Hedji v TAC
[2011] VCC 963
•12 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01677
| IVANKA HEDJI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 and 12 April 2011 |
| DATE OF JUDGMENT: | 12 May 2011 |
| CASE MAY BE CITED AS: | Hedji v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 963 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 Section 93 – serious injury – Petkovski v Galletti – impairment to the lumbar spine – psychiatric impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with | Slater & Gordon |
| Mr M J Garnham | ||
| For the Defendant | Mr M R Titshall QC with | Solicitor for the Transport |
| Dr R McNeil | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 29 July 2004 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the lumbar spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The application was also brought in relation to sub-paragraph (c), claiming a severe permanent behavioural or emotional disturbance.
8 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
9 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
10 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is aged fifty four, having been born on 14 March 1957 in Croatia. She migrated to Australia with her first husband in 1986 with their two children, who are now aged thirty four and thirty one.
12 The plaintiff’s first husband died in 1997 and she remarried briefly in 2000. She is now divorced and lives with her son, daughter and son-in-law, who have recently moved home with their baby.
Pre-Accident Health
13 The plaintiff deposed that before the accident she was in generally in good health – a situation she confirmed in cross-examination. She had had back problems and sciatica in the past, having first experienced pain in her lower back and right leg in 1987.
14 The plaintiff underwent treatment for this problem, including an epidural injection and there was some improvement but not complete resolution of the symptoms.
15 In 1997, the plaintiff suffered a further injury which aggravated her symptoms. She underwent further treatment and her symptoms improved to the extent she was able to return to full time work until the accident date.
16 The accident worsened the plaintiff’s pre-existing low back pain and sciatica.
17 The plaintiff was cross-examined extensively about her back condition prior to the said date. She agreed that she first injured her back in the late 1980s and had time off work and agreed her back was a problem throughout the 1990s.
18 The plaintiff agreed at the said date she was not completely free of low back symptoms. She agreed she had some problems with her back during that time- “but not a lot of trouble”.
19 The plaintiff was taken through notes of Dr Nguyen relating to attendances in 1997 at the surgery where the plaintiff now attends Dr Do. The plaintiff agreed that in December 1997 her back and leg pain was so severe she was limping. Painkillers and anti-inflammatory medication were being prescribed and she had been referred to Mr Khan in 1995.
20 The plaintiff agreed that during the 1990s, surgery had been recommended for low back pain and right sciatica. In re examination the plaintiff said she did not intend to have surgery when it was recommended by Mr Johnson in 1996.
21 Between then and 1998 when her time came for surgery, the plaintiff was okay and working and had no significant back problems and did not have a back problem where she would contemplate surgery.
22 The plaintiff agreed that since 1997 she had been restricted to light seated work but did not accept that the types of jobs she got subsequent thereto were because of her back condition but stressed she undertook these jobs because they were what she was trained for.
23 The plaintiff denied she had migraines before the said date as Dr Ho’s note of an attendance on 20 September 2001 set out.
24 In cross-examination, the plaintiff agreed that prior to the said date she had suffered from stress but did not agree she had depression. She had problems with her husband’s death in 1997 and had some counselling. She was also stressed about her unsuccessful second marriage and she was stressed and anxious about her son’s involvement with heroin and his subsequent participation in the Methadone program. The plaintiff disagreed that her work pattern gave her stress.
25 The plaintiff disagreed that in August 1999 she was depressed, although she was prescribed anti-depressants at that stage.
Employment
26 The plaintiff was in regular employment before the said date. She initially worked in a factory in Croatia and worked when she moved to Australia in 1986. She continued to do mostly factory work, apart from 1986 to 1995 when she helped run her husband’s carpet cleaning business, doing the office work.
27 The plaintiff then worked in a plastics factory for a few months on a particular contract job.
28 The plaintiff was employed by Fujitsu Australia Ltd (“Fujitsu”) from 23 July 1997 until 28 September 2001. It was not a contract job. For the first year she was a casual and for the following four years she was employed on a permanent basis until the factory closed down. During that time the plaintiff had some time off work because of her back condition.
29 At the end of 2001, the plaintiff applied for the disability pension. She spoke to Dr Ho and Mr Khan in this regard, but Mr Khan did not support her application.
30 The plaintiff confirmed Dr Ho’s note dated 6 September 2001 that the plaintiff had been retrenched and she wanted to claim disability because of her back condition.
31 The plaintiff thought she would apply for the pension because after the job at Fujitsu ceased as with her back history, she thought she would not be able to find work for herself.
32 The plaintiff could not recall as Dr Ho’s notes indicated on 11 February 2002, that there were medical restrictions imposed on her work at that time of no heavy lifting above eight kilograms and no repetitive bending or rotation.
33 After a couple of months off work, in March 2002, the plaintiff obtained work in an electronics company, Australian Arrow, on a six-month contract.
34 The plaintiff was then employed at Bosch from November 2002 until July 2003 doing electronic testing. The job involved sitting, standing and walking and the duties were light and suited her back problem. After that time she was given a contract for three months, but was told during that time that work had run out.
35 The plaintiff went overseas in July 2003 and returned to work in October when Hudson Employment Agency gave her a job at Olympus putting labels on small cameras and putting them in the boxes. The job lasted for perhaps a month or a month and a half to near Christmas 2003 after which she got a job at another electronic company for a short period of time.
36 In February 2004, the plaintiff found work with Cablex Pty Ltd (“Cablex”) where she was employed to do assembly testing, not on a specific contract project. In cross examination the plaintiff agreed that during that time she was preparing tram cabling on a job known as the Alstom Project.
37 At the said date, the plaintiff was earning $687 gross per week working full time.
38 Whilst working at Cablex, the plaintiff enrolled in a number of subjects at Chisholm Institute in an Advanced Diploma of Electrical Engineering course. She completed assembly techniques and electronic hand soldering in July 2004. Particularly with the hand soldering, her goal was to have more work than she already had and she wanted experience in that area. The plaintiff’s leading hand at Cablex gave her more soldering work with this training.
39 Wage records from Cablex for the four weeks before the said date indicated that the plaintiff worked a thirty eight hour week earning $17.37 per hour and she also worked overtime of between two and five hours per week.
Work after the Accident
40 The plaintiff returned to work a few days after the said date but had to go home early as she could not continue working because of her injury pain. She was not able to sit and she had pain in her back, neck, arms and fingers – so much pain she could not do her job.
41 The plaintiff confirmed that she was called at home by her boss a week after the said date and was told they could not keep her job open. The plaintiff confirmed that she received a termination letter from Cablex dated 16 July 2004 when she went to pick up her things after this phone call.
42 Whilst the termination letter mentioned the end of a specific contract with Alstom, the plaintiff was given further work by Cablex thereafter.
43 The plaintiff has not worked since that time and is now in receipt of a disability support pension having received no fault benefits until 2006.
44 The plaintiff has not looked for work since leaving Cablex. She received three months seeking organised by the defendant from Ors Group in early 2008 but it found that she was not capable of returning to work.
Summary of the Plaintiff’s Taxable Income
Financial Year Ending Taxable Income 30 June 1990 $16,699.00 30 June 1991 $6,942.00 30 June 1992 $8,178.00 30 June 1993 $10,643.00 30 June 1994 $9,241.00 30 June 1995 $9,269.00 30 June 1996 $15,262.00 30 June 1997 $40,924.00 30 June 1998 $32,517.00 30 June 1999 $29,654.00 30 June 2000 $40,739.00 30 June 2001 $30,629.00 30 June 2002 $22,125.00 ($2,862.00 DSS)
30 June 2003 $42,264.00 30 June 2004 $22,937.00 ($2,884.00 DSS)
Financial Year Ending Taxable Income 30 June 2005 $29,424.00
The Accident
45 On the said date, the plaintiff was driving home from work when she stopped to give way to a child at a pedestrian crossing when all of a sudden her car was hit from behind by another vehicle (“the accident”).
46 The impact threw the plaintiff forward violently but she remained conscious. She was terrified she had struck the child on the crossing, but the child was unhurt. The plaintiff had a sore neck and there was minor damage to her car.
47 After the accident, the plaintiff continued to drive home but had to stop a short distance from the crossing because she felt shaken and confused, very upset and distressed, and it took her some time to settle down.
48 When the plaintiff got home she felt neck pain and headache which worsened over the following days and later extended into both shoulders, down her back into both legs.
49 The plaintiff deposed that she sustained a range of injuries in the accident, including aggravation of a pre-existing L5-S1 disc bulge, nerve root damage at the L5-S1 level, disc bulge at L4-5 and C4-5, soft tissue neck and back injury, injuries to both shoulders and arms, gastric problems and psychological trauma.
50 The day after the accident the plaintiff attended her general practitioner, Dr Ho, in Springvale who arranged for her to undergo an x-ray of her neck. She gave the plaintiff a medical certificate for time off work until 3 August as a result of her accident injuries.
51 The plaintiff really could not remember much about the August visits to Dr Ho. All she could really remember was being given a couple of days off work and having some discussion about the neck x-ray. She told her she had pain as well as “pins and needles” in her foot. The plaintiff did not recall whether or not she mentioned.
52 The plaintiff confirmed that in the years before the accident, Dr Ho had been giving her certificates in relation to her back and that a certificate after the accident for the period 30 July 2004 until 27 August 2004 in fact referred to her neck.
53 The plaintiff last saw Dr Ho on 17 August 2004, having seen her since 1996. She changed general practitioners to Dr Do, who on 21 August 2004 arranged a CT scan of the plaintiff’s brain, neck and lower back and an ultrasound and x-ray of her left elbow. The plaintiff could not remember telling Dr Do that she did not have any previous back problems.
54 The plaintiff made up her mind to leave Dr Ho before the accident because she was not happy with her treatment. She wanted to leave Dr Ho because she needed different sorts of treatment such as laser treatment and also Dr Ho did not have the time to sit with her and discuss her problems properly and Dr Do did. She did not leave Dr Ho because she wanted a different doctor to treat her for her car accident injuries who was not familiar with her previous back problems.
55 The plaintiff denied that the first time she mentioned low back pain after the accident was on 20 August 2004 to Dr Do when she felt tender on that occasion because the doctor pushed her back. The plaintiff thought she mentioned her back on the first visit after the accident because she was unable to stay at work as she could not sit due to pain in her tail bone.
56 The plaintiff at various times attended Ms Groom, physiotherapist, Dr Hoi, physician and rheumatologist and Mr Haywood, psychologist, for her injuries and pain.
57 On 6 April 2005, Dr Ho referred the plaintiff to Dr Clayton Thomas, a rehabilitation consultant, who arranged an MRI scan of the plaintiff’s lower back on 25 August 2005.
58 Dr Do also referred the plaintiff to Mr Irani, an ear, nose and throat specialist, whom she attended on 5 August 2005. He arranged for a barium swallow and performed a nasoendoscopy. Further, Dr Do referred the plaintiff to Mr Cheng, general surgeon, who performed a gastroscopy in October 2005.
59 The plaintiff has also undergone physiotherapy, occupational therapy and hydrotherapy. She deposed that some time after receiving physical therapy for her injuries, she started getting severe leg pain, as a consequence of which Dr Thomas referred her to Mr Danks, a neurosurgeon.
60 On 28 November 2005, the plaintiff had an epidural injection in her back on referral from Dr Thomas. On 5 June 2006, she was admitted to the Monash Medical Centre where she underwent a right L5-S1 hemilaminotomy and decompression of the S1 nerve root performed by Mr Xenos (“the surgery”). The plaintiff was discharged home on 9 June 2006.
61 Various medications that were prescribed by the plaintiff’s doctors made her nauseous and vomit as a result of which she lost six or seven kilograms. As of April 2009, she was taking only up to eight Panadol a day and had lost her appetite for food.
62 The plaintiff ceased taking anti-depressant medication in late 2008 on the advice of her general practitioner and psychiatrist.
63 The plaintiff’s current treating doctors are Dr Do, Professor Goodchild, pain management specialist, and Dr Polonowita, psychiatrist.
64 The plaintiff sees Dr Do occasionally for treatment of her constant back pain. The plaintiff’s condition was worse in winter 2010. Dr Do has had to reassure her at many times because the pain has been unbearable.
65 The plaintiff continues to attend the pain clinic at Moorabbin Campus every eight weeks or so. The pain clinic arranged for the plaintiff to attend a group therapy session for eight weeks, which helped a little bit. The plaintiff takes part in yoga at the pain clinic which helps her manage her back, neck and other symptoms.
66 The plaintiff takes 30 milligrams of Mirtazapine every night to help her sleep and takes up to eight Panadol daily to help the pain, but on a good a day she takes two to four tablets. She avoids heavier pain killers as they cause nausea.
TAC Payments
67 The defendant has made payments totalling $123,822 set out in a printout dated 6 April 2011.
68 Payments included physiotherapy treatment at Waverley Park between 13 September 2004 and 22 July 2005, totalling $1,577. Payments totalling $1,561 were made for attendances at TLC Medical Clinic from 15 October 2004 until 27 May 2006.
69 The plaintiff received loss of earnings payments totalling $11,454 from 6 August 2004 until 1 June 2006. She then received an impairment lump sum and an annuity payment.
70 There were also payments made to Ors Rehabilitation Group with three visits in February, April and May 2008.
Pain and Restrictions
71 The plaintiff deposed in April 2009, that despite treatment she suffered constant but variable moderate to severe pain and restricted movement in her neck, radiating around her throat into both shoulders, down her arms to the chest; constant but variable moderate to severe pain and restricted movement in her lower back, exacerbated by prolonged inactivity, standing or walking or sudden movement or bending; constant referred pain down her right leg; altered sensation, including numbness down the right side of her calf; pain in the shin; head pain; epigastric pain; pain and restricted movement in her left shoulder, arm and elbow; restricted movement in her right shoulder and elbow; chest and rib pain; intermittent loss of voice; intermittent “pins and needles” in both hands, more particularly on the right; scarring across the lower back; and psychological trauma with a number of features.
72 In her recent affidavit, sworn 3 March 2011, the plaintiff confirmed she continues to suffer from injuries and symptoms relating to the accident. She has also had soreness and pain in both knees since the middle of 2008.
73 The plaintiff’s back is in constant pain. She tries to keep within her limits and avoids any heavy lifting around the house or at the supermarket. Daily tasks have become a struggle.
74 Prior to the accident, the plaintiff drove everywhere, now she only drives in the local area and not far and she is always nervous and watchful when driving. She has difficulty turning the car. She also is nervous as a passenger tending to tell the driver what to do. Things like passing the accident scene, and the constant pain, all serve to bring back memories of the accident.
75 The plaintiff had always been houseproud and until the accident she did all the housework. She still does her own housework but struggles with heavy cleaning or any task involving bending, and even has difficulty vacuuming the carpet. She had to get rid of the carpet from a room in the house because it is easier to clean polished floor boards. The plaintiff is only able to do a small amount of housekeeping every day. It is difficult to keep up with maintaining and cleaning the house. The plaintiff now relies on her children to do much of the housework. The plaintiff’s son who lives at home does chores in the house and looks after himself.
76 Personal hygiene activities such as showering and grooming are also difficult for the plaintiff.
77 Since the accident the plaintiff does not go out much socially or recreationally except to church on a regular basis. She goes to church every Wednesday, Sunday and two Saturdays each month. The church provides her with cushions to sit on.
78 The plaintiff does not seem to have any interests these days. She has been stressed by pain, physical difficulty and financial problems arising from her injuries and she worries about what is to become of her. She has become irritable, frustrated and short tempered and pain and worry disturb her sleep and she always feels tired. She sleeps poorly during the night because of her breathing problems due to back pain. The plaintiff lost six kilograms within a very small amount of time due to stress.
79 The plaintiff does grocery shopping two to three times a week using high trolleys as they carry smaller loads and it is easier to reach groceries when they are higher up in the trolley.
80 The plaintiff has to rely on family members to carry heavy items and when possible she asks the shop assistant to load groceries or gets her son-in-law to load groceries from the car into her house.
81 The plaintiff has to limit herself doing simple things for family occasions, now making only a simple dish, whereas previously she used to do a lot of food preparation. When she has to cook for herself the plaintiff cooks a meal which lasts for two days as she finds it difficult to cook every day of the week.
82 The plaintiff avoids long car trips. After thirty minutes her back becomes extremely painful. She struggles with changes in the weather and is better physically and mentally during the warmer weather.
83 The plaintiff tries to go for a walk every day for about half an hour to an hour. She goes for slow gentle walks with her dog, her neighbour and her neighbour’s dog. The plaintiff finds it hard to walk continuously and has to have breaks. Further, she struggles and her back pain worsens if sitting for too long.
84 The plaintiff feels very anxious and fearful when visiting a doctor and is concerned that medical examinations will provoke further pain. The plaintiff confirmed that during various therapies she suffered aggravation of her symptoms.
85 In cross examination, the plaintiff agreed that since the accident she had been very angry with the defendant particularly because it would not accept liability for her low back condition, having accepted liability for her neck and upper back. The plaintiff was not really sure about the circumstances of the releases she signed in which she accepted that the defendant was not liable in respect of no fault benefits relating to her back condition.
Treating Doctors
86 Mr Khan, orthopaedic surgeon, initially examined the plaintiff on 16 August 1988. Following examination the plaintiff was to consider injections in her spine and was also advised to avoid activities involving excessive bending, twisting and lifting heavy weights. He then considered that the plaintiff was fit for suitable light duties.
87 Mr Khan did not see the plaintiff again until 13 September 1995 following which he referred her to Mr Williamson, a spinal specialist, in November 1998 who mentioned she had the choice of an operation at L5-S1 to explore and remove the sequestrated disc fragment freeing the right S1 nerve root or to consider continuation of conservative treatment.
88 Mr Khan next saw the plaintiff on 30 June 2002 on referral from Dr Ho when she wanted to apply for a disability pension, still suffering low back pain.
89 Noting the plaintiff’s long history of back trouble, Mr Khan advised Dr Ho on 4 February 2002 that even though the plaintiff was partially disabled he thought she did not qualify for a disability support pension.
90 At that time, Mr Khan thought the plaintiff was not able to perform strenuous activities at work requiring heavy lifting or straining for long periods and she could not drive for long distances as that entailed using her right leg and foot.
91 Mr Khan diagnosed mild central canal stenosis with congenitally short pedicles in the lower lumbar spine associated with mild disc bulge at L4-5 and L5-S1 levels. He thought the plaintiff had flared up pre-existing disc degeneration in the lower part of the lumbar spine and had a disc prolapse at L5-S1 level and a small sequested disc fragment irritating her right S1 nerve root. He considered the plaintiff did not have any neurological evidence of a nerve root compromise or radiculopathy when last examined.
92 Dr Ho reported on 10 March 2006 that she had been treating the plaintiff since June 1996. She last saw the plaintiff on 17 August 2004.
93 Dr Ho noted the plaintiff had a past history of L5-S1 disc bulge in 1995, 1997 and 2001 and according to the plaintiff, she had had those problems since 1987. The plaintiff was on NSAIDs, analgesics and had received acupuncture and had been referred to Mr Khan for assessment in 2002.
94 The plaintiff also had been treated for anxiety disorders from August 1999 to 2000 when she was not able to cope with stress at work and family problems. There was a specialist referral to Mr Khan in 2002.
95 Prior to the incident, the plaintiff attended Dr Ho once in 1998 for a matter unrelated to her back. In 1999 there were three unrelated visits. In 2000, she saw Dr Ho eight times, two visits relating to her back. In 2001 there were thirteen visits, three of which related to the plaintiff’s back.
96 In 2002, there were four visits and with a reference in the notes to the back condition on 11 February 2002 in terms of work restrictions. In 2003 there was one visit where plaintiff mentioned neck and back pain. The following year there was one visit in April unrelated to the plaintiff’s back before the said date.
97 The first attendance following the accident was on 30 July 2004 when Dr Ho noted “sore neck – right trapezius, right leg pins and needles right foot”. A medical certificate was given for the period 30 July 2004 to 2 August 2004 and a TAC certificate was provided for the period 30 July to 27 August 2004.
98 There were subsequent attendances on 2 August when the plaintiff complained of neck pain and further attendances on 11 and 17 August. There was no reference to any back injury on these occasions.
99 On the last visit, Dr Ho noted the plaintiff was stressed out and weepy and lacked insight into her problem and refused anti-depressants. She was in financial difficulty with no job and felt she would not get better.
100 Prior to the accident, Dr Ho had provided Centrelink certificates on the plaintiff’s behalf in November 2001, January 2002, November 2003 describing L5-S1 disc prolapse and arthritis. The Centrelink certificate provided for the period 30 July 2004 to 27 August 2004 referred to “soft tissue injury – neck”.
101 In her undated report which appears to have been provided after a consultation in July 2005, Dr Do set out her diagnosis of the plaintiff’s condition which included bilateral cervical spine pain, left arm and elbow pain, pain in the chest, left leg, central lumbar spine pain and significant sleep disturbance. Dr Do also noted persistent, diffuse and widespread pain in the body restricting the plaintiff’s daily activities.
102 Dr Do thought the plaintiff did not suffer from any pre-existing illness or condition. She then considered it highly unlikely the plaintiff was able to return to pre-accident employment and thought it was difficult to know what type of work may be suitable for her with the worsened pain in her lower back.
103 In October 2005, Dr Do considered the plaintiff had significant back and body pain from the accident and was unable to drive for long distances.
104 On 7 October 2006, Dr Do reported the plaintiff had been a patient at her clinic since 23 December 2002. Dr Do mentioned the accident noting the plaintiff attended at the clinic on 4 August 2004 after having been to see another doctor after the accident, who had organised an x-ray.
105 Examination at that time revealed bilateral cervical spine pain, right greater than left, pain in the left arm from deltoid to lateral elbow, pain in the anterior chest region, neck and around the trachea, pain in the left leg, particularly in the shin region and central lumbar spine pain. The plaintiff also experienced sleep disturbance, concentration difficulties and emotional outbursts.
106 On examination on 20 August 2004, the plaintiff returned with persistent pain in her neck, left arm and both lower legs and also complained of feeling dizzy. She was sent for CT scanning of the brain and spine. The lumbo sacral CT scan showed a broad disc bulge at L5-S1 causing slight narrowing of L5-S1 disc space.
107 The plaintiff was referred for physiotherapy.
108 Dr Do noted the plaintiff was referred to Dr Hoi, rheumatologist, whom she saw in November 2004. Dr Hoi considered the likely diagnosis was complex regional pain syndrome and therefore recommended the plaintiff have pain management.
109 Accordingly, the plaintiff saw Dr Thomas on 6 January 2005 but the defendant refused funding for the program so the plaintiff continued with hydrotherapy and exercises.
110 Dr Do noted, when reviewed by Dr Thomas in July 2005, the plaintiff’s symptoms had worsened with pain radiating down her right leg associated with decreased sensation on right L5 dermatome and restricted straight leg raising in both seated and lying.
111 An MRI scan was arranged after which the plaintiff was referred to have a CT scan guided nerve root block to the right S1 nerve which only gave short term benefit and was not overly beneficial because of a medico-legal examination beforehand.
112 As the plaintiff’s pain persisted, Dr Thomas referred her to Mr Danks who thought her presenting problem was a persisting relatively clear S1 radiculopathy and he considered surgery only offered a good result of approximately 50/50. After discussing these issues with the plaintiff who was very keen to have treatment, Mr Danks applied to the defendant for funding. However that was denied and the plaintiff was put on a public waiting list, eventually undergoing surgery on 5 June 2006.
113 The plaintiff reported feeling better with pain after the surgery, even though she still required pain relief.
114 As at October 2006, the plaintiff was still unable to drive, walk more than ten metres without having a rest, unable to sit or stand for more than ten minutes and had minimal ability to self care with activities of daily living. Dr Do noted the plaintiff lost her job on 10 August 2004 due to her inability to perform her normal duties.
115 Dr Do then thought the plaintiff had no capacity to return to any form of employment and noted that she was on Centrelink as the defendant had stopped payments since May 2006.
116 On 15 April 2008, Dr Do wrote to the plaintiff’s solicitors in relation to the plaintiff’s loss of earning claim for the period 1 June 2006 to 30 May 2007. Dr Do noted the last medical certificate was for the period 2 May to 2 June 2006 after which time no further TAC medical certificates were issued as the plaintiff was no longer in receipt of benefits.
117 However, the plaintiff was given Centrelink certificates of incapacity as she was still incapacitated for work with lumbar disc prolapse associated with right leg sciatica, neck and upper body pain and reactive depression.
118 Dr Do advised the plaintiff was seen and assessed regularly every three months by Centrelink officers and doctors regarding her sickness and capacity for work from 24 May 2006 to 8 June 2007, when the plaintiff received a disability pension as she was believed to have a permanent physical impairment with no capacity for work.
119 Dr Do last reported on 31 March 2011. She then noted that in February 2007 the plaintiff was seen by Dr Das, a psychiatrist, who suggested a pain management program and anti depressant medication.
120 On 22 February 2007, the plaintiff was seen by Dr Feletar, rheumatologist, and no active treatment was implemented. Further, on 6 August 2007 the plaintiff was reviewed by Mr Danks. On 12 December 2007 she was seen in the plain clinic for the first time by Professor Goodchild.
121 Dr Do’s impression was the plaintiff’s generalised musculoskeletal pain was amplified by all psychosocial issues, unresolved anger over the accident and battles with the defendant, hopelessness of the situation, fear, avoidance behaviour and socialisation.
122 Dr Do reported that the plaintiff had her first session with Dr Polonowita, psychiatrist, in February 2008. He changed her medication and commenced the plaintiff on an inter-personal therapy program.
123 The visit with the rheumatologist, Dr Littlejohn, for chronic pain syndrome in September 2008 was noted, as was his view that the plaintiff had a severe chronic pain syndrome and fulfilled the criteria for fibromyalgia - a common chronic pain syndrome after injury caused by sensitisation of central pain pathways. Dr Do noted psychological factors dominated the outcome of this disorder.
124 She noted Dr Littlejohn did not think any further investigations were required but that ongoing psychological counselling would assist the plaintiff to better understand her problem.
125 Dr Do noted that the plaintiff was subsequently reviewed by Professor Goodchild regularly every three months at the pain clinic and in between by a psychologist for counselling up to 27 February 2011.
126 As of March 2011, Dr Do thought the plaintiff still had significant pain and disruption by the pain to her life. She was under a lot of stress in relation to the court case against the defendant. The plaintiff attempted to do her exercises and go for regular walks but was very limited in her functional level. She was unable to sleep at night due to generalised body pain and she had nightmares. She was struggling with her pain, unable to do normal activities and unable to concentrate on doing any task. She continued to have problems walking with painful knees and lower back and was also getting pain and cramps in her upper thigh and upper back. She was worried about going to see independent specialists for the defendant. Dr Do advised there was very little progress with regards to the plaintiff’s pain and psychological state.
127 Dr Do’s notes from the TLC Clinic were tendered and included a number of attendances during 1997 and 1998 for lower back pain with Dr Nguyen and references to the plaintiff seeing Dr Ho at the same time.
128 After 1998 the plaintiff next attended the TLC clinic on 23 December 2002 when she saw Dr de Silva complaining of a left forearm problem.
129 The next attendance was on 4 August 2004 where Dr Do noted the plaintiff was “involved in a motor car accident last week and was still very tender neck and back, anterior chest and on examination not unwell”. Valium was prescribed.
130 On 10 August 2004, the plaintiff again saw Dr Do who recorded persistent pain in the neck, upper shoulders and both arms and that the plaintiff was unable to go to work as she got fired from work.
131 On 20 August 2004, Dr Do noted the plaintiff had persistent pain in the neck, left arm and both lower legs and was feeling dizzy. On examination she was tender in the cervical spine and lower back and diagnostic imagining including a CT scan of the brain, cervical and lumbar spine was requested.
132 The plaintiff reported persistent pain in both arms and legs to Dr Do on 24 August and on 26 August, she complained of persistent pain in the neck, left arm/shoulder and both lower legs. Similar complaints were made on 12 October 2004.
133 Persistent body pain was recorded on 30 November 2004 and on 9 March 2005 it was noted the plaintiff was still having body pain and stress with pain and was very upset with the TAC specialist.
134 On 2 April 2005, the plaintiff reported persistent pain in her whole body which she also reported on 27 April 2005 and 21 May 2005.
135 On 15 June 2005, Dr Do noted persistent pain in the lower back radiating down both legs associated with paresthesia. The plaintiff requested an MRI scan.
136 Ms McHugh, physiotherapist, first saw the plaintiff after the accident, on 29 July 2004. The plaintiff then presented with multiple levels of pain throughout her cervical and lumbar spines, down her right and left bilateral arms to her hands and bilateral shins.
137 Initial treatment was individual physiotherapy sessions. However the regularity of those was ceased in October/November due to the plaintiff’s poor tolerance of hands on treatment and she then moved a group hydrotherapy class.
138 In mid May 2005, the plaintiff experienced a considerable increase in lumbar pain. She attempted passive treatment but this was not tolerated. She also did not tolerate group hydrotherapy classes as she felt her pain was magnified and she last attended a group class on 27 June 2005.
139 Ms McHugh noted that with minimal relief of her multiple symptoms the plaintiff was referred to Dr Thomas on 6 April 2005 and there were two further physiotherapy treatments, the last being 24 June 2005 where it was obvious hands-on physiotherapy was not successful.
140 It became evidence to Ms McHugh in October 2004 that the plaintiff was displaying typical signs of a secondary chronic pain syndrome overriding her acute accident injuries. In her view, unfortunately owing to the severity of the plaintiff’s secondary pain mechanism, the plaintiff revealed a poor prognosis at the time of the last session in June 2005.
141 Dr Hoi, rheumatologist, saw the plaintiff once on 17 November 2004 on referral from Dr Do with a four month history of widespread pain following the accident.
142 The plaintiff told him of the accident circumstances and that she initially felt some pain across the shoulders and neck but the next day she began to notice widespread pain which had only worsened. She described pain in the anterior chest region, neck around the trapezius, left forearm, left leg and in particular the shin region. On examination, there was widespread allodynia, worse in the regions which the plaintiff described as painful.
143 Dr Hoi felt the mostly likely diagnosis was fibromyalgia or onset of Complex Regional Pain Syndrome (“CRPS”) precipitated by the traumatic experience of the accident. Although the plaintiff had widespread tender points and even though she did not have definite evidence of vasomotor instability commonly seen and associated with type 1 CRPS, he thought the degree of allodynia suggested the process involved pain sensitisation.
144 Dr Hoi noted the plaintiff denied any past medical history at the time of consultation, so he was not aware she had previously had symptomatic lumbar spondylosis. He noted radiographical evidence of lumbar spondylosis was very common and may or may not be associated with symptoms. If the plaintiff had in fact been symptomatic, he thought then it was foreseeable the accident could have aggravated the problem. He referred the plaintiff to Dr Thomas in an attempt to improve her functional outcome.
145 Dr Clayton Thomas saw the plaintiff on referral from Dr Hoi, first seeing her on 6 January 2005. He subsequently reviewed her on six further occasions, last seeing her on 8 December 2005.
146 When he first saw the plaintiff, she told him of the accident circumstances and that she developed pain in her neck and headaches. The next day she had pain involving her arm and leg and sought medical treatment. She had a CT scan of the cervical and lumbar spine.
147 On initial examination, the plaintiff complained of diffuse and widespread pain involving her upper and lower back, neck, anterior chest wall, both arms and both legs.
148 On examination, the plaintiff had diffuse and widespread tenderness. Movements of the thoraco lumbar spine were about thirty per cent of normal and cervical movements were also limited, although they appeared better on indirect observation than direct. Neurologically the plaintiff seemed to be intact.
149 When he first saw the plaintiff, Dr Thomas thought she was suffering from a diffuse and widespread pain syndrome, possibly fibromyalgic. He did not feel her problems were mechanical, discogenic or the like. He thought she could be improved upon and that she could be considerably better than she said she was.
150 Dr Thomas had difficulty determining how disabled the plaintiff was but felt that her overall level of disability was at the milder end of the spectrum and he referred her to the Victorian Rehabilitation Centre.
151 The plaintiff also complained of left elbow pain. There was non-specific tenderness and Dr Thomas was not convinced that further imaging would be of benefit.
152 On review on 21 July 2005, the plaintiff complained of back and right leg pain. Dr Thomas thought there did appear to be a neurological problem causing right leg pain and he recommended an MRI scan. He noted the right leg pain had occurred over the previous two months and he felt that was consistent with the plaintiff’s right L5 nerve root problem.
153 On examination on 30 August 2005, Dr Thomas reviewed the lumbar spine MRI scan which indicated sub-facet stenosis on the right hand side of the lumbosacral level affecting the right S1 nerve root. He offered the plaintiff a nerve root block but she was not keen to have that form of intervention and he referred her to Mr Danks, neurosurgeon.
154 Mr Danks also felt a nerve root block was warranted and that took place on 28 November 2005 following which there was a significant reduction in pain in the plaintiff’s right leg.
155 On review by Dr Thomas on 8 December 2005, the plaintiff reported more pain in her right leg than the back and he commenced her on Norspan patches. Dr Thomas thought there was a reasonable argument for surgery to take place.
156 Diagnostically Dr Thomas thought the plaintiff was suffering from a diffuse and widespread pain problem and that she had subsequently developed right sided sciatica with the imaging indicating a right S1 nerve root compromise. He did not specifically ask the plaintiff about pre-existing conditions.
157 Dr Thomas noted the defendant had indicated it did not accept the back symptoms were as a result of the accident. He suggested it would be very important to get correspondence from a local doctor to determine the nature of the plaintiff’s symptom complex after the accident and whether she had symptoms prior thereto.
158 Dr Thomas noted the onset of the plaintiff’s right leg pain occurred in May 2005 whilst doing exercises in a hydrotherapy pool at Dandenong. Further, he noted a medical report from Dr Eaton referred to a past history of back and right leg pain which occurred in 1997.
159 Dr Thomas thought, depending on the relevant pre-injury information, more weight could be given to the subsequent development of the right sciatica, linking this with the accident. If for instance there was a significant amount of right sciatica, albeit resolving prior to the accident, and given that the subsequent sciatica occurred many months after it, he thought then it would be difficult to directly link the accident with the development of the right sided sciatica. He considered the diffuse and widespread pain syndrome, however, did seem to be a direct result of the accident.
160 On 31 January 2006, Dr Thomas advised the defendant that surgery was a complex issue for the plaintiff but on the basis that her leg pain did seem to be a significant component (90 per cent leg and 10 per cent back pain), he thought it a reasonable argument for surgery to take place.
161 Dr Thomas last reported in October 2006, having been forwarded a large bundle of documents from the plaintiff’s solicitors in relation to the plaintiff’s pre-existing back condition.
162 Dr Thomas noted the plain x-ray of the lumbar spine in 1998 and Mr Khan’s report of 5 April 2006 with his involvement with the plaintiff until January 2002.
163 Dr Thomas confirmed that when he saw the plaintiff on 21 July 2005 she told him her right leg pain had occurred over the previous two months.
164 Dr Thomas also noted Mr Marshall, Dr Hoi and Dr Eaton’s reports, concluding what was clearly evident was that the plaintiff had a pre-existing problem with the lumbar spine and right leg pain.
165 Dr Thomas reported that the history he received was that the back and right leg pain was not aggravated as a result of the accident. If it was aggravated by it, the pain would have become evident at or around the time of the accident, whereas it became symptomatic in the period around mid 2005.
166 Dr Thomas could not therefore link the plaintiff’s back and right leg complaints specifically with the accident noting Mr Khan’s report specifically mentioned the extent of a pre-existing back and right leg pain in 2002.
167 Mr Danks, neurosurgeon, first saw the plaintiff on referral from Dr Thomas in 2005.
168 The plaintiff told him of the accident circumstances and that she subsequently developed pain in the back of her neck and headaches which spread through the rest of her body including her arms and legs. Mr Danks noted that he understood initially that the plaintiff’s symptoms were relatively diffuse and poorly localised.
169 Over time the plaintiff developed quite bad right leg pain which developed during therapies from approximately May or thereabouts. Over that time this pain had emerged as a dominant problem with severe pain radiating down the right leg and even sensory disturbance involving the lateral part of the foot.
170 On examination, Mr Danks found the plaintiff to be reasonably appropriate in the description of her problems. When asked to extend or flex her lumbar spine she exhibited severe limitation of movement which he noted was surprising given the way she moved prior to formal questioning (noting Dr Thomas had a similar impression during his first assessment).
171 Straight leg raising was limited and caused pain and the plaintiff exhibited bilateral weakness of ankle movement even with encouragement and it was impossible to test her knee strength because of reluctance due to anticipation of pain. The plaintiff asked Mr Danks to stop the examination before he could test sensation.
172 Mr Danks noted the MRI scan demonstrated significant abnormalities at L5-S1 with impingement of the traversing right S1 nerve root by broadbased disc bulge and subsequent subarticular stenosis.
173 Mr Danks felt the plaintiff had symptoms and signs of right S1 radiculopathy with evidence of a clear cut cause. He noted unfortunately she also had clinical features of diffuse fibromyalgia and non-specific pain and that these atypical features remained a significant part of her presentation on examination.
174 Mr Danks agreed with Dr Thomas’ suggestion the plaintiff undergo epidural steroid injection. On review on 23 December 2005, the plaintiff told Mr Danks the injection did not help her very much. She told him her right leg pain had been much more severe since attending a medico-legal assessment and she requested he not examine her.
175 Mr Danks noted therefore the plaintiff presented a very difficult situation of reasonably typical S1 radiculopathy with a clear anatomical cause occurring in a most difficult psychosocial situation.
176 He explained to the plaintiff there might be a chance of improvement with surgery of about fifty per cent, with the chance of functional worsening in the low back, maybe in the range of ten per cent in the psychosocial context. The plaintiff told him she wanted to have the surgery so application was made to the defendant in this regard.
177 Mr Danks commented it was difficult for him to be sure how closely the plaintiff’s current problem was related to the accident. As far as he could tell, she initially suffered from headaches and neck pain with some diffuse spinal discomfort.
178 Mr Danks noted when the plaintiff was assessed by Dr Thomas, clinical features were reasonably non-specific with a strong component of fibromyalgic symptoms and features.
179 Mr Danks thought that it was only over time that the symptoms of S1 radiculopathy had emerged and he suggested it might be helpful to access a report from doctors involved with the plaintiff’s care at that time.
180 Mr Danks understood the plaintiff did have a pre-existing spinal condition and had undergone a number of injections eight years earlier, but nonetheless prior to the accident she told him she had been working full time, was able to garden and was active in every way without undue restriction. He noted the August 2004 CT scan did demonstrate some chronic changes with calcified disc prolapse and bilateral foraminal narrowing which may have been present for many years.
181 Mr Danks concluded unfortunately it would appear to be inconsistent to fund the plaintiff’s ongoing treatment for such a long period of time and then turn around and state the symptoms for which she had been treated are not related to the accident. Nevertheless he considered it was a matter for the defendant’s discretion.
182 Mr Danks saw the plaintiff for review on 8 May 2006 when she continued to suffer from a right S1 radiculopathy with loss of right ankle jerk and she reported ongoing low back and right leg pain. The plaintiff also reported symptoms of chest wall pain, neck pain, and some left arm discomfort.
183 Mr Danks discussed treatment options including the possibility of trialling an anti-depressant. Secondly, he placed the plaintiff on the public waiting list for surgery.
184 Mr Danks noted subsequently the plaintiff proceeded to surgery and he agreed with the interpretation of that surgery in the operation report from Monash Medical Centre.
185 That report dated 5 June 2006 set out the plaintiff underwent a right L5 and S1 hemilaminotomies, some decompression of S1 nerve root performed by Dr Amal Abou-Hamden with the consultant being Mr Chris Xenos in the Neuro- surgery Department at Southern Health.
186 Southern Health reported that the plaintiff had surgery and was an in-patient from the 5 to 9 June 2006.
187 It was also noted the plaintiff was a private patient of Mr Johnson at Monash Orthopaedic Clinic in 1998 and 1999. The records indicated the plaintiff consulted him about back pain which she had had for many years and right sciatica which developed in about 1997.
188 At that time, movement of the plaintiff’s back was slightly limited and she had no abnormality on neurological examination but there was a subjective sensory alteration in the right calf. X-ray and MRI scan showed a right lumbosacral disc sequestration and the plaintiff was placed on waiting lists for discectomy. It was also noted the plaintiff had been treated in 1998 by Mr Khan and Mr Williamson, orthopaedic surgeons.
189 The record of the plaintiff’s admission for the surgery in June 2006 indicated she was suffering from lower back pain radiating to both legs but more intensely to the right leg. She reported she had had sciatica nine years earlier but it recurred after an accident in July 2004. She had been attending Mr Danks and he diagnosed an S1 radiculopathy and recommended surgery. The plaintiff was then admitted as a public patient in the Neurosurgery Unit.
190 Following surgery, the plaintiff made a good recovery and was discharged on 9 June with review in out-patients on 9 August and 18 October. It was noted the symptoms in her right leg improved but she developed pain in the upper trunk and shoulders. It was noted the August 2006 MRI scan showed no serious abnormality. The plaintiff was discharged from the clinic and referred to the pain clinic.
191 Professor Goodchild, Professor of Pain Medicine, first saw the plaintiff on 12 December 2007 at Southern Health Neurology, having been referred by the Southern Health Pain Medicine Outpatients.
192 The plaintiff’s main complaint for which she was referred was neck and shoulder and pain down both arms.
193 Professor Goodchild noted the plaintiff was reasonably well apart from some lower back pain in 2004 when she was hit by a car. She suffered soft tissue injury to her neck and back in the accident with the back pain getting considerably worse with clear S1 nerve root compression and neurological signs in the right leg.
194 Professor Goodchild noted in spite of these clear signs and history of injury with no prior serious illness, there was some struggle with the defendant about getting funding for the surgery.
195 On examination the plaintiff still had some persistent pain in her leg but her main problem was her shoulders and neck. He noted many treatments had been tried, all to no avail.
196 Professor Goodchild thought that at that stage the plaintiff was becoming increasingly socially isolated by her pain and had no social life and had very limited physical activity until the intervention of the pain management program.
197 On examination, the plaintiff was very sad, weepy and depressed and scored highly for clinical depression and anxiety. Professor Goodchild noted neurological testing was normal. It was his impression the plaintiff had generalised musculoskeletal pain amplified by the psychosocial history particularly with legal battles with the defendant and unresolved anger over the accident and some post traumatic stress syndrome. He then started her on some anti-depressant medication and advised her to increase the plaintiff’s physical activity and also to see a psychiatrist.
198 Professor Goodchild considered the plaintiff had some Post-Traumatic Stress Disorder (“PTSD”) accompanied by anxiety and depression following the accident and that persistent pain following surgery was not unusual in these conditions. He thought given appropriate treatment over the next few months, this should resolve, if the plaintiff was able to control the stress of her surroundings and increase her physical activity.
199 Mr Haywood, psychologist, first consulted the plaintiff on 2 June 2005.
200 The plaintiff told him that during swimming her physiotherapist instructed her to back against a bar in the pool and kick her legs and that aggravated her back pain. She rated her level of pain at between seven to ten and also reported left shoulder pain. He noted it was only since the pool incident she had felt pain in her legs.
201 Mr Haywood saw the plaintiff twice in June 2005 and again twice in March 2007. He was unable to make a confident diagnosis as to the psychological effect her injuries had on her. He suggested a neurosurgeon investigate the pain areas that the plaintiff seemed to be experiencing as a matter of urgency and that she should be referred to a pain management specialist. He noted her preferential treatment of pain had been to take more powerful painkillers.
202 Dr Polonowita, psychiatrist, reported on 3 June 2008 that the plaintiff’s problems followed the accident in which she was terrified that she may have killed the school girl on the crossing.
203 In terms of past history, apart from minor back pain, Dr Polonowita reported there appeared to be no significant medical history previously and no psychiatric history although the plaintiff had counselling through her church after the death of her first husband.
204 On mental state examination, the plaintiff presented as a well groomed woman who appeared to be psychologically minded and described depressed mood and displayed depressed affect with adequate range.
205 Thought stream and form displayed no abnormalities, although the plaintiff described negative thinking consistent with depression as well as significant preoccupation with her case.
206 There were no psychotic symptoms and there were no significant cognitive abnormalities noted. The plaintiff’s insight was adequate but she appeared not completely aware of the mechanism of her psychological condition except in lay terms.
207 Overall, the assessment was one of a PTSD which Dr Polonowita thought had spontaneously remitted with the plaintiff’s recovery but may have links with subsequent emergence of major depression which remained the current diagnosis and was moderate to severe. Noting unresolved grief over the death of her husband may be contributory, Dr Polonowita thought the major influential factor in the maintenance of depression seemed to be plaintiff’s compensation case and conflict with the defendant.
208 Dr Polonowita noted acute pain disorder with somatic preoccupation needed to be considered as an overall part of the plaintiff’s presentation and she may also respond to anti-depressant and psychological treatment. Accordingly he recommended the plaintiff commence a trial of Mirtazapine.
209 On review on 12 March 2008, that medication had caused the plaintiff further problems with headaches and vivid dreams and she was advised to cease it. On reflection, Dr Polonowita thought it appeared psychotherapy alone might be the best way with the plaintiff and she was reviewed by Dr Chan after three weeks of therapy with Dr Dealwis.
210 Dr Polonowita noted the plaintiff sometimes found it difficult talking about her past and it was too early at that stage to comment on the potential response to that therapy.
211 Dr Polonowita thought it was very evident the plaintiff had suffered from an acute stress disorder followed by PTSD in relation to the accident but these symptoms spontaneously remitted. He considered the symptoms of major depression followed those symptoms and were temporarily related to the sequelae and may also be related to any unresolved grief. Further, her thought the symptoms of depression were maintained by the plaintiff’s ongoing pain.
212 Dr Polonowita thought the plaintiff’s psychiatric condition, while related to her physical pain, was at a moderate level and was reinforced by the care she was receiving from her children as well as the TAC case.
213 At that stage, he thought the plaintiff’s prognosis was guarded as she was only in the early phase of interpersonal therapy. He then noted the TAC related litigation was of itself likely to prolong the plaintiff’s symptoms and the resolution of her case would facilitate therapeutic effect from psychological therapy.
214 Having been provided with details of the plaintiff’s pre-existing back condition and also re-examining her on two occasions in September 2008, Dr Polonowita noted that there was certainly a history suggestive of the presence of disc prolapse at least from 1998 onwards.
215 Since the last assessment, he thought the plaintiff had deteriorated in her mental state with significant nausea associated with anxiety and a depressed mood with distress and a sense of hopelessness. Those symptoms had been further aggravated or exacerbated by her experience of a recent court case in June when she felt the barrister had been aggressive towards her.
216 Given the plaintiff’s vulnerability, it appeared to Dr Polonowita that the litigation process was contributing to her mental state as well.
217 Dr Polonowita believed the plaintiff had always been quite honest in her description of her symptoms and the fact that she had not been mindful of litigation was further proof that she had not been influenced whatsoever by compensation issues in her presentation to Southern Health. Dr Polonowita considered there was no doubt that the plaintiff’s current symptoms were an exacerbation following the accident of a pre-existing injury.
The Plaintiff’s Investigations
218 A CT scan of the plaintiff’s brain and lumbosacral spine was organised by Dr Do on 21 August 2004.
219 At L5-S1, the disc space demonstrated broadbased disc bulging with calcification/ossification within. The reporter noted this could be a bone fragment or calcified disc material projecting with the herniated/disc. There was slight narrowing of L5-S1 disc space with compromise of the thecal sac as well as both neural exit foramina with high suggestion of compromise in the S1 nerve root bilaterally while they were traversing that disc level.
220 At L4-5, there was broadbased disc bulging also seen with flattening of the thecal sac without significant affect on the spinal canal or the neural exit foramina. The remaining disc spaces were unremarkable and the vertebral body heights were maintained without evidence of fracture.
221 No fracture or subluxation was seen on a CT scan of the cervical spine taken the same day. C2-3 and C3-4 disc spaces were unremarkable. C4-5 disc level demonstrated broadbased disc bulging/herniation which was centrally located, causing minimal pressure affect on the adjacent thecal sac without compromising the neural exit foramina.
222 An ultrasound and x-ray of the plaintiff’s left elbow was carried out at Dr Do’s request on 29 September 2004.
223 Mr Irani organised a barium swallow on 15 August 2005. It was concluded slightly thickened lower oesophageal mucosal folds suggested the possibility of early oesophagitis. The reporter noted there may be a subtle, reducible hiatus hernia seen on the prone oblique view at the gastro oesophageal junction but that could not be confirmed on any view. At the time of the study, there was no reflux and there was a small cricopharyngeal compression noted.
224 An MRI scan of the plaintiff’s lumbar spine was organised by Dr Thomas on 25 August 2005. The reporter concluded there were significant abnormalities present at L5-S1, where there was almost certain impingement of the traversing right S1 nerve root.
225 A chest x-ray was organised on 31 May 2006.
226 Mr Danks arranged a lumbar spine x-ray on 5 June 2006. A single lateral view of the lumbosacral junction showed position of a probe posterior to lumbosacral disc space.
227 An MRI scan of the cervical spine was organised by Mr Danks on 24 August 2006. The reporter concluded it was a largely normal study with minor disc desiccation at all levels but no significant disc herniation. It was noted the left C3-C4 foramen demonstrated very minimal narrowing due to localised protrusion of mild severity.
The Plaintiff’s Medico-Legal Evidence
228 The plaintiff was examined by Mr Peter Moran, orthopaedic surgeon, on 2 February 2011. The plaintiff told him, after the accident she developed neck pain and headache to the point where she consulted her family doctor the next morning. Subsequently she developed lower back pain with pain radiating down her right leg as far as the foot.
229 Mr Moran noted the plaintiff had a history of prior low back injury and had experienced some back pain since 1987 when her work required repetitive heavy bending and lifting. She told him that she had intermittent lower back treatment. She had only once been forced to stop work in 1997 when significant back pain was provoked by manipulative treatment performed on her by a physiotherapist.
230 The plaintiff reported she experienced a major increase in the level of pain after being examined by a medical officer of the defendant in November 2005, which provoked sciatic pain radiating to her right leg. Mr Moran noted that prompted a referral to a neurosurgical clinic and in June 2006 the plaintiff underwent surgery.
231 On examination, Mr Moran noted the plaintiff was reluctant to move and voluntarily restricted her movement but he thought this was because she was apprehensive about movement and not trying to deceive.
232 Examination of the thoracic and lumbar spine confirmed very limited forward bending at twenty degrees and extension was measured at less than ten degrees. Right and left lateral flexion was measured at five to ten degrees in either plane as was rotation. The plaintiff’s surgical scar was associated with asymmetrical paravertebral muscle spasm.
233 Neurological examination of the lower limbs was normal apart from the fact that the plaintiff demonstrated areflexia in the lower limbs.
234 Mr Moran noted the August 2005 MRI scan of the lumbar spine showed changes in the L5-S1 disc in association with a central to left sided disc prolapse.
235 Mr Moran reported the plaintiff described a significant rear end collision in which she was subjected to significant extension/ flexion stresses on her neck and to a degree, her lower back. He thought the plaintiff had objective evidence of a lumbosacral disc injury which led to micro discectomy nearly two years after injury, and she also had evidence of significant paravertebral muscle spasm in the neck which validated her complaint of significant neck pain.
236 Mr Moran noted however, it was very difficult to assess the plaintiff purely on physical grounds and while it was outside his area of clinical practice and expertise, he thought that she demonstrated signs of a significant post traumatic stress related illness. He considered her physical condition was best described as a complex spinal pain syndrome, a condition which he believed would remain refractory to treatment. On that basis, Mr Moran considered the plaintiff’s prognosis was poor and that her condition had stabilised. He considered it most unlikely she would return to any form of useful employment.
237 Mr Moran was subsequently asked to comment on reports from Mr Danks, Dr Kostos, Mr O’Brien and Dr Entwisle.
238 Mr Moran noted that Mr Danks’ view was consistent with his own understanding of the plaintiff’s chronic spinal pain syndrome.
239 Mr Moran referred to Dr Kostos’ comment that a “mild disc bulge at L5-S1 did not need to be removed as it was not contributing to any nerve root displacement or compression.”
240 Mr Moran noted Mr Danks’ opinion that the plaintiff had lateral recess compression of the S1 nerve root; i.e it was compressed between bony hypertrophy of the L5-S1 facet joint and the disc bulge anteriorally. Mr Moran commented that decompression of the nerve root posteriorly and laterally as undertaken at surgery would preclude the necessity of doing a formal discectomy, having given the nerve root an avenue of escape posteriorly.
241 Mr Moran thought it was clear there had been a significant and readily defined deterioration in the plaintiff’s spinal symptoms following the accident and it was unreasonable to suggest, as Dr Kostos had, that the accident had little if any impact upon the plaintiff’s lumbar spinal pain and resultant sciatica.
242 Mr Moran thought that Dr Kostos’ statement that the details of surgery confirmed the plaintiff did not have a disc prolapse and surgery was performed for her pre-existing problem was “very misleading”. This was because the plaintiff did not have severe lower back pain or sciatica prior to injury, rather episodic back pain from symptomatic degenerative change. Mr Moran noted it was the plaintiff’s treating surgeon’s belief, one he found rational, that the accident had significantly aggravated pre-existing degenerative disease and provoked the plaintiff’s presenting symptoms. Mr Moran noted the presence or otherwise of a disc prolapse was irrelevant if one considered the complexity of the plaintiff’s pathology.
243 Whilst Dr Kostos thought the plaintiff had a chronic pain syndrome influenced by psychological and social factors, Mr Moran asserted that the underlying factor was a physical injury to the plaintiff’s neck and back and he would strongly disagree that this was a purely psychological or psychiatric issue. Mr Moran thought chronic pain could not be so readily dismissed as a psychosomatic disorder as Dr Kostos implied.
244 Mr Moran thought continued supportive measures were appropriate and he considered the plaintiff’s prognosis was extremely poor.
245 Mr O’Loughlin, orthopaedic surgeon, first examined the plaintiff on 31 October 2006 and later on 5 February 2008.
246 On initial examination the plaintiff told him of the accident circumstances and that later she complained of pain in her neck with associated headaches and aching extending from her neck into her shoulders and down her back into both legs. The pain was worse the day after the accident.
247 The plaintiff told him that she had developed quite severe right leg pain which came on some time following the accident and he noted it may have been associated with the physical therapy she was receiving. The plaintiff claimed an insurance doctor who reviewed her increased the pain in her right leg.
248 On the first examination, the plaintiff told Mr O’Loughlin she had an attack of back pain about eight to ten years ago, which improved such that she was able to return to full time work. She was seen by Mr Khan who organised a CT scan which showed a disc problem at L5-S1 and she was treated with an epidural injection and apparently this problem settled.
249 On examination, the plaintiff held her neck rigidly. Mr O’Loughlin noted there was definitely voluntary restriction to movement with the plaintiff moving her neck more freely in earlier parts of the examination. There was restriction of lumbar spinal movement which appeared largely voluntary and there was vague tenderness of the lumbar spine which was not well localised.
250 The plaintiff refused to let Mr O’Loughlin examine the reflexes in her lower limbs as she said that caused severe leg pain. He found there was no obvious demonstrable sensory deficit except for slight sensory diminution over the outer right calf.
251 Mr O’Loughlin noted the August 1995 CT scan revealed a large disc bulge at L5-S1 on the right. X-rays and a CT scan of the neck and lumbar spine carried out in August 2004 revealed evidence of spinal stenosis and severe facet joint impingement at the L4-5 and L5-S1 levels on the right and an L5-S1 disc bulge.
252 Further, an MRI scan of the lumbar spine performed on 25 August 2005 showed an L5-S1 degenerate disc with bulging and some evidence of right sided S1 nerve root impingement.
253 Mr O’Loughlin concluded the plaintiff presented with a complicated problem, noting she obviously had a previous problem with a back injury and had evidence of pre-existing degenerative disc disease in her lumbar spine.
254 She had also had evidence of facet joint osteoarthritis and spinal stenosis which indicated fairly severe degenerative disease in the lumbar spine. There was evidence of degenerate disc disease and disc bulge at L5-S1 which was definitely pre-existing because it was shown on the 1995 scan.
255 Mr O’Loughlin considered the plaintiff now presented with an abnormal pain behaviour reaction affecting her neck, shoulders, upper limbs, low back and lower limbs.
256 In summary, Mr O’Loughlin thought the plaintiff sustained a whiplash type of injury as a result of the accident which aggravated pre-existing degenerate disc disease in her lumbar spine and had produced an abnormal pain reaction type syndrome affecting her neck, upper limbs, low back and lower limbs. In his view, the plaintiff’s symptoms were totally out of proportion to the underlying pathology. He noted that the surgery had not really made a great deal of difference to the pain syndrome although there had been some slight improvement.
257 Mr O’Loughlin thought the plaintiff seemed to be incapacitated by pain which affected many parts of her body and he could not explain the physical basis of all of that, except it was certainly limiting her capacity in that she could not work or do her domestic duties.
258 Mr O’Loughlin thought the defendant should accept liability for the plaintiff’s back condition. Whilst she had an abnormal pain reaction and many of her current symptoms were not directly related to the accident, Mr O’Loughlin noted that the plaintiff did have an aggravation of a documented L5-S1 disc injury which was treated by surgical decompression. Whilst there was some improvement in her condition regarding back pain, he thought she still however had a lot of right leg pain and pain affecting other parts of her body.
259 Mr O’Loughlin considered the plaintiff’s current back and neck symptoms were the result of the accident injury and whilst they may be grossly exaggerated and she may be voluntarily exaggerating her clinical signs and definitely had an abnormal pain response, she was functioning perfectly normally in the community and the workplace prior to the accident. Therefore he thought the accident had resulted in the plaintiff’s current state although he did not consider her current symptoms all had a physical basis.
260 On re-examination in February 2008, the plaintiff said since the last review there had not been any significant improvement in her condition and she felt if anything, she had become worse.
261 On physical examination, Mr O’Loughlin noted the plaintiff was a healthy looking woman who walked normally and appeared to move quite freely until she was examined, when she then held herself stiffly and exhibited grossly abnormal illness behaviour.
262 On examination of her lumbar spine, there was no obvious deformity save for the healed surgery scar. The plaintiff again held herself rigidly and only moved her spine minimally. There was no abnormality of the upper and lower limbs.
263 Mr O’Loughlin noted because of altered sensation and ongoing pain, the plaintiff had a nerve conduction test of her right leg on 7 March 2007. The test did not show any abnormality.
264 Mr O’Loughlin again concluded that it was likely the plaintiff’s injury in the accident caused an aggravation of a degenerative disc disease in the lumbar spine and possibly caused a disc to bulge a little further and cause nerve root impingement. The injury had also caused a soft tissue whiplash injury of the cervical spine.
265 Mr O’Loughlin confirmed his earlier view that the plaintiff was also exhibiting abnormal illness behaviour and appeared to have developed an abnormal pain reaction syndrome. He did not hold a lot of hope for her improving significantly because of abnormal illness behaviour and lack of improvement in the past. He therefore thought her prognosis was poor.
266 The plaintiff was examined on behalf of the defendant by Mr O’Brien, orthopaedic surgeon, first in 2008 and more recently on 22 November 2010.
267 The plaintiff told Mr O’Brien that initially following the accident she experienced the onset of neck pain associated with headache and in addition she reported leg pain shortly thereafter.
268 The plaintiff reported the severity of pain steadily increased, undergoing conservative treatment predominantly directed towards back and bilateral leg pain, considered worse on the right than the left.
269 The plaintiff indicated that she was not experiencing symptoms from a previous back problem at the time of the accident.
270 Following re examination, Mr O’Brien noted the physical signs were totally subjective, the nature of which he concluded indicated the presence of a chronic pain syndrome which he considered to represent a poor prognosis.
271 The plaintiff told Mr O’Brien that since the initial examination there had been some change in that the pain had become more widespread involving both knees. In addition, the plaintiff told him in 2010 she developed pain localised to approximately the mid-thoracic region.
272 The plaintiff described ongoing constant low back pain radiating into both buttocks and thighs distally and on the right side to the foot and toes. She also described constant neck pain.
273 On re examination, the plaintiff appeared comfortable sitting during the course of the history and appeared to move freely.
274 Lumbar flexion and extension were only to ten degrees with the plaintiff indicating any further movement would cause extreme pain. Passive straight leg raising was at fifty degrees bilaterally but it was noted when the plaintiff was lying she did not fully extend her knees, both of which flexed to ninety degrees, with there being full extension noted when she was standing erect. There was give-away weakness in both legs and there did not appear to be any sensory deficit and all reflexes in the lower limbs were present.
275 Mr O’Brien concluded there were clearly no signs to define severe lumbar pathology. The plaintiff then demonstrated all the signs of a chronic pain syndrome. He noted the quite marked current variability in relationship to movement could not be explained on the basis of musculoskeletal pathology but then said although he made these findings there seemed little doubt the current clinical problem had evolved since July 2004.
276 Mr O’Brien thought that the plaintiff’s clinical condition was stable and that she required ongoing pain management. He considered that her prognosis was poor and as such she would continue to experience severe chronic pain.
277 Mr O’Brien considered the plaintiff was now clearly quite physically disabled and there was no possibility she would return to gainful employment and could now be regarded as totality and permanently incapacitated. Further, he thought she remained quite limited in her general, domestic, social and recreational activities and that would be ongoing.
278 Mr O’Brien advised the defendant on 4 June 2088 that having seen the TLC Medical Centre report and Mr Khan’s notes, the plaintiff was not asymptomatic before the accident. He noted however it appeared that this had not had any substantial clinical impact in relation to the actual clinical course following the accident.
279 Dr Serry, consultant psychiatrist, initially examined the plaintiff for medico- legal purposes on 16 November 2006. He re examined her on 26 February 2008 and most recently on 4 October 2010.
280 The plaintiff told Dr Serry of the accident circumstances and her immediate awareness of headache and neck pain. Further, she told him that by the following day she had developed low back pain extending into her legs. The plaintiff also reported a significant escalation in the level of pain following an examination by a TAC doctor in 2005.
281 The plaintiff described to Dr Serry how she was initially quite shocked by the actual circumstances of the accident, but since then she described an ongoing struggle with pain limitations and life changes. She had also been extremely stressed by the process of dealing with the defendant and undergoing medical examinations.
282 The plaintiff told Dr Serry that she felt stressed and anxious almost all of the time and was apprehensive and worried about her health, her future and her finances.
283 On mental state examination in 2010, Dr Serry noted the plaintiff was a clear, straight forward and articulate historian who appeared to be in some physical discomfort and was quite labile at times.
284 The plaintiff demonstrated a reduced affective range with underlying depressive themes. There were persistent post traumatic anxiety features regarding the accident. There was no abnormality of thought stream or form. Thought content revealed an ongoing preoccupation with pain and limitations and financial difficulties. There were no psychotic features. Cognitive assessment revealed subjective complaints but no gross abnormality. Insight was intact.
285 Dr Serry concluded that this psychiatric illness resulting from the accident would now best be conceptualised as a pain disorder together with psychological factors and a general medical condition and chronic major depression with anxiety including post traumatic anxiety features.
286 Dr Serry thought the plaintiff’s condition was stable. In his view, her life style remained quite altered, her mobility being restricted and personal relationships changed with significantly reduced levels of socialisation and work and leisure activities through a combination of both physical and psychological factors.
287 Dr Serry thought the plaintiff’s prognosis remained guarded and that she continued to demonstrate features of an entrenched pain syndrome with an ongoing nexus between the physical and psychological aspects of her presentation. He thought she would continue to require ongoing expert pain management and associated psychiatric treatment.
288 Dr Serry considered the plaintiff’s pain continually reinforced her psychological distress and further she found the legal process and the associated examinations distressing.
The Defendants’ Medical Evidence
289 From August to December 2004, Dr Do certified the plaintiff unfit for work due to cervical spine pain, pain in the left arm and elbow and bilateral lower leg pain,
290 In January and February 2005, she certified the plaintiff unfit for work due to constant cervical spine pain, pain in the left arm and elbow, bilateral lower leg pain and anterior chest pain.
291 Mr Marshall examined the plaintiff on 25 January 2005. He was later provided with reports from Dr Hoi, Dr Ho, Mr O’Loughlin, South Heath, Mr Williamson, Dr Kranz, Waverley Park Physiotherapy, Dr Thomas, Mr Danks, Dr Eaton and Dr Do, and also the clinical notes of Mr Khan and the TLC Medical Clinic notes.
292 After examining the plaintiff, he concluded her symptoms were extremely widespread, involving as they did her trunk, neck and both arms, as well as her entire lumbar spine and both legs.
293 In Mr Marshall’s view, the physical findings were completely inconsistent and characteristic of abnormal illness behaviour. He concluded that the rear end collision the plaintiff suffered could have pushed her body back against the back of the drivers seat as a result of the initial forces and could well have caused a whiplash injury of the neck, but such forces were completely incapable of causing any significant damage whatsoever to the lumbar spine even where degenerate discs were present.
294 Mr Marshall noted on examination the plaintiff did not mention any previous problems with her low back and her major complaints related to her neck and arms. He concluded that her symptoms were psychosomatic in nature, and he was convinced her problems could not be accounted for on the basis of a physical injury.
295 Mr Marshall was surprised the plaintiff had undergone surgery. He noted from material which he had been sent that the plaintiff’s neck symptoms had subsided after she saw him in January 2005 and she developed increasing lumbar and right leg pain regarded by Mr Danks, particularly in light of the subsequent MRI scan, as being the result of a right S1 radiculopathy.
296 It was for that reason Mr Danks advised a decompression of the right S1 nerve. Mr Marshall noted it was certainly no surprise the plaintiff was treated as a public patient because it was clear her symptoms had begun as far back as 1988.
297 Mr Marshall confirmed the plaintiff told him that she was quite normal before the accident.
298 Mr Marshall believed it was unfortunate the plaintiff was subjected to lumbar surgery. He noted it appeared she had a bulging disc which had been present since 1988 but he did not believe any significant difference was made to that problem by the accident. In his view, it was of interest that Dr Eaton noted that he was never told by the plaintiff of any past history of pain and his final conclusions were identical with Mr Marshall’s – in other words, he concluded the accident would not have caused any significant aggravation or worsening of the underlying problem in the lumbar spine.
299 The defendant tendered a number of reports from Professor Goodchild and Dr Polonowita.
300 On 18 June 2008, Professor Goodchild wrote to Dr Do, noting the plaintiff had been through one of three court cases which increased her stress and therefore increased her pain.
301 On 10 September 2008, he wrote to Dr Do, noting the plaintiff was extremely stressed and tearful about her court case and struggle with the TAC and until her court case was settled he feared he would not make huge progress with her rehabilitation.
302 In a letter to Slater & Gordon dated 24 September 2008, Dr Polonowita advised following assessment on 24 September 2008 that the plaintiff’s symptoms had been further exacerbated by her experience of her recent court case in June in which she felt the barrister had been aggressive towards her. Dr Polonowita noted the plaintiff’s vulnerability and that it would appear the litigation process was contributing to her mental state as well.
303 In a letter from Professor Goodchild to Dr Do on 3 December 2008, he advised that he continued in his opinion that while the stresses continued with respect to this case, there was little prospect of rehabilitating the plaintiff.
304 Similar factors were mentioned by Dr Polonowita in a letter to Dr Do on 24 February 2009.
305 On 4 March 2009, Dr Polonowita wrote to Dr Do, noting that they were still waiting for a legal resolution, and therefore resolution of the plaintiff’s stresses and strains. He noted he tried again to get the plaintiff to think about moving on with her life a bit before that occurred, but he failed miserably in that attempt. He suggested to Dr Do that when she saw the plaintiff she should also try the same tack in encouraging her to get out of the house with some voluntary work.
306 On 4 March 2009, Professor Goodchild wrote to Dr Do, noting he tried again in this task but had failed miserably.
307 On 15 May 2009, Dr Polonowita wrote to Dr Do, after having found the plaintiff more depressed in the context of her ongoing compensation case which had not resolved.
308 On 15 July 2009, Dr Polonowita wrote to Dr Do, having reviewed the plaintiff that day when she complained bitterly about the way she had been examined by TAC doctors.
309 Professor Goodchild again expressed concerns about the lack of resolution until the case settled in a letter to Dr Do dated 15 July 2009.
310 Professor Goodchild, in correspondence to Dr Do dated 21 September 2009, advised the plaintiff still reported significant pain and disruption by that pain of her life and that she had put her whole life on hold until the TAC case was resolved.
311 On 12 November 2009, Professor Goodchild advised Dr Do that nothing had changed with the plaintiff and she was still waiting for the case to settle, and once that happened he was sure that things would start to move forward.
312 The plaintiff’s apprehension of her upcoming court case was noted in a letter from Dr Polonowita to Dr Do dated 11 November 2009.
313 Reference to the plaintiff putting her whole life on hold appeared in correspondence from Professor Goodchild to Dr Do dated 21 April 2010.
314 The plaintiff’s concerns about not being able to visit her mother in 2009 because of the TAC case were described in a letter from Dr Polonowita to Dr Do on 3 February 2010.
315 Dr Kostos, rheumatologist, examined the plaintiff on 24 June 2009 and re- examined her on 24 November 2010.
316 The plaintiff initially told him of the accident circumstances and the development of a headache thereafter. She saw a doctor the next day who sent her for neck x-rays and over the next few days her symptoms deteriorated.
317 The following week when the plaintiff returned to work, she only managed a couple of hours and by that stage the pain had spread to her shoulders and arms and she could not use her hands. She also noted pain down the spine to the lower back and into both legs, right greater than left.
318 The plaintiff told Dr Kostos that she had developed low back and right leg pain in 1987 which she attributed to heavy lifting at work. She had one or two months off and treatment was physiotherapy initially, however, her symptoms persisted although they were always a little up and down. At the time she saw specialists who recommended surgery and she was even placed on a waiting list at one stage, but when her turn came she felt a little bit better and therefore did not go ahead with the surgery. She told Dr Kostos her symptoms remained at a similar level today.
319 On the first examination, neck movements were virtually non-existent. All thoracolumbar spine movements whilst sitting and standing were virtually non- existent with pain in all directions. Similar responses were noted with axial compression and simulated rotation.
320 Dr Kostos found diffuse tenderness along the entire thoracolumbar spine and sacral areas together with the adjacent paravertebral areas and buttocks. Tenderness was greater as palpation proceeded distally. Neurologically the plaintiff had collapsing weakness proximally in her upper limbs and distally her grip strengths were one on the right and zero on the left. Her power could not be tested in the lower limbs, again because of “the damage”. Reflexes were all normal but she refused to allow her right ankle jerk to be tested again because of “the damage”. The plaintiff had a decreased pin prick sensation throughout her entire right leg.
321 On re-examination in November 2010, Dr Kostos confined himself to performing a brief examination because in the extensive notes that had been provided to him there were multiple references to flare ups of pain following examination by TAC doctors.
322 Again, thoracolumbar spine movements while sitting and standing were non- existent with pain in all directions. Dr Kostos noted pain with simulated rotation. The plaintiff had diffuse tenderness to skin touch along the entire thoracolumbar spine and adjacent paravertebral areas.
323 She agreed to have reflexes tested if Dr Kostos tapped his own finger and this revealed normal reflexes in her upper limbs and in the knees. However Dr Kostos could not assess her ankle reflexes.
324 Following her first examination, Dr Kostos concluded the plaintiff had a Chronic Pain Syndrome and there were some features consistent with fibromyalgia. He noted it was quite evident that that had been a diagnosis all along and that was confirmed by Dr Hoi’s report.
325 Dr Kostos noted the plaintiff underwent surgery on her lumbar spine for a pre- existing problem but, as was generally the case in chronic pain, stated the result of the surgery was poor. He did not believe the plaintiff had any injury resulting from the accident. He thought initially her prognosis was poor because of her chronic pain state. He did not believe there were any injuries that would prevent the plaintiff from returning to work but clearly in his view there was not any prospect this would be the case in the future.
326 Dr Kostos thought clearly the plaintiff had a chronic pain syndrome which was evident immediately after the accident and it had persisted.
327 Dr Kostos also noted that the plaintiff had pre-existing back problems noting a report from Mr Williamson in 2007 who suggested surgery at that stage.
328 Dr Kostos thought there was nothing to suggest the plaintiff’s back problem was significantly contributed to by the accident and he suggested there would have to be a question mark as to whether she had ever had objective sciatica. In his view, the results of surgery were entirely predictable and surgical intervention was never likely to help her condition.
329 On re-examination, Dr Kostos was provided with the notes of the surgery. He thought the comment about the fact that the bulge did not need to be removed was interesting because the plaintiff was always under the impression her problem related to a disc prolapse and that this was removed at surgery.
330 The plaintiff told Dr Kostos since the previous review there had not been any significant change in her symptoms.
331 The additional information with which Dr Kostos was provided confirmed his previous opinion. He considered the plaintiff had a chronic pain syndrome influenced by psychological and social factors and he did not believe she had any accident injuries. The details of the surgery confirmed the plaintiff did not have a disc prolapse and that the surgery was performed for pre-existing problems. In his view, therefore her current complaints were not consistent with injuries sustained in the accident.
332 Dr Kostos considered the plaintiff did not require any physical treatment at all and should be simply advised she did not have any injuries as it is obviously her perception that she did.
333 Dr Entwisle, psychiatrist examined the plaintiff on 6 December 2010.
334 The plaintiff told him of psychiatric problems in the context of problems with her son’s drug habit following his father’s death.
335 The plaintiff told Dr Entwisle she was angry with the defendant and its doctors who caused her to have the surgery, all of which she found stressful.
336 On mental state examination, the plaintiff’s affect varied; at first she was settled in her approach but she became increasingly agitated, embittered and angry, in the context of her experience of once again being examined by a TAC doctor, one of whom she alleged aggravated her injury resulting in surgery.
337 The plaintiff’s speech showed normal stream and flow but became pressured at times when agitated. Thought content involved themes related to her experience of bereavement, having to struggle as a single mother raising two children and her son’s response to his father’s death.
338 Dr Entwisle thought the plaintiff had developed a somatised response subsequent to the accident. Whilst initially describing some aspects of a traumatised reaction, no such symptoms were obtained on examination and her current symptoms in his view occurred in the context of her experience of chronic pain which was significantly contributed to by various psychosocial factors including her single status, failed second marriage, issues in regard to her son and various persecutory assertions in regard to the defendant.
339 The plaintiff’s memory and concentration were intact. There were some heightened features due to distress and agitation but no perceptual abnormalities. Insight was present.
340 Dr Entwisle diagnosed an adjustment disorder with depressed and anxious mood and a pain syndrome. He considered the plaintiff’s prognosis guarded noting it was heavily contributed to by her psychosocial circumstances.
341 In Dr Entwisle’s view psychiatric symptoms did have some impact on the plaintiff’s ability to work, given the sense of incapacity and chronic experience of pain augmented by a strong sense of grievance and injury focus – factors essentially emanating from the plaintiff’s psychosocial domain.
Other Documentation
342 By letter dated 16 July 2004, Cablex advised the plaintiff that her casual employment was now terminated due to the Alstom Project coming to an end and she was thanked for her assistance during her time at Cablex.
343 Bosch Australia’s worker’s compensation payment records were tendered, setting out receipt by the plaintiff of weekly payments in 1988, a period of over ten weeks.
344 An assessment form from Cablex completed on 22 April 2004 set out the plaintiff had problems doing loaming because of her back and it was noted she was generally limited in her tasks because of her bad back.
345 In a pre-employment medical examination for Cablex in February 2004, the plaintiff declared having had a back injury, suffered in 1987. It was noted that the plaintiff was fit for work with no heavy lifting with a restriction of ten kilograms, no repeated bending or prolonged standing. It was noted the plaintiff had one to two months off work in 1987 as a result of a work related back injury. She still had back pain at times. The plaintiff was certified fit provided she undertook no heavy lifting and bending.
346 A release dated 23 January 2008 set out the defendant had made a determination that it was unable to fund services relating to a nasoendoscopy and also had determined the plaintiff’s loss of earning capacity benefits would cease as of 31 May 2006.
347 The defendant agreed to pay a further year’s loss of earning benefits and fund three months of job assistance and the nasoendoscopy procedure on a “without prejudice” basis.
348 A release dated 1 August 2008, set out that the defendant had determined on 12 April 2006 it was unable to fund a right L5-S1 foraminotomy and neurolysis of the nerve root, and had also determined that the applicant’s neck, thoracic pain and upper body discomfort (“the accepted condition”) were no longer accident related, and that the lower back and right extremity symptoms were not transport related.
349 The defendant agreed to extend liability for the accepted condition until 11 December 2007 and maintained and affirmed the other determinations.
Overview
350 The first issue is for consideration is whether the plaintiff suffered injury to her back as a result of the accident.
351 Counsel for the defendant submitted this was not the case and that the plaintiff’s injury was to her neck about which she complained to Dr Ho who provided a TAC certificate in this regard after the accident.
352 Further, it was submitted that the plaintiff did not experience a back problem until mid 2005, a year after the accident, and as such her back condition was not accident related- a view held by Mr Danks and Dr Thomas.
353 It was submitted that the incidence of back pain in 2005 was an exacerbation of the plaintiff’s pre-existing condition, such that happened from time to time. The need for surgery in 2006 related to that underlying spinal condition and was not related to the accident.
354 However, close examination of the general practitioners’ notes and those of the treating physiotherapist, shows the plaintiff complained of leg/radicular pain and also back pain in the early weeks after the accident.
355 Both Dr Thomas and Mr Danks commented that they would have been assisted by evidence of this nature in providing their opinion as to the relationship, if any, between the plaintiff’s back condition and the accident.
356 The plaintiff complained to Dr Ho on 30 July 2004 in relation to her right leg having pins and needles in her right foot.
357 On 4 August 2004, Dr Do recorded amongst complaints that the plaintiff’s back was still very tender. Dr Do’s report mentioned that the plaintiff complained of central lumbar spine pain on this examination.
358 On 20 August 2004, Dr Do noted tender lower back, persistent pain in neck, left arm and both lower legs. Investigations then ordered by her included a CT scan of the plaintiff’s lumbar spine.
359 Dr Do’s TAC certificates after the accident from August to December 2004 referred to bilateral lower leg pain as well as cervical spine and left upper limb pain.
360 On 26 August 2004, Dr Do noted persistent pain in both lower legs. Tenderness in both legs was noted on 12 October 2004. Persistent body pain was recorded on visits over the following months with persistent lower back pain specifically mentioned on 15 June 2005 radiating down both legs associated with paraesthesia.
361 Amongst the plaintiff’s other complaints of pain to Dr Hoi on the one examination in November 2004, the plaintiff complained of left leg pain in particular in the shin region.
362 Physiotherapy treatment undertaken by the plaintiff from September 2004 focussed on multiple levels of pain in the plaintiff’s cervical and lumbar spine and bilateral shins.
363 Taking into account these complaints and accepting the plaintiff’s evidence in this regard, I am satisfied that there was an aggravation of the plaintiff’s underlying back condition as a result of the accident and that she had back pain much earlier than mid 2005 as some doctors reported.
364 The release signed by the plaintiff, accepting a determination by the defendant that her back condition was not accident-related, was a compromise of no fault benefits and nothing more and is not concerned with the plaintiff’s potential common law entitlements, the subject of this application.
365 I also accept that the plaintiff suffered an aggravation of her back condition whilst undergoing exercises in the pool for treatment of her accident injuries in 2005. In these circumstances that aggravation also results from the accident – see Kidman v Sefa & VSLR Pty Ltd (1996) 1 VR 86.
366 I accept that the plaintiff suffered an aggravation of a pre existing L5-S1 prolapse in the accident.
367 The issue for determination is whether that injury has produced an organic impairment and then by reference to the consequences of that impairment, whether it is serious and long term.
368 Most doctors who have provided an opinion in this case considered there was a non organic element to the plaintiff’s presentation finding the existence of abnormal pain behaviour or a chronic pain disorder.
369 Counsel for the defendant submitted the plaintiff had “a litany of problems which were all bound up together in a diffuse fibromyalgic pain syndrome”.
370 Whilst there is such medical opinion, I accept that the accident resulted in the aggravation of a well documented L5/S1 disc injury which was treated by way of compression surgery as Mr O’Loughlin described.
371 Following the accident, the plaintiff underwent decompression surgery to relieve her leg pain which had been significantly aggravated in the accident. On examination, Professor Goodchild found clear S1 nerve root compression and neurological signs in the plaintiff’s right leg.
372 Whilst he also found diffuse pain and fibromyalgia, Mr Danks found symptoms and signs of right S1 radiculopathy with evidence of a clear cut cause. Dr Thomas had a similar view supporting decompression surgery accepting the plaintiff’s complaint that ninety per cent of her pain was leg pain.
373 Mr Moran noted objective evidence of a lumbosacral injury which led to microdiscectomy, with a significant and readily defined deterioration in the plaintiff’s spinal symptoms following the accident.
374 Whilst he could not define any specific musculoskeletal pathology emanating from the accident, diagnosing a Chronic Pain Syndrome, Mr O’Brien thought there seemed little doubt the plaintiff’s current clinical problem had evolved since the accident.
375 Dr Kostos is alone in his view that the plaintiff does not suffer any persisting injuries in the accident and his questioning of the presence of objective sciatica.
376 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and long term.
377 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
378 Although back surgery was suggested by Mr Johnson in 1996 and the plaintiff was being prescribed Pethidine for her back in 1997, when the time for surgery came around in 1998, the plaintiff did not go ahead with it as she was okay and working and had no significant back problems.
379 The plaintiff’s evidence in this regard is confirmed by the notes of the TLC clinic in November 2007 which set out “better now, treatment by physiotherapy, no further treatment”.
380 I do not accept there was anything improper in the plaintiff leaving Dr Ho after the accident to undergo treatment from Dr Do at the TLC clinic. This was not, as counsel for the defendant submitted, an attempt by the plaintiff to get a clean sheet with another doctor who did not know of her back problem as the plaintiff had in fact attended the TLC clinic some years earlier in 1997 in relation to her back condition.
381 In the years leading up to the accident, whilst the plaintiff clearly had a “light work back”, as her pre-employment medical with Cablex and her treating doctor’s notes and medical certificates confirmed, the plaintiff was not having any significant treatment or taking any medication for her back condition.
382 The plaintiff did not see Dr Ho in relation to her back condition in 1998 or 1999. In 2000, she saw Dr Ho twice for her back and three times in 2001. In 2002 there was one mention of the plaintiff’s back in Dr Ho’s notes in terms of work restrictions.
383 Mr Khan did not think the plaintiff qualified for a disability support pension in
384 In 2003 the plaintiff saw Dr Ho once in November complaining of neck and back pain. The plaintiff did not mention her back in the one visit before the accident in April 2004.
385 There is no evidence of the plaintiff having any particular restriction in her lifestyle due to her back condition in the years closer to the accident.
386 I accept that the plaintiff is a woman who has always had a very strong work ethic. Whilst counsel for the defendant submitted that the plaintiff’s work history was not one of sustained employment and was contract based, the plaintiff had been consistently employed, albeit in a number of jobs since leaving the business with her husband in 1995 until ceasing work after the accident due to her accident injuries.
387 At the time of the accident, the plaintiff was working full time, thirty eight hours per week. As her pay slips indicated, in the four weeks before the accident, she also worked between two and four hours overtime per week. In the financial year preceding the accident the plaintiff earned almost $43,000 gross.
388 The plaintiff was still updating her qualifications at the time of the accident having recently completed a soldering and assembly course to enable her to obtain further hours of work with Cablex.
389 The plaintiff was unable to continue in her duties for more than a few days after her return to work after the accident because she “was not able to sit on her tailbone and she had so much pain in her back neck arms and fingers that she was not able to do her job.”
390 Whilst it was initially suggested that the plaintiff ceased work because her employment was terminated, this issue was not pursued by the defendant’s counsel. In any event I accept that this was not the case with the plaintiff working beyond the date of termination set out in the July 16 letter.
391 Since that time, the plaintiff has been unable to return to any work. She has been assessed on the defendant’s behalf by Ors in early 2008 and no suitable work was found for her. Given her excellent pre accident work history, I accept that the plaintiff would return to work if she had the physical capacity to do so.
392 I accept that as a result of the aggravation of her back condition in the accident, the plaintiff’s already impoverished work capacity had effectively been further impoverished if not destroyed as counsel for the plaintiff submitted.
393 Whilst the plaintiff’s pain in areas of her body other than her back may also cause her problems with work and daily activities, as Ashley JA said in Grech v Orica Australia Pty Ltd (2006) 14 VR at para 58, a consequence may have a multiplicity of causes including a multiplicity compensable injuries.
394 Provided the plaintiff establishes that the subject compensable injury to her back materially contributes to the impairment and its consequences and will continue to do so in the long term, then the role of the other injuries does not preclude a court from concluding there is the appropriate causal link between the compensable injury and the consequences relied upon.
395 I do not accept the submission by counsel for the defendant that the plaintiff led a simple life before the accident and that thereafter nothing much has changed.
396 Despite surgery in 2006, the plaintiff has continued to experience constant back and leg pain.
397 The plaintiff takes Mirtazapine to help her sleep and takes up to eight Panadol with two to four on a better day and she continues to attend yoga sessions at the pain clinic to help her relax.
398 The plaintiff is restricted in her ability to maintain and clean her home and she requires assistance from family members in this regard. The plaintiff also requires assistance from family members when doing the shopping and she avoids lifting heavy objects at home and at the supermarket.
399 The plaintiff is limited in her involvement in family functions, particularly cooking and now cooks only a small dish when previously she did a lot of food preparation and organising for these occasions.
400 The plaintiff is restricted in her social activities and does not seem to have any interests these days apart from attending church regularly, where she has difficulty sitting.
401 The plaintiff avoids long car trips as sitting beyond thirty minutes increases her back pain. She is nervous and watchful when driving. She finds it hard to walk continuously and takes breaks when walking with her neighbour and their dogs.
402 In considering the pain and suffering consequences, I am also permitted to take into account the expected mental consequences of the plaintiff’s physical injury as described by Winneke J in Richards v Wylie (supra), such as frustration and depression at the inability to do various activities and enjoy life generally.
403 I accept that in addition to the physical consequences I have referred to, the plaintiff has become irritable, frustrated and short tempered due to her back condition and the restrictions it places upon her daily activities. Pain and worry disturbs her sleep and she always feels tired.
404 As Dr Serry noted, as a result of her physical injury, the plaintiff’s life style remained quite altered, her mobility being restricted and personal relationships changed with significantly reduced levels of socialisation and work and leisure activities through a combination of both physical and psychological factors.
405 As a result of the accident the plaintiff has undergone back surgery without significant improvement and she continues to require pain killing medication, sometimes in large doses. Her capacity to work full time on lighter duties has been destroyed and her enjoyment of daily social and domestic activities has been affected- consequences which I consider to be serious.
406 As such consequences flowing from the plaintiff’s back injury have persisted for nearly seven years, I am satisfied that the plaintiff’s impairment is long term.
407 Taking into account all the evidence, I am satisfied that the plaintiff’s impairment to her back is serious and long term.
408 Having made that finding, I am not required to consider the application pursuant to sub section (c).
409 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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