Jovceva v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0013

BETI JOVCEVA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	KAYE, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2019
DATE OF JUDGMENT:	21 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 105
JUDGMENT APPEALED FROM:	Jovceva v Transport Accident Commission [2018] VCC 2062 (Judge Macnamara)

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ACCIDENT COMPENSATION — Transport accident — Application for leave to appeal against refusal of trial judge to grant leave to commence proceedings for damages against respondent — Whether applicant has suffered serious long-term impairment or loss of a body function — Whether trial judge failed to properly apply evidence of orthopaedic surgeon — Whether trial judge failed to adequately assess the impairment consequences of the applicant’s injuries — Whether trial judge failed to provide adequate reasons as to findings made in relation to the applicant’s injuries — Whether trial judge erred in finding that fibromyalgia is not an ‘orthodox medical diagnosis’ — Whether injury primarily a consequence of organic or functional factors — Application for leave to appeal granted — Appeal dismissed — Transport Accident Act 1986 s 93(17); Richards v Wiley (2000) 1 VR 79 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A D B Ingram QC with Mr Y Chen	Slater & Gordon Limited
For the Respondent:	Mr S O'Meara QC with Mr S E Gladman	Transport Accident Commission

KAYE JA
NIALL JA
T FORREST JA:

On 24 May 2013, the applicant was involved in a motor vehicle collision when her vehicle, which was stationary at red lights applicable to it, was struck from behind by another motor vehicle. The applicant claimed that as a consequence of the collision, she suffered a number of injuries. Accordingly, she commenced proceedings in the County Court, by originating motion, by which she sought leave to issue proceedings for the recovery of damages against the respondent pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) in respect of those injuries.

The particulars of injury, relied on by the applicant, comprised: cervical spine injury (including aggravation of degenerative changes); injury to the C7 disc in the cervical spine; thoracic spine injury; lumbar spine injury; aggravation of degenerative changes in the cervical thoracic and lumbar spine; and psychological reaction including anxiety, depression and chronic adjustment disorder. The applicant, initially, relied on both subparagraphs (a) and (c) of the definition of serious injury in s 93(17) of the Act. At the hearing of the application, senior counsel for the applicant abandoned reliance on the aspect of the applicant’s claim based on subparagraph (c) of that provision.

The application was heard over a period of three days before a County Court judge, in the course of which the applicant was cross-examined and re-examined in some detail, and a number of medical reports and other associated documentation were relied on by each party. In a reserved decision, the judge, who heard the claim, dismissed the application.[1] In essence, the judge concluded that the predominant cause of the symptoms experienced by the applicant were psychological, so that a finding of serious injury, based on her report of pain and restriction, could not be made pursuant to sub-para (a) of the definition of serious injury in s 93(17) of the Act.[2] The judge noted that, while sub-para (c) of the definition was not relied on, it would not have availed the applicant. In particular, her symptoms of depressive illness had pre-dated the accident, and, on the facts, her claim that after the accident she had ‘spiralled into a pit of depression’ could not be accepted.[3]
[1]Jovceva v Transport Accident Commission [2018] VCC 2062 (‘Reasons’).
[2]Reasons [85].
[3]Reasons [86].

The applicant now seeks leave to appeal against the refusal of the judge to grant leave to her to commence proceedings for damages against the respondent.

Background

The applicant was born in 1977. She grew up in Brisbane. Having worked in the wholesale fashion industry since 1996, she moved to Melbourne in 2001. There she commenced employment with a wholesale fashion company, Globe. In 2006, she terminated her employment with Globe, and commenced permanent part-time work with GKFA Pty Ltd (‘GKFA’) as a fashion agent. In her affidavit, the applicant stated that she worked for GKFA for seven years, during the last two years of which she was employed on a full-time basis. In June 2012, she decided to commence business on her own and resigned from GKFA. Accordingly, she registered with Centrelink on Newstart in about June 2012. She stated that at the time of the accident she was operating her business, ‘Add-On-Agency’, which involved physical work, and a substantial amount of travel to stores in metropolitan Melbourne and regional Victoria.

The applicant claimed that after the accident, she suffered pain from the waist up. On 27 May 2013, she consulted Dr Chas Lisner, a general practitioner, in respect of pain in her neck which radiated to her left and right arm, and pain in her lower back. In a report to the applicant’s solicitors, Dr Lisner stated that examination, on that date, revealed decreased lateral flexion and rotation especially to the left side, with tender cervical tissues, that were more painful on the left side. He also found tender trapezius muscles on the left side, tenderness to the upper chest wall, and a tender temporomandibular joint on the left side. His initial diagnosis was of soft tissue injury. He prescribed Voltaren medication and advised the applicant to see an osteopath for treatment.

Accordingly, on 29 May 2013, the applicant consulted Daniel Gaitz, an osteopath.

Subsequently, on about 16 June 2013, the applicant developed intense pain on the right side of her body and ribs. Due to the severity of the pain, on 18 June 2013, she was transported, by ambulance, to the Alfred Hospital where she was admitted under the care of the trauma unit. A CT scan and an MRI of the cervical spine did not demonstrate any abnormality. The applicant was fitted with an Aspen cervical collar and prescribed analgesia for ongoing symptomatic management. Her condition remained stable, and she was discharged home on 22 June.

The applicant was reviewed in the neurosurgery outpatient clinic of the hospital on 12 July 2013. Repeat imaging, including the MRI scan, failed to show any trace of a neck injury. The applicant was advised to wear a collar for comfort, but it was recommended that she remove it and have a further review in August. She did not attend the appointment that was made for her in that month, but she was next reviewed on 30 September 2013. On that date, it was noted that the applicant’s neck was improving and that she had no neurological signs or symptoms. Neck mobility was good and her pain was controllable. She had no neurological abnormalities on examination. It was noted that the MRI and CT scans of her cervical spine were normal. She was recommended to continue physiotherapy.

In the meantime, the applicant had commenced to attend Dr Bianca Scotney of the Olympic Park Sports Medicine Centre. She had a number of attendances on Dr Scotney between 13 July 2013 and 29 January 2014. In her report to the applicant’s solicitors, Dr Scotney considered that the applicant had sustained a whiplash injury to her cervical spine with nerve root irritation manifesting as paresthesia on both sides. She also considered that the applicant had more recently presented with post-traumatic left shoulder adhesive capsulitis. Dr Scotney was of the view that the applicant’s cervical spine whiplash injury had been associated with dysfunction in both the thoracic spine and the lumbar spine. The applicant had shown slow but progressive improvement in all areas. Dr Scotney considered that with ongoing physiotherapy treatment, the applicant should have an increased capacity to work in her occupation as a sale representative, particularly performing lighter administrative duties in the short term. She concluded (in February 2014) that the applicant should be able to achieve a significant, if not complete, recovery from the injuries that she sustained. While she should achieve a full range of neck and shoulder movement, the necessary improvement might take some years.

When the applicant’s usual general practitioner, Dr Josefsberg, returned to practice in early 2014, the applicant commenced to consult her about the injuries that she had sustained in the accident. Dr Josefsberg only provided very brief reports concerning her treatment of the applicant. Her progress notes indicated that on 27 June 2014, she prescribed Lyrica and Panadol Forte for the applicant’s injuries. In her report dated 24 April 2014, Dr Josefsberg noted that the applicant had suffered from a history of anxiety and depression. In April 2012, she had referred the applicant for intensive psychotherapy to treat those issues, and the applicant was responding well to that treatment. Dr Josefsberg expressed the view that the applicant’s condition had been exacerbated by financial difficulties, and as a result of the motor vehicle accident which had left her with residual neck and back pain. She also noted that the applicant’s psychological condition had been compounded by the fact that a close friend had been charged with murder, and that the applicant had been (innocently) caught up in the ongoing investigation of that matter.

In the meantime, the applicant commenced a course of physiotherapy at the Melbourne Physiotherapy Pilates and Fitness Group. She also underwent hydrotherapy and undertook pilates exercises at that group.

In April 2015, due to ongoing pain in her neck and shoulders, the applicant was referred to Dr Clayton Thomas at the Victorian Rehabilitation Centre. She commenced a pain management program at that centre on 22 October 2015, which she attended on a weekly basis until 4 March 2016. Subsequently, the applicant was reviewed by Dr Thomas on 11 May 2017, 15 June 2017, and 2 October 2017. The diagnosis, by Dr Thomas, of the applicant’s condition is of some significance in the context of the application before this Court. I shall set it out, in some detail, later in these reasons.

The applicant’s affidavits

The applicant deposed to two affidavits in support of her application. In the first affidavit (affirmed on 6 November 2017) the applicant stated that she currently took Panadol Osteo and Nurofen for pain on an average of three times per week. She had difficulty sleeping, and occasionally took Valium to assist her. She stated that she continued to suffer daily pain and restrictions to her neck. Prolonged sitting and looking down aggravated her neck pain. She suffered from disturbed sleep due to the pain. The applicant also continued to suffer from pain and restrictions to both shoulders, particularly the left shoulder. Everyday tasks aggravated her left shoulder pain, including activities such as washing and drying her hair and using a hairdryer. She had difficulty putting on and removing her bra. She also experienced pain and regular spasms in her thoracic spine which was exacerbated by prolonged sitting and bending down, and she was restricted in performing domestic tasks as a result of her pain and disability.

The applicant stated that at the time of the accident she had entered into an agreement with Zacar Holdings Pty Ltd to be the agent representative of its clothing brands in Victoria and Tasmania. However, since the accident, Zacar had terminated the agreement. She had remained unemployed and on Centrelink benefits until about May 2015. On 28 May 2015, she commenced work in administration and sales with a fashion agency, Admac, on a part-time basis, working sixteen hours per week, over a four day period. Her tasks mainly involved working in the office, and she had been provided with a standing work station. Her employer was aware of her injuries and limitations. In particular, she was unable to carry heavy items, and she found that by the end of the week she is exhausted.

The applicant also stated that her physical limitations and constant pain had significantly affected her emotionally. Before the accident, she had been active physically, and she had enjoyed attending social events, and travelling. She had also attended private classes with a jeweller, as she intended to include her own silver jewellery in the wholesale collection in the business that she was establishing. However, since the accident she had been unable to resume that activity. She said that she had ‘spiralled into a pit of depression’ and had avoided socialising and leaving her home. She said that she withdrew herself socially from her friends. However, in recent times she had tried to renew her life, and she had made a trip to Bali in April 2017, and to Hawaii in June 2017. The applicant said that before the accident she had been referred to a psychologist for about one year due to stress caused by a personal issue, but otherwise she had been in good health.

In her second affidavit (affirmed 19 September 2018), the applicant stated that her pain had not improved despite undergoing the pain management program at the Victorian Rehabilitation Centre. She stated that she maintained a costly and intensive treatment regime, including yoga, pilates, chiropractic treatment, massage, and hydrotherapy. She continued to take Nurofen, Panadol and Valium to manage her symptoms.

The applicant stated that she continued to experience constant burning pain in her neck that radiated to her mid-back and shoulders, causing her significant discomfort. She continued to experience pain in the lower back that radiated into the right hip. Lifting items of any significant weight would exacerbate the pain. She experienced difficulties with spasms in her back which usually occurred when she was seated for a prolonged period of time. Thus, when she drove her vehicle, she tended to experience spasms.

The applicant stated that she had been able to continue to work in her business as a fashion brand consultant. The work consisted of computer work at a standing desk. She earned commissions on the brands that she promoted. The applicant has to travel at times for her work which is difficult due to her injuries.

The applicant further stated that her relationship with her family had been strained as a result of her pain. Her parents live in Brisbane, and she tends to become short tempered with them when she is in discomfort.

The applicant was cross-examined at the hearing before the primary judge. It is not necessary, for the purposes of this application, to set out the content of the evidence given by the applicant in cross-examination in detail. In brief, the following relevant points emerged during that process:

·The applicant had consulted a psychologist, Ms Joanna Young, during the year that preceded her motor vehicle accident. During that period she had attended multiple sessions with Ms Young. Subsequent to the accident, the applicant had been subjected to other stresses, including the investigation by the police as to the involvement by the applicant’s friend in an alleged murder. She also experienced stress resulting from the fact that she had accumulated a large amount of unpaid parking fines.
·In the period between 26 June 2012 and 26 May 2013, the applicant had been certified to be unfit to work because of the stress and anxiety that she was suffering.
·During the period of twelve months before the hearing before the primary judge (which took place in November 2018), the applicant had done well financially in her work. In particular, she had increased an account that was initially worth $60,000 to an account that was worth $2,000,000 in the course of her work with Admac. During that period, she had visited Bali, Hamilton Island, Vietnam and Hawaii, on vacations.
·The applicant had tried to return to her jewellery making lessons since the accident. She also still held a jet ski licence.
·In the course of the cross-examination, three surveillance videos, taken at various stages in the second half of 2018, were shown to the applicant, and tendered in evidence. The respondent relied on those videos to contend that the applicant did not suffer the degree of pain or restriction of movement that she had complained of in her affidavits.

Other affidavits

The applicant also relied on an affidavit by her younger sister, Tanja Karavesov and an affidavit of a close friend, Chris Drossos.

Ms Karavesov stated that before the accident the applicant had been very social and adventurous, travelling extensively. She had lived an active life. However, since the accident Ms Karavesov had noted significant changes in the applicant both physically and emotionally. The applicant was significantly restricted by her injuries, and frequently complained of pain, particularly after driving a motor vehicle.

In her affidavit, Ms Drossos stated that before the accident the applicant was an outgoing, independent and social person. However, since the accident, Ms Drossos had noted significant changes in the applicant both physically and emotionally. Ms Drossos described the applicant as a ‘fraction of the person’ she was before the accident. In particular, since the accident she has been very emotional and seems fragile and often cries.

Medical evidence of applicant

The applicant relied on reports, prepared by medical practitioners by whom she had been treated, and also by whom she had been examined for medico-legal purposes.

In his report, Dr Clayton Thomas stated that in the initial examination conducted by him, on 30 April 2015, he considered that what may have started as a simple whiplash and associated disorder seemed to have developed more into a post-traumatic fibromyalgic-type injury. At that stage, Dr Thomas considered that it was preferable for the applicant to undergo a formal pain management program. He considered that she needed more psychological input into how she dealt with the pain, in addition to the exercises that she was then undergoing in the form of pilates.

When the applicant was reviewed by Dr Thomas on 11 May 2017, he considered that she had ‘gone on to develop a widespread pain syndrome and she met the criteria for fibromyalgia’. He noted that the applicant had undergone the pain management program and found it to be very beneficial. Dr Thomas wrote to the applicant’s general practitioner questioning whether ‘there was a bipolar type 2 situation’ which would need more evaluation.

As already noted, Dr Thomas further reviewed the applicant on 15 June and 2 October 2017. In the conclusion to his report, Dr Thomas stated:

Diagnostically, Ms Jovceva suffers from a widespread pain syndrome and she met the criteria for fibromyalgia.
…
When I last saw her, she was going to try Duloxetine, and we also had approval for a three month — twelve week physiotherapy base clinical pilates, but she had found off her own bat an exercise physiologist and would prefer to try that in the meantime. …
Prognosis was for ongoing pain with associated disability.

Mr Stephen Doig, an orthopaedic surgeon, examined the applicant at the request of her solicitors in August 2015. Mr Doig diagnosed a soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine which had mostly resolved, minor soft tissue injury to the right shoulder, and calcification of the left supraspinatus tendon. Mr Doig considered that it was appropriate that the applicant undergo a pain management program, but he considered that, even with that treatment, it was unlikely that her impairment would significantly change. Nevertheless, he considered that the applicant’s prognosis was ‘actually reasonably good’, and it was likely that she would continue to ‘slowly and steadily settle down from where she is at this stage’.

The applicant was also examined, for medico-legal purposes, by Mr Peter Moran, an orthopaedic surgeon, on 21 February 2018. Mr Moran reviewed x-rays of the cervical spine dated 31 May 2013, the CT scan that had been taken on 6 June 2013, and MRI scans of the cervical spine and lumbar spine each performed on 23 January 2014. On examination, he found the applicant to be very labile emotionally, but he did not feel that there was evidence of exaggeration of her clinical condition, nor of abnormal illness behaviour. He noted that the CT scan of 6 June 2013 disclosed age related changes at C4-5, C5-6 and C6-7 levels. The MRI scan of the cervical spine of 23 January 2014 did not identify evidence of a major structural injury, apart from disclosing mild compression of the exiting C6 nerve root. The MRI scan of the lumbar spine of the same date showed evidence of desiccation of a moderate degree of the lower three discs, but no evidence of disc disruption. At the L5-S1 level, there was a central to left sided disc prolapse of moderate severity, which may have impinged on the merging left S1 nerve root.

In conclusion, Mr Moran noted that the applicant had described a violent rear end impact leaving her with persistent shoulder, neck and back pain, but without evidence of neurological sequelae. He considered that her pathology essentially consisted of a traumatic aggravation of underlying and asymptomatic degenerative changes in the neck and lower back. He noted that there was clear evidence of a lumbar disc prolapse at the lumbosacral junction, but that was not associated with evidence of neurological impairment. In the shoulder, the applicant had evidence of a high painful arc of impingement, which could be dealt with conservatively.

Mr Moran considered that, as his examination of the applicant took place five years after the accident, her condition had stabilised, so that it was likely that her pain would persist indefinitely. He considered that she was at risk of accelerated degenerative change in the spine and a further injury to the spine with relatively minor trauma, as a consequence of the destabilising influence of the motor vehicle collision.

The applicant also relied on a report of Ms Joanna Young, the psychologist who had attended upon her both before and after the accident. In her report, Ms Young noted that when the applicant first presented in April 2012, she was assessed to suffer mild depressive symptoms in addition to very severe chronic anxiety and stress. The applicant lacked effective coping skills in the face of ongoing stressors. She responded moderately well to therapy, with modest improvement in her anxiety levels.

Ms Young noted that following the motor vehicle accident in May 2013, the applicant’s anxiety and stress increased significantly, and she also developed extremely severe depressive symptoms. She continued to attend counselling throughout 2013 and 2014. During that period, the applicant experienced greater fluctuations in mood, including depressive episodes, since her neck injury. Ms Young stated that although the applicant had an existing anxiety condition before the accident, she did not then have any depressive episodes. However, since the accident the applicant experienced significant depression as well as anxiety.

The applicant was also examined, for medico-legal reasons, by Dr Nathan Serry, a consultant psychiatrist, on 31 October 2014, and subsequently on 13 July 2018. On the first occasion, Dr Serry diagnosed the applicant, from a psychiatric point of view, to be suffering from a chronic adjustment disorder with anxious and depressed mood and with significant features of traumatisation. In the second assessment, in July 2018, Dr Serry again diagnosed the applicant to suffer a chronic adjustment disorder with anxious and depressed mood, and with significant features of traumatisation. In addition, he considered that the applicant presented with symptoms consistent with a diagnosis of somatic symptom disorder with predominant pain, that was persistent and of moderate severity. He considered that her condition was stable. Dr Serry was of the view that the applicant’s prognosis, from a psychiatric point of view, was mixed. Although there was evidence of a degree of pre-existing stress and anxiety before the accident, the applicant impressed as having generally been well adjusted pre-morbidly.

Medical evidence of respondent

In response, the respondent relied on a report by Mr Michael Fogarty, an orthopaedic surgeon, who examined the applicant at the request of her solicitors, and a report of Dr John Owen, a consultant orthopaedic surgeon, and a report of Dr Brendan Hayman, a psychiatrist, both of whom examined the applicant at the request of the solicitors for the respondent.

Mr Fogarty examined the applicant on 8 September 2014. On examination, he found a virtually normal range of movement of the thoracolumbar spine, and could not detect any neurological deficit in either lower limb. Movement of the neck was normal. There was no postural abnormality nor wasting in either shoulder. Mr Fogarty could not detect any neurological deficit in either upper limb, and all reflexes were present, brisk and equal. Mr Fogarty had available CT scans of the cervical spine performed on 6 June and 18 June 2013, a CT scan of the thoracolumbar spine dated 18 June 2013, an MRI of the cervical spine of 19 June 2013, and MRI scans of the cervical spine and lumbar spine performed on 23 January 2014.

In conclusion, he diagnosed the applicant to have sustained a cervical hyperextension (whiplash) injury, a soft tissue injury to the mid thoracic spine, and soft tissue injury to the lumbar spine, as a result of the motor vehicle accident. He noted there was evidence of degenerative disc disease that predated the accident, particularly in the lumbar spine, but also to an extent in the cervical spine, which was likely to have been aggravated by the accident. He noted that although the applicant had not returned to her full time work as a fashion agent, she had done some part time work in that field, and she should be able to return to it within the next year.

Dr Owen examined the applicant, at the request of the respondent’s solicitors, on 2 October 2018. On examination, he found that the range of movement of the applicant’s cervical spine was good with only slight restriction at lateral flexion. Neurologically, her upper limbs had normal reflexes, with some diminished sensation to light touch on the ulnar side of both hands. Her lumbar spine moved well with good flexion and extension, but limited rotation. There was no neurological deficit in the lower limbs. She was areflexic but she had good motor and sensory modalities. Her shoulders had mild tenderness anteriorly on the left side.

Dr Owen concluded that the applicant had sustained an acceleration/deceleration injury consisting of soft tissue injury to her cervical spine and lumbar spine. He considered that the applicant would have had some pre-existing degenerative change in the rotator cuffs of each shoulder, especially on the left side, but he did not consider that the accident had caused that problem. The applicant had recovered virtually a full range of movement in the left shoulder and she only had mild signs of impingement on that side. Dr Owen considered that the applicant had underlying degenerative changes in the cervical and lumbar spines that had been asymptomatic before the accident. He stated ‘she now has grumbling symptoms in these areas’. He considered that her ongoing pain would impact on activities of daily living, particularly with respect to her shoulder injury. Dr Owen also noted that the applicant was quite emotional, and he considered that it would be appropriate to have a psychiatric or psychological assessment of her condition.

Dr Hayman, a consultant psychiatrist, examined the applicant at the request of the respondent on 3 October 2018. Dr Hayman noted that the applicant had a significant psychological history. However, by her account, she had been functioning well at the time of the accident with no significant psychological sequelae. Dr Hayman noted that various enclosures from the applicant’s treating psychologist referred to more long standing symptoms of depression and anxiety and developmental and other issues than were described to him by the applicant. Diagnostically, Dr Hayman considered that the applicant had developed a chronic adjustment disorder with depressed and anxious mood. In addition, there were some mild post-traumatic anxiety features. He considered that the chronic adjustment disorder with depressed and anxious mood had largely resolved. He noted that the applicant was not currently engaged in any psychological treatment, and that she had not seen her psychologist for eighteen months. He considered that her current psychological state would not impact on her work capacity, but rather her experience of pain had that effect.

Reasons for judgment of trial judge

In his reasons for judgment, the judge considered that the evidence did not disclose any significant pathology at either the neck or low back level. He further considered that there was no evidence of any pathology at the mid or thoracic spine level.[4]
[4]Reasons [79].

The judge noted that the scans and imaging disclosed two disc bulges in the low back. His Honour stated:

As to the low back, the scans and imaging disclose two disc bulges in the low back. (PCB 95-96) Mr Moran alone reports this as including a left-sided disc prolapse of moderate severity at the L5/S1 level ― [58] above. (PCB 84) I put Mr Moran’s opinion on this point to one side as an ‘outlier’. His finding of a disc prolapse is at odds with the findings of other treaters and medico-legal experts, and the radiological report. It may be thought less than plausible that a low back injury would be sustained in circumstances where a driver is secured in his or her seat by a seatbelt. The neck unrestrained is exposed to classic whiplash injury, but it is not obvious why or how a low back injury would be sustained whilst the seat and the belt system remained intact. As Mr McGarvie observed, however, in the history which Ms Jovceva gave to Dr Clayton Thomas, she described being jerked forward and to the left, which may account for a low back injury’s being sustained ― [46] above. (PCB 55) I proceed upon the basis that the pathology in the low back is accident related.[5]

[5]Reasons [81].

The judge then noted that various clinical examinations demonstrated very little loss of range of movement of the lower back. In that respect, he referred to the reports of Mr Fogarty, Mr Doig, Dr Owen and Mr Moran.

The judge then asked, rhetorically, ‘what … accounts for the extensive spinal symptoms complained of by Ms Jovceva?’.[6] He noted that Dr Thomas had made a diagnosis of ‘fibromyalgia’. His Honour then stated:

As far as I know, fibromyalgia is not an orthodox medical diagnosis … He referred to ‘a widespread pain syndrome’ and Ms Jovceva’s meeting the criteria for fibromyalgia. … The doctor clearly treats the disorder ‘fibromyalgia’ as being synonymous with ‘a widespread pain syndrome’.[7]

[6]Reasons [83].

[7]Reasons [83].

The judge noted that Dr Serry, apart from diagnosing a chronic adjustment disorder, also diagnosed the applicant to suffer from a ‘somatic symptom disorder with predominant pain’. The judge noted the criteria for that diagnosis that are specified in the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (referred to as ‘DSM-5’). His Honour then stated:

The functional, as distinct from organically driven nature of Ms Jovceva’s impairments is demonstrated first by the diffuse nature of her symptoms.[8]

[8]Reasons [84].

He also noted that the functional nature of the injury was consistent with the ‘striking contrast’ between, on the one hand, the ‘extreme complaints of pain and restrictions’, and, on the other hand, the ‘minimal findings on formal clinical examination and apparent unrestricted range of spinal motion displayed informally on surveillance video taken on a number of occasions in the months immediately leading up this hearing’.[9] His Honour therefore concluded, in accordance with the principles stated by this Court in Richards v Wylie,[10] that the predominant cause of the applicant’s symptoms was psychological. Accordingly, he concluded, a finding of serious injury based on her reported pain and restriction could not be made pursuant to subparagraph (a) of the definition of serious injury in s 93(17) of the Act. He noted that it could only be made, if at all, under subparagraph (c) of the definition, which had not been relied on by the applicant.
[9]Reasons [85].
[10](2000) 1 VR 79 (‘Richards’).

As already mentioned, the judge further concluded that the applicant’s symptoms of depressive illness could not be regarded as having commenced following the transport accident. He also noted that there was evidence that the applicant had been unfit to work on account of anxiety and depression for a period of eleven months before the accident. Further, since the accident the applicant had brought her business enterprise to ‘a level of success it had not enjoyed before the accident’.[11] The judge concluded that, if the pain and limitation caused by the applicant’s functional injury were disregarded, it could not be said that, based purely on the applicant’s organic injuries, the consequences of those injuries could be described as ‘very considerable’ or more than ‘significant’ or ‘marked’.[12]
[11]Reasons [86].
[12]Reasons [88].

Proposed grounds of appeal

In the application for leave to appeal, the applicant seeks to rely on five grounds, namely:

1.The trial Judge misstated and in consequence failed to properly apply the evidence of orthopaedic surgeon Mr Moran including the findings:
(a)at [81] that the evidence of Mr Moran with respect to the pathology identified by MRI scanning of the Applicant’s lumbar spine could be put to one side as an ‘outlier’;
(b)at [82] that Mr Moran had ‘made no findings of restriction of movement for the lumbar spine’.

2.The trial Judge failed to provide any or any adequate reasons drawn from the evidence before him for finding at [81]:
‘It may be thought less than plausible that a low back injury would be sustained in circumstances where a driver is secured in his or her seat by a seatbelt…it is not obvious why or how a low back injury would be sustained whilst the seat and the belt system remained intact’.

3.The trial Judge failed to provide adequate reasons at [82] for his finding — ‘Various clinical examinations which have been undertaken demonstrate very little loss of range of movement’ — and for then using this criterion as the basis for determining the Applicant’s case based on injury to the thoracolumbar spine.
4.The trial Judge erred at [83] in holding that ‘fibromyalgia is not an orthodox medical diagnosis’, and in consequence failed to properly apply the evidence of rehabilitation physician Dr Thomas.
5.The trial Judge failed to adequately assess the impairment consequences to the Applicant of her transport accident spinal injuries or to provide adequate reasons for assessing that those consequences were not ‘very considerable’.

Principles

Before turning to the submissions advanced in respect of each of those grounds, it is convenient, first, to state some of the basic principles that apply to the resolution of the application for leave to appeal.

As mentioned, the applicant confined her application, before the primary judge, to subparagraph (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act. Thus, she was required to establish that as a consequence of the motor vehicle accident, she had sustained a serious long term impairment or loss of a body function. The applicant abandoned the alternative basis to her application, namely, subparagraph (c) of the definition of ‘serious injury’, which would have required her to establish a ‘severe long term mental or severe long term behavioural disturbance or disorder’ resulting from the accident.

In order to establish the requisite ‘serious long term impairment … of a body function’ under subparagraph (a) of the definition, the applicant was required to demonstrate that as a consequence of the accident, the impairment of the body function, relied on by her, was at least very considerable, and more than ‘significant’ or ‘marked’.[13]
[13]Humphries v Poljak [1992] 2 VR 129, 140 (Crockett and Southwell JJ).

In the particulars of injury, relied on in the application, the applicant specified injury to the cervical, thoracic and lumbar spine. In determining whether an impairment of a body function is serious, for the purpose of subparagraph (a) of the definition, ordinarily it is not permissible to aggregate impairments of separate body functions.[14] However, it has been long accepted that the separate segments of the spine — lumbar, thoracic and cervical — do not constitute separate body functions, so that, in determining whether there has been a serious long term impairment of a body function, it is permissible to take into account the combined effect of injury to each of those segments of the spine, treating the whole of the spine as one body function.[15]
[14]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511.
[15]Transport Accident Commission v Zepic [2013] VSCA 232 [11], [118]–[139] (Maxwell P).

In the present case, one of the principal issues before the judge was whether the injury, complained of by the applicant, constituted an impairment of a body function, or whether it consisted of a mental or psychological behavioural disturbance or disorder. That question is not uncommon, in cases in which the sequelae of an accident may include both physical and psychological injury. The principles that apply to the resolution of the question were considered by this Court in Richards. It is now settled that in a case in which an impairment of a body function is caused by both organic and psychological conditions, the impairment will not come within subparagraph (a) of the definition of ‘serious injury’, unless the predominant cause of it is organic.

In Richards, the plaintiff claimed that he had received a whiplash type injury to his neck as a consequence of a transport accident. However, there was evidence that psychological factors played a substantial part in producing the symptoms of which he complained. The Court held that the trial judge erred in concluding that the plaintiff had suffered a serious injury within the meaning of subparagraph (a) of s 93(17), as the impairment of body function complained of was wholly, or largely, the product of a mental disturbance or disorder sustained by the plaintiff.

In reaching that conclusion, Winneke P noted that the definition of ‘serious injury’ in s 93(17) differentiates between the consequences of impairment of a body function, and the consequences of psychological injury, caused by an accident. His Honour accepted that a mental or behavioural disturbance or disorder, that results from impairment of a body injury, may be taken into account in determining whether the impairment of the body function was serious for the purposes of the definition contained in subparagraph (a).[16] However, his Honour considered, it was implicit in the trial judge’s conclusions that the plaintiff’s mental disorders or disturbances were ‘to a significant degree’ producing the symptoms upon which the judge relied to find that the plaintiff suffered a long term impairment of a body function. Accordingly, the disturbance or disorder fell to be assessed under subparagraph (c), and not subparagraph (a), of the definition contained in s 93(17).[17]
[16]Richards (2000) 1 VR 79, 87 [16]–[17].
[17]Ibid 88 [19]; see also 89 [24] (Buchanan JA).

Chernov JA, who agreed with the reasons given by Winneke P, expressed the relevant principles in the following terms:

It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff’s condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para (a) is appropriate because the plaintiff’s relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’ to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff’s condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff’s mental or behavioural disabilities are serious and long-term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para (a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the ‘anomaly’ to which their Honours referred in Humphries v Poljak which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para (a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a ‘serious injury’ fell to be determined by the provisions of para (c) and not para (a).[18]

[18]Ibid 90 [28].

In similar terms, in Transport Accident Commission v Kamel,[19] Kyrou JA expressed the applicable principles as follows:

The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.[20]

[19][2011] VSCA 110.

[20]Ibid [65].

Grounds 2, 3 and 5 assert that the primary judge failed to provide adequate reasons for particular findings and conclusions made by him. In Hunter v Transport Accident Commission,[21] Nettle JA stated the principles that are relevant to determining whether the reasons, provided by a primary judge, for a conclusion reached under s 93(4)(d) of the Act, are sufficient. His Honour stated:

When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[22]

[21][2005] VSCA 1.

[22]Ibid [21] (Citations omitted).

In applying those principles, the Court should not apply a standard of perfection, and should not examine the judge’s reasons critically seeking to discern an inadequacy in them.[23] Further, it is important to bear in mind the nature of the proceeding, and the manner in which the evidence was adduced before the judge. In this case, the only witness, who was cross-examined, was the plaintiff. The judge was provided with a large body of medical evidence contained in the reports of various medical practitioners who had examined or treated the applicant. None of those witnesses were cross-examined. The task of resolving any differences in their evidence thus fell to the judge, unassisted by any cross-examination or challenge of any competing views contained in the medical reports.[24]
[23]Dressing v Porter [2006] VSCA 215 [26] (Ashley JA).
[24]Cf Woolworths Limited v Warfe [2013] VSCA 22 [127]–[128] (Kaye AJA); Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 [71].

With those principles in mind, we turn to the grounds of the application for leave to appeal.

Ground 1

Ground 1(a) is directed to the finding by the judge, referred to above, that Mr Moran’s opinion, that there was a left-sided disc prolapse at the L5-S1 level, was an ‘outlier’.[25] It was submitted on behalf of the applicant that, unlike other orthopaedic examiners, such as Mr Doig and Dr Owen, Mr Moran examined, for himself, the MRI imaging that had been performed on 23 January 2014. The reporting radiologist observed that that imaging disclosed at L5-S1 level ‘mild to moderate left paracentral disc protrusion caused mild contact and displacement to the abutting left S1 nerve’. It was thus submitted that, because Mr Moran had access to, and viewed, the MRI scan, the judge erred in putting his opinion to one side, when Mr Moran’s view was better informed than that of the other medical practitioners who examined the applicant.
[25]Reasons [81].

In response, senior counsel for the respondent referred the Court to the evidence of Dr Rotstein (the radiologist who first reported on the MRI scan of the applicant’s lumbar spine), and the reports of Dr Scotney, Mr Fogarty and Dr Thomas. Each of those practitioners, he submitted, reviewed the relevant radiology, and concluded that while that radiology showed a disc protrusion or disc protrusions, it did not disclose the existence of a disc prolapse. Accordingly, it was submitted, the primary judge was correct in determining that Mr Moran was, in that respect, an ‘outlier’.

A review of the reports of the medical practitioners, referred to by counsel, reveals three clear points. First, contrary to the submissions advanced on behalf of the applicant, Dr Scotney, Mr Fogarty and probably Dr Thomas did each review the relevant radiological imaging of the applicant’s lower back. Secondly, the primary judge was correct to note that Mr Moran was the only medical practitioner who described the radiological findings — and in particular the MRI scan performed on 23 January 2014 — as disclosing a disc prolapse at the L5-S1 level. However, as with each of the other medical practitioners, Mr Moran did not detect any neurological sequelae related to that finding or otherwise. Thirdly, in reality, it seems that the differences between the description given to the radiology by Mr Moran, and that employed by Dr Scotney, Dr Thomas and Mr Fogarty, is probably more a matter of degree or the use of different terminology, than an issue of substance. Each of the practitioners noted the finding — as was recorded by the radiologist Dr Rotstein — that the MRI imaging at the L5-S1 level revealed: ‘mild to moderate left paracentral disc protrusion causes mild contact and displacement to the budding left S1 nerve’.

It was on the basis of that radiology that Mr Moran described the condition of the L5-S1 disc as disclosing a ‘central to left sided disc prolapse of moderate severity [which] may have impinged on the merging left S1 nerve root’. However, as already noted, Mr Moran did not detect any neurological symptoms consequent on that radiological finding. In expressing his opinion, he stated:

There is clear evidence of a lumbar disc prolapse at the lumbosacral junction, but this is not associated with evidence of neurological impairment.

Dr Scotney reviewed the MRI scan of the thoracic and lumbar spine in about July 2013, and concluded they showed no fracture but ‘broad based disc protrusions’ at L3-L4, L4-L5 and L5-S1 levels. Subsequently, she again reviewed the applicant on 22 January 2014. On the next day, she had repeat MRI scans of the cervical and lumbar spines. On 28 January, Dr Scotney saw her again, and noted that there were no new changes on the cervical and lumbar MRI scans.

Mr Fogarty, who examined the applicant on 8 September 2014, stated in his reports that he saw the radiology that he referred to, including the MRI scans of the cervical spine and the lumbar spine each dated 23 January 2014. He noted the radiologist’s report of that scan (to which we have referred), and stated: ‘Having seen the images to which these reports refer, I agree with the reasons given’. As already mentioned, Mr Fogarty concluded that the applicant had sustained a soft tissue injury to the lumbar spine resulting from the collision. He considered that there was evidence of pre-existing degenerative disc disease particularly in the lumbar spine but also in the cervical spine, which was likely to have been aggravated by the accident. Relevantly, he found no neurological deficit in either lower limb and all reflexes were present, brisk and equal.

When Dr Thomas saw the applicant in April 2015, he noted that the imaging of the applicant’s lumbar spine and cervical spine showed some non-specific changes. He also noted that the applicant had mid cervical degenerative changes and lower back degenerative changes over three levels. While it is not entirely clear from Dr Thomas’s report, it may be inferred, as a matter of probability, that Dr Thomas’s reference to the ‘imaging’ of the lumbar spine and cervical spine meant that he did himself review the radiology.

Thus, it would seem that at least two and probably three medical practitioners, apart from Mr Moran, did have access to the actual radiology, as distinct from the report of it. In any event, Mr Moran did not depart from, or add to, the findings that were described by the radiologist, Dr Rotstein, in his report. Significantly, none of the medical practitioners, including Mr Moran, found any neurological impairment or consequences as a result of the finding by the radiologist that the left paracentral L5-S1 disc protrusion caused minor displacement of the left S1 nerve.

In that way, it may have been inappropriate for the primary judge to have referred to the opinion of Mr Moran as an ‘outlier’. Rather, his opinion would seem to have conformed, to a substantial degree, with the opinions expressed by the other medical practitioners. In that way, it did not add, measurably, to the case advanced on behalf of the applicant that she had suffered a serious organic injury, which was the basis of the applicant’s contention that she had sustained a serious long term impairment of the spine.

Further, insofar as the judge may have put to one side the views of Mr Moran as to the radiological findings, his Honour nevertheless noted that the radiology had disclosed what he described as ‘two disc bulges’ in the lower back. In addition, the judge accepted that the ‘pathology’ in the low back was ‘accident related’.[26]
[26]Reasons [81].

For those reasons, the matters advanced on behalf of the applicant in support of ground 1(a) do not disclose any material error by the primary judge.

In sub-paragraph (b) of ground 1, it is asserted that the judge, in paragraph 82 of his reasons, erred in stating that Mr Moran ‘made no findings of restriction of movement for the lumbar spine’.

Taken in isolation, that statement, by the judge, was factually inaccurate. As counsel for the applicant has pointed out, when Mr Moran examined the applicant on 21 February 2018, he noted that right rotation of the thoraco-lumbar spine was limited to fifteen degrees, and left rotation was inhibited at 20 degrees. He also found the applicant was capable of flexion movements to 80 degrees, extension to 30 degrees and right and left lateral flexion measured at 20 degrees and 25 degrees respectively.

Thus, the observation by the judge, that Mr Moran did not detect any limitation of movement, was inaccurate, in light of Mr Moran’s findings of limitations of movement. However, as pointed out by senior counsel for the respondent, that error by the judge must be viewed in the context in which it was expressed in paragraph 82 of the judge’s reasons, and also in light of the evidence of a number of experts and witnesses in the case, who did not detect any material restriction of movement of the applicant’s lumbar spine.

In paragraph 82 of the reasons, the judge stated as follows:

The various clinical examinations which have been undertaken demonstrate very little loss of range of movement. Mr Michael Fogarty found virtually no restrictions in range of motion … Similarly, Mr Stephen Doig found relatively minor restriction of movement in the cervical spine and zero restriction in the lumbar spine … As at August 2015, he found a reasonably good prognosis. Dr Owen found a good range of movement in the neck, with only slight restriction on lateral flexion, and a good range of motion in the lumbar spine with some limit in rotation. Dr Owen found only ‘grumbling symptoms’. … Mr Moran made no findings of restriction of movement for the lumbar spine.

Apart from the discrepancy relating to the judge’s summation of Mr Moran’s findings, his Honour’s summary of the findings of Mr Fogarty, Mr Doig and Dr Owen was accurate. On the other hand, as pointed out by counsel for the respondent, in addition to Mr Fogarty, Dr Doig and Dr Owen, a number of other medical practitioners, who examined the applicant, did not detect any relevant limitation of movement.

The report of the Alfred Hospital (compiled by Dr McDonald) dated 11 February 2014, only noted complaint of pain by the applicant to the cervical spine. On review on 30 September 2013, the applicant had no neurological signs or symptoms, her neck mobility was good and her pain was controllable.

When Dr Scotney reviewed the applicant two months later, in November 2013, she found mild restrictions in upper and lower cervical spine flexion and right lateral flexion only. Her range of movement improved since the previous review on 28 August. Subsequently, on 22 January 2014, an examination revealed a markedly improved range of movement to the neck, although she experienced a pulling sensation through her thoracolumbar spine when she performed flexion movements in the neck. At the date of her report, on 14 February 2014, Dr Scotney expressed the opinion that the applicant should be able to make a significant, if not complete, recovery from the injury sustained in the motor vehicle accident. She considered that the applicant should achieve full range of neck and shoulder movement.

When Dr Thomas first examined the applicant on 30 April 2015, he found that she had well preserved movement of her neck and lower back, and both shoulders.

In summary, then, the judge’s statement, that Mr Moran made no findings of restriction of movement for the lumbar spine, was incorrect, in that Mr Moran did make a finding of limitation of bilateral rotation of the thoracolumbar spine, and less than full flexion and lateral flexion. However, in light of the correct summation by the judge of the findings of Mr Fogarty, Mr Doig and Dr Owen, and the examination findings by the Alfred Hospital, Dr Scotney, and Dr Thomas, to which we have referred, the judge did not err in noting that the various clinical examinations which had been undertaken demonstrated very little loss of range of movement of the applicant’s spine. Accordingly, the error by the judge, in respect of the findings by Mr Moran on examination, was not material, in the sense that it did not affect or vitiate the conclusion by the judge that the various clinical examinations, undertaken by medical practitioners, demonstrated little loss of range of movement of the spine.[27] We observe that, in addition, that conclusion by the judge was supported by the surveillance video footages of the applicant that were tendered in evidence.
[27]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ); Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [79] (Tate JA).

For those reasons, the applicant has failed to demonstrate any error under ground 1 of the application.

Ground 2

Ground 2 is based on the following extract from paragraph 81 of the judge’s reasons, in which his Honour stated:

It may be thought less than plausible that a low back injury would be sustained in circumstances where a driver is secured in his or her seat by a seatbelt … It is not obvious why or how a low back injury would be sustained whilst the seat and the belt system remained intact.

Viewed in isolation, that passage might reveal error by the judge. In particular, as counsel for the applicant contended, the proposition so stated by the judge was not based on any evidence. However, it is clear from the context in which the passage occurs, and in particular from the whole of paragraph 81, that the proposition thus stated by the judge was no more than a passing observation, which played no part in his Honour’s reasoning.

The passage, in which the proposition relied on by the applicant occurs, followed the finding by the judge that Mr Moran’s opinion (that there was a left sided disc prolapse at the L5-S1 level) was ‘an outlier’. His Honour then stated as follows:

It may be thought less than plausible that a low back injury would be sustained in circumstances where a driver is secured in his or her seat by a seatbelt. The neck unrestrained is exposed to classic whiplash injury, but it is not obvious why or how a low back injury would be sustained whilst the seat and the belt system remained intact. As Mr McGarvie [senior counsel for the applicant] observed, however, in the history which Ms Jovceva gave to Dr Clayton Thomas, she described being jerked forward and to the left, which may account for a low back injury being sustained … I proceed upon the basis that the pathology in the low back is accident related.

It follows that the passage, relied on by the applicant in support of ground 2, was of no consequence, and was immaterial to the ultimate conclusion by the judge. Accordingly ground 2 must fail.

Ground 3

In substance, ground 3 consists of two propositions, namely, first, that the judge failed to provide adequate reasons for his finding that various clinical examinations undertaken on the applicant demonstrated very little loss of range of movement, and, secondly, for using that finding as the criterion for determining the applicant’s case based on an injury to the thoracolumbar spine.

The first such proposition was, in substance, the same as that advanced in respect of sub-paragraph (b) under ground 1. For the reasons already discussed, we consider that the judge provided adequate reasons for finding that the clinical examinations, of the applicant, demonstrated very little loss of range of movement of the thoraco-lumbar spine. The critical question, which was the focus of the submissions advanced on behalf of the applicant under ground 3, concerned the second proposition that it contained, namely, the judge’s finding that the evidence did not disclose any significant pathology of the spine resulting from the accident.[28]
[28]Reasons [79].

In support of that proposition, senior counsel for the applicant placed particular reliance on the view of Mr Moran that the MRI scan of the lumbar spine disclosed a central to left sided disc ‘prolapse’ of moderate severity, and the finding by Mr Moran of some restriction of movement of the thoraco-lumbar spine. Counsel also relied on a number of findings by the other medical practitioners whose reports were tendered in evidence, including Dr Lisner, Dr Josefsberg, Dr Scotney, Dr Thomas, Mr Doig, Mr Fogarty and Dr Owen. He also referred to the evidence contained in reports of the physiotherapists Mr Gary Cairnduff and Ms Aimee Turner, and a report of Mr Deshmukh of the Melbourne Physiotherapy Pilates and Fitness Group clinic. He contended that, based on those reports, the ‘overwhelming preponderance of medical opinion’ before the judge was that the applicant had suffered an organic injury to the thoracolumbar spine as a consequence of the transport accident.

On analysis, the medical evidence, relied on by the applicant in support of ground 3, did not provide a foundation upon which the judge was obliged to find, or erred in not finding, that the applicant had sustained an organic injury of significance to the spine.

Dr Lisner’s report noted that the applicant was complaining of a sore neck and pain in her lower back. His ‘initial diagnosis’ was of soft tissue damage. Dr Lisner had not seen the applicant since 20 January 2014. Plainly, his evidence was of little assistance in this aspect of the applicant’s case.

Similarly, in her report dated 12 February 2015, Dr Josefsberg noted that the applicant had ‘residual neck and back pain’ for which she was then taking Panadol Osteo. Dr Scotney, who attended the applicant between July 2013 and January 2014, considered that the applicant had a cervical spine whiplash injury associated with dysfunction in the thoracic and lumbar spine. As noted, in January 2014, Dr Scotney considered that the applicant should make a significant if not complete recovery.

The applicant also relies, in this respect, on Dr Clayton Thomas’s diagnosis in April 2015, that ‘what may have started as a simple whiplash and associated disorder seemed to have developed more into a post-traumatic fibromyalgic-type picture’. That diagnosis was quite unspecific, and again, it did not indicate, of itself, any major or significant organic injury to the spine. We will return to Dr Thomas’s evidence when considering ground 4.

Mr Fogarty examined the applicant in 2014. As noted, his diagnosis was of soft tissue injury to the mid thoracic spine and the lumbar spine, and cervical hyperextension (whiplash) injury. He considered that those injuries were consistent with the accident. At that time, he considered that the applicant should be capable of returning to her full-time work as a fashion agent. He noted that there were no significant clinical findings in respect of the injuries diagnosed by him. In particular, on examination there was no neurological deficit.

Mr Doig’s finding was of soft tissue injury to the cervical spine, and soft tissue injury to the lumbar spine which (in August 2015) had ‘mostly resolved’. He considered that the injuries were consistent with the accident, and from an orthopaedic point of view she had only ‘done moderately’.

Pausing there, the evidence thus relied on by the applicant, both collectively and individually, did not require the judge to make a finding of any significant organic injury that was a consequence of the accident. Certainly, a number of the medical practitioners, referred to by the respondent, made findings of soft tissue injury. However, none of the medical practitioners, so far referred to, described an organic injury of any significant or major consequence.

In that respect, the evidence of the surveillance videos was of some importance. That evidence demonstrated that the applicant, on a number of occasions, was able to perform a number of ordinary day-to-day tasks with a significant degree of freedom of movement. In one video, she was seen to be seated on a grass nature strip, unsupported, with her back arched slightly forward, over a period of some minutes. She then rose from that position to a standing position without needing to support herself. Other video material showed her getting into, and out of, her motor vehicle, without any apparent difficulty or restriction. On one occasion, she bent from the waist and leaned into her vehicle for a short time in order to adjust items she had placed on the seat of the vehicle. Dr Owen, who viewed the videos, observed that they portrayed a person with very few obvious restrictions in her daily activities, which included shopping, carrying groceries, driving, using a mobile phone and caring for young children, all of which can be provocative of cervical spine symptoms. He stated that from his observation of the videos ‘there would appear to be very little in the way of limitation on her activities of daily living and doing normal domestic chores’.

The high point of the medical evidence, from the point of view of the applicant, was, of course, the report of Mr Moran. However, as already discussed, on analysis the findings made by Mr Moran provided only limited support to the applicant’s case. He found a traumatic aggravation of underlying asymptomatic degenerative changes in the neck and lower back. He also found evidence of disc prolapse at the lumbosacral junction, which was not associated with evidence of neurological impairment. As discussed, that evidence was only different, as a matter of degree, and more probably as a matter of terminology, from that of the other medical practitioners. There was no suggestion that the prolapse, described in the MRI scan, was causative of the extent of the pain or restriction complained of by the applicant. In particular, it was not demonstrated, on any medical examination, to be responsible for any neurological findings detected by the practitioners.

Taken together, the evidence, as to the nature and extent of the organic injury sustained by the applicant as a result of the accident, was limited. In his reasons, the judge set out the evidence in some detail. The judge’s reasons do, in our view, disclose a path of reasoning to his conclusion that there was little evidence of organic injury to the spine. As discussed, the judge noted that the CT scans and MRI imaging disclosed two disc bulges in the low back. He discounted the description by Mr Moran of the entry as a ‘prolapse’, as none of the other medical practitioners had adopted that terminology in describing it. Further, as already discussed, the judge noted that the various clinical examinations had demonstrated very little loss of range of movement. It was in that context that the judge then asked, rhetorically, the question as to ‘what … accounts for the extensive spinal symptoms complained of by Ms Jovceva?’. In asking that question, the judge, thus, indicated that the evidence, discussed by him, did not provide an organic explanation for the extensive and diffuse nature of the spinal symptoms complained of by the applicant.

For those reasons, ground 3 of the application does not succeed.

Ground 4

Ground 4 is directed to the finding by the judge that the diagnosis, by Dr Thomas of ‘fibromyalgia’, was not an orthodox medical diagnosis, but, rather, that it denoted the functional nature of the impairments complained of by the applicant.

Counsel for the applicant contended that, in making that finding, the judge substituted his own views for the medical evidence of Dr Thomas. He submitted that Dr Thomas did not express the opinion that the diagnosis of fibromyalgia was one of a non-organic injury. Further, it was contended, the finding by the judge to that effect was not supported by the evidence of the other practitioners who assessed the organic nature of the applicant’s injuries.

In response, counsel for the respondent submitted that the judge’s analysis of Dr Thomas’s evidence was correct. He noted that Dr Thomas considered that what commenced as a whiplash injury had developed into a post-traumatic fibromyalgic condition. Dr Thomas himself considered that the applicant needed psychological treatment, and Dr Thomas had raised the question whether she was suffering from a bipolar type 2 condition. Accordingly, it was submitted, the judge was correct to construe Dr Thomas’s diagnosis as denoting a functional, as distinct from an organic, based condition.

As mentioned, the judge commenced his consideration by noting that the evidence did not disclose any significant pathology in the cervical or lumbar spine, and that there was no evidence of any pathology at the mid or thoracic level. The judge’s finding, in that respect, was the subject of ground 3, which we have already considered.

Having reached that conclusion, the judge then considered the question as to what accounted for the extensive spinal symptoms complained of by the applicant.[29] It was in that context that he noted, first, that Dr Thomas had made a diagnosis of ‘fibromyalgia’ which, his Honour considered, was ‘not an orthodox medical diagnosis’.[30] His Honour then set out, at some length, a quotation from the judgment of Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[31] in which the President described, by reference to DSM-5, the meaning of the term ‘chronic pain syndrome’ and of the term ‘functional overlay’. His Honour further noted that Dr Serry had diagnosed, in addition to a chronic adjustment disorder, that the applicant also suffered from ‘somatic symptom disorder with predominant pain’. The judge referred to the criteria for that diagnosis specified in DSM-5.[32] His Honour noted that the functional, as distinct from organically driven nature, of the applicant’s impairments was demonstrated by the diffuse nature of her symptoms.[33] His Honour then stated:

The functional nature of the injury is also consistent with the striking contrast between, on the one hand, the extreme complaints of pain and restrictions referred to on the one hand and, on the other hand, the minimal findings on formal examination and the apparent unrestricted range of spinal motion displayed informally on surveillance video taken on a number of occasions in the months immediately leading up to this hearing.[34]

[29]Reasons [83].

[30]Reasons [83].

[31](2007) 15 VR 649 (‘Stamboulakis’).

[32]Reasons [83].

[33]Reasons [84].

[34]Reasons [85].

It was on the basis of those matters that the judge concluded that the predominant cause of the applicant’s symptoms was psychological, and not organic.

In our view, there is merit in the point made by senior counsel for the applicant that the judge should not have had recourse to the passage in the judgment in Stamboulakis, to which we have referred, and to the contents of DSM-5, in determining the nature of the injury that was diagnosed by Dr Thomas and by Dr Serry.

The discussion, by Maxwell P in Stamboulakis, of the meaning of the terms ‘chronic pain syndrome’ and ‘pain disorder’ was based on materials that were put before the Court in that case. However, the reasons of the Court, in that case, are not, and cannot be, ‘authority’ for the meaning of what is essentially a medical diagnosis. Further, the DSM-5 manual was not admitted in evidence before the primary judge in this case. In the course of final address by senior counsel for the applicant, his Honour, understandably, noted that the term ‘somatic symptom disorder’, used by Dr Serry, had not been defined in the evidence. His Honour observed that ‘one would have to go to DSM to find out what it is’. Senior counsel for the applicant did not, in express terms, demur from that course. However, on a fair reading of the transcript, it cannot be maintained that senior counsel, in that way, assented to his Honour accessing and using, outside Court, the medical material that had not been tendered in evidence.

In the present case, the judge was certainly at a particular disadvantage, because the reports referred to, but did not define, or explicate, the meaning of terms such as ‘fibromyalgia’ (used by Dr Thomas) and ‘somatic symptom disorder’ (used by Dr Serry). Certainly, there are a number of medical terms with which judges develop a convenient degree of familiarity, so much so that they are clearly entitled to take ‘judicial notice’ of the meanings of those terms. However, where — as in this case — terms are employed in medical reports which have not passed firmly into the lexicon of personal injury litigation, it is not appropriate for a judge, without the clear assent of the parties, to embark on research of his or her own in order to determine the meaning of those terms.

It is understandable that the judge sought elucidation of those terms by reference to the materials that his Honour did. That his Honour did so was testament to the degree of diligence and care which his Honour applied to analysing the evidence and formulating his reasons for judgment. However, as stated, we do not consider that in this case it was appropriate or correct for his Honour to have had access to the materials to which we have just referred.

Nevertheless, and notwithstanding those observations, the fact remains that, in the absence of those materials, there was a substantial body of evidence that supported the conclusion formed by the judge that the predominant cause of the respondent’s symptoms was psychological and not organic.

The starting point, for that conclusion, was, as considered by the judge, the lack of any significant underlying pathology that would explain the widespread and severe symptoms complained of by the applicant. On the other hand, there was evidence that supported the proposition that the applicant had sustained a significant psychological reaction as a result of the accident.

As the judge noted, when Dr Thomas first examined the applicant in April 2015, he considered that what may have started as a simple whiplash injury seemed to have developed into a post-traumatic fibromyalgic type condition. At that time, he felt that the applicant needed more of a psychological input than the physical exercise regime that she was undertaking. He noted that the applicant suffered anxiety, panic attacks and occasional nightmares. As already mentioned, as a consequence, Dr Thomas wrote to the applicant’s general practitioner questioning whether she suffered from a bipolar type condition, which needed further evaluation.

As we have just noted, in his report, Dr Thomas did not define or explain what he meant by his diagnosis that the applicant suffered from a widespread pain syndrome and that she met the criteria for fibromyalgia. However, it is evident that Dr Thomas ascribed a significant role, in the applicant’s condition, to her psychological symptoms.

In that context, it is relevant that, in the period leading to the accident, the applicant had been receiving treatment from Ms Young, the psychologist. It will be recalled that Ms Young expressed the opinion, in April 2012, that the applicant suffered severe anxiety and depressive symptoms in the context of legal issues and monetary concerns. In her report dated 2 February 2015, Ms Young stated that standard assessment tools, as at April 2012, revealed ‘mild depressive symptoms in addition to very severe chronic anxiety and stress’. During the period of twelve months preceding the accident, the applicant had been certified by Dr Josefsberg to be unfit for work due to what was described as an exacerbation of a chronic condition of anxiety and depression. After the accident, the applicant continued to attend counselling sessions with Ms Young in 2013 and 2014. At that time, she continued to suffer anxiety and stress, but in addition experienced significant depression.

As already noted, Dr Serry diagnosed the applicant to suffer a psychiatric illness resulting from the accident, consisting of a chronic adjustment disorder with anxious and depressed mood, and with significant features of traumatisation. In the latter respect, he noted that the applicant had been ‘quite traumatised by the direct accident circumstances’ although she did not have a ‘full blown’ post-traumatic stress disorder. In his second report, Dr Serry again diagnosed a chronic adjustment disorder with anxious and depressed mood and significant features of traumatisation. He considered that the applicant presented with symptoms ‘consistent with a diagnosis of a somatic symptom disorder with predominant pain persistent and of moderate severity’.

Dr Hayman, who examined the applicant in October 2018, expressed similar views. In particular, he noted, from Ms Young’s reports, that the applicant had long-standing depressive and anxiety symptoms and developmental and other issues. He considered, diagnostically, that the applicant had developed a chronic adjustment disorder with depressed and anxious mood, and some mild post-traumatic anxiety features.

Thus, the evidence of Ms Young makes it plain that the applicant had experienced serious psychological difficulties in the period of twelve months preceding the accident. Further, the evidence of Dr Serry and Dr Hayman makes it clear that as a consequence of the accident the applicant had sustained a quite significant psychological reaction. Relevantly, Dr Serry diagnosed the applicant’s condition to include significant features of traumatisation. When he conferred with the applicant, she told him that the accident and the consequences came to mind frequently. She also said that she had recurrent flashbacks, particularly when she was in a vehicle, which caused her to flinch. She now found that she was hyper-vigilant and has a sense that she could not control everything when she is driving a motor vehicle. She also told Dr Serry that she had to regularly pass the site of the accident, and that she would always re-live the accident when she approached it. In addition, she no longer watched the news and was ‘jumpy’ when there was any news broadcasts relating to a motor vehicle accident.

In summary, then, as the judge found, there was no significant pathology of the spine that would account for the extent, nature and severity of the symptoms complained of by the applicant. Those symptoms were not supported by the findings of a number of medical practitioners on clinical examination. On the other hand, there was a strong body of evidence that there was a significant psychological or functional basis to the applicant’s condition.

It was in that context that the judge was required to draw conclusions concerning the report of Dr Thomas. As noted, in suggesting that the applicant had developed a ‘post-traumatic fibromyalgic-type picture’, Dr Thomas was not specific as to whether that description denoted a psychological or physical basis for the applicant’s condition. However, Dr Thomas was clearly of the view that there was a significant psychological contribution to it. In the first consultation with the applicant, he considered the applicant needed ‘more of the psychological input into the way she thought, felt and dealt with her pain … more so than the exercises that she was doing …’. He also raised the question as to whether the applicant had a bipolar condition. In that respect, he noted that she had anxiety and panic attacks and occasional nightmares since the accident.

In those circumstances, the judge had a sound — if not compelling — evidentiary basis on which to construe the diagnosis made by Dr Thomas as being based predominantly on psychological, as distinct from organic, factors. While, as we have stated, the judge ought not to have had reference to Stamboulakis or DSM-5 for that purpose, nevertheless, the evidence, to which we have referred, dictated the conclusion by the judge as to the nature of the diagnosis made by Dr Thomas.

Accordingly, properly analysed, the evidence fully justified the judge reaching the conclusion that the predominant cause of the applicant’s condition was psychological, and not organic. In those circumstances, as this Court has held in Richards, the injury claimed by the applicant did not, and could not, come within the definition of ‘serious injury’ in sub-para (a) of s 93(17) of the Act.

Consequently, ground 4 of the application for leave to appeal must fail.

Ground 5

In support of ground 5, the applicant contended that the judge failed to assess the extent of pain and disability suffered by the applicant in consequence of the spinal injury of which she complained. In support of that submission, counsel for the applicant relied on the description given by the applicant, in her affidavits, of the level of pain from which she suffered, and of the manner in which it interfered with her day to day activities. In that respect, counsel also relied on the affidavit of the applicant’s sister, Tanja Karavesov and her friend Chris Drossos. In addition, it was contended that the judge ought to have, but did not, make an assessment of the loss of earning capacity sustained by the applicant as a consequence of her injury. Further, it was contended, the judge failed to assess and take into account the evidence of Ms Young, Dr Serry and Dr Hayman, of the psychological sequelae which, the applicant maintained, she sustained as a consequence of her physical injury.

As senior counsel for the applicant noted, the points made by the applicant in support of ground 5 would only be of relevance if the judge had erred in concluding that the predominant cause of the applicant’s symptoms were psychological, so that the injury, complained of by the applicant, did not come within sub-para (a) of the definition of ‘serious injury’ in s 93(17) of the Act. As the applicant has failed to succeed on any of grounds 1 to 4 of the application, it follows that ground 5 may not succeed.

Summary of conclusions

For the foregoing reasons, the applicant has not made out any of the proposed grounds of appeal sought to be relied on. While we consider that grounds 1, 3 and 4 were sufficiently arguable to warrant the granting of leave to appeal, for the reasons outlined, each of those grounds of appeal does not succeed.

Accordingly, we will grant the applicant leave to appeal from the decision of the County Court judge dated 13 December 2018, but, leave being granted, dismiss the appeal.

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Citations

Jovceva v Transport Accident Commission [2019] VSCA 105

Most Recent Citation

Thornhill v Transport Accident Commission [2019] VCC 699

Cases Citing This Decision

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Tawakuli v Victorian WorkCover Authority [2020] VSCA 22

Lowe v Victorian WorkCover Authority [2024] VCC 200

Cases Cited

11

Statutory Material Cited

0

Jovceva v Transport Accident Commission [2018] VCC 2062

Richards v Wylie [2000] VSCA 50

Transport Accident Commission v Zepic [2013] VSCA 232

[2019] VSCA 105

21 May 2019