Howard v TAC
[2014] VCC 1115
•25 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-06054
| AMANDA HOWARD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 June 2014 | |
DATE OF JUDGMENT: | 25 July 2014 | |
CASE MAY BE CITED AS: | Howard v TAC | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1115 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages for pain and suffering – whiplash injury to cervical spine – dispute as to whether the pain and suffering consequence was serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries v Poljak [1992] 2 VR 129, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: Plaintiff’s application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M. | Nowicki Carbone |
| Fogarty | ||
| For the Defendant | Mr P. Rattray QC with Ms K. Moran | Lander & Rogers |
HER HONOUR:
Introduction
1 The plaintiff is 27 years of age. Evidently, the plaintiff started going out with her husband, Scott Howard, in January 2009. They moved in together in February 2010, were engaged in August 2011 and married in December 2011. There are two children, a son born in late March 2012 and a second son, born in May 2014.
2 After completing Year 12, the plaintiff spent approximately 2 years working in the hospitality industry before commencing her training with Victoria Police. She graduated from the Police Academy on 24 November 2006 and worked as a police officer until she took maternity leave from February 2012. The plaintiff never returned to policing duties. Her resignation took effect on 31 January 2014. Her husband who was also a police officer resigned in 2013.
3 From a young age, the plaintiff was trained and performed as a dancer (jazz ballet and classical ballet) and as a gymnast. Having taken a break from gymnastics, in about 2008, the plaintiff returned to dancing and trained, she said, in the expectation that she would qualify to teach jazz ballet by the end of 2010. By her account, the plaintiff was passionate about dancing. This activity and regularly running and riding a bicycle had, the plaintiff said, helped her maintain a high level of physical fitness.
4 By originating motion filed 10 December 2012, the plaintiff sought leave to bring proceedings for damages in respect to injury suffered as a result of a transport accident on Saturday, 28 February 2009. On that date, a vehicle collided with the plaintiff’s stationary vehicle (the accident). It was common ground that as a result of the accident, the plaintiff suffered injury, particularly injury to her cervical spine. At the time, the plaintiff was serving as a probationary police officer.
5 The plaintiff was not hospitalised. She did, however, attend a general practitioner, Dr Selleck at the Medical One Moorabbin clinic two days later, on 2 March 2009. This was the only consultation with Dr Selleck whose findings on examination revealed no acute injuries. The clinical notes relevantly recorded no loss of consciousness and, despite complaints of neck stiffness and shoulder pain, a full range of movement of the plaintiff’s neck and shoulders. The doctor prescribed medication, Norslex, to be taken as needed.[1]
[1] Exhibit P1, Plaintiff's Court Book (PCB) 45-48
6 Commencing from approximately 13 March 2009, the plaintiff has been treated by various health professionals, as well as by several other general practitioners, practising from other clinics.
7 The plaintiff has been a patient of the Jasper Family Medical Practice from 22 April 2009. On 22 June 2009, she reported having collapsed three times since the accident and experiencing problems with forward neck flexion, dizziness and nausea. X-ray and ultrasound investigation of the plaintiff’s cervical spine obtained on 1 July 2009 by general practitioner, Dr Kearney, reported normal results.[2]
[2] PCB 33 and 31 and Transcript (TN) 23-24
8 MRI imaging of the cervical spine on 3 February 2010 appears to be the only further investigation ordered since the accident.[3] The results of this scan were said to show minor discogenic degenerative change.
[3] PCB 32
9 As my summary of the evidence shows in due course, the medical specialists and other health professionals, have all described a whiplash (hyperextension/hyperflexion) injury involving the cervical spine, with unresolved symptoms as a result of the accident. The diagnoses reported in the up-to-date specialist evidence tendered at hearing were expressed in the following terms:
· after re-examining the plaintiff on 6 November 2013 at the request of her solicitors, orthopaedic surgeon, Mr Simm reported: “The diagnosis is residual cervical dysfunction as a result of an acceleration hyperextension injury to the cervical spine on 28 February 2009. She continues to suffer from chronic neck pain, headaches and an associated emotional disturbance. She has referred symptoms into the upper limbs but no clinical signs of radiculopathy”; [4]
[4] PCB 90
· consultant in rehabilitation and pain medicine, Dr Clayton Thomas, who examined the plaintiff on 7 March 2014 on referral from, general practitioner, Dr Salter, reported that the plaintiff’s condition was: “in keeping with whiplash and associated disorder”;[5]
· occupational physician, Dr Horsley, who re-examined the plaintiff at the request of her solicitors in November 2013, reported that the plaintiff presented with: “intermittent mechanical neck pain and chronic myofascial pain in her bilateral shoulder girdles and interscapular region”;[6]
· orthopaedic surgeon, Mr Dickens, who examined the plaintiff once on 22 April 2014 at the request of the defendant’s solicitors, reported that the plaintiff sustained “a minor soft tissue injury to the cervical spine without evidence of radiculopathy but with evidence on an MRI of some minor degenerative changes and slight disc bulging at the C6/7 level probably not actually related to the accident”.[7]
[5] PCB 55
[6] PCB 105
[7] Exhibit D1, Defendant's Court Book (DCB) 21
10 Notably, none of the specialists considered the radiological findings significant or revealed pathology that helped explain the disability and pain currently described by the plaintiff. Indeed, the specialists whose diagnoses are set out above, all found good movement of the cervical spine and noted an absence of any neurological signs. On behalf of the plaintiff, it was accepted that she probably suffered a soft tissue injury to the cervical spine as the result of an accident-related whiplash.[8]
[8] TN 85
11 Accordingly, this application was primarily concerned with establishing the nature and the extent of any consequences of impairment or loss of function of the cervical spine.
12 In affidavits sworn on 31 March 2012 and on 1 May 2014 respectively and in her evidence the plaintiff variously described:[9]
[9] PCB 11-13 and 15-18 and Transcript (TN) 15-16
· pain, stiffness and discomfort in her neck and upper back which extended over both shoulders and down her back between her shoulder blades;
· regular neck spasms;
· headaches;
· aggravation of her symptoms by activities such as lifting, particularly above shoulder height, neck flexion and rotation, running and prolonged standing, sitting or walking;
· struggling after returning to work as a police officer because duties, such as engaging in a foot chase or restraining an offender, driving a patrol car over several hours or activities that involved prolonged standing or walking to direct traffic or guard a crime scene, or prolonged use of a computer, among other things, aggravated neck pain;
· struggling to maintain her level of fitness and twice failing the police “beep test” (a series of shuttle runs which must be completed over increasingly shorter periods). The plaintiff deposed that her probationary period was extended to enable her to pass the fitness test. According to the plaintiff, she was exempted from this test by the Police Medical Officer who found the plaintiff fit for operational duties and she was promoted from her probationary status to the rank of constable (“Confirmed Constable”);
· delay in progressing to the rank of Senior Constable due to her reduced fitness level;
· loss of career prospects as an operational police officer because she was unable to maintain the level of fitness required to move to specialised units into which she hoped to progress, such as the Dog Squad, the Force Response Unit or the Mounted Branch;
· an inability to maintain alternative employment in a café in early 2013;
· an inability to continue dancing and dancing training;
· struggling to perform household tasks and relying on her husband to perform the heavier duties, such as vaccuming and mopping;
· a medication regime consisting of regular use of Nurofen in the treatment of back and neck pain and headaches, with the possibility of further pain management treatment in the future;
· problems caring for her young children and relying on her husband to come home and help with activities such as lifting and bathing the children;
· needing additional supports to perform activities of daily living;
· loss of enjoyment of activities such as overseas travel.
13 I note that in evidence-in-chief given at hearing and under cross-examination, the plaintiff indicated that, since the birth of her second son in May 2014, she had resumed taking Nurofen (and Panadol) regularly (about three times a day) in the treatment of back and neck pain and headaches.[10]
[10] TN 15 and 28
14 Recent assessment by an occupational therapist, has assessed the plaintiff as requiring equipment such as a specialist indoor clothes-line, a back support for use in her car, a higher cot and change table and bathing system and a high back chair. The therapist also recommended that the Transport Accident Commission (TAC) assess the plaintiff for provision of a panoramic mirror to help her avoid neck strain when driving.[11]
[11] TN 15-16
The application
15 The application was made pursuant to section 93 of the Transport Accident Act 1986 (the Act). The plaintiff was required to satisfy the Court that the injury suffered in the accident was a serious injury which existed at the date of determination of the application for leave.
16 The application was made under paragraph (a) of the definition of “serious injury”. Sub-section 93(17)(a) of the Act defines this as: "serious long-term impairment or loss of a body function". Serious injury is determined by considering the consequences of an injury-related impairment or loss of body function.
17 Under paragraph (a) the consequences relating to pain and suffering and pecuniary disadvantage of any injury to the cervical spine must be both long-term and serious to the plaintiff, that is, when regard is had to these consequences the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[12]
[12]Humphries v Poljak [1992] 2 VR 129, 140
18 Whilst there had been earlier discussion of separate injury to vestibular function, at hearing the plaintiff’s claim was confined to the cervical spine injury. An application made under paragraph (c), relating to mental or behavioural disturbance or disorder, was also abandoned at hearing.
19 The defendant put the plaintiff to her proof in respect to the following matters:
· whether the consequences of injury to the plaintiff’s cervical spine could be described as at least “very considerable”;
· whether the injury to the plaintiff’s cervical spine had adversely impacted her ability to perform her pre-injury employment and, in particular, any future career progression, as distinct from any other injuries and/or non-accident factors such as motherhood;
· the extent of the pain experienced by the plaintiff as a result of the injury to her cervical spine in circumstances where she no longer took prescription painkilling medication and, in March 2014, reported to Dr Thomas fluctuating pain levels from 1/10 to 6/10, which averaged 3/10;[13]
· the extent of the disabling effect of pain after allowance was made for what has been retained.
[13] PCB 54
The evidence
20 The plaintiff deposed to the accuracy of both her affidavits. As mentioned, the plaintiff gave further evidence-in-chief updating the evidence of her medication regime and explained the results of the assessment by an occupational therapist following the very recent birth of her second child. The plaintiff was cross-examined. Her husband, swore an affidavit in support on 13 May 2014.[14] After deletion of various segments of this, Mr Howard’s affidavit was tendered together with an affidavit of Robert Thomas Vaughan Kent, sworn on 18 May 2014. Mr Kent is a friend who, for a short period during early 2013, from the description given, employed the plaintiff in part-time waitressing duties in his café business.[15] Mr Howard and Mr Kent were not required for cross-examination.
[14] PCB 133-137
[15] PCB 138-140
21 The plaintiff also tendered extracts from her Court Book which included the reports of the radiological investigations, numerous medical reports submitted by general practitioners and by an assortment of health professionals and the specialist reports prepared by the treating and medico-legal experts already mentioned.[16]
[16] Exhibit P1
22 The defendant tendered one document from its Court Book, Mr Dickens’ report.[17]
[17] Exhibit D1, 17-23
23 There was no direct challenge to the plaintiff’s credit. No doctor or health professional questioned the plaintiff’s presentation or the account she gave of pain and her symptoms. However, where the plaintiff’s recall of various matters was contradicted by any contemporaneous record, I generally preferred the evidence recorded. I have also preferred the evidence of treating doctors and health professionals recording improvement in the plaintiff’s condition from time to time. These observations should not be construed as indicating adverse findings on credit.
Additional background information
24 In her first affidavit, the plaintiff explained that her duties as a police officer included emergency response, working in a divisional van responding to 000 calls, chasing/arresting offenders, directing traffic, paperwork, wearing an equipment belt and foot patrol. I was told, all police officers are required to undergo regular fitness testing.[18]
[18] PCB 8-9
25 As already mentioned, the plaintiff deposed that pre-accident she had been a physically fit and active young woman both in her work and personal life. However, it appears that after a work-related incident on 28 February 2007 and the events which followed, the plaintiff was counselled for a stress-related condition.
26 In her affidavit material, the plaintiff deposed that she was off work on WorkCover for a period of some eight or nine months until returning to her full duties shortly before the accident. Nevertheless, under cross-examination, the plaintiff agreed that she had remained off work from the date of the work-related incident until 26 January 2009, when she returned to part-time duties on a six-week return to work program. The intention at the time was that the plaintiff would gradually increase her working hours from three days per week to full-time hours.[19]
[19] TN 16-17
27 Under cross-examination, the plaintiff agreed that, due to her psychological issues, when she returned to work as a probationary police officer in January 2009, she required and was granted an extension of time to complete various tests (skills, fitness profile, a standard operational car course and a Diploma of Public Safety).[20]
[20] TN 30-31
Work post-accident
28 In the period subsequent to the accident, the plaintiff returned to her employment as a probationary police officer and, whilst I was not able to ascertain when this occurred, the plaintiff eventually resumed full-time duties.
29 According to the plaintiff, she struggled to perform her duties due to both cervical spine and vestibular dysfunction. Wearing heavy equipment, engaging in a foot chase or apprehending offenders, driving, prolonged standing or walking, administrative duties and prolonged use of a computer were all activities the plaintiff said aggravated her neck symptoms.
30 The plaintiff also complained that an activity, such as running produced dizzy spells. However, based on the expert evidence summarised shortly, I have concluded that dizziness and vertigo were likely due to disturbance of vestibular function and not a consequence of accident-related cervical spine dysfunction for the purpose of determining whether impairment or loss of this body function was serious.
31 According to the plaintiff, both cervical spine and vestibular dysfunction reduced her ability to maintain an adequate level of fitness and, as mentioned, impeded progress within the police force to the extent that the plaintiff could no longer contemplate a future working in specialised Units such as the Dog Squad, the Force Response Unit or the Mounted Branch.
32 As mentioned, after returning to work in January 2009, the plaintiff required an extension of time to complete a range of tests. It was not, however, clear from the plaintiff’s evidence how much time had been required or was given for the completion of the tests mentioned, which I infer independently delayed the plaintiff’s progress from probationary police officer to at least the rank of Constable.
33 As to testing of her fitness, the plaintiff gave evidence to the effect that, having previously successfully completed the beep test, on two occasions following the accident, she failed this test. As a result, she said her probation was extended, although the plaintiff was eventually passed as fit for operational work after the Police Medical Officer exempted her from undergoing the beep test. This meant that the plaintiff progressed to the rank of Constable. However, until she passed the beep test, for which she was due to be assessed in November 2010, the plaintiff said she could not progress to the rank of Senior Constable.
34 Under cross-examination, the plaintiff agreed that she worked full operational duties performing rotating shifts including overtime until her first pregnancy in mid-2011, although, by her account, the plaintiff relied on her colleagues to help lessen her workload, as for example, when the time spent performing traffic control duties was unofficially reduced.
35 However, the plaintiff also agreed that by November 2010 all of the required tests had been completed and she progressed to the rank of Senior Constable. On this occasion, the plaintiff said she passed the beep test because the Police Medical Officer, had turned a “blind eye”.[21]
[21] TN 30-31 and PCB 17
36 Accordingly, notwithstanding any delay caused by injury suffered in the accident and with some indulgence afforded her by the Police Medical Officer, by November 2010, the plaintiff was assessed as fit to work as an operational police officer and she was promoted to the rank of Senior Constable.
37 The plaintiff was also cross-examined about her claim that injury suffered in the accident had spoiled her prospects of pursuing a career in a number of specialised police Units .[22]
[22] TN 34-35
38 At hearing, the plaintiff said that she had mentioned the Force Response Unit (the Unit dealing with critical incidents) in her affidavit material, not because she was interested in a career in this Unit, but because this was one of a number of Units that had specialist fitness requirements. She had been, however, interested in both the Dog Squad and Mounted Branch. As I understood the evidence given, prior to her first pregnancy, the plaintiff ascertained from a member of the Dog Squad the requirements for working in this Unit and she attended an open day and spoke to other officers who trained for the Mounted Squad, without taking any formal steps to join either Unit.
39 In short, after considering all of the evidence, it seems that, prior to her pregnancies the plaintiff’s concern that she would not meet the fitness requirements to enter or remain with these Units, had deterred her from applying, not any formal assessment of her fitness to perform duties in other Units.
40 Two pregnancies in fairly quick succession between mid-2011 and May 2014 impacted the plaintiff’s work activities. After falling pregnant with her first child in 2011, the plaintiff told the Court that she was moved to modified duties in administration where she worked four days per week until taking maternity leave from February 2012.
41 When the plaintiff swore her first affidavit in March 2012, 10 days after her first son’s birth, the plaintiff evidently intended to return to work as a police officer in due course.[23] Subsequently, when she fell pregnant with her second child, the plaintiff extended her maternity leave. When she could no longer extend her leave, the plaintiff resigned to look after her two-year-old and her second baby, born in May 2014. [24] Her resignation took effect from 31 January 2014.
[23] PCB 13
[24] TN 31-32
42 At hearing, the plaintiff’s evidence was that she intended to return to the workforce once her children were old enough.[25] In view of her recent resignation from the police force and the plaintiff’s belief that her career choices in the police force were limited by the consequences of injury suffered in the accident, I concluded it was unlikely that she would return to a career in the police force.[26]
[25] TN 35
[26] PCB 16
Travel post-accident
43 As I understood the plaintiff’s second affidavit, sworn in May 2014, in early 2011 her husband, who was then a serving police officer, took long service leave and they travelled to Canada, where he worked for six months. The plaintiff further deposed that they had taken several overseas trips, including their honeymoon in August/September 2011. The plaintiff indicated that due to her injury, her experience of overseas travel had been less enjoyable.[27]
[27] PCB 17-18
44 In an affidavit sworn in support of the plaintiff’s application for leave, among other things, the plaintiff’s husband appeared to contradict his wife’s affidavit evidence about their travels. He deposed that he took a period of long service leave in early 2013, when they lived and he worked part-time in Canada. Mr Howard did not mention other travel but deposed that they married on 30 December 2011, two months after his wife said they honeymooned.[28] His evidence, nonetheless, corroborated the plaintiff’s claim that travel to Canada had been less enjoyable (“created its own challenges”[29]) and, whilst living in Canada, she had obtained further osteopathic treatment when this was affordable.
[28] PCB 138
[29] PCB 135
45 As it turned out, under cross-examination, the plaintiff described several overseas trips with her husband, before and after they married. The first was a holiday to the USA for six weeks in September/October 2010, the next was to Hawaii in August 2011. This was followed by 2 to 3 weeks visiting friends in Augusta, Georgia in October 2012. The most recent trip overseas was, the plaintiff said, between May and September 2013 when the family went to Canada.[30]
[30] TN 29-30
46 Having reread the affidavit material and considered the evidence as a whole, I concluded that the plaintiff had confused the dates when, in her second affidavit, she deposed that they had travelled to and lived in Canada in 2011. The plaintiff confirmed that her husband left the police force in 2013, because he wanted to do something different and he had since pursued a career in real estate.[31]
[31] TN 30
Treatment post-accident
47 Post-accident the plaintiff was treated for injury to her cervical spine and for symptoms attributable to disturbance of vestibular function.
48 The defendant challenged the plaintiff’s evidence of ongoing high levels of pain on a number of bases. One was that treatment, whether through alternative therapies or by doctors had been intermittent, another was that the plaintiff took over-the-counter medication irregularly and, yet another was the absence of evidence that the plaintiff had actively pursued further investigation and treatments recommended by various specialists in the years since the accident.[32]
[32] TN 53-57
49 Between approximately 13 March 2009 and July 2010, the plaintiff attended the Kingston Spinal & Osteopathic Clinic. In a report dated 10 April 2014, osteopath, Craig White reported that the plaintiff was treated for upper cervical spine pain and associated dizziness. When last treated for this condition in 2010, the plaintiff apparently reported aching and pain in the shoulder and neck, with little or no episodes of dizziness. Mr White also noted a number of follow-up visits for a “separate complaint”. [33]
[33] PCB 79
50 In her first affidavit the plaintiff deposed that, after returning to work in 2009, in addition to her neck condition and symptoms, she began to experience panic attacks. A general practitioner apparently prescribed anti-depressant medication, Lexapro and the plaintiff was counselled through welfare services provided by Victoria Police. In effect, the plaintiff swore that after commencing anti-depressant medication and counselling the frequency of her panic attacks had diminished, such that she had only experienced two further panic attacks. The plaintiff also mentioned symptoms of depression and experiencing flashbacks.
51 When asked under cross-examination, the plaintiff could not recall having received treatment for a separate complaint in 2009. Indeed, she denied any other “troubles” during 2009 other than neck and shoulder pain.[34]
[34] TN 20-21
52 When reminded of this, however, the plaintiff agreed that, during 2009 she had been treated by two psychologists for psychological problems. Through her evidence, the plaintiff indicated that she had attended at least six sessions with a police psychologist in the treatment of unrelated psychological issues arising from her relationship with her father and a physically and emotionally abusive relationship with a former boyfriend and she had also attended a different psychologist for treatment of work-related problems. The plaintiff attributed her work-related problems to the injury to her cervical spine.[35]
[35] TN 21-22
53 As mentioned, a report by Dr Kearney dated 1 April 2010, indicated that the plaintiff first attended the Jasper Family Practice for treatment on 22 April 2009. During that first attendance, the plaintiff did not mention the accident or any neck condition.
54 The prescription record tendered recorded that Lexapro was first prescribed on 23 April 2009 and again on 1 September 2009. I infer from this record and the doctor’s report that, initially, the plaintiff attended the clinic with unrelated psychological issues in the treatment of which she was prescribed Lexapro and received counselling through Victoria Police welfare services. However, as the report and the clinical records show, when the plaintiff presented at the clinic for review on 22 June 2009, she also mentioned the accident and her symptoms (“(t)he main purpose of her visit was to asses her response to medication and counselling for ongoing stress. I did not examine her neck. She was working full time as a Police Officer and she was happy with her Osteopathic treatment”).[36] The doctor, who did not examine the plaintiff, nevertheless ordered the radiological investigations, which on 1 July 2009 reported unremarkable findings.
[36] PCB 33 and 39
55 The clinic’s progress notes and the prescription record show that on 13 July 2009, Dr Kearney prescribed the anti-inflammatory, Naprosyn. There was a further prescription of this medication on 20 October 2009, which I infer was also prescribed in the treatment of symptoms relating to the plaintiff’s neck condition.
56 I note, however, from Dr Kearney’s report and the clinic’s progress notes that, apart from discussion of ongoing chiropractic treatment of neck pain and a request by the plaintiff for a medical certificate for 27 and 28 December 2009, the next attendance at the Jasper Family Medical Practice on 31 December 2009, did not involve active treatment for a condition another doctor described as: “ongoing neck pain intermittently”.[37] The medication, Naprosyn was discontinued on this attendance.
[37] PCB 33 and 38
57 Accordingly, it appears that by the end of 2009, against a background of reportedly intermittent neck pain, any prescription pain killing and/or anti-inflammatory medication had been discontinued. Moreover, Lexapro was probably initially commenced in April 2009 along with counselling, for unrelated psychological problems, although at some later stage the treatment of either primary or secondary psychological symptoms arising from the accident were the subject of separate psychological counselling. How and over what period the plaintiff attended a psychologist in the treatment of these symptoms and any diagnosis made or medication, if any, prescribed was unclear. The medical record and evidence does, however, confirm that Lexapro was probably discontinued by late 2009.[38]
[38] See Dr Gassin’s report, PCB 56 and Mr Simm’s report, PCB 83
58 Between October 2009 and December 2011, the plaintiff consulted chiropractor, Dr Berntsen. In his report dated 10 April 2014, among other things, the chiropractor recorded the following matters:[39]
[39] PCB 70-71
· a diagnosis of musculoskeletal strain/brain injury to the cervical spine, aberrant joint movement in the cervical spine and associated muscular dysfunction. Without further explanation of this, the nature of any brain injury was unclear;
· a very good prognosis as the plaintiff “had already improved significantly”;
· when reviewed in March 2011 the plaintiff had reported that: “her pain intensity was moderate, in regards to personal care she could look after herself normally, pain did prevent her from lifting heavy weights but she could manage light to medium weights, she felt sleep was mildly disturbed by her condition, she felt she could do her usual work but no more, she felt she could concentrate fully with slight difficulty. At this time she reported moderate headaches. In the review Mrs Howard reported she could hardly do any recreational activities though also related contradictory (sic) that even though she could not do jazz ballet she could do contemporary dance and Hip Hop”. Under cross-examination, the plaintiff agreed that the last mention statement was probably right, although the plaintiff qualified this response during re-examination by denying that she engaged in contemporary dance or Hip Hop dancing. She attributed her inability to dance to pain and the physical demands of caring for her children;[40]
· in March 2011, the plaintiff appeared to be improving slowly but surely;
· when last seen in December 2011, the chief complaint was of lower back and buttock pain on the left. At the time the plaintiff was 24 weeks pregnant with her first child. The plaintiff rejected the suggestion that lower back and buttock pain had been her chief complaint. I have preferred the record made in this regard, firstly, because it states that the treatment the chiropractor administered was focussed on unrelated lower back and buttock pain[41] and, secondly, because osteopath, Ms Griffiths, whose report I discuss shortly, also said that in December 2011 the plaintiff attended for treatment of unrelated lower back and pelvic pain.
[40] TN 26 and 38
[41] TN 25
59 According to her affidavit, on 22 October 2009, the plaintiff consulted Dr Murray for treatment of dizzy spells and difficulty with balancing.[42] Dr Murray, a physiotherapist with ‘Dizzy Day Clinic’, reported seeing the plaintiff twice, in 2009 and 2010, in the treatment of what was described in her report as: “significant neck and shoulder pain and vertigo associated with running and turning quickly”.[43] Dr Murray apparently specialised in vestibular rehabilitation.
[42] PCB 10
[43] PCB 49-51
60 Under cross-examination, the plaintiff agreed that on 9 June 2010, Dr Murray had certified her fit for all duties associated with her role in the Police Force. Accepting for the moment the accuracy of the record made in June 2011 by occupational physician, Dr Horsley, some months after Dr Murray certified the plaintiff fit for her duties, in August/September 2010, the plaintiff passed her fitness test.[44]
[44] PCB 99
61 In her report dated 18 March 2014, Dr Murray explained that in 2009 she had provided the plaintiff with an exercise regime to help with dizziness and balance problems and reviewed the plaintiff once in 2010. Her opinion at that time was that the dizziness and balance problems reported by the plaintiff could have been caused by damage to the plaintiff’s inner ear (vestibular) function in the context of a whiplash type injury. Without knowledge of the extent of the plaintiff’s progress with the exercise regime, in 2014 Dr Murray said she was unable to provide a prognosis.[45]
[45] TN 26
62 Dr Murray’s evidence, nevertheless, indicated her acceptance in 2010 that the reported symptoms, whether due to an inner ear problem or neck and shoulder pain (the latter aggravated by driving longer distances) were probably still impacting on the plaintiff’s ability to perform her policing duties (but not to the extent that Dr Murray considered her unfit to perform these duties), as well as on her ability to engage in other activities such as gym-work, dancing, driving and shopping.
63 Importantly, Dr Murray attributed the plaintiff’s reported inability to run for any distance or to complete the beep fitness test to the inner ear condition. This evidence was consistent with a finding that, in 2010, any ongoing symptoms of dizziness or vertigo were probably caused by a condition other than cervical spine dysfunction. If I am correct in my understanding of this evidence, it is unlikely that symptoms of cervical spine dysfunction were a cause of the plaintiff’s inability to pass the beep test, without a less than rigorous approach to testing.[46] This is not to deny, however, that symptoms of cervical spine dysfunction may have also contributed to the plaintiff’s difficulties in engaging in fitness tests per se.
[46] PCB 49
64 It appears that another osteopath working at the Kingston Spinal & Osteopathic Clinic, Dr Zampierollo was responsible for ordering the MRI scan obtained in February 2010 and for referral of the plaintiff to both the Melbourne Whiplash Centre and to pain management specialist at the Metro Spinal Clinic, Dr Gassin. Her concern at the time was that the plaintiff reported limited relief from ongoing osteopathic treatment, dizziness and collapsing on exertion and progressive worsening of her symptoms.[47]
[47] PCB 32 and 65-66
65 Dr Gassin examined the plaintiff once. The salient features of his report, addressed to Dr Zampierollo and dated 21 April 2010 are summarised as follows:[48]
[48] PCB 56-57
· the plaintiff’s symptoms included constant aching across the neck and both shoulders and arms, weakness in both arms, a tendency to fatigue easily, aching in the upper back due to prolonged standing, spontaneously occurring spasms in her neck and constant headache and dizziness on repetitive movements and activities such as jogging;
· the plaintiff reported giving up jazz ballet and an inability to meet the full fitness criteria for the police force or to participate in sport;
· the plaintiff reported taking Heron tablets when pain was severe;
· examination of the plaintiff revealed an excellent range of cervical and shoulder movement and normal neurological findings for the upper limbs. Otherwise, the plaintiff reported tenderness to palpitation of the cervical spine bilaterally more so on the right side;
· he diagnosed whiplash injury. Dr Gassin recommended that the plaintiff take painkilling medication, Panadol Osteo 2 to 3 times daily and the anti-nausea medication, Stemetil before exercise to help improve her exercise tolerance. The recommendation that the plaintiff take Stemetil was probably intended to address the symptoms of dizziness;
· he wrote to TAC seeking approval of bilateral C4 to C7 diagnostic medial branch blocks, which, if positive, Dr Gassin thought could lead to radiofrequency neurotomy of the facet joints. The plaintiff, however, deposed that she chose to continue with conservative treatment because she was concerned about any risks involved in having the injections.[49] Under cross-examination, the plaintiff said she believed the injections had been recommended to treat pain. However, during re-examination, the plaintiff repeated her concern about the potential side-effects, adding that TAC had not given approval for this treatment.[50]
[49] PCB 11
[50] TN 27 and 37
66 As is apparent from my summary of Dr Gassin’s report and much of the later medical evidence, the symptoms reported were all generally ascribed to whiplash injury without differentiating between symptoms and disability potentially caused by another condition, vestibular dysfunction and symptoms and disability caused by cervical spine dysfunction. I was not satisfied that either Dr Murray or Dr Gassin turned their minds to this distinction. In these circumstances, for the purpose of assessing the consequences of impairment of the cervical spine, I have rejected counsel’s submission to the effect that these doctors attributed the symptoms of dizziness or vertigo to cervical spine dysfunction.[51]
[51] TN 90-92
67 I note that, before the plaintiff’s pregnancy was revealed, in May 2011 and June 2011 respectively, two specialists, orthopaedic surgeon, Mr Simm and occupational physician, Dr Horsley, examined the plaintiff and provided medico-legal reports to her solicitors.[52]
[52] PCB 81-87 and 94-100
68 In his report Mr Simm relevantly noted the following matters:[53]
[53] PCB 81-86
· the plaintiff was then performing normal duties, although she had problems sitting or standing for unlimited periods and needed to adapt some of her work duties with the cooperation of her colleagues;
· the plaintiff was undergoing fortnightly chiropractic treatment;
· use of Lexapro had been discontinued. It appears that, when he submitted this report Mr Simms probably incorrectly believed from reports made by the plaintiff that Lexapro had been prescribed following the accident in the treatment of accident-related symptoms of anxiety;
· the plaintiff took Nurofen and Heron Blue (Ibuprofen);
· the plaintiff had noted some improvement in the first eight months after the accident but none since;
· the plaintiff’s reported symptoms included “almost constant headaches” (over the temples and radiating to the back of the head and suboccipital region), constant pain radiating across the shoulders and into the shoulder blades, a pulling sensation over the top of the shoulders, weakness in the arms, a general weakness when lifting overhead and a sensation of tightness and soreness in the pectoral muscles and some transient pins and needles in the arms when she slept on one side in bed at night;
· the plaintiff reported an inability to sustain prolonged periods of running and strenuous physical activity, an inability to remain in a car or stand for the full eight hour shift at work, having attempted to return to jazz ballet several months after the accident, an inability to sustain more than one class per month before she gave up this activity, restrictions on her ability to carry heavy loads when shopping and her belief that she would not be able to pass the more rigorous fitness assessment required to train for work in a specialised Unit such as the Dog Squad;
· on examination, among other things, Mr Simm noted that movements of the cervical spine were essentially normal, although there was some mild guarding and complaint of discomfort at extremes of movement, there was no specific tenderness, the plaintiff was not reactive to palpitation, movement of both shoulders was normal and there were no clinical signs of radiculopathy;
· Mr Simm doubted the significance of the minor changes shown on MRI scan;
· as mentioned, Mr Simm diagnosed an acceleration hyperextension injury to the cervical spine which he felt had been complicated by the development of a whiplash syndrome. He also observed that the protracted clinical course was typical of the diagnosis of a whiplash syndrome. This injury was, he said, substantially stabilised and unlikely to change in the foreseeable future. Mr Simm also noted an associated emotional disturbance for which he recommended psychiatric assessment;
· as to her physical injuries, Mr Simm felt the plaintiff was unlikely to respond to any further specific forms of treatment. Mr Simm recommended self-regulation of activities, regular aerobic exercise, over-the-counter analgesic and/or anti-inflammatory medication if required and physical therapy to ease muscle spasms. He did not, however, endorse ongoing chiropractic or other therapies;
· Mr Simm evidently accepted that the ongoing whiplash syndrome interfered with the plaintiff’s ability to engage in fitness assessments to gain promotion in the manner described by her and had required her to modify her daily work duties on an unofficial basis and with the cooperation of her colleagues. He also appeared to accept the plaintiff’s statements about the physical impact of the whiplash syndrome on her social, domestic and recreational activities;
· the injury to the plaintiff’s neck had the potential to accelerate degenerative changes in the cervical spine. In the absence of up-to-date radiological material this was not a factor I allow for in determining this application.
69 In her first report, Dr Horsley relevantly reported the following matters:
· the plaintiff was receiving chiropractic treatment fortnightly;
· the plaintiff’s report that her symptoms impacted on her work such that her inability to stand for long periods reduced her capacity to do traffic direction and crime scene guarding. As a result, the plaintiff needed to negotiate with colleagues;
· the plaintiff was working full-time with 2 to 20 hours of overtime performed per fortnight;
· whilst the plaintiff hoped to move to the Dog Squad or the Mounted Branch, she had not undergone a further fitness assessment due to her concern that she would not pass this or be able to maintain her fitness level. The plaintiff was also fearful that she would lose her job, although in August/September 2010 she had passed her fitness test;
· the plaintiff reported chronic neck, bilateral shoulder and anterior chest wall discomfort varying on the visual analogue scale from 4 to 5 up to 8 to 9 out of 10, sensitivity to touch over the anterior chest wall, aching and weakness in her arms and chronic headaches varying on the visual analogue scale from 2/10 up to 9/10;
· the plaintiff claimed to have had “no relief in three years”;
· the plaintiff reported she was unable to overreach or push, pull or elevate her arms for any prolonged periods, she could only do two push-ups, she had difficulty carrying the eight kilograms of equipment she needed to wear either as a waist belt or on a vest, her functional tolerances for sitting, dynamic and static standing and driving were all reduced;
· the findings, on physical examination, were essentially normal, that is a normal range of cervical movement and of bilateral shoulder movement;
· the radiology revealed minor discogenic degenerative change and, unlike Mr Simm, Dr Horsley considered the development of degenerative change in the future unlikely;
· clinically, the plaintiff presented with moderate depression for which she required treatment;
· the plaintiff was suffering from ongoing mechanical cervical dysfunction.
70 Dr Horsley recommended that the plaintiff restrict her work activities by avoiding repetitive overreaching, repetitive above shoulder activities, static postures involving the cervical spine, lifting items greater than 10-12 kilograms except on occasional basis and lifting items up to 10 kilograms on a repetitive basis. Whilst Dr Horsley considered the physical component of the condition had substantially stabilised, in her opinion, the plaintiff still required a structured physical program and pain management strategies to improve her functional tolerances.[54]
[54] PCB 98-99
71 As is apparent from their reports, Dr Gassin, Mr Simm and Dr Horsley found no evidence of any specific pathology to explain the plaintiff’s symptoms, yet they accepted that her symptoms and the level of pain described were indicative of ongoing cervical dysfunction following a whiplash involving the cervical spine.
72 I could not, however, reconcile the constancy and the severity of pain reported particularly to Mr Simm in May 2011 and the claim recorded by Dr Horsley that the plaintiff had not experienced any relief in the three years since the accident with the treating chiropractor’s evidence of the symptomatic improvement achieved by March 2011. This was an occasion on which I concluded that, the treating health professional had been better placed to observe and record the plaintiff’s response to treatment up to March 2011. This is not to deny, however, the claimed fluctuating and intermittent nature of symptoms affecting the cervical spine for which the plaintiff has received treatment over many years.
73 As mentioned, the plaintiff fell pregnant in mid-2011. As a consequence, the plaintiff reported she avoided medication other than an occasional Panadol tablet and she avoided activities that were likely to exacerbate her neck condition. The pregnancy was the reason the plaintiff moved to part-time modified duties until she took maternity leave in February 2012.
74 During her pregnancy, on or about 19 October 2011, the plaintiff consulted specialist in pain management, Dr Goodchild on referral from another doctor from the Jasper Family Medical Practice, Dr Grossman.
75 Dr Goodchild reported that he had reviewed the plaintiff’s history and the radiological reports. He examined her once. The salient features of his report are summarised as follows:[55]
[55] PCB 63-64
· Dr Goodchild found no evidence of any severe anatomical abnormality;
· the plaintiff presented as severely disabled by pain in her upper back and across the upper part of her chest;
· examination had revealed no restrictions in movement of the neck, shoulders or upper back and no specific tender points, other than possibly “a little bit of tendonitis” in the area of the sternocleidoid muscle to the clavicles and at the costochondral junctions of T2, 3 and 4 bilaterally;
· Dr Goodchild, however, believed that most of the plaintiff’s pain syndrome was due to sensitisation of the central nervous system. This is another way of saying that sensitisation of the central nervous system mostly explained the reported chronic pain, not any underlying pathology;
· in view of the plaintiff’s pregnancy, he recommended non-medical treatments such as heat packs, massage, pilates, hiring a tens machine and various relaxation techniques;
· he believed the prognosis was “relatively good” if the plaintiff moved away from the belief that her pain was anatomically driven;
· he contemplated review in three months-time or earlier, if needed.
The plaintiff did not return to this specialist. Her evidence was silent on the extent to which, if any, she had pursued the recommended non-medical treatments. However, within a couple of months of Dr Goodchild’s examination, the plaintiff consulted another osteopath, Lorrae Griffiths from Focus Osteopathy. Ms Griffith’s report, dated 18 July 2012, indicated that the plaintiff was treated from 21 December 2011 until after the birth of her first child in March 2012 and probably well into 2012.[56]
[56] PCB 67-69
76 The plaintiff apparently gave a history of accident-related ongoing neck and upper back pain for which she was undergoing chiropractic treatment. Nevertheless, based on Ms Griffiths’ report, the initial consultation in December 2011 was for management of the plaintiff’s pregnancy and for treatment of pregnancy-related posterior pelvic and sacro-iliac pain. The latter condition, the plaintiff explained was brought on by hormonal changes during pregnancy and had resolved within four months of the birth of her first son.[57]
[57] TN 36-37
77 Having regard to, the evidence of the pain management specialist, Dr Goodchild, the chiropractor, Dr Berntsen and the osteopath, Ms Griffiths, I concluded that, after falling pregnant, the focus of active chiropractic or osteopathic therapies had probably temporarily shifted to treatment of lower back symptoms, caused solely by the plaintiff’s pregnancy.
78 Nevertheless, after commencing maternity leave, on 15 February 2012, the plaintiff again sought treatment of what she told Ms Griffiths was “deep discomfort in the neck and shoulder area particularly on the left,” a “’dead’ and heavy feeling in her left arm” and regular suboccipital and frontal headaches “of late”.[58]
[58] PCB 67
79 Ms Griffiths diagnosed muscular-ligamentous strain of the cervical spine and surrounding muscles, a whiplash type syndrome, exacerbated by postural changes occurring in the later stages of pregnancy. She understood that the plaintiff’s condition had been significantly relieved by osteopathic treatment, such that the plaintiff had been able to continue her day to day activities “with minimal discomfort”.[59]
[59] PCB 68
80 Within weeks of the birth of her first child, the plaintiff returned for treatment of neck symptoms and headaches, which Ms Griffiths again felt had been exacerbated by postural changes with breastfeeding and other activities associated with caring for the plaintiff’s baby. She was, however, confident that, with more intense cervical stability exercises and pilates classes, the plaintiff’s symptoms would significantly improve and stabilise and the likelihood of exacerbation of her condition in the future would decrease.
81 In short, based on Ms Griffith’s evidence, as a result of the whiplash syndrome, the plaintiff was vulnerable to flare-ups in pain where she had to cope with the additional physical demands of pregnancy and child care, but with treatment the level of her discomfort in performing day-to-day activities was minimal.
82 When she swore her first affidavit on 31 March 2012, the plaintiff described ongoing pain, stiffness and discomfort affecting her neck and upper back, pain extending down over both shoulders and between her shoulder blades, frequent neck spasms, headaches and aggravation of her neck symptoms by activities involving lifting, neck flexion and rotation, running and prolonged standing, sitting and walking.[60]
[60] PCB 11
83 In this affidavit, the plaintiff also described dizzy spells (“I find that activities such as turning around quickly, bending down or running cause these dizzy spells”[61]) followed by nausea and accompanied by an increase in her neck symptoms. Whilst these symptoms were not mentioned in Ms Griffiths’ report, the reference to dizzy spells in the plaintiff’s affidavit nevertheless suggested that, as late as March 2012, the plaintiff still suffered symptoms associated with vestibular dysfunction as part of the whiplash syndrome.
[61] PCB 11
84 In July 2012, Ms Griffiths recommended osteopathic sessions for cervical stability rehabilitation. Evidently, TAC approved these further osteopathic sessions during 2012. Accordingly, by July 2012 the treatment received was again focused on cervical stability rehabilitation. Whilst none of the evidence, independently, confirmed that the plaintiff continued any cervical stability regime, I note that over many years, she has repeatedly sought chiropractic and/or osteopathic therapies in the management and treatment of fluctuating neck pain and symptoms.
85 The plaintiff was still on maternity-leave when, in July 2012, Ms Griffiths advised the plaintiff’s solicitors that the plaintiff was probably fit for her pre-injury employment as a police officer. However, until the plaintiff completed a cervical stability exercise program, Ms Griffiths recommended restrictions on work activities that could exacerbate the plaintiff’s symptoms. These included wearing of heavy utility vests, driving for long periods and undertaking intense fitness tests within the force.
86 I note, however, that on 31 July 2012, a general practitioner from the Jasper Family Medical Practice, Dr Walker gave contrary advice to the plaintiff’s solicitors to the effect that on review on 4 July 2012, the plaintiff had been unfit for active duties, due to chronic neck pain and acute flares of pain.[62] From my reading of the report, Dr Walker did not examine the plaintiff’s cervical spine.
[62] PCB 40-41
87 So far as treatment was concerned, Dr Walker recommended the plaintiff persist with her osteopathic sessions, pursue the non-pharmacological treatments and the management strategies advocated by Dr Goodchild in October 2011 and ongoing review and pain management by the Monash pain service, adopt alternative breast feeding positions and take paracetamol as needed. Notably, in his final submissions the plaintiff’s counsel did not seek to rely on Dr Walker’s advice in July 2012, that the plaintiff was unfit for work.[63]
[63] TN 113
88 In summary, until pregnancy changed the landscape, the plaintiff was probably fit for full-time operational duties as a Senior Constable, subject to the restrictions recommended in 2011 and 2012 by Dr Horsley and the treating osteopath. Whilst, the requirements of motherhood probably did exacerbate the plaintiff’s neck symptoms in the period subsequent to the birth of her first child, I was not, however, satisfied that, by reason of accident-related cervical spine dysfunction, the plaintiff had been and remained unfit to return to any policing duties. Whether some restriction on her operational duties remained necessary, was another matter.
89 Without nominating the dates between which this occurred, the affidavit evidence of the plaintiff and Mr Kent indicated that in early 2013, the plaintiff worked for a few weeks in Mr Kent’s cafe business.[64]
[64] PCB 18 and 138-140
90 The plaintiff gave evidence to the effect that working in the cafe located in Mentone had caused problems with her back, neck and arms and had increased the frequency of her headaches. Under cross-examination, the plaintiff denied that she left the café job after moving to Sunbury, because of any difficulty in travelling to work in a café located in Mentone.
91 Mr Kent’s evidence was to the effect that the plaintiff performed the equivalent of waitressing duties over four hour shifts, usually commencing at 6 pm. He was, he deposed aware of the plaintiff’s neck condition. In short, despite allowances made for the plaintiff’s neck condition, Mr Kent said the plaintiff had not coped with the full range of duties required. This was the reason given for her resignation. His evidence and the evidence of the plaintiff’s husband (“Amanda was not able to maintain the job due to the Café work aggravating the pain in her neck. Amanda was getting home from work cranky and exhausted”[65]) generally corroborated the plaintiff’s evidence that she had left the café because she could not manage the physical demands of the job.[66]
[65] PCB 135
[66] TN 33 and PCB 18
92 During this period, it appears that a certificate dated 3 April 2013, authored by another doctor from the Jasper Family Medical Practice, Dr Kerr, relevantly stated that this doctor considered the plaintiff required ongoing osteopathic treatment (three times weekly) and over-the-counter basic analgesia to control pain caused by the injury to her cervical spine.[67]
[67] PCB 44
93 Between May and September 2013, the plaintiff lived in Canada with her husband and child. The plaintiff’s evidence, that she received occasional osteopathic treatment whilst living overseas was supported by her husband’s affidavit evidence and by the reports of osteopath, Ms Lajeunesse. The latter, submitted two reports dated February 2014 and May 2014 respectively.[68] The reports were quite similar in their content. In summary, Ms Lajeunesse noted the following:
[68] PCB 75-78
· between 17 May 2013 and 4 September 2013 the plaintiff had seven osteopathic treatments for neck pain and bilateral shoulder pain;
· the plaintiff reported significant pain in the cervical spine and paraesthesia in her left arm;
· having seen the reported result of the MRI scan, Ms Lajeunesse concluded that compression of the nerve roots (presumably at least at the C3/4 level) was a cause of pain and the reported paraesthesia in the left arm. This evidence was at odds with the specialists’ evidence which found no radiological or clinical evidence indicative of compression or radiculopathy;
· the plaintiff reported experiencing strong headaches, migraines, sleep disturbance and compromise of her activities of daily life and work;
· Ms Lajeunesse observed symptoms of depression;
· treatment had led to a decrease in neck and left arm pain, improvement in the range of motion of the cervical spine and had diminished the intensity of the headaches experienced;
· Ms Lajeunesse recommended ongoing osteopathic treatment and opined that the plaintiff was not fit to return to work or perform the normal activities of daily life.
94 I accept that the plaintiff had been treated by Ms Lajeunesse for the symptoms as reported. I have, however, preferred the evidence given by specialists on both sides, all of whom are expert in the interpretation of radiological information as well as the expert evidence of the occupational physician concerning the plaintiff’s ability to return to perform her pre-injury duties as a police officer. Consequently, Ms Lajeunesse’s evidence was of less assistance to the plaintiff than it might otherwise have been.
95 As mentioned, the plaintiff fell pregnant again in 2013. On 13 September 2013, in about the sixth week of her pregnancy, the plaintiff consulted Dr Salter at the Calder Medical Clinic.[69] As is apparent from his short report dated 1 April 2014, subsequent visits on 24 September 2013 and 11 November 2013 were also related to the plaintiff’s pregnancy. However, on 5 November 2013, Dr Salter referred the plaintiff to pain management specialist, Dr Thomas, he said, to help the plaintiff deal with ongoing pain issues since the accident. I will discuss Dr Thomas’ evidence shortly.
[69] PCB 53
96 TAC has funded osteopathic treatment by osteopath, Dr Stuart King, since October 2013, either fortnightly or every three weeks. This treatment includes massage and manipulation.[70]
[70] PCB 16
97 In a report dated 5 March 2014, Dr King indicated the following matters:[71]
[71] PCB 72-74
· since 4 October 2013, the plaintiff had attended seven treatments for severe neck pain and referral of pain and pins and needles down both arms;
· having also noted the reported results of the MRI scan (“minor discogenic degenerative change at C3-4 and C6-7”[72]) Dr King diagnosed: “(c)hronic C6-7 disc degeneration (with a possible bulge) with associated hypertonic Cervical erector spinae, scalenes and suboccipital muscles, predisposed by MVA in 2009”. Without further explanation the diagnosis reported was of little assistance;
[72] PCB 72
· the plaintiff was receiving treatment fortnightly, consisting of mobilisation of the cervical and thoracic spine, traction of the cervical spine, “soft tissue techniques of the surrounding muscles and stretching techniques of those muscles”;
· treatment had led to detectable improvement in the plaintiff’s condition and a lessening of her symptoms: “in particular the radicular pain down her arms. She has been able to sleep easier and her headaches have decreased”;[73]
· whilst further improvement was expected, full recovery was unlikely and, due to the nature of the disc injury suffered (presumably the degenerative changes found at two levels of the cervical spine), Dr King predicted the plaintiff’s employment in the future would be limited to non-physical occupations.
[73] PCB 73
98 As with the evidence of the Canadian osteopath, I have preferred the specialist interpretation of the radiological evidence and the occupational physician’s assessment of the plaintiff’s ability to perform the duties of a police officer. Dr King’s evidence, nevertheless, indicated that treatment every two to three weeks had been beneficial in managing the plaintiff’s symptoms.
99 As mentioned, Dr Thomas examined the plaintiff once on 7 March 2014, at the request of Dr Salter. The salient features of his report are summarised in the following points:[74]
[74] PCB 54-55
· the complaint made was of neck and interscapular pain with pain radiating into the arms;
· pain levels fluctuated between 6/10 at the worst to 1/10 at best and on average 3 to 4/10;
· medication taken was minimal due to the plaintiff’s pregnancy, but included Panadol or Nurofen;
· the plaintiff described significant interference with her function on a day-to-day basis;
· examination revealed minimal upper back, interscapular and shoulder girdle tenderness, well preserved movements of the cervical spine and shoulders with no evidence of neurological involvement;
· as with all of the medical experts, Dr Thomas considered the radiological results were unremarkable;
· Dr Thomas diagnosed whiplash and associated disorder. Whilst there was discussion at hearing about what was meant by “associated disorder”, having considered the report as a whole, I was satisfied this described the disorder associated with the mechanism of injury, namely an episode of whiplash, rather than say any vestibular disorder;[75]
[75] TN 66, 86 and 89
· Dr Thomas considered assessment by an occupational therapist to assist the plaintiff in her functional activities preferable to multidisciplinary rehabilitation during pregnancy;
· Dr Thomas did not believe interventional treatments had anything to offer the plaintiff. In short, Dr Thomas did not perceive any lasting benefit to be had from ongoing osteopathic or chiropractic treatments;
· the plaintiff’s injuries had stabilised, although Dr Thomas felt that having a newborn child and expecting another could lead to flare-ups at least temporarily.
100 As previously mentioned, in accordance with Dr Thomas’s recommendation, shortly prior to the hearing, an occupational therapist undertook an assessment. In this regard, the defendant relied on the plaintiff’s evidence-in-chief in which she clearly stated that some of the equipment recommended by the therapist was intended to relieve the unrelated lower back condition for which the plaintiff had previously sought treatment from both chiropractor, Dr Berntsen and osteopath, Ms Griffiths (“So, a higher cot, a higher change table and bathing system, as well as a high back supportive chair, to help me just with everyday easing of the pressure of my back pain”[76]).
[76] TN 16
101 Both in her affidavit evidence and under cross-examination, the plaintiff indicated that she continued to suffer from pain in her neck and back[77] and she was now very dependent on her husband to assist her by performing heavier household duties and by coming home during the day to help with lifting or bathing the children. Under cross-examination, the plaintiff indicated that the last mention activities, aggravated pain in her back, neck and arms and increased her headaches.[78]
[77] PCB 16
[78] TN 39
102 The defendant submitted that the plaintiff’s evidence indicated a failure to differentiate between the consequences of unrelated lower back pain and the consequences of any unresolved cervical spine dysfunction.[79]
[79] TN 52
103 I was satisfied by the plaintiff’s evidence that the lower back pain for which she required treatment during each pregnancy was probably, as she claimed, a short-term consequence of pregnancy. I was further satisfied that, for example, the provision of the clotheshorse and the further recommendations by the occupational therapist to supply a high back support chair and assess the plaintiff for a panoramic mirror, were related to the plaintiff’s cervical spine dysfunction.
104 Obviously, the plaintiff must prove on the balance of probabilities that any consequence, including that the assistance both she and her husband said he gave her was a long-term consequence of her cervical spine dysfunction. I will discuss the extent to which her husband’s affidavit evidence corroborates the plaintiff’s claimed consequences, shortly.
Medico-legal evidence
105 Mr Simm re-examined the plaintiff during the currency of her second pregnancy on 6 November 2013. At the time, Mr Simm had a copy of Dr Murray’s report from 2012, Dr Horsley’s earlier report and a report prepared by a psychiatrist.
106 When the plaintiff was re-examined in November 2013, she apparently reported a slight worsening of her condition, which she attributed to the physical demands arising from the care of her young son and the fact that she was unable to exercise to maintain fitness and strength.[80] In this report, Mr Simm relevantly noted the following matters:
[80] PCB 88-92
· prior to her pregnancy, the plaintiff had regularly taken Advil and Nurofen;
· the plaintiff was then managing her condition through self-regulation of her activities, presumably due to her pregnancy;
· the plaintiff experienced pain from the base of the skull down to the base of her neck radiating across the shoulders and then extending from the shoulders into the upper arms and to the elbows, she experienced some pain at extremes of movement of her head and neck, she woke 4 to 5 times at night with numbness of the entire right or left arm depending on which side she slept, she experienced general weakness in her upper limbs and struggled with everyday activities such as opening bottles, she experienced spasms of shooting pain in the neck on occasion, fatigue after about two hours in a vehicle and her only specific physical exercise involved walking her young son in a pram;
· the plaintiff had no immediate plans to return to the police force or to alternative employment because she was expecting her second child;
· the clinical findings on re-examination were essentially unchanged. The diagnosis on this occasion was perhaps more specific, in that Mr Simm recorded that the plaintiff was suffering from: “residual cervical dysfunction as a result of an acceleration hyperextension injury to the cervical spine on 28 February 2009. She continues to suffer from chronic neck pain, headaches and an associated emotional disturbance”;[81]
[81] PCB 90
· Mr Simm anticipated that the plaintiff would require ongoing conservative management of her chronic symptoms which included osteopathic treatment and after the birth of her child probably resumption of medication. Accordingly, having previously rejected alternative therapies, Mr Simm foresaw some therapeutic benefit from osteopathic therapy over the longer term;
· Mr Simm predicted that the plaintiff’s condition would persist largely as described, although he foresaw the possibility of a gradual improvement over many years;
· Mr Simm foresaw ongoing problems in the plaintiff’s social, domestic and recreational activities due to cervical spine dysfunction which he predicted would be exacerbated by caring for two young children;
· Mr Simm concluded that any return to the workforce in the future would probably be in a less physically demanding role. In Mr Simm’s view, the plaintiff’s condition would probably prevent her from continuing her career as a police officer and she would probably be unable to meet the requirements of the fitness assessment.
107 The defendant challenged the bases upon which Mr Simm concluded, firstly, that the plaintiff’s condition would impact on her social, domestic and recreational activities and secondly, his conclusion that the plaintiff would need to work in less demanding physical roles in the future.[82]
[82] TN 71-74 and 83
108 For many years, the plaintiff has consistently reported and been treated by doctors and health professionals alike, for symptoms of cervical spine dysfunction and, more recently she has reported exacerbation of her condition due to the physical impact of her pregnancies and the physical demands of child care. The plaintiff does, however, continue to perform many of the activities of daily living, such as driving, caring for her children and shopping and the time spent caring for her children probably does impact on the time available to undertake recreational pursuits.
109 I, nonetheless, concluded that Mr Simm was well placed to accept, as he did, that cervical spine dysfunction had imposed and would continue to impose restrictions on the plaintiff’s social, domestic and recreational activities in the manner described and on her ability to work in physically demanding occupations over the longer term, having regard to the diagnosis of a likely whiplash injury and Mr Simm’s understanding of the long-term physical effects of symptoms of whiplash syndrome.
110 However, I was not satisfied that, Mr Simm was able to give an unqualified opinion about the type of duties the plaintiff could perform in the future, particularly in the police force.
111 On 14 November 2013, Dr Horsley re-examined the plaintiff.[83] She was provided with reports from a psychiatrist and an ear, nose and throat specialist and clinical notes from the Medical One clinic and from the Dizzy Day Clinic. Among other things, Dr Horsley’s further report records the following matters:
[83] PCB 101-106
· the plaintiff presented as very emotional and complained that she felt that she was deteriorating;
· the plaintiff reported neck pain that came and went but was not present at rest. Rather rapid neck movements could cause acute discomfort and there was general tenderness to touch around the cervical and shoulder girdle area;
· the plaintiff’s primary complaint was of headaches that constant (varying in intensity from 3 to 4/10, up to 7/10 on the visual analogue scale but not associated with nausea, vomiting, facial numbness, visual disturbance or speech disturbance) and interscapular pain (varying on the visual analogue scale from 3 to 4/10 up to 8/10) and chronic aching radiating from her bilateral shoulder girdles into her arms. The plaintiff described increasing pain and aching in the shoulder girdles, wakefulness at night and numbness in her arm if she sleeps on one side (“She feels that arms have ‘deteriorated’”);
· the plaintiff reported reduced functional tolerances in sitting, driving, static and dynamic standing and walking. As far as I can tell, other than a reduction in her walking tolerance (down from about an hour to 40 minutes) and an increase in her dynamic standing tolerance (up from 30 minutes to a couple of hours), the tolerances reported were much the same as those reported in June 2011;
· the plaintiff reported fatigue and a reduced libido;
· the clinical findings now indicated some mild reduction in power of the left side for the left-hand dominant plaintiff;
· having considered the assessment made at the Dizzy Day Clinic in 2009, Dr Horsley noted that that vertigo was not currently a major issue;
· a diagnosis of intermittent mechanical neck pain and chronic myofascial pain in the bilateral shoulder girdles and interscapular region with an indication that the plaintiff was suffering moderate depression;
· without indicating the extent of these, Dr Horsley concluded that the plaintiff’s symptoms would likely to persist;
· she recommended a structured pain management program (“She presents with disability that could be addressed with a pain management program”[84]) in preference to ongoing chiropractic or osteopathic treatments (“I believe that Osteopathy has reached its plateau of effectiveness”[85]);
· Dr Horsley advocated the same restrictions on repetitive overreaching, repetitive above shoulder activities, static postures involving the cervical spine and on lifting of weights, recommended in June 2011, when the plaintiff was still performing full-time duties. In circumstances where the plaintiff reported no plans to return to the workforce until mid-2015, Dr Horsley said these restrictions should now apply to domestic and recreational activities.
[84] PCB 106
[85] PCB 105
112 Clearly, Dr Horsley was qualified to comment, as she did, on the plaintiff’s ability to undertake particular tasks whether in a domestic, social, recreational or work environment. It is reasonable to assume that the restrictions mentioned by Dr Horsley probably would have also applied in the workplace had the plaintiff returned to work by the date of hearing. Accordingly, these restrictions probably would affect the plaintiff’s opportunities to work in some areas of policing and it follows to progress her career as planned in the police force.
113 Dr Horsley did not indicate the level at which she believed the plaintiff’s symptoms would persist. She appeared confident that an intensive outpatient pain management program in the future would address the plaintiff’s disability. However, the evidence of Mr Simm (“Her prognosis is for her condition to persist largely as described. There may be a tendency for gradual improvement over many years”[86]) and, to a lesser extent, of Dr Thomas (“The nature of the whiplash and associated disorder syndrome did seem to be quite severe for her” and “(t)he injuries have stabilised as much as they are going to”[87]) suggest that even structured pain management treatment post-pregnancy was unlikely to bring about significant improvement in the level of the plaintiff’s disability.
[86] PCB 91
[87] PCB 55
114 Orthopaedic surgeon, Mr Dickens was the last of the medico-legal specialists to examine the plaintiff. He did so on 22 April 2014. His report to the defendant’s solicitors was dated 25 April 2014.[88] Among other things, Mr Dickens recorded the following matters:
[88] DCB 17-22
· the plaintiff reported: “pain which is in the neck and goes down in to the inter-scapular region and out to both shoulder blades, it also goes in to the shoulders and down the front of the chest and can go down both arms to the elbows. She describes tired and aching fatigue in the forearms. The arm symptoms seem to be equal”;
· the plaintiff reported pain on a visual analogue scale at its worst 6 to 7/10 and on average 3 to 4/10. She was never free of pain which was exacerbated by prolonged sitting or standing and by activities such as vacuuming, cooking, hang out washing, breastfeeding and driving;
· pain was improved by rest, medication, osteopathic treatment and heat packs. The beneficial effects of the osteopathic treatment only lasted for six or seven days;
· the plaintiff reported that if her neck was tight she experienced restriction in movement from side to side;
· the plaintiff was attending her osteopath every second or third week and, due to her pregnancy, she was not using medication;
· on examination of the neck and shoulder region, he found some restriction in lateral flexion of the neck to the left, with mild tenderness in the cervical spine but more so around the scapular region on the right side and in the inter-spinous area;
· a diagnosis involving a minor soft tissue injury to the cervical spine, without there being evidence of radiculopathy or any suggestion that the minor degenerative changes and slight disc bulging shown on the MRI scans was related to the accident;
· Mr Dickens appeared to accept the plaintiff’s account of the impact of impairment of her cervical spine on caring for her children and undertaking domestic tasks such as shopping and on her ability to vacuum and mop floors, not to mention on the plaintiff’s ability to go dancing;
· he considered the plaintiff’s condition stabilised; without explaining why when the plaintiff remained symptomatic, Mr Dickens said he did not believe that any further treatment was indicated.
115 It was evident from Mr Dickens report that he too considered the plaintiff’s condition unresolved. However, due to the current focus on childcare and the advanced stage of the plaintiff’s pregnancy, Mr Dickens felt unable to predict the course of her symptoms in the future. These matters helped persuade me that Mr Dickens’ evidence was less helpful in determining this application than it might otherwise have been.
The pain and suffering consequence
116 Evaluation of the pain and suffering consequence required consideration of the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including her capacity for work) and enjoyment of life.[89]
[89] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17], applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
117 Evidence of the intensity and frequency of pain (in this case given by the plaintiff and her husband and recorded by health professionals and doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain, was important to any proper evaluation of the plaintiff’s experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continued to limit this plaintiff’s activities and interfere with her enjoyment of life.
118 Prior to suffering a likely soft tissue whiplash injury to her cervical spine, the plaintiff was a physically fit, active 22 year old police officer, who enjoyed maintaining a high level of fitness with activities such as a jazz ballet and who had not required assistance to perform her own household tasks.
119 Based on all of the evidence, by June 2011 the plaintiff had progressed to working full-time hours and regular overtime, albeit with some informal modification of her duties to accommodate her symptoms. The plaintiff had been passed as fit to continue in her operational duties. She duly progressed to the rank of Senior Constable. In short, if as claimed, the whiplash injury had contributed to any earlier delay in progressing from the plaintiff’s probationary status to the rank of Constable, this was probably the result of inner ear problems. Accordingly, as far as I could tell, the promotion to Senior Constable was not delayed by any cervical spine dysfunction, nor was the plaintiff’s position as a serving officer in the police force under imminent threat due to symptoms of ongoing cervical dysfunction when she fell pregnant.
120 Accepting as I have, however, that the plaintiff’s concern that had she applied she would not have been able to meet and maintain the additional fitness requirements imposed by the Units in which she had hoped to work, by mid-2011, the plaintiff had probably already lost the opportunity to progress to these positions due to unresolved symptoms of cervical spine dysfunction. Importantly, any dizziness or vertigo problems appear to have all but disappeared.
121 The evidence also suggested that, currently, the plaintiff’s capacity to cope with duties in more physically demanding roles, whether as an operational police officer or otherwise, as well as cope with the care of small children probably was compromised over the longer term by unresolved symptoms of cervical spine dysfunction.
122 In summary, I was not satisfied that, by reason of her injury the plaintiff could not return to work in the police force. The plaintiff has, nonetheless, established a likely need to restrict future employment options, whether in the police force or in any other occupation to avoid duties that could exacerbate likely long-term impairment of function of her cervical spine. It follows from this, that, by reason of impaired functioning of the plaintiff’s cervical spine, her career options whether in the police force (particularly in Units where additional fitness requirements are imposed) or in other occupation are probably narrower.
123 No doctor or health professional has questioned the plaintiff’s genuineness or her description of the pain or the limitations her condition placed on her work duties before she went on maternity leave or the reported limitations on her activities of daily life, including in the care of two young children.
The experience of pain
124 As to the plaintiff’s evidence of her experience of pain, I have already mentioned the various parts of her affidavit evidence relating to the plaintiff’s experience of pain and the impact of her condition both in her workplace and daily life.
125 The broad thrust of the plaintiff’s evidence was that, due to cervical spine dysfunction, she continued to suffer pain extending from her neck through to her shoulders and into her arms with associated weakness, neck spasms and headaches. The plaintiff was never really pain free, although the level of her pain varied and depended on the activities undertaken. Since the birth of her second child, the plaintiff had resumed a medication regime which involved taking over-the-counter painkilling medication about three times a day. Based on the plaintiff’s evidence, currently this medication was probably also taken to relieve lower back pain, which is likely to resolve within a few months of the birth of her son in May 2014. In view of her consistent use of painkilling medication and the possibility of further pain management treatment following the birth of her second child, I did not take this evidence to mean that absent lower back pain, the plaintiff would no longer require regular painkilling medication to relieve symptoms of cervical spine dysfunction.
126 Additional to the matters already mentioned, the plaintiff’s husband corroborated her evidence by deposing to the following matters:[90]
[90] PCB 134-137
· that the plaintiff complained of neck pain and headaches and subsequently developed problems with balance following the accident;
· that her complaints of neck and balance problems and headaches had continued over time;
· he had observed a deterioration in the plaintiff’s ability to manage pain;
· he had observed attempts to control pain with paracetamol, rest and attendance for osteopathic treatment, with deterioration within a few weeks;
· the plaintiff had aspired to move to the Mounted Branch of the police force;
· he recalled the plaintiff experiencing difficulties in completing the “beep test”;
· the plaintiff complained that lifting their son and breastfeeding increased her pain and when present Mr Howard usually lifted their son;
· the plaintiff avoided most activities that involved heavy lifting, pushing, pulling or reaching above shoulder height and from her husband’s observation she had difficulty holding her head in a fixed position for extended periods;
· he did most of the vacuuming, mopping and cleaning/drying of clothes;
· he observed that the plaintiff had difficulty standing over benches/stoves for prolonged periods and as a result usually prepared meals that only required short and simple preparation. Based on all of the evidence, I did not form the view that short-term lower back pain was the sole cause of this problem;
· he understood that pre-accident the plaintiff had been passionate about dancing. Essentially, Mr Howard’s evidence confirmed that, based on the plaintiff’s reports, both neck pain and the inner ear problem probably contributed to her decision to give up dancing shortly after the accident. Again, I did not form the view that any earlier vestibular problem was the sole or current reason for giving up a fairly strenuous activity such as jazz ballet;
· neck pain disturbed the plaintiff’s sleep, not improved by the use of a therapeutic pillow;
· from his observation, the plaintiff struggled to cope emotionally with neck pain.
127 Accordingly, for the purpose of this application, I was satisfied that, as a result of cervical spine dysfunction the plaintiff probably continued to experience pain at a level which required daily use of painkilling medication and regular osteopathic therapy and that pain fluctuated in intensity and was worsened by activity. In itself, the endurance of fluctuating levels of pain from which for the foreseeable future the plaintiff is unlikely to be free (even with over-the-counter medication and regular therapy) is an important factor in the assessment of the pain and suffering and loss of enjoyment of life component of this claim.
The disabling effect of pain
128 It is convenient to discuss the disabling effect of pain and the extent to which it interferes with the plaintiff’s ordinary activities and enjoyment of life together. The broad category of activities impacted by pain and disability associated with cervical spine dysfunction included the following:
· Employment. As mentioned, I was satisfied that, whilst the plaintiff retained a physical capacity to return to employment and possibly to the police force, based on all of the evidence, her options for future employment were probably narrowed by restrictions on the plaintiff’s capacity to perform more physically demanding work;
· Sleep. The plaintiff’s recent complaint of regular sleep disturbance due to neck pain was corroborated by her husband’s evidence;
· Pregnancy and motherhood. Whilst the plaintiff was now fully engaged in caring for a toddler and a new born son, her circumstance as a young mother, from time to time obliged her to endure increased pain associated with lifting, breastfeeding and caring for her children. The plaintiff told the Court that, when pain was bad, her husband, who works near to home, came home to help care for their children. Accordingly, on the assumption that the plaintiff has some years ahead of her managing and caring for two young children, the likely reduction in her capacity to fully discharge this role and the likely regular exacerbation of her neck symptoms in association with child care activities, are relevant factors in the assessment of the pain and suffering and loss of enjoyment of life consequence;
· Domestic activities. Whilst I accept that the plaintiff has a retained capacity to undertake various domestic tasks, in assessing the consequences of long-term impairment of her cervical spine, I have allowed for her likely restricted capacity to perform particularly the heavy tasks and the fact that the plaintiff struggles with household tasks she had previously performed unassisted;
· Social and recreational activities. In her final affidavit, among other things, the plaintiff deposed that overseas travel had been less enjoyable, she had lost fitness due to reduced activity and exercise aggravated pain. The need for osteopathic treatments whilst living in Canada is one indication of the impact of cervical spine dysfunction on the plaintiff’s enjoyment of travel. Moreover, the evidence as a whole indicated that, quite apart from any earlier problems with vestibular dysfunction, long-term impairment of the plaintiff’s cervical spine likely precluded training in the future to qualify as a dance teacher and precluded any return to jazz or other more physically demanding dance activities. The loss of her ability to train in and teach jazz ballet is no doubt a significant loss for an individual who previously enjoyed keeping fit, who used dance training to maintain fitness levels and who had aspired to teach jazz ballet.
Conclusions
129 To summarise, I was satisfied that:
· the plaintiff suffered soft tissue injury to her cervical spine in association with a whiplash event which has left her with long-term impairment of her cervical spine; and
· the impairment consequences of the injury were as summarised above.
130 In assessing whether the pain and suffering consequence of the compensable right knee injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[91]
[91]Sutton op. cit. [114]
131 The evidence relating to the impact of impairment of the plaintiff’s cervical spine on her day-to-day activities and enjoyment of life has been summarised. I have also summarised the evidence which suggests that the plaintiff tries to limit many activities to avoid exacerbating the level of pain and, as recommended by most of the specialists, she regularly uses non-prescription painkilling medication and regularly accesses osteopathic treatment funded by TAC.
132 The test is whether the plaintiff has established that the pain and suffering consequence of the injury to her cervical spine, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained in the past, applying this test involves a value judgment in which matters of fact and degree and of impression all play a role.[92]
[92]Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]
133 My summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff has lost was informed to some extent by what she had retained) supported a finding that the consequence in respect to the injury to the plaintiff’s cervical spine, was when compared with other cases in the range of possible impairments, fairly characterised as “at least very considerable”. In these circumstances, the plaintiff has met the requirements of the statutory test.
134 I propose to grant leave to the plaintiff under sub-section 93(17)(a) of the Act to bring proceedings for recovery of damages in respect to injury to her cervical spine suffered as a result of the accident on 28 February 2009.
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