neck had been painful on both sides (“I know I had to turn my whole body both ways to talk to anyone…”).[71] This response provided some insight into the extent to which cervical spondylosis had been aggravated by the transport accident without also explaining why, if there was also shoulder pain this was not reported.
[71]TN 67-68.
Questions 22 and 23 These questions required the plaintiff to mark boxes labelled “Yes” or “No”, to indicate whether before the transport accident she had ever required treatment for or suffered from the conditions or problems listed, including whether before the transport accident she had ever suffered from a shoulder condition or pain. The was answered in the negative.
Question 24 The typed response to a request to list all of the regular medication the plaintiff was taking prior to the transport accident, listed Endep, Durogesic patches, Cymbolta (sic) and Valpro. Whilst under cross-examination the plaintiff agreed that this answer was correct, on this and other occasions in her evidence the plaintiff confirmed that medications taken prior to the transport accident, had been prescribed in the treatment a number of conditions, including her shoulder condition.[72]
Question 43 This question required the plaintiff to indicate whether her injuries had prevented her from looking for work since the transport accident and, if so, to list the injuries. The plaintiff’s handwritten response read “fractured sternum, stiffness in (R) side of the neck and shoulder + (R) abdo pain”. Consistent with the entry made, under cross-examination the plaintiff indicated that she had suffered from stiffness affecting the right side of the neck and shoulder only, adding that the entry “should be right shoulder and abdominal pain”.[73]
However, when asked during re-examination to indicate the part of the shoulder that was stiff, the plaintiff indicated the top of her left shoulder into the left upper arm and, further, when prompted to explain her earlier reference to the right shoulder the plaintiff replied “Yes I meant the left” and “Yes, 100 per cent. Sorry”.[74]
[72]TN 52.
[73]TN 53.
[74]TN 69.
61 I have already mentioned the impairment assessment undertaken by Mr O’Brien on 2 August 2010 and the detailed report dated 10 August 2010.[75] Whilst the focus of the examination and reported was on injury suffered as a result of the first transport accident, the report, nonetheless, recorded complaints made relating to injury suffered in both transport accidents, the results of Mr O’Brien’s clinical examination of the spine and shoulders as well as his diagnoses, prognosis and impairment assessment. Among other things, the report:
[75]Exhibit D1, DCB 31-37
Ø Summarised the circumstances of both accidents. Mr O’Brien reiterated the plaintiff’s earlier account of injury suffered and treatment received after the first transport accident. In particular, Mr O’Brien reiterated the plaintiff’s complaint of anterior chest pain, pain in the mid to lower cervical spine and ongoing right shoulder pain when initially examined by him in February 2009.
Ø Recorded the plaintiff’s complaints at the time of the examination in August 2010 “constant neck pain radiating across the upper back to both shoulders and from the upper thoracic region to the mid thoracic area. The patient described this ongoing pain as the sensation of a fire or burning, like a hot poker, which could be sharp and sometimes take her breath away. In addition, she reported continuing anterior chest pain, described more as a bruised feeling or weight on her chest”.
Ø Recorded the plaintiff’s complaint of persistent severe anterior chest pain and “some increase in the severity of neck pain and stiffness” following the transport accident. The plaintiff apparently also indicated that neck pain continued to radiate into the upper thoracic area.
Ø Further described the plaintiff’s complaints, as at the time of making the report, as “constant neck pain radiating into the upper back extending to both shoulders and down the proximal half of the thoracic region. The severity of this pain is 7/10 on a visual analogue scale and the nature of the pain described as burning, like a red hot poker. This is associated with stiffness in the neck and the pain is aggravated by turning her head to the right and any physical activity or tasks such as vacuuming and mopping and even peeling potatoes and writing with the right dominant hand. In addition, (the plaintiff) describes constant anterior chest pain around the upper and mid sternal region, the severity of which is 7/10. The sternum is very sensitive to touch and she is constantly aware of the sensation of bruising over the sternum, also describing the sensation of a constant heavy weight on her chest. Also she continues to experience pain in both shoulders, which remain restricted in movement”.
Ø Indicated that treatment was then confined to medication only. Notably, the history obtained to the effect that the plaintiff had undergone further hydrodilatation of the left shoulder “some time in 2009”, with “a few weeks of very mild relief of left shoulder pain” thereafter, was plainly wrong. This and the omission of the results of the ultrasound investigation and the hydrodilatation procedure from the materials received by the doctor prior to this examination, no doubt, impacted on Mr O’Brien’s understanding of the nature and extent of the left shoulder condition between the initial examination in February 2009 and the advent of the transport accident.
Ø Recorded clinical examination findings indicative of restrictions in movement and tenderness involving the cervical spine and both shoulders.
Ø Recorded diagnoses involving fractured sternum; multiple fractures of the left ribs anteriorly; compression fracture of the T11; ligamentous injury to the right 5th metacarpophalangeal joint; symptomatic cervical spondylosis; and capsulitis of the left shoulder. Notably, the list of diagnoses was the same list as that reported by Mr O’Brien in his initial report dated 18 February 2009.
62 In Mr O’Brien’s opinion the transport accident appeared not to have produced any new injury other than “some described exacerbation of neck and upper back pain” with no apparent change in the physical signs since his previous examination in February 2009. In other words, the diagnoses and the results of the clinical examinations were unchanged, although from the plaintiff’s description of neck and upper back, this had been exacerbated by the transport accident.
63 For the purposes of this application, the results of Mr O’Brien’s re-examination, assessment and report, some 7 months after the transport accident, provided a relatively contemporaneous specialist assessment of the impairment status of the shoulders and the spine, as well as specialist commentary on the aetiology of injury, particularly so far as the left shoulder was concerned, in the context of both transport accidents:
Current signs suggest the continuing presence of symptomatic cervical spondylosis with some local tenderness over the sternum and quite marked restriction of movement of both shoulders, suggesting a degree of capsulitis although I do not consider pathology associated with the right shoulder relates to the February 2005 accident.
I appreciate your comments in relationship to the onset of left shoulder pain. The patient initially indicated the pain was part of her original injury but there does not appear to be any documentation of shoulder pain until January 2006, when investigation of the shoulder was undertaken. Accidents do not cause pathology that manifest 11 months after the injury, thus I could not really accept Dr Bates’ possible explanation of shoulder symptoms. In fact on the available evidence I consider shoulder pathology would have to be excluded as being caused by the accident.
Stabilisation
… the patient reports perhaps some increased symptoms following the recent motor car accident, which appears to have resulted in (the plaintiff) seeking some further treatment from Dr McCarthy. However, I would consider it unlikely any substantial symptomatic improvement will ensue and I’m sure this patient will continue to require chronic pain management in the form of medication.
Impairment Evaluation
With regard to this patient’s AMA impairment assessment, it now would appear the left and right shoulder pathology do not relate to the described motor vehicle accident in February 2005. In addition, there appears to be no clear radiological evidence of compression of the T11 vertebra on MRI findings, despite the bone scan report. Thus it would appear none of these areas can be rated in relationship to ongoing impairment. However the patient demonstrates non-uniform loss of movement of the cervical spine,… I would consider this to be a 5% whole person impairment… secondary to the February 2005 accident. As the clinical condition is stable this level of impairment is permanent.
115 The clinical findings reported following re-examination of the left shoulder on 8 October 2015 indicated that, post-surgery, the left shoulder was, in Mr Doig’s words “markedly worse after the last lot of surgery”.[109] The prognosis was, Mr Doig said poor and it was “extremely unlikely that (the plaintif) will improve markedly from where she is at this stage”.
[109]Ibid, PCB 182.
116 The reported diagnosis on that occasion was “Chronic tear of the left rotator cuff”. And, for all the reasons Mr Doig said had been laid out in his correspondence dated 15 March 2015, it was clear to him that the plaintiff “had a significant impairment of the left shoulder” before the transport accident. The most appropriate assessment was, he said, that of Mr O’Brien “who ended up giving her a 7% impairment of the left shoulder in his last assessment prior to the 2010 accident which is what I have based these on”.[110]
[110]Ibid, PCB 181.
117 In summary Mr Doig assessed a 26% impairment of the left upper limb or 16% of the whole person and, based on Mr O’Brien’s assessment of 7%, Mr Doig concluded that the upper limb impairment related to the transport accident was 16 minus 7, which equated to a 9% orthopaedic impairment.
118 The point to be made at this juncture is that, whilst formal assessment of impairment is not of itself determinative of the impairment consequences in a series injury leave application, even had Mr Doig been correct in reporting that Mr O’Brien had assessed a 7% impairment of the left shoulder before the transport accident, in his reports during this period, Mr Doig failed, firstly, to explain the shift in his opinion as it related to causation and, secondly, to adequately explain the causal link between any deterioration in or impairment of the left shoulder consequent on the rotator cuff pathology (or any other pathology in the shoulder) and the transport accident.
119 I have already explained that, having last seen the plaintiff on 25 March 2015, the opinion expressed in Mr McQueen’s comparatively brief report dated 11 May 2016, appeared to be based on an inaccurate understanding of the history of the two accidents and the injuries and symptoms suffered. Essentially, his reports were of less assistance to the plaintiff on causation than they might otherwise have been, particularly where Mr Doig’s later reports and correspondence failed to articulate a clear basis for linking pathology or deterioration in the shoulder condition to the transport accident.
120 In these circumstances, and allowing for the radiological and medical history summarised so far, I could not be satisfied that the treating surgeon’s opinion that the operative procedures were causally linked to the transport accident and, in his words, were: “directly related to her original compensable injury in 2010”,[111] provided a sound basis from which to conclude that the plaintiff had sustained injury and if she had, the nature of the injury suffered to the structures of the left shoulder in the transport accident.
[111]Ibid, PCB 102.
121 That said I have accepted that, as advised by Mr McQueen, the plaintiff suffers from permanent disability, which precludes a return to her earlier career as a carer and that she may require total shoulder replacement surgery in the future.
2017 to the date of hearing
122 Mr Doig re-examined the plaintiff in January 2017. His report is dated 18 January 2017.
123 Mr Doig’s diagnosis of aggravation injuries to the cervical and thoracic spine, was unchanged. The clinical findings were again said to be broadly similar to those seen when the plaintiff was examined in October 2015. These findings essentially involved a reduction in the range of movement affecting both regions of the spine, accompanied by complaints of tenderness, and “a global decrease in power of the left upper limb,” but not in any specific nerve root distribution.[112]
[112]Ibid, PCB 181 and 185.
124 The report, as such, focused on the left shoulder condition (“Chronic left rotator cuff tear”), which Mr Doig opined had been significantly aggravated by the transport accident and, on the consequences of ongoing left shoulder dysfunction. As to the latter, Mr Doig again understood from the plaintiff and apparently accepted that left shoulder dysfunction was primarily responsible for the plaintiff’s incapacity for work (“rather than the problems she continued to have with the back and the neck”[113]).
[113]Ibid, PCB 185-186.
125 Mr Doig again used impairment assessments obtained from before the transport accident to demonstrate the likely significance of what he broadly described as, aggravation of a pre-existing, symptomatic shoulder problem from the transport accident.
126 As already noted, when evaluating the weight to be afforded Mr Doig’s conclusion that the plaintiff had sustained a significant aggravation injury of a pre-existing-symptomatic shoulder problem, I could not be satisfied that:
Ø he had also considered the known history of the left shoulder problem, which included investigation and treatment of symptoms in the months preceding the transport accident.
Ø Mr Doig’s reliance on impairment assessments in 2007 or even in February 2009 (if in fact Mr O’Brien had provided such an assessment) provided a proper basis from which to determine causation or to make a before and after comparison of the impairment consequences of any injury to the left shoulder.
127 By way of contrast, the schedule attached to Mr O’Brien’s final report, following re-examination of the plaintiff on 23 January 2017, confirmed that the reports and materials supplied to this specialist were extensive and relevantly included the results of radiological investigations tendered in this proceeding, but not the results of an ultrasound investigation of the left upper arm obtained by Dr Bates on 26 June 2015.[114] The latter appears to have involved investigation of complaint of pain in the upper arm in the context of “Known severe rotator cuff disease”. In my view, the reported finding (“Biceps and scapularis have a normal appearance”) did not alter the case on causation, as it stood at the date of hearing.
[114]Ibid, PCB 40.
128 Mr O’Brien’s detailed report summarised the history of both transport accidents, the injury sustained, the treatment received and his findings on the various dates on which he examined the plaintiff between February 2009 and November 2011 inclusive and detailed the plaintiff’s further history to the date of re-examination.[115] The salient features of Mr O’Brien’s final report are summarised in point form as follows:
[115]Exhibit D1, DCB 53-56.
Ø The plaintiff described constant pain in the left shoulder localised to the top of the shoulder, extending into the lateral aspect of the left upper arm, the severity of which she reported was 6/10.
Ø The plaintiff described significant pain if she attempted to lift or reach forward with the arm; an inability to lie on her left side, and “severe” sleep disturbance due to pain at night in the shoulder.
Ø The plaintiff described constant neck pain, which she rated at 4/10; a sensation like a weight around the head pulling her head down; and aggravation of neck pain should she lean forward or look down, turn her head or perform physical activities such as attempting to vacuum. The plaintiff also reported fairly frequent right frontal headaches in association with neck pain. Under cross-examination, the plaintiff explained that her neck was “sore all the time”, the sensation that there was a weight pulling down on her neck was “continuous” and that pain was aggravated by “certain” activities, which only resting for a while helped ease.[116]
[116]TN 57-58.
Ø The plaintiff apparently indicated that she no longer suffered pain in the right shoulder or anterior chest pain.
Ø The plaintiff outlined a treatment regime which comprised use of medication only - Durogesic patches in addition to the antidepressant, Efexor and daily use of Aspirin to control headaches.
Ø The plaintiff reported she could drive a car, perform normal activities of daily living and light domestic tasks but required the assistance of others to perform heavier duties and had been unable to continue with her employment as a personal carer beyond 2013 due to a combination of neck and left shoulder pain.
Ø Clinical examination revealed:
o restricted movement and complaint of tenderness extending to the upper cervical spine down the mid-line to the upper thoracic spine, for the cervical spine.
o Extensive areas of tenderness, restricted movement accompanied by complaint of pain and quite marked weakness of the muscles of the left rotator cuff, for the left shoulder.
o A full range of movement of the right shoulder and right elbow.
o No evidence of neurological deficit in the upper limbs.
o No significant restriction of movement of the thoracolumbar spine.
Ø As to injury suffered as a consequence of the transport accident, based on the plaintiff’s history, Mr O’Brien opined that the transport accident had aggravated symptomatic cervical spondylosis, effectively producing an increase in the severity of chronic neck pain and this injury was additional to a recurrent fracture of the sternum, which was responsible for anterior chest pain.
Ø The plaintiff now presented with chronic pain associated with clinical evidence of symptomatic cervical spondylosis, whereas the symptoms relating to the injury to the sternum appeared to have resolved.
Ø The description of the injury to the cervical spine as an aggravation injury reflected the background of pre-existing cervical spine pathology.
Ø The prognosis for the chronic symptomatic cervical spondylosis was poor. Mr O’Brien predicted that plaintiff would require ongoing conservative treatment in the form of pain management with appropriate analgesic medication, without there being an indication for any operative intervention.
Ø Whilst the plaintiff had described pre-existing bilateral shoulder pain, Mr O’Brien was not satisfied that there was clear evidence that this pre-existing problem was immediately aggravated by the transport accident. Notably, this comment finds some support from the medical records kept in the months before and after the transport accident, recording as they did restricted movement of the left upper limb, which after the transport accident was attributed to the chest injury.
Ø Essentially, Mr O’Brien reiterated his earlier view that neither left or right shoulder pathology were related to the transport accidents.
Ø As to the consequences relating to plaintiff’s cervical spine condition and the left shoulder, Mr O’Brien clearly considered that both conditions interfered with the plaintiff’s domestic and leisure activities. Importantly, he too accepted that chronic neck pain and left shoulder problems had both contributed to the decision to cease employment in 2013. Moreover, given the chronicity of the plaintiff’s symptoms, Mr O’Brien also appeared to have accepted that both conditions precluded any return to the workforce for the long-term.
129 To summarise then, regardless of the source of the confusion in the history recorded in the treating surgeon’s report, I concluded that the opinion of Mr O’Brien as to any causal link between the transport accident and the left shoulder condition, and to the extent that it could be said that his opinion was reflected in Mr Doig’s earliest report, was to be preferred. In short, Mr O’Brien demonstrated a much clearer understanding of the history of injury and the treatment received as this related to both transport accidents. He had the added advantage of having assessed the plaintiff’s left shoulder condition after the first transport accident and in the months before and after the transport accident.
130 I have already discussed Dr Bates earlier reports and the content of various clinical records tendered either as part of these reports or separately. I was not satisfied that Dr Bates’ conclusion on causation contained in a report dated 21 February 2017, to the effect that the changes seen in the MRI scans obtained on 1 December 2010 “could reasonably be attributed to or at least exacerbated by” the transport accident, should be preferred to Mr O’Brien’s more detailed expert analysis.[117] Whilst Dr Bates mentioned the results of the ultrasound investigation on 20 January 2010 and the clinical evidence of restricted arm movements in March 2010, I was not satisfied that his analysis of the history and the radiological results provided a reliable basis for accepting the hypothesis that other injury had masked injury to the left shoulder as a result of the transport accident.
[117]Exhibit P1, PCB 72-74.
131 Accordingly, I propose to dismiss the application for leave in respect to the left shoulder condition.
132 That said, the medical consensus was to the effect that the transport accident had caused aggravation of pre-existing cervical spondylosis, producing likely long-term impairment of the spine.
Additional impairment due to aggravation injury
133 The evidence of Mr O’Brien, to which the reports of particularly the general practitioner lent weight,[118] suggested that the aggravation injury to the cervical spine likely increased the severity of chronic neck pain.
[118]And to a lesser extent, the report of Dr McCarthy in 2012.
134 In short compass, in 2009 there was clinical evidence of symptomatic spondylosis, re-referral to the pain management specialist, Dr McCarthy, for treatment of an ongoing pain disorder and ongoing prescription of strong pain relief medication. Nevertheless, impairment consequences of specifically the aggravation injury to the cervical spine, had not then prevented continuing participation in the workforce, albeit in light duties only. In February 2009, before the condition of the left shoulder had deteriorated, if anything, Mr O’Brien had been optimistic that the plaintiff would be able to continue to lead what he considered represented a quite active lifestyle.
135 In all, I was satisfied that the aggravation injury in 2010 had likely led to significant additional impairment consequences and, as such, the plaintiff had discharged the burden she carried in this regard particularly in view of the likely long-term impact on her capacity to engage in full-time, light duties into her late 60s. The relevant pain and suffering and loss of enjoyment of life consequences of this injury are discussed and explained in the paragraphs that follow.
The pain and suffering consequence
136 The evaluation of the pain and suffering consequence of physical injury to the spine encompassed both the plaintiff’s experience of pain and the disabling effect of pain on her capabilities and enjoyment of life. Notably, all of the medical experts appeared to have accepted that the plaintiff was genuine in her current complaints.
137 The evaluation of the disabling effect of pain called for consideration of the extent to which pain caused by the injury continued to limit the plaintiff’s activities and to interfere with her enjoyment of life. In this regard the significance of what was lost may be informed to some extent by what the plaintiff has retained.
138 As mentioned, the TAC contested whether the plaintiff had identified the impairment consequences of injury to the spine, particularly the cervical spine, before and after the transport accident and, whether the consequences so identified met the test of serious injury.
139 Allowing for the plaintiff’s description of the consequences of the aggravation injury to the neck, the medical evidence and the evidence of the plaintiff and her daughter, I was satisfied that, at the time of the transport accident, the plaintiff was suffering from symptomatic cervical spondylosis, a range of left shoulder problems and a pain disorder to which these conditions likely contributed. Notably, any pre-existing condition had not at that time prevented the plaintiff from working full-time, performing light duties as a carer. Whilst it was not clear what impact any left shoulder dysfunction had on domestic and social activities in the months before the hydrodilatation procedure and the transport accident, the medical evidence and the affidavit evidence helped satisfy me that the plaintiff had likely been capable of maintaining her home and socialising to the extent explained in the affidavit material.
140 At hearing, the plaintiff confirmed that a chest injury sustained in the transport accident had resolved without ongoing pain or disability. However, where as in this case, the evidence showed that both an unrelated left shoulder condition and symptomatic cervical spondylosis were, at the date of hearing, concurrently producing pain and suffering and loss of enjoyment of life consequences, it was also necessary to determine whether, and the extent to which the left shoulder condition produced pain and contributed to the consequences alleged.
141 Clearly, the unrelated left shoulder condition remains an ongoing and significant contributor to the plaintiff’s experience of pain, her use of strong pain killing medication and to consequences across all areas of the plaintiff’s activities. Based on the evidence as a whole, the unrelated left shoulder condition contributes to the plaintiff’s inability to lift heavier items, it precludes unrestricted use of her upper limbs and it incapacitates the plaintiff for even lighter duties as a carer or in alternative employment. It follows that the left shoulder condition also impacts on the plaintiff’s social life and her enjoyment of life.
142 The plaintiff, nonetheless, satisfied me that the increase in severity of chronic neck pain and the disabling effect of symptomatic cervical spondylosis were likely also significant contributors to the plaintiff’s experience of pain and to a number of the consequences to which the affidavit, medical and oral evidence referred, some of which have already been mentioned in this judgment. The likely long-term pain and suffering and loss of enjoyment of life consequences of the aggravation injury, as distinct from the left shoulder condition, are summarised in point form below:
Ø The symptoms of the aggravation injury involved a very stiff neck, restricted movement and constant but fluctuating levels of pain aggravated by certain activities (movement, leaning forward, looking down or turning the plaintiff’s head from side to side, as when driving) and associated right frontal headaches. Based particularly on the evidence given at hearing, I was satisfied that, there were periods during each day when the plaintiff now needed to rest to help ease neck pain.
Ø Further formal pain management interventions in 2011 and 2012 had not provided sustained relief from increased neck pain and symptoms and, in accordance with Mr O’Brien’s recent opinion and advice the plaintiff received in 2015 from a neurosurgical consultant, ongoing conservative treatment is required, not surgical intervention.
Ø Sleep disturbance. The plaintiff reported difficulty in finding a comfortable position in which to sleep. Under cross-examination, the plaintiff confirmed that the neck and mid-back and the left shoulder all contributed to this problem and to poor sleep patterns. I think it reasonable to infer from the evidence as a whole that, sleep disruption caused by spinal pain was also a factor in the plaintiff needing daytime naps.
Ø Regular use of a range of medications (Duragesic patches, Dothep and Mersyndol), as well daily doses of Aspirin to control headaches and Somac, the latter to control gastric symptoms. At hearing, the plaintiff confirmed that the current medication regime was for both neck and shoulder pain. I was satisfied that the pain killing medication was also prescribed in the treatment of constant but fluctuating neck pain and that neck pain was a significant contributor to the pain disorder in the treatment of which the pain killing and antidepressant medication was also prescribed. The headaches were an indirect consequence of the neck condition. The latter was, therefore, responsible for additional daily medication to help control headaches.
Ø It was common ground that the Court was required to evaluate the impact of the disruption of the plaintiff’s working life by reason of the injury. The loss of a person’s ability to pursue their longstanding employment or any employment in the future, are matters properly taken into account. In this case the plaintiff and her daughter emphasised the great loss the plaintiff had experienced as a result. The plaintiff was, at the time of the transport accident, a women striving to maintain her independence and her place in the workforce despite significant challenges in her personal life and despite her inability to undertake a full range of duties in her employment as a carer. In my view, the loss of employment and resultant pecuniary disadvantage, to which the neck condition contributed, was of particular significance where, as in this case, the plaintiff’s capacity to work was already significantly limited by pre-existing conditions. I was satisfied that each of the left shoulder and neck conditions likely disabled the plaintiff for her pre-transport accident employment and for alternative employment and each condition had led to the plaintiff resigning from her employment. In this case the loss of full time, light duties in a long-term position as a carer has had the additional impact of depriving the plaintiff of participation in employment the plaintiff and her daughter said she had enjoyed. Moreover, the loss of her employment had deprived this plaintiff of an important source of social contact and engagement.
Ø Under cross-examination, the plaintiff conceded that she had required assistance with various activities, such as peeling vegetables and mopping or vacuuming the floor, because these activities and lifting heavy objects or hanging out washing, aggravated pain prior to the transport accident. The plaintiff, nonetheless, appeared to ascribe the pre-existing restrictions to chest and left shoulder pain and pain in the left side of her back indicating that the chest and back pain were worse at the time.[119] Based on particularly the evidence at hearing, I was satisfied that, prior to the transport accident and consistent with her daughter’s evidence, the extent to which this well-motivated plaintiff had required assistance in performing these activities was comparatively much less than her current need for assistance. I was satisfied that, whilst each of the left shoulder and neck conditions likely continued to impose restrictions on the plaintiff’s capacity to perform regular domestic activities, such as cooking; cleaning the floors, the toilet or shower; changing the bed sheets and doona; vacuuming; and stacking and unstacking the dishwasher, they probably did so for different reasons. For instance, the neck condition would likely restrict these activities because repetitive leaning over, looking down or moving her head from side to side aggravated neck pain, whereas these activities would also be restricted by pain and dysfunction associated with attempting to use the left upper limb and by the effects of compensatory use of the right upper limb. The point to be made at this juncture is that, having accepted that the transport accident had exacerbated neck pain and that the plaintiff continued to experience problems with activities involving looking down, leaning over or moving her head from side to side, I have also accepted that, whereas this had not been the case before the transport accident, any activities involving repetitive or prolonged use of the neck would now likely exacerbate neck pain and, as a result independently impose limits on physical activities that the plaintiff had previously worked to maintain.
Ø A significant loss of enjoyment of life as a result of the impact of the neck, mid-back and left shoulder conditions on the plaintiff’s social and family life. As mentioned, the loss of engagement with workplace friends, to which the plaintiff attested, likely contributed to an overall loss of enjoyment of life. The plaintiff now apparently spends time at home watching television rather than socialising. In this regard, I have accepted that pain and dysfunction from each of the left shoulder and neck conditions now restricts social and family engagement and that the plaintiff found this very distressing.
[119]TN 59-60.
143 I infer from the evidence as a whole (irrespective of whether each of these matters were directly addressed in the expert evidence) that pain and the restrictions imposed by reason of the aggravation injury, particularly as it related to the cervical spine will likely contribute to the range of consequences summarised above for the long-term.
144 As mentioned earlier, in assessing the consequences of injury, the plaintiff also relied on her mental response to physical impairment or loss of function as it related to the spine.
145 The plaintiff’s psychological state was initially assessed in 2012. She was twice assessed by psychiatrist, Dr Hayman on behalf of the TAC, on 4 January 2012 and more recently on 15 December 2016, and also assessed by her own medico-legal expert, psychiatrist, Dr Serry on 31 January 2012.[120]
[120]Exhibit D1, DCB 66-82 and Exhibit P1, PCB 156-164 respectively.
146 In 2012, both psychiatrists agreed that:
Ø the plaintiff was then suffering from a Chronic Pain Disorder associated with psychological factors and a general medical condition and from a Chronic Adjustment Disorder. As to the latter condition Dr Hayman said it was associated with a “depressed mood”, whereas Dr Serry said it was associated with “anxious and depressed mood and with some mild features of traumatisation.”
Ø The transport accident had exacerbated the plaintiff’s psychiatric condition.
147 Where the psychiatrists differed was that, Dr Hayman considered the onset of both conditions predated the transport accident and had been “somewhat” aggravated by the transport accident, whereas Dr Serry appeared to suggest that the onset of the Chronic Pain Disorder coincided with the advent of the transport accident.
148 In Dr Hayman’s recent assessment on 15 December 2016, he reiterated his earlier diagnoses and confirmed that, in his opinion, the psychiatric conditions consequent on the first transport accident had been exacerbated by the transport accident and that psychiatric impairment should be attributed equally between the transport accidents.
149 Accordingly, based on the psychiatric evidence, I was satisfied that, in evaluating the seriousness of the consequences of the aggravation injury, it was appropriate to also allow for a likely mental response to physical impairment due to unresolved aggravation of cervical spondylosis.
Conclusions
150 In conclusion, I find that as a result of the transport accident the plaintiff suffered an aggravation injury to the cervical spine. The pain and impairment consequences have been summarised above.
151 In assessing whether the pain and suffering and loss of enjoyment of life consequence of the injury to the spine meets the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which the injury materially contributed. I have identified in passing the areas of particular concern for this plaintiff.
152 As earlier mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to the spine when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being at least very considerable. Essentially, the test involves a value judgement in which matters of fact and degree and of impression all play a role.
153 In summary, I was affirmatively satisfied that the injury to the spine was serious because at the date of hearing it was fairly described as serious in its pain and suffering and loss of enjoyment of life consequences for this plaintiff and as long term because the impact, treatment and management of this condition would likely persist for the long-term. In short, comparison with other cases in the range of possible impairments satisfied me that the consequences so described could be fairly characterised as being more than significant or marked and at least very considerable.
154 I propose to grant the plaintiff’s application for leave in respect to injury to the spine only.
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