Kantor v TAC
[2017] VCC 1182
•30 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03464
| AMANDA KANTOR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21 and 24 July 2017 | |
DATE OF JUDGMENT: | 30 August 2017 | |
CASE MAY BE CITED AS: | Kantor v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1182 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – injury to the pelvis – neurocardiogenic syncope – causation - credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Davies v Nilsen [2014] VSCA 278; Bedeux v TAC [2016] VSCA 127
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC Ms J Frederico | Zaparas Lawyers |
| For the Defendant | Mr G Lewis QC Ms D Manova | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mrs Kantor is a 35 year old woman who was injured in a transport accident on 10 December 2010, when her stationary car was struck from behind by another vehicle. At the time of the transport accident, Mrs Kantor was 13 weeks pregnant with her second child. Her pregnancy proceeded without complication, however, Mrs Kantor said that since the transport accident, she has suffered ongoing pelvic and lower back pain, together with frequent fainting episodes, also known as neurocardiogenic syncope (NCS).
2 In order for Mrs Kantor to be entitled to claim common law damages, she must satisfy me that she suffered an injury to her lower back or pelvis in the transport accident, or that it brought on the NCS, or that it caused an aggravation of that condition. Further, she must then satisfy me that the impairment of her pelvis or spine, or the functioning of her heart or nervous system, satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986. In the alternative, if I am not satisfied that Mrs Kantor suffers an organic physical injury, she claims that as a consequence of the transport accident, she suffers a psychiatric disorder, that satisfies paragraph (c) of the definition of “serious injury.”
3 The Transport Accident Commission (“the TAC”) denies that Mrs Kantor suffers any ongoing injury – either physical or psychiatric, as a consequence of the transport accident.
4 Mrs Kantor and her husband were called to give evidence and were cross-examined. Also in evidence were a considerable volume of Mrs Kantor’s clinical records, from both prior to and subsequent to the transport accident. These records initially totalled more than 3,600 pages and were contained in an electronic version of what was referred to as a Court Book Addendum (CBA). However, only a select number of these documents were tendered.
5 I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6 Prior to the transport accident Mrs Kantor had suffered longstanding problems with pelvic and abdominal pain, as well as referred pain into her lower back. She had also fainted on several occasions and had suffered dizziness and faintness on numerous occasions, for which she attended either her local doctor or a hospital. I accept that she suffered a worsening of these problems after the transport accident. However, I consider there is no medical evidence to satisfactorily relate such symptoms to the transport accident. A mere temporal connection between the transport accident and the onset of symptoms is not enough. Mrs Kantor bears the onus of satisfying me that the transport accident caused her either a physical or a psychiatric injury. For the reasons which follow, Mrs Kantor has failed to satisfy me of either.
Mrs Kantor’s life before the transport accident
7 Mrs Kantor completed Year 12 at Hampton Park Secondary College.
8 After leaving school, Mrs Kantor undertook roles in sales and customer service, for several different employers, including Telstra and HBA. Mrs Kantor then commenced working as a customer service officer with Centrelink where she continues to be employed.
9 Mrs Kantor met her now husband, Adam, in May 2008 and they were married in May 2009. Together they have three sons, Nathaniel, aged 7, Zachary, aged 6 and Elijah, aged 3 years.
Prior health issues
10 In the decade prior to the transport accident, Mrs Kantor suffered a multitude of medical complaints relevant to this claim.
11 In April 1999, whilst studying Year 12, Mrs Kantor experienced recurrent abdominal pain, which was suggestive of gallstones. In the following five months, Mrs Kantor attended The Valley Private Hospital on several occasions, continuing to complain of right sided abdominal pain which fluctuated in intensity. Ultimately, an appendectomy was performed on 2 September 1999. The pathology report indicated there was no active inflammation found.[1]
[1]CBA 2595
12 Also in 1999, Mrs Kantor experienced dizziness and right sided headaches. She was referred to ENT surgeon, Mr Stephen O’Leary, who considered that her problems may relate to her cervical spine.[2] However, Mrs Kantor’s recollection of her attendance with Dr O’Leary was that he considered her to be suffering from an inner ear imbalance.[3]
[2]CBA 418
[3]Transcript (“T”) T85, L19-24
13 On 16 October 2001, Mrs Kantor attended her general practitioner, Dr Elsa Ng, complaining of feeling dizzy after being struck in her left eye during netball. Dr Ng also noted that Mrs Kantor complained of right iliac fossa colicky pain.[4]
[4]CBA 333
14 The following day, Mrs Kantor again attended Dr Ng and complained of being dizzy, whilst filing at work. A neurological examination at that time was normal.[5]
[5]CBA 333
15 On 13 November 2001, Mrs Kantor attended general practitioner, Dr Marie McPhail, who noted that the plaintiff complained of suffering intermittent episodes of vertigo.[6]
[6]CBA 333
16 On 27 February 2003, Mrs Kantor attended general practitioner, Dr Lisa Yoffa, and complained of sharp pains in her abdomen through to her back. It was noted she had experienced such symptoms “for over a year, most days on and off”.[7]
[7]CBA 335
17 On 20 April 2004, Mrs Kantor attended general practitioner, Dr Suyama Jayawardena, for multiple complaints, including “abdominal pain for months.”[8]
[8]CBA 342
18 On 5 May 2004, Mrs Kantor attended general practitioner, Dr Ng. It was noted Mrs Kantor had suffered right sided abdominal pain “for a couple of years”.[9] On examination, Dr Ng noted Mrs Kantor was tender in the right flank, but commented that such tenderness “seemed inconsistent with each palpitation or when distracted”.[10]
[9]CBA 342
[10]CBA 342
19 On 23 September 2004, Mrs Kantor attended general practitioner, Dr Yoffa, who recorded that Mrs Kantor had collapsed at home and woken on the floor a few hours later.[11] In cross-examination, Mrs Kantor said she could not recall this incident.[12]
[11]CBA 343
[12]T80, L17-18
20 On 4 October 2004, Mrs Kantor attended The Valley Private Hospital in relation to recurrent abdominal pains.[13] A CT scan taken of Mrs Kantor’s abdomen did not demonstrate any abnormality at that time.[14]
[13]CBA 2517
[14]CBA 2520
21 On 13 December 2004, Mrs Kantor attended general practitioner, Dr Jean Douyer, and complained of dizziness.[15] Dr Douyer considered this may relate to Mrs Kantor suffering chlamydia and prescribed medication.
[15]CBA 345
22 On 15 December 2004, Mrs Kantor re-attended the clinic and was seen by Dr Judith Niang. It was reported that Mrs Kantor was experiencing lower abdominal pain and nausea.[16]
[16]CBA 345
23 On 24 May 2005, a letter of referral to The Valley Private Hospital stated that Mrs Kantor had been suffering lower abdominal pain with back pain associated with a fainting feeling since the previous day.[17] Investigations subsequently excluded an ectopic pregnancy. A gastroscopy and colonoscopy were performed and were reported as normal.[18] An x-ray of Mrs Kantor’s abdomen[19], as well as a pelvic ultrasound[20], also failed to detect any abnormality, other than the ultrasound, which noted that she had changes consistent with Polycystic Ovary Syndrome.
[17]CBA 2473
[18]CBA 412-413
[19]CBA 2491
[20]CBA 2492
24 On 3 August 2005, Mrs Kantor attended The Valley Private Hospital with a complaint of ongoing abdominal pain and feeling faint.[21]
[21]CBA 2448-2450
25 On 18 September 2005, Mrs Kantor attended the Angliss Hospital following a collapse at a party. Her presenting problem was noted as abdominal pain. A nursing note stated:
“Ph stomach ailment? Has collapses has happened a lot tests showed nothing
TTonight (sic) was at a party had three wines
Felt pain in stomache (sic) and had an ? unconscious collapse …”[22]
[22]CBA 1753
26 The subsequent note indicated that Mrs Kantor had five drinks at a nightclub and collapsed, with a loss of consciousness of 30 minutes.[23] Mrs Kantor was diagnosed with having suffered a vasovagal.[24]
[23]CBA 1756
[24]CBA 1755
27 When Mrs Kantor was cross-examined about these medical records, she stated that she had not fainted.[25] She said that when her legs got weak, she would collapse to the ground.[26] She was unable to explain the nurses comment that she has had collapses, which had “happened a lot”, and instead said that she went weak in the legs and would collapse to the ground.[27]
[25]T 73, L20-21
[26]T 73, L8-12
[27]T 73, L9-11
28 On 26 October 2006, Mrs Kantor attended general practitioner, Dr Adel Nashed, and complained of a sore throat and stated that she had “fainted yesterday and feels worse today”.[28] When cross-examined about this attendance, Mrs Kantor said that she could not recall the incident, and felt that she might have been feeling faint rather than actually having fainted.[29]
[28]CBA 355
[29]T 72, L3-4
29 On 17 January 2007, Mrs Kantor attended the Angliss Hospital with a complaint of abdominal pain radiating to her back, with symptoms that had worsened over a two week period since she had developed a dry cough.[30]
[30]CBA 1747
30 On 12 September 2007, Mrs Kantor attended the Angliss Hospital with a complaint of left sided chest pain, and said that she felt faint. Mrs Kantor said that she could not recall this incident.[31] The records indicated that Mrs Kantor had been having a fight with her boyfriend when the pain came on.[32]
[31]T 68, L26-27
[32]CBA 1738
31 On 17 December 2007, Mrs Kantor attended general practitioner, Dr Adel Makar, with a complaint of “dizzy spells”.[33]
[33]CBA 3688
32 On 14 July 2008, Mrs Kantor attended general practitioner, Dr Barbara Wasniewska, with a complaint of two days of abdominal pain. Her abdomen was noted to be soft and tender and a pelvic ultrasound was arranged.[34]
[34]CBA 3688
33 On 3 September 2008, Mrs Kantor again attended Dr Wasniewska with a complaint of nausea and vomiting. On examination, Mrs Kantor’s abdomen was again soft and tender.[35]
[35]CBA 3689
34 On 6 November 2008, Mrs Kantor attended general practitioner, Dr Enas Makar, with a complaint of right iliac fossa pain and nausea. On examination, it was noted that there was no abdominal tenderness and no guarding.[36]
[36]CBA 3689
35 On 3 December 2008, Mrs Kantor was taken from her workplace by ambulance to the Angliss Hospital, with a report that she had developed sharp central left breast and right back pain whilst at work. The ambulance records indicated that she had “consumed copious amounts of alcohol four days ago and three days ago had complained of abdominal pain, headaches and vomiting”.[37] The ambulance record contained a pre-existing history, which included that Mrs Kantor had suffered undiagnosed abdominal pain in the left lower quadrant for seven years. It stated that Mrs Kantor previously had an appendectomy, laparoscopy and endoscopy and that she suffered polycystic ovaries.[38] Mrs Kantor was cross-examined regarding this record and said that she could not recall this occasion.[39]
[37]CBA 1728
[38]CBA 1728
[39]T67, L7-9
36 In early 2009, Mrs Kantor became pregnant with her first child. Her pregnancy was managed by obstetrician, Dr Susan Taylor. In July 2009, Mrs Kantor had a three day admission to Jesse McPherson Hospital. The records indicated that the cause of her abdominal pain was uncertain.[40]
[40]CBA 2013,
37 On 15 September 2009, an ambulance was called to Mrs Kantor’s workplace after she had fainted at work.[41] Mrs Kantor said that she was pregnant with her first child at the time.[42]
[41]CBA 2646
[42]T 66, L 29-31
38 On 22 October 2009, Dr Taylor performed a caesarean section delivery on Mrs Kantor. At the time, Mrs Kantor was 37 weeks gestation and had suffered a further episode of severe abdominal pain. Dr Taylor stated that she could find no cause for Mrs Kantor’s right iliac fossa pain when she performed the caesarean. She noted that there were no adhesions and that Mrs Kantor’s tubes and ovaries were mobile. She considered it unusual for endometriosis to cause the kind of pain that Mrs Kantor was suffering and she assumed the pain had arisen from bowel dysfunction.[43]
[43]CBA 3381
39 On 2 February 2009, Mrs Kantor attended Dr Taylor for a six week post-natal check-up. Dr Taylor noted that Mrs Kantor complained of a further episode of right iliac fossa pain. Dr Taylor stated that she did not consider there was a gynaecological cause of this pain.[44] However, Mrs Kantor said her recollection of this discussion with Dr Taylor was that her problems were considered to be related to adhesions.[45]
[44]CBA 3526
[45]T66, L14-15
40 On 10 February 2010, Ambulance Victoria attended Mrs Kantor’s home with a complaint that she was suffering abdominal pain and hypogastric pain. She was taken to Box Hill Hospital, where an abdomen x-ray showed no abnormality.[46] When questioned about this x-ray, Mrs Kantor agreed it was normal.[47]
[46]CBA 1828
[47]T 66, L5-7
41 On 30 June 2010, Ambulance Victoria attended Mrs Kantor’s home with a complaint of abdominal pain, with “fainting or near fainting”.[48] Mrs Kantor was then taken to Knox Private Hospital with a suspected ectopic pregnancy. When asked about this attendance, Mrs Kantor said that she thinks she would have said “near fainting” if she was “dizzy”.[49]
[48]CBA 2660
[49]T65, L18-21
42 On 11 October 2010, Ambulance Victoria attended upon Mrs Kantor at Knox Shopping Centre following a complaint of sharp right pelvis pain, together with dizziness and nausea.[50]
[50]CBA 2675
43 On 27 October 2010, Ambulance Victoria attended upon Mrs Kantor at her doctor’s clinic following a complaint of right iliac fossa pain.[51] Mrs Kantor was taken to Knox Private Hospital. [52] When cross-examined about this attendance, Mrs Kantor said that she recalled the pain was in the right, and related to right upper quadrant pain.[53]
[51]CBA 2681
[52]CBA 2680
[53]T 62, L 19-20
44 On 25 November 2010, Ambulance Victoria attended upon Mrs Kantor after a work colleague found her on the bathroom floor. Mrs Kantor said she had been drinking a hot chocolate when she saw a fly in the drink, which immediately made her “vomit and vomit and vomit”.[54] Although the ambulance records stated that the call was made as she was “unconscious/fainting, not alert”, Mrs Kantor denied that she fainted or lost consciousness. She said that she was drained of all energy after the vomiting and that her work colleague had called the ambulance service out of concern for her.[55]
[54]T60, L13
[55]T60, L19-23
45 On 29 November 2010, Ambulance Victoria attended Mrs Kantor’s home with a complaint of right lower quadrant pain. She was taken to Werribee Mercy Hospital. After being given Endone and Tramadol, Mrs Kantor was discharged.[56]
[56]T 59, L24-31, T 60, L 1-2
46 The history detailed above demonstrates that prior to the transport accident, Mrs Kantor had suffered long-standing problems with abdominal and pelvic pain, which at times radiated into her lower back. She had attended doctors and hospitals on multiple occasions; however, investigations had not revealed any abnormality or cause for her ongoing pain.
47 I consider Mrs Kantor’s description in her first affidavit that she had suffered “from some intermittent upper abdominal discomfort and pelvic pain”[57] to be a significant understatement. It is apparent from the medical records detailed above that Mrs Kantor had suffered years of abdominal pain, the cause of which was never diagnosed. It is also apparent that such pain had persisted on a very regular basis, requiring regular medical attention, and at times, ambulance transfer to a hospital.
[57]CB 3
48 In addition, based on the records detailed above, Mrs Kantor was reported as suffering either episodes of fainting, loss of consciousness, near fainting, or dizziness on at least 11 occasions.
49 However, in her affidavit, Mrs Kantor merely stated that since being told she suffered an inner ear imbalance in 1999, she had suffered:
“some occasional feelings of light headedness and dizziness however these were infrequent. Whilst I was pregnant… during 2009 I fainted on two occasions. I believe that this was due to the effects of my pregnancy.”[58]
[58]CB 4
50 I also consider this to be inaccurate, given the number of fainting, or near fainting episodes reported prior to the transport accident.
Transport accident and its consequences to Mrs Kantor
51 The transport accident occurred on 10 December 2010, when Mrs Kantor was driving along the Princess Highway in Werribee. She said that the traffic in front of her was banked up, and that she braked suddenly, causing the car travelling behind her to collide with the rear of her vehicle.
52 Mrs Kantor said she was able to get out of her car, but collapsed almost straight away. She was then taken by ambulance to Werribee Hospital. The ambulance records indicated that after the accident, Mrs Kantor “felt seatbelt tighten around abdo and felt immediate pain.”[59]
[59]CB 24
53 The ambulance records stated that Mrs Kantor suffered anxiety and right hypogastric cramps.[60] It was then noted that there was no altered conscious state, and no vaginal bleeding or discharge. The records are equivocal as to whether the ambulance officers observed any bruising, haematoma or shortness of breath.[61] My reading of the ambulance records is that such symptoms were excluded, however, I accept Mr McGarvie’s submission that the records could be read to the contrary. In any event, Mrs Kantor’s recollection was that she did not have time to show the ambulance officers, as they took her straight to hospital to check the baby.[62]
[60]CBA 2703
[61]CBA 2703
[62]T 32, L4-7
54 Mrs Kantor was taken to Werribee Hospital’s Emergency Department where she underwent an ultrasound. The records show a diagram of her abdomen, but make no reference to bruising.[63]
[63]CBA 59
55 Mrs Kantor said that she felt stiff and sore in the following days, and that she spent most of her time in bed. She said she also felt lightheaded and dizzy.[64]
[64]CB 5
56 On 13 December 2010, Mrs Kantor attended general practitioner, Dr Nuwan Athauda. He noted that she was involved in a transport accident on 10 December 2010, and that she suffered “neck/arm and lower back pain today”.[65] Dr Athauda made no reference to bruising. Despite this note, Mrs Kantor was adamant that Dr Athauda observed abdominal bruising.[66] Dr Athauda recommended that Mrs Kantor undergo physiotherapy.
[65]CBA 149
[66]T 34, L9-10
57 Mrs Kantor said she continued to struggle with ongoing lower pelvic and abdominal pain in the coming weeks. She said the pain was much more severe than it had been on the occasional times she had experienced such pain prior to the transport accident. She also said she was troubled with ongoing pain and stiffness in her neck, back, right shoulder and arm.
58 Mrs Kantor received physiotherapy treatment from Mr Damien Rowe. He noted that Mrs Kantor had difficulties in standing, walking and even lying. On examination he noted some abnormality in the position of the sacroiliac joint/sacrum.[67]
[67]CB 45
59 In January 2011, Mrs Kantor was admitted to Cabrini Hospital due to ongoing pain and discomfort.[68]
[68]CB 5
60 Mrs Kantor said she continued to experience frequent feelings of light-headedness and said she began to experience episodes of blacking out due to pain. She said that on one occasion, she passed out and collapsed in the shower, and was later found by her husband.[69]
[69]CB 5
61 Mrs Kantor said her obstetrician, Dr Ian Barabash, prescribed Endone and OxyContin to help manage her ongoing pain.[70]
[70]CB 5
62 On 8 March 2011, Ambulance Victoria attended Mrs Kantor’s home and noted that she had reached for a book, causing a bookshelf full of books to topple over, knocking her to the ground.[71] Mrs Kantor denied that she had been reaching for a book, and said this incident had occurred when she felt dizzy. She said that she might have grabbed the bookshelf to steady herself, causing it to fall on her.[72]
[71]CBA 2753
[72]T 86, L7-15
63 On 21 March 2011, Mrs Kantor was readmitted to Cabrini Hospital due with ongoing pelvic pain.[73]
[73]CB 5
64 On 30 April 2011, Mrs Kantor was referred to neurologist, Dr Jacques Joubert. He considered she was probably suffering NCS and requested a tilt table test.
65 On 15 May 2011, Mrs Kantor attended the Angliss Hospital Emergency Department with complaints of pelvic pain that was not responding to Endone. On examination, it was noted that Mrs Kantor was “in pain but not whn (sic) engaged in conversation”.[74]
[74]CBA 1692
66 On 26 May 2011, Mrs Kantor’s second son was delivered by way of Caesarean section. Mrs Kantor said that after his birth, there was little improvement in her pelvic pain.[75]
[75]CB 6
67 Mrs Kantor continued to receive physiotherapy treatment from Mr Rowe, who noted that post-partum, Mrs Kantor continued to suffer significant pain when walking, standing and sitting.[76]
[76]CB 45
68 In June 2011, Mrs Kantor was referred to psychologist, Kate Dunlop.[77] No report was tendered from Ms Dunlop.
[77]CB 6
69 On 18 August 2011, Mrs Kantor called an ambulance as her 2-month-old son was having breathing problems. When the ambulance attended, it was noted that the child was well. As the ambulance officers left, Mrs Kantor began to experience pelvic pain. The ambulance officers then entered the house to find Mrs Kantor on the floor. She was subsequently put in a chair, after which the officers observed her slide onto the floor, hyperventilating. It was noted that “with attention was directed back to her she was able to independently bend both legs, weight-bear and move onto a stretcher while smiling showing no sign of pain or discomfort!!”[78]
[78]CBA 2821
70 In August 2011, Mrs Kantor’s general practitioner referred her to orthopaedic surgeon, Mr Michael Dooley. He considered it was “difficult to correlate”[79] all of her symptoms and said that she “probably sustained a soft tissue injury to the cervical and lumbar spine regions”[80] in the transport accident. Mr Dooley also queried whether her ongoing pain related to ongoing gynaecological symptoms. Mr Dooley did not recommend any orthopaedic treatment at that time.
[79]CB 47
[80]CB 47
71 At about this time, Mrs Kantor decided to reduce her Oxycontin medication,[81] as one of her cousins told her that it was the drug Michael Jackson had died from.[82]
[81]CBA 3537
[82]T149, L1-3
72 On 20 October 2011, an Ambulance drove Mrs Kantor to Mercy Werribee Hospital with complaints of right pelvis pain. On examination, it was noted that Mrs Kantor was easily distracted[83] and “at times displayed odd behaviour”.[84]
[83]CBA 2841
[84]CBA 2842
73 On 29 October 2011, Dr Barabash performed a laparoscopy on Mrs Kantor due to ongoing pelvic pain. He noted there was a small amount of endometriosis and adhesions.[85] He considered her pelvic pain was most likely gynaecological in nature, although he noted there was an element of pelvic instability.[86]
[85]CB 66
[86]CB 66
74 On 28 November 2011, Ambulance Victoria attended Mrs Kantor’s home, after a second bookcase had fallen on her. The record stated that she had felt dizzy, leant on the bookcase, and then woken up on the floor with the bookcase on top of her.[87] In cross-examination, Mrs Kantor said this was a different bookcase to the one that had fallen on top of her in March 2011[88] and Mr Kantor also said that it may have been with another bookcase.[89]
[87]CB 2849
[88]T88 ,L1
[89]T 155, L7-8
75 On Sunday 29 January 2012, Mrs Kantor was taken by ambulance to Dandenong Hospital’s Emergency Department, as she had experienced pain and numbness in her right arm whilst driving.[90] At the hospital, it was noted that Mrs Kantor had driven to and from Phillip island and she had not taken any analgesics since Friday. By the time of her admission, it was noted the right arm paraesthesia had decreased, but that she had since developed increasing pain in her pelvis. Mrs Kantor was diagnosed with chronic pain syndrome,[91] treated with Penthrane and Morphine and discharged.
[90]CBA 2861
[91]CBA 1278
76 Later that same afternoon, Mrs Kantor attended The Valley Private Hospital. She presented in a wheelchair and was noted to be extremely anxious and crying. When a dispute arose as to advance payment of her admission fee, it was reported that Mrs Kantor’s anxiety escalated and that she “pretended to have a seizure in wheelchair”.[92] The Valley Private Hospital staff refused Mrs Kantor’s request to call an ambulance for her to attend Knox Private Hospital.
[92]CBA 2407
77 In cross-examination, Mrs Kantor said that she could not recall this hospital attendance.[93]She also said that she always knew her TAC claim number.[94] However, I note the record did not state that Mrs Kantor did not know her TAC number, but that without documentation from the TAC, the hospital required her to pay the admission fee upfront and said that she could subsequently seek reimbursement from the TAC.[95]
[93]T99, L13 T124, L14-15?
[94]T99, L16-17
[95]CBA 2407
78 After leaving The Valley Private Hospital, Mrs Kantor called another ambulance due to ongoing severe pelvic pain.[96] Mrs Kantor was given some Morphine, but Methoxyflurane was withheld, as she had already received Penthrane earlier that day.[97]
[96]CBA 2868
[97]CBA 2869
79 Mrs Kantor was then taken back to Dandenong Hospital’s Emergency Department, with a complaint of ongoing pelvic and right loin pain. Contact was then made with Dr Barabash regarding Mrs Kantor’s ongoing symptoms. It was noted that Dr Barabash was “unsure and unconvinced of the true severity of her ongoing symptoms”[98] and that he was “unsure if she has very low pain tolerance or is drug seeking.”[99] It was noted that Dr Barabash “doubted that she has ongoing pelvic instability or any gynaecological pathology.”[100]
[98]CBA 1263
[99]Ibid
[100]Ibid
80 On 4 April 2012, Ambulance Victoria attended Mrs Kantor’s home following an alleged blackout, which caused her to collapse, striking her head on a doorknob. The ambulance records stated that Methoxyflurane was administered twice.[101] In cross-examination, Mrs Kantor said that she assumed she had hit her head on the doorknob, as it was the only thing that she could have hit to give her a black eye.[102]
[101]CBA 2881
[102]T101, L16-17
81 On 7 June 2012, Mrs Kantor underwent a tilt table test, performed by neurologist, Dr Angas Hamer. This test confirmed the presence of NCS.[103]
[103]CB 58
82 In his report dated 9 May 2014, Dr Hamer noted that Mrs Kantor had a “near syncopal event”[104] prior to the transport accident in her first pregnancy. Dr Hamer then stated that in his opinion, NCS episodes are “usually triggered by physical or emotional event.”[105] He concluded that it was quite plausible that Mrs Kantor’s pre-existing predisposition to fainting was activated by the transport accident and that it was continuing to impact upon her life.[106]
On 11 June 2012, Ambulance Victoria attended Mrs Kantor’s home following an alleged fall down stairs, after which she had subsequently passed out from pain in her pelvis and back. The ambulance records stated that Mrs Kantor had called an ambulance, as Endone had not helped her pain. Mrs Kantor was described as “evasive at times during history taking”[107] and “inconsistent, making it hard to gain a complete and correct story”.[108] In cross-examination, Mrs Kantor said she did not recall this particular attendance, as she has had quite a lot of syncope episodes that have involved stairs.[109] On examination at the hospital, Mrs Kantor was considered to be “distressed out of proportion to the pain”.[110]
[104]CB 58
[105]CB 61
[106]CB 61
[107]CBA 2906
[108]CBA 2906
[109]T 102, L30-31, T103, L1-2
[110]CBA 2424
83 On 22 June 2012, Dr Joubert reviewed Mrs Kantor after the tilt table test and subsequently prescribed Endep and Metoprolol.[111] In a report dated 16 March 2014, Dr Joubert commented that he did not believe the NCS was related to the transport accident.[112]
[111]CB 62
[112]CB 63
84 In July 2012, Mr Dooley re-examined Mrs Kantor in relation to her ongoing lower back and pelvic pain, as well as her trouble with fainting.[113] On this occasion, Mr Dooley recommended that Mrs Kantor improve her general fitness. He did not recommend any orthopaedic treatment.
[113]CB 48
85 On 10 August 2012, Mrs Kantor was admitted to Ringwood Private Hospital complaining of severe pelvic pain. She was seen by physician, Dr Rene Dupuche, who considered the aetiology of her pain as “not necessarily bony”.
86 On 3 October 2012, an MRI scan was taken of Mrs Kantor’s lumbar spine and pelvis. No abnormality was demonstrated.[114]
[114]CBA 164
87 On 14 December 2012, Mrs Kantor attended Monash Hospital. Whilst there, she demonstrated a sudden onset of all over body shaking, crying, refusing to walk and weight bare. It was noted that Mrs Kantor had episodes of fainting, in which her body lay still, but during which she responded to painful stimuli. It was also noted that her eyes were continually moving under her eyelids.[115]
[115]CBA 1252
88 On 15 February 2013, Ambulance Victoria attended Mrs Kantor at work. The ambulance officers considered her presentation inconsistent, in that on arrival, Mrs Kantor said that she had pain that was so severe she could not move. When asked to identify where the pain was, however, she was able to twist around in the chair and point to her back.[116] Mrs Kantor asked for a ‘green stick’ for pain relief.
[116]CBA 2977
89 On 15 February 2013, Mrs Kantor attended Dandenong Hospital’s Emergency Department stating that she could not walk. However, it was noted that Mrs Kantor had walked to the ambulance unaided. The medical record stated “ ? drug seeking as inconsistent behaviour as per AV one minute writhing in pain and the next sitting up easily”.[117]
[117]CBA 1232
90 Throughout 2013, Mrs Kantor said there was little change in her condition. She had frequent episodes of syncope, and said that some days, she had two to three episodes a day.[118] During this period, Mrs Kantor continued to frequently call Ambulance Victoria, following either a fainting episode or an episode in which she suffered pelvic, lower back, neck and/or right arm pain. Mrs Kantor also attended numerous hospitals, as well as general practitioners.
[118]CB 8
91 On 20 February 2014, Mrs Kantor gave birth to her third son.
92 In September 2014, Mrs Kantor returned to work on restricted hours and duties. She worked approximately 24 hours per week.[119]
[119]CB 8
93 In September 2014, Mrs Kantor was referred to neurologist, Dr Catherine Ding in relation to fainting episodes and “chronic pain in her right forearm,”[120] which she had suffered since the transport accident. Dr Ding obtained a history that Mrs Kantor had fainted once during her first pregnancy, and that the fainting had become “much more frequent”[121] after the transport accident. Dr Ding stated that she could not comment on the mechanism by which the accident aggravated her NCS, but conceded it was “biologically plausible.”[122]
[120]CB 79
[121]CB 79
[122]CB 79
94 In relation to her right arm pain, Dr Ding considered it likely that Mrs Kantor suffered a combination of chronic regional pain syndrome and carpal tunnel syndrome.[123]
[123]CB 80
95 On 10 October 2014, Mrs Kantor underwent a cholecystectomy. She said that she has not had any further upper abdominal pain since this surgery.[124]
[124]CB 4
96 In May 2015, Dr Ding reviewed Mrs Kantor following three NCS episodes, each if which followed thoracic chest pain, and each of which required her to be taken to hospital by ambulance.[125] Dr Ding noted that ambulance and hospital staff recorded that her vital signs were normal, and stated that it was “difficult to be certain about the exact cause of Mrs Kantor’s new stabbing thoracic pain.”[126]
[125]CB 81
[126]CB 81
97 In August 2015, Dr Ding reviewed Mrs Kantor, noting that the stabbing thoracic pain had settled. Dr Ding noted that Mrs Kantor’s two further syncope episodes had been provoked by significant stress associated with building a new home.[127]
[127]CB 82
98 On 12 December 2015, Ambulance Victoria attended Mrs Kantor’s home with a complaint that she had an itchy rash on her legs and a burning type pain.[128] The ambulance records stated that:
“.. yesterday whilst in the shower she felt that she may have been bitten or stung by an unknown lifeform.”[129]
[128]CBA 3279
[129]CBA 3729
99 The ambulance records stated that the purple tinge evident on Mrs Kantor’s skin washed off with saline.[130]
[130]CBA 3280
100 Mrs Kantor was cross-examined regarding this attendance. She denied that she had told ambulance officers she thought she had been stung by an unknown lifeform, and alleged that it was the ambulance officers who said she might have been bitten by something. [131] Mrs Kantor explained that the purple discolouration had come from wearing a new pair of jeans.[132] Mr Kantor was also cross-examined about this attendance, and said that he believed the ambulance officer may have been the one to suggest she could have been stung in the shower.[133]
[131]T114, L20-22
[132]T 113, L3-10
[133]T 164, L31, T165, L 1-2
101 In a report from her general practitioner dated 23 June 2017, Dr Wasniewska stated that there was no pre-existing or non-accident related condition.[134] She referred to Mrs Kantor suffering syncope episodes, which could be triggered by stress or pain and usually occurred two to three times a week.
[134]CB 57
102 Mrs Kantor is currently prescribed Endep, Metoprolol, Endone and Lyrica. She said that she takes Endep and Metoprolol each night, and Endone and Lyrica, one to two tablets as needed.[135] Mrs Kantor said that she attends her neurologist, Dr Ding, every three months and her general practitioner, Dr Wasniewska, at least once a month.
[135]CB 14
103 Mrs Kantor is currently working 20 hours per week, four hours a day, five days a week. She said that when she finishes a four-hour shift, she feels very tired, and sometimes has back pain.[136] However, Mrs Kantor said that she would be keen to try full-time hours, although she is not sure how she would cope.[137]
[136]CB 14
[137]T 126, L15-17
104 Mrs Kantor said that she is now able to anticipate a syncope episode, as she starts to feel dizzy, has blurred vision and muffled hearing. She said she usually has time to lie down on the floor.[138]
[138]CB 15
105 Mrs Kantor stated that her lower back pain is constant. She said the pain is in her pelvis and lower back, and that it radiates into her legs, particularly the thigh regions. She said the pain is aggravated by activity.[139] She said that sometimes she cannot move her back as it is so stiff. Mrs Kantor said she often has to lie down to cope with the pain and avoid the onset of a syncope episode.
[139]CB 16
106 Mrs Kantor said that sitting in the car for too long gives her back pain. She said that she flew to Las Vegas in 2016 for five days, but that it “took a toll”[140] on her back. She said she had to spend a lot of time in her room because her back was so stiff after the plane trip. However, I note that whilst in Vegas, Mrs Kantor was able to participate in a poker competition in which she came 30th, in a field of 600.[141]
[140]CB 17
[141]T 132, L29-30
107 Mrs Kantor said that she only does light housework and tends to avoid vacuuming or scrubbing the bathrooms.
108 Mrs Kantor stated that she suffered mood swings and has low patience levels. She also stated that her illness and her reliance upon her husband, has put an enormous strain on him and their relationship.
109 Mrs Kantor’s husband, Adam, also swore an affidavit in support of her claim and was cross-examined. He stated that prior to the transport accident, Mrs Kantor was “independent and reliable”.[142]
[142]CB 20
110 Mr Kantor said that since the transport accident, however, Mrs Kantor has become an “emotional wreck”. He said that their life depends upon how Mrs Kantor is feeling, and whether or not she is able to look after the children or has the energy to do anything.[143]
[143]CB 20
111 Mr Kantor said that their social life has been affected. They have gone to a couple of parties but it is now in a very limited capacity.[144]
[144]T 161, L29-30
112 Mr Kantor said that his wife had gone to hospital “countless times”[145] and he had seen her pass out many times.
[145]CB 21
113 In his affidavit sworn 28 June 2017, Mr Kantor stated that he often takes their children to a football game, if it is “more than about half an hour’s drive away”. In cross-examination, Mr Kantor said that the 30 minute driving restriction is only a recommendation by doctors, but noted that, when Mrs Kantor has driven for more than 30 minutes, he has to “pick her up out of the car”.[146]
[146]T 156, L19
114 Mr Kantor was advised that video surveillance existed that showed Mrs Kantor drive for approximately 90 minutes to Phillip Island. He stated that whilst it is possible for her to drive there, he usually does the driving to Phillip Island.[147]
[147]T 156, L26-27
115 Mr Kantor also stated that he had seen his wife very emotionally distraught such that she tried to overdose on painkillers. He said that he has received phone messages from Mrs Kantor in which she stated she feels he would be better off without her.[148] He said that these messages are upsetting to him.
[148]CB 22
Mrs Kantor’s medico-legal evidence
116 Mrs Kantor’s solicitors arranged for her to be examined by psychiatrist, Dr Paul Kornan, in December 2013. In his report dated 17 December 2013, Dr Kornan obtained a history that Mrs Kantor experienced pelvic instability, which gave her pain in her pelvis and lower back, as well as her right shoulder and neck. He noted she complained of suffering blackouts two to three times a day.[149] Dr Kornan noted a past history, which involved an appendectomy, as well as two caesareans, a laparoscopy and colonoscopy. He also noted there had been “a lot of admissions to hospital”. In cross-examination, Mrs Kantor said that she had told Dr Kornan about her pelvic pain, and that his reference to “a lot of admissions to hospital” should have been a lot of admissions to hospital due to abdominal pain.[150]
[149]CB 118
[150]T 48, L11-15
117 Dr Kornan noted that following the transport accident, Mrs Kantor had developed ongoing, significant and widespread body pains, as well as attacks where she lost consciousness. Dr Kornan was of the opinion that Mrs Kantor’s psychiatric ill health condition was caused by the transport accident and “its after effects”.[151]
[151]CB 121
118 Dr Kornan diagnosed Mrs Kantor as suffering:
(i)pain disorder with associated psychological factors;
(ii)adjustment disorder with mixed anxiety and depressed mood;
(iii)specific anxiety phobia.
119 In reaching this conclusion, Dr Kornan accepted that Mrs Kantor suffered pelvic pain, lower back pain, right shoulder pain, numbness in her right arm, pins and needles in her right leg, together with blackouts, being tearful, hyper-ventilating, nervousness in the car, especially as a passenger, irritability and at times anger towards her husband.
120 Mrs Kantor’s also solicitors arranged for her to be examined by neurologist, Dr Leslie Roberts, in January 2014. In his report dated 19 May 2014, Dr Roberts detailed her medical history, which included abdominal pain related to polycystic ovarian syndrome, episodes of dizziness and light headedness, some back pain in her first pregnancy, as well as a prior appendectomy, two caesarean section deliveries, a colonoscopy and laparoscopy. He also noted that she had suffered asthma as a teenager.[152]
[152]CB 127
121 Dr Roberts then obtained a history from Mrs Kantor as to the symptoms she had suffered after the transport accident, including her frequent fainting episodes, together with her complaints of ongoing pelvic pain, lower back pain and pain in her neck, shoulder and right arm.
122 Dr Roberts reported that Mrs Kantor “rarely drives other than just to the milk bar or very locally. Mostly she is driven by her husband or takes a taxi”.[153] In cross-examination, Mrs Kantor denied stating that she rarely drove and said that “milk bar” is not a word that she would ever use.[154]
[153]CB 130
[154]T 90, L27-29
123 On examination, Dr Roberts noted a full range of motion in Mrs Kantor’s neck and back. He noted that she reported tenderness over the neck and muscles at the back, which he considered to be “quite diffuse”,[155] as well as recording marked hypersensitivity. He also noted that on a non-focussed examination, Mrs Kantor moved about quite freely.
[155]CB 131
124 Dr Roberts considered that Mrs Kantor’s whiplash injury was quite mild and he could not identify an organic cause of her ongoing symptoms. He was unable to make a diagnosis in respect of her pelvic and pubic pain. In relation to the NCS, Dr Roberts considered this to be a pre-existing condition exacerbated by the transport accident. I note, however, that in offering this opinion, Dr Roberts had an incomplete history regarding Mrs Kantor’s prior episodes of fainting and near fainting.
125 Mrs Kantor’s solicitors also arranged for her to be examined by general surgeon, Mr Charles Flanc, in January 2014. In his report dated 3 February 2014, Mr Flanc referred to Mrs Kantor’s past history, including some pain in her lower back at the time of her first pregnancy. She had physiotherapy for such pain, which resolved after delivery. In cross-examination, Mrs Kantor stated that she expected Mr Flanc would have had her medical notes, and therefore deemed that it was not necessary for her to detail her entire medical history, including a past history of fainting.[156]
[156]T49, L23-25
126 Mr Flanc examined the radiology and performed a physical examination on Mrs Kantor. He stated that it was difficult to make an assessment of her injuries, due to her multiple symptoms and numerous admissions to hospital. He considered that she had suffered a soft tissue injury around her cervical spine and recommended that an MRI scan be performed of her cervical spine following the delivery of her baby in February 2015. He doubted whether her pelvic pain was related to the transport accident. In relation to her lower back pain, he considered the “exact diagnosis is uncertain and difficult”.[157] He noted that the medical imaging of her lumbar spine was reported as normal. Mr Flanc stated, “it is quite possible that some of her lower back pain is related to a soft tissue injury to the lumbar spine following the transport accident … but it is difficult to make a specific diagnosis in light of the normal MRI scan”.[158] Mr Flanc recommended that Mr Dooley review Mrs Kantor, or that she seek the opinion of another orthopaedic surgeon regarding the contribution of the transport accident to her lower back pain. He also suggested that Mrs Kantor undergo a further re-examination in six to nine months’ time. I note that no such re-examination was ever performed.
[157]CB 146
[158]CB 146
127 Mr Flanc considered that Mrs Kantor’s NCS was outside his area of expertise.
128 Mrs Kantor’s solicitors also arranged for her to be examined by neurologist, Professor Stephen Davis, in approximately May 2017. In his report dated 31 May 2017, he noted that Mrs Kantor estimated there had been “perhaps four faints in her life before the accident”,[159] including a couple during her first pregnancy and others in the context of having injections or blood tests.
[159]CB 193
129 Professor Davis considered that Mrs Kantor exhibited “perfectly normal spontaneous neck movements during the interview”.[160] When he asked to examine her neck, he said that her neck movements “became suddenly quite restricted”.[161] He considered this suggested a significant functional component to her presentation.
[160]CB 196
[161]CB 196
130 Professor Davis noted that the syncopal episodes had pre-dated the transport accident and were consistent with the formulation of NCS. He accepted that pain can potentially trigger episodes of NCS in a susceptible individual. He considered it would be potentially useful for Mrs Kantor’s solicitors to arrange “an elective admission to an epilepsy video telemetry program”[162] so there could be a careful monitoring of her condition over a period of several days, given that Mrs Kantor, at that time, was suffering two or more blackouts a week. He recommended this program on the basis that some of the “apparent syncopal episodes are in fact functional rather than organic”.[163] I note that Mrs Kantor’s solicitors did not take up this recommendation.
[162]CB 197
[163]CB 197
131 Finally, Mrs Kantor’s solicitors arranged for her to be examined by psychiatrist, Professor David Barton, on 5 July 2017. Unfortunately, his report was not written or served until 19 July 2017, resulting in a one-day adjournment of the proceedings.
132 In his report dated 19 July 2017, Professor Barton obtained a history from Mrs Kantor that she had experienced multiple episodes of significant suicidal ideation since the accident, including an incident in late 2016, when she attempted to commit suicide due to many stressors, including “her work trying to not pay her public holiday rates and medically retire her”.[164]
[164]CB 371
133 Professor Barton diagnosed Mrs Kantor as suffering NCS, chronic pain, adjustment disorder with depressed and anxious mood, and major depressive disorder with active suicidal ideation, which has now spontaneously resolved with no active treatment.[165] Professor Barton was of the opinion that the NCS was not caused by her adjustment disorder with depressed mood, but that it was made worse by stress as that is an aggravating, but not a causal factor for NCS.[166] Dr Barton noted that Mrs Kantor has to deal with “a nasty set of circular events where her NCS is precipitated by pain and stress, while her back pain is often precipitated by having to get to the ground quickly following the warning signs of a syncopal episode. This then of course can consequently trigger a NCS episode due to the pain experienced in her back”.[167]
[165]CB 372
[166]CB 374
[167]CB 372
134 Professor Barton stated that, in his opinion, Mrs Kantor does not currently suffer from a major depressive disorder, but that she does have an adjustment disorder with depressed and anxious mood, which is of moderate severity. However, Professor Barton considered this condition was not impairing Mrs Kantor’s ability to work and thought that she was currently fit for full-time work.
TAC’s medico-legal evidence
135 The TAC relied upon numerous medico-legal opinions.
136 The TAC arranged for Mrs Kantor to be examined by general surgeon, Mr Peter Scott, in February 2012. In his report dated 27 February 2012, Mr Scott referred to a past history of asthma, appendectomy in 1999, and polycystic ovaries.[168] In cross-examination, Mrs Kantor accepted she had informed Mr Scott of those past conditions. Her explanation for not mentioning her prior fainting, or near fainting, episodes was that “he didn’t ask”.[169]
[168]CB 106
[169]T 43, L1
137 Mr Scott considered that Mrs Kantor may be suffering a “significant chronic pain syndrome with a lot of anxiety and frustration”,[170] and he recommended an examination by a psychiatrist. In relation to her complaint of seizures, he recommended an examination by a neurologist.
[170]CB 108
138 The TAC arranged for Mrs Kantor to be examined by neurologist, Associate Professor Richard Stark, in September 2013. In his report dated 16 September 2013, Associate Professor Stark recorded a history that Mrs Kantor said she had fainted twice in the first couple of weeks of her first pregnancy.[171] He further noted that prior to the transport accident, Mrs Kantor said she had not been troubled with neck or back pain, save for a time when she attended a chiropractor after falling downstairs in her teens.[172]
[171]CB 113
[172]CB 113
139 On formal examination, Associate Professor Stark noted that Mrs Kantor’s neck movements were restricted to about 50 per cent of the normal range. However, he commented that her neck movement was substantially better on informal observation.[173] He also considered the range of lower back movements were within normal limits.
[173]CB 114
140 Associate Professor Stark considered that Mrs Kantor was susceptible to episodes of syncope and that such episodes “occur more frequently if there is an underlying painful disorder, as pain is one of the factors that can trigger syncopal attacks in a susceptible individual”.[174] He further commented that “the severity and extent and frequency of her syncopal events are difficult to judge objectively and one simply has to rely on the history that is provided”.[175]
[174]CB 114
[175]CB 114
141 Associate Professor Stark considered that some aspects of Mrs Kantor’s presentation suggested the possibility of a non-organic component to her symptoms. He also considered the severity of her ongoing physical symptoms appeared greater than what would be expected from the described severity of impact in the transport accident.
142 In relation to Mrs Kantor suffering NCS, Associate Professor Stark accepted the pain arising from a transport accident could aggravate such a condition. However, he queried the frequency and severity of such episodes, which he considered to be “extraordinary”,[176] and he repeated his comment that such episodes rely upon the accuracy of Mrs Kantor’s history.
[176]CB 115
143 The TAC relied upon a medico-legal opinion obtained by Mrs Kantor’s employer to assess her suitability to return to her pre-injury hours. For this purpose, occupational physician, Dr Simone Ryan, provided four reports.
144 Following an examination of Mrs Kantor in September 2015, Dr Ryan provided a report dated 17 September 2015. At that time, Mrs Kantor was only working one day a week. Dr Ryan detailed Mrs Kantor’s past medical history of asthma, cholecystectomy and right-sided carpal tunnel syndrome. In cross-examination, Mrs Kantor initially said that she told Dr Ryan of her prior fainting episodes.[177] Later, Mrs Kantor said that she did not think she had to advise Dr Ryan,
“..of every single dizziness, or faint, or anything - you know, or cold, or flu, or - if that was the case I would be there all day.”[178]
[177]T 44, L29-30
[178]T 45, L22-25
145 Dr Ryan considered Mrs Kantor was unfit for work as a consequence of her NCS, with an increasing frequency of “drop attacks”.[179] Dr Ryan noted that Mrs Kantor’s NCS condition was triggered by emotional stress.[180]
[179]CB 154
[180]CB 156
146 In a supplementary report dated 14 December 2015, Dr Ryan provided a further comment regarding Mrs Kantor’s capacity for employment, following the provision of updated material as to Mrs Kantor’s condition. In this report, Dr Ryan referred to Mrs Kantor suffering a collapse at a shopping centre after the stress of enrolling her child in a kindergarten and standing in line for a period during the busy Christmas season. In such circumstances, Dr Ryan considered Mrs Kantor would be unfit for employment until she was cleared from suffering an NCS episode over a period of three months.
147 In a further supplementary report dated 15 January 2006, Dr Ryan commented upon Mrs Kantor’s capacity to return to work, following a review of the clinical notes of Dr Ding, together with a telephone discussion with Dr Ding. It was noted that Mrs Kantor usually suffered her “faint like episodes” at home and that there have been no consequences as a result. However, whilst Dr Ryan remained concerned that Mrs Kantor may suffer a syncope episode at work, upon the recommendation of Dr Ding, she agreed that Mrs Kantor should try returning to work four hours per day, five days per week.[181]
[181]CB 165
148 In her final report dated 17 February 2016, Dr Ryan stated that if Mrs Kantor suffered another syncope episode in the workplace, she should be sent home for a period of some three months, after which she should require a clearance from Dr Ding before continuing at work.
149 The TAC also relied upon a report of psychiatrist, Dr James Hundertmark, obtained by Mrs Kantor’s employer, for the purpose of assessing her ability to remain at work in November 2016. In his report dated 24 November 2016, Dr Hundertmark detailed Mrs Kantor’s background as provided by her employer.
150 Dr Hundertmark considered there to be no significant psychiatric symptoms, no prominent symptoms of re-experiencing avoidance or increased arousal, no major panic or anxiety symptoms and no prominent symptoms of depression.[182] He noted that Mrs Kantor had no history of long-term psychiatric treatment, and that she had never been prescribed anti-depressant medication. He considered there to be no psychiatric diagnosis using the DSM system of classification.[183] He then specifically excluded a possible diagnosis of pseudo seizures or conversion disorder.
[182]CB 189
[183]CB 189
151 Dr Hundertmark accepted that Mrs Kantor suffers from NCS, and, on the basis that she was familiar with the early warning signs of her episodes, he considered that she was a low risk to her employer in respect of occupational health and safety. He was of the opinion that she was able to work her usual duties and hours.[184]
[184]CB 191
152 The TAC also arranged for Mrs Kantor to be examined by consultant in occupational and environmental medicine, Dr David Elder, on two occasions in August 2015 and May 2017. In his first report dated 20 August 2013, Dr Elder referred to Mrs Kantor’s past history, which involved her presenting to the Emergency Department with abdominal and pelvic pain. He then noted that she described the transport accident as involving a “severe impact”. Dr Elder obtained a history from Mrs Kantor regarding her “blacking out”,[185] for up to 20 minutes about four times per day, and suffering severe pain in the pelvis, neck, right shoulder and lower back.[186] In cross-examination, Mrs Kantor stated that this history was incorrect, and said that she would have told Dr Elder that it was two to three times a day.[187]
[185]CB 200
[186]CB 201
[187]T 89, L21
153 Dr Elder referred to the contemporaneous documentation regarding the transport accident and was unable to explain its correlation to the claimed transport accident injuries,[188] in circumstances where it had been a low impact accident.
[188]CB 204
154 In a supplementary report dated 20 September 2013, Dr Elder stated that he considered Mrs Kantor’s clinical examination “was full of inconsistency”.[189] He stated that the range of motion demonstrated in both the cervical and lumbar spine was “not congruent when formal and informal examination took place”.[190] He noted the range of motion would significantly increase on distraction. Once again, Dr Elder expressed an opinion that he could not link Mrs Kantor’s current symptoms to the transport accident.
[189]CB 207
[190]CB 207
155 In his report dated 1 May 2017, following his re-examination of Mrs Kantor, Dr Elder noted that she was continuing to work 20 hours per week at Centrelink, but that “she believes she could work full-time”.[191] Mrs Kantor was cross-examined about this statement, and said that she wants to be given a chance to work full-time, but is unsure as to whether or not she can do it.[192]
[191]CB 216
[192]T 126, L25-29
156 Dr Elder again reported an inconsistency in Mrs Kantor’s presentation. He stated that the range of motion in her lumbar spine was not congruent when informal examination took place. He again stated the range of motion was significantly increased on distraction. Dr Elder repeated his earlier opinion that Mrs Kantor’s claimed symptomatology cannot be linked to the mechanism of injury and he did not relate it to the transport accident.[193]
[193]CB 217
157 The TAC arranged for Mrs Kantor to be examined by cardiologist, Associate Professor Jeremy Hammond, on two occasions in November 2014 and April 2017. In his first report dated 18 November 2014, Dr Hammond stated that Mrs Kantor had reported to him that she had fainted or near fainted on two occasions during her first pregnancy.[194] He noted that at the time the faints were ascribed to the effects of pregnancy. Dr Hammond then detailed Mrs Kantor’s symptoms and complaints following the transport accident. He noted that at that time, “she drives only short distances. She does not drive on the freeway, or drive long distances”. Mrs Kantor was cross-examined regarding this history, and said it was incorrect. She said that at that time, she would drive to Crown where her husband worked.[195]
[194]CB 251
[195]T92, L17
158 Dr Hammond noted that Mrs Kantor stated she had suffered pre-syncope, or loss of consciousness, as frequently as two to three times per day. As at November 2014, he noted that she experienced pre-syncopal episodes once a week, with infrequent syncopal episodes.
159 Dr Hammond considered that Mrs Kantor had a pre-disposition to NCS which was likely to be lifelong. He noted that following a cholecystectomy six weeks previously, Mrs Kantor had not suffered any further upper abdominal pain or any recent episodes of syncope.[196]
[196]CB 257
160 In his most recent report dated 23 May 2017, Dr Hammond noted that Mrs Kantor remained active with her family and performed normal activities, despite being aware of the possibility that she might suffer a syncopal episode. Dr Hammond stated that Mrs Kantor was allowed to drive for up to half an hour, but is not allowed to drive long distances.
161 Dr Hammond considered that not all of Mrs Kantor’s episodes might be “true NCS” and considered there to be a significant psychological overlay. He also noted the presence of some pseudo seizures in the medical records.[197] Dr Hammond queried whether Mrs Kantor was suffering from a factitious disorder or “Munchausen’s syndrome”.[198] He stated that such patients may habitually exaggerate minor symptoms or falsify symptoms in order to receive medical attention.[199] In such circumstances, Dr Hammond recommended that an assessment by a psychiatrist was required to make such a diagnosis.
[197]CB 273
[198]CB 273
[199]CB 274
162 Dr Hammond repeated his opinion that the transport accident had not caused Mrs Kantor’s syncopal symptoms or NCS.[200]
[200]CB 278
163 The TAC also arranged for Mrs Kantor to be examined by psychiatrist, Associate Professor Doherty, in May 2016. In his report dated 16 June 2017, Associate Professor Doherty detailed Mrs Kantor’s background and her situation following the transport accident. In relation to her current psychiatric condition, he noted that she had difficulty falling asleep, but that her quality of sleep was “okay”.[201] He noted that she considered her work to be “great”.[202] He noted that Mrs Kantor shared the household chores with her husband, and that she did the lighter chores. Associate Professor Doherty noted that Mrs Kantor socialises when playing poker and sees her friends. He noted that she reported mood swings and that she sometimes lacks the motivation and energy to do things such as put on her makeup.[203] Associate Professor Doherty noted that Mrs Kantor stated she had “a bit”[204] of anxiety and that there were times when she might hyperventilate. Associate Professor Doherty also noted that at times, Mrs Kantor suffers panic episodes where she cannot breathe, the trigger for which can be either pain or something happening at her work. Mrs Kantor reported that her concentration and memory are okay.
[201]CB 288
[202]CB 288
[203]CB 289
[204]CB 289
164 Associate Professor Doherty obtained a history that Mrs Kantor had attempted to overdose in late 2015 when her employer wanted to medically retire her. He also noted that Mrs Kantor claimed that in 2016, there was some deliberate self-harm.[205]
[205]CB 287
165 Associate Professor Doherty considered that Mrs Kantor was currently “largely without significant mood symptoms”.[206] He stated there was no significant anxiety or depressive symptoms.
[206]CB 290
166 Associate Professor Doherty considered whether or not Mrs Kantor was suffering a somatic symptom disorder, but ultimately concluded that she was not.[207]
[207]CB 291
167 He was also of the opinion that she was not suffering a pain-related psychiatric condition as the disruptive effects of pain were not distressing and did not significantly disrupt her daily life.[208]
[208]CB 291
168 Further, Associate Professor Doherty considered the presence of a factitious disorder, as raised by Dr Hammond. Associate Professor Doherty considered there was no overstatement of her symptoms and accepted that there had been a diagnosis of pelvic instability, as well as NCS. In such circumstances, he did not consider a factitious disorder to be present. Associate Professor Doherty was also of the opinion that Mrs Kantor did not suffer from a conversion disorder.
169 Associate Professor Doherty provided a brief supplementary report on 19 July 2017, in response to Professor Barton’s report. In his report, Associate Professor Doherty dismissed Professor Barton’s diagnosis of an adjustment disorder, as he did not consider Mrs Kantor’s symptoms to demonstrate the requisite significant or marked level of distress and/or significant impairment in social or occupational functioning. He did not consider a marked distress to be present, and thought there was no objective evidence indicating the presence of a psychiatric condition.
170 Further, Associate Professor Doherty rejected Dr Barton’s diagnosis of major depressive disorder based on the presence of suicidal thinking on the basis there was insufficient criteria to support such a diagnosis.
171 The TAC also arranged for Mrs Kantor to be examined by obstetrician and gynaecologist, Dr Bernadette White, in April 2017. In her report dated 4 May 2017, Dr White detailed Mrs Kantor’s past medical history, together with her symptoms and complaints following the transport accident. Dr White was provided with 2,550 pages of Mrs Kantor’s medical history, which she summarised as “a long history of abdominal/pelvic pain”.[209]
[209]CB 242
172 Dr White stated that there was no evidence that Mrs Kantor had “sustained a very significant soft tissue or bony pelvic injury in the transport accident”.[210]
[210]CB 245
173 In relation to Mrs Kantor’s pelvic instability, Dr White stated that it was pregnancy-related pelvic joint pain, which can affect approximately 20 per cent of women during pregnancy. Dr White stated that it was impossible for her to say whether or not Mrs Kantor had suffered pelvic instability during her second pregnancy, at the time the transport accident occurred or in the months following. In any event, Dr White stated she did not consider Mrs Kantor’s current symptoms to be consistent with pelvic instability.[211]
[211]CB 247
Mrs Kantor’s credibility and reliability as a witness
174 The TAC predominantly defended the claim on the basis that Mrs Kantor was neither a credible nor a reliable witness. In contrast, Mr McGarvie urged me to accept that Mrs Kantor was an impressive witness, who made appropriate concessions.
175 I considered there were many instances where Mrs Kantor’s evidence either defied logic or was inconsistent with contemporaneous medical records and reports. When considered separately, these matters would not, in my view, be sufficient to tarnish Mrs Kantor’s credibility. However, when considered collectively, they cause me to have major reservations as to the reliability of Mrs Kantor’s evidence.
176 I consider the following examples to collectively demonstrate the unsatisfactory and unreliable nature of Mrs Kantor’s evidence:
(i) I consider that Mrs Kantor significantly understated her very extensive pre-injury medical history, to which I have referred above, in both her affidavit and the histories she provided to treating and medico-legal doctors. As a result, I am of the opinion that many of the subsequent records and reports are based on an incorrect history. In such circumstances, I consider her omissions to be so fundamental that I am limited in the value I can now place on these medical opinions.
In cross-examination, Mrs Kantor did not concede the significance of having provided incorrect and inadequate medical histories to many of the doctors she has seen. By way of example, when asked to explain the incomplete history she provided to Dr Ryan, Mrs Kantor stated, “I did not know I had to advise them of every single dizziness, or faint, or anything – you know, or cold, or flu, or – if that was the case I would be there all day.”[212] By way of further example, Mrs Kantor said that she did not tell Mr Scott about her prior fainting episodes, as “he didn’t ask”.[213]
[212]T45, L22-25
[213]T43, L 1
(ii) I consider that Mrs Kantor failed, on numerous occasions, to provide a reliable account as to the events surrounding her admission to hospital or an ambulance transfer. The following are by way of example:
· Mrs Kantor was adamant that she had suffered bruising in her lower abdomen as a consequence of the transport accident. However, no such bruising was observed at either Werribee Hospital, or recorded by her general practitioner.
· Mrs Kantor stated that she had vomited immediately upon finding a fly in her hot chocolate, and that she had continued to vomit and vomit, until she was on the floor of the toilet from having vomited so much. Mrs Kantor then denied having fainted, notwithstanding she was found on the bathroom floor. The ambulance records indicate that they were called for a patient who was “unconscious/fainting, not alert.” In such circumstances, I consider Mrs Kantor’s explanation as to why she was on the bathroom floor to be inconsistent with the ambulance records.
· Both Mrs Kantor and her husband gave evidence that the ambulance officers had suggested that the blue rash on her legs may have resulted from a bite whilst she was in the shower. I consider this evidence to be inconsistent with the ambulance records and, in my opinion, to defy logic. I consider the ambulance officers readily identified that the stain on her legs was not serious, and that it could be removed with saline.
· Mrs Kantor claimed that she could not recall having refused to leave The Valley Private Hospital on 29 January 2012, when the hospital staff had refused to call her an ambulance. I consider her inability to recall this incident to demonstrate her lack of credibility.
· Mrs Kantor refused to accept the accuracy of the medical records from her attendance at Dandenong Hospital on 14 December 2012, in which it was noted that her eyes were shut and she was pretending to faint. In such circumstances, I prefer the contemporaneous records of the trained medical staff who recorded such observations.
(iii) The TAC relied upon video footage taken of Mrs Kantor on several occasions in 2017. It showed Mrs Kantor going to work and doing other basic activities, with no obvious restriction in her movement. I consider the following examples to demonstrate inconsistencies between the video surveillance and the histories Mrs Kantor had previously given her doctors:
· Several doctors had recorded that, based on medical advice, Mrs Kantor limited her driving to 25 or 30 minutes. Dr Elder recorded that her neurologist had reassured her that she could drive up to 25 minutes locally.[214] Dr White recorded that she can only manage a maximum of 30 minutes driving.[215] Dr Hammond recorded that Mrs Kantor does not drive in excess of half an hour, and does not drive on the freeway.[216]
[214]CB 211
[215]CB 241
[216]CB 259
When cross-examined about these reports, Mrs Kantor said she had told these doctors that she had been advised to restrict her driving to 30 minutes, not that she could not drive beyond 30 minutes.[217] I note that Mrs Kantor gave such evidence after she had seen the video footage of herself driving for one and a half hours to Phillip Island. I had considerable reservations regarding the veracity of such evidence.
[217]T90, L4-11, T93, L16-17, T92, L24-26
Further, in his affidavit, Mr Kantor stated that Mrs Kantor was often unable to take their sons to football if the game was more than 30 minutes away. He, too, said that the 30 minute driving limit was only precautionary, and that if his wife had to drive more than 30 minutes, he would have to “literally pick her up out of the car when she’s in pain.”[218]
[218]T156, L7-19
· Professor Barton recorded that Mrs Kantor was unable to hold a handbag due to her ongoing right shoulder pain.[219] In cross-examination, Mrs Kantor denied saying that she never used a handbag, but instead, said that she now uses a backpack, as the handbag is too heavy on her shoulder.[220] However, the video surveillance initially shows Mrs Kantor carrying a handbag on her right shoulder, and subsequently, carrying a backpack, again on her right shoulder. At no stage on the video surveillance was Mrs Kantor seen carrying the backpack over both shoulders. Mrs Kantor sought to explain the reason she carried the backpack on her right shoulder on the basis that it was simply out of habit.[221] She did not accept that it would be illogical for her to carry the backpack in this way, if she was suffering from ongoing right shoulder pain. Mrs Kantor then sought to justify her use of a backpack on the basis that it was a lighter fabric with a wider strap.[222] I found this evidence to be completely disingenuous in its entirety.
[219]CB 370
[220]T136, L 21-31
[221]T141, L 1-12
[222]T141, L 17-23
(iv) I consider there were a number of examples, as detailed above, recorded by either ambulance or hospital staff, in which Mrs Kantor demonstrates non-organic pain behaviour. In my opinion, the observations contained in the medical records dated 15 May 2011, 18 August 2011, 20 October 2011, 29 January 2012, 11 June 2012, 14 December 2012 and 15 February 2013 collectively impact upon Mrs Kantor’s credibility.
(v) In addition, there were a number of medico-legal doctors who also commented upon Mrs Kantor’s non-organic behaviour. The following are by way of example:
(a) Mr Scott did not consider Mrs Kantor’s back problems to have an organic basis, and he suspected she suffered from a chronic pain syndrome.
(b) Associate Professor Stark noted discrepancies between the formal examination and his informal observations of Mrs Kantor, and considered the possibility of a non-organic component to her symptoms.
(c) Dr Roberts commented on the discrepancies he noted between a formal examination of Mrs Kantor and a non-focussed examination. He also considered the tenderness in her neck and back to be diffuse and to demonstrate hypersensitivity.
(d) Professor Davis observed a difference in Mrs Kantor’s neck movement between informal observation and formal examination, and considered there was a functional component to her presentation.
177 In considering all of the material referred to above, I have major reservations as to the reliability and credibility of Mrs Kantor as a witness.
Is there an organic basis to Mrs Kantor’s pelvic or lower back pain
178 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[223] Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[224]
[223][2013] VSCA 201
[224][2013] VSCA 201 at [21]
179 Having considered all of the medical opinions offered in this case, I am not satisfied that there is an organic basis to Mrs Kantor’s complaints of pelvic or lower back pain.
180 Since the transport accident, Mrs Kantor has undergone a large number of radiological examinations, none of which have ever demonstrated any abnormality.
181 I note that Mr Scott, Associate Professor Stark, Dr Roberts, Dr Elder, Professor Davis, Associate Professor Hammond and Dr White all considered that there was no organic basis to Mrs Kantor’s complaints of lower back and pelvic pain. Further, Mr Scott, Associate Professor Stark and Dr Roberts considered that Mrs Kantor demonstrated non-organic behaviour.
182 Mr Dooley previously considered the possibility of a soft tissue injury, but he found it difficult to reconcile her symptoms.
183 Mr Flanc also considered the possibility of a soft tissue injury, but thought it was difficult to make a specific diagnosis in light of a normal MRI. In his report dated 3 February 2014, Mr Flanc suggested that he re-examine Mrs Kantor in a further six to nine months. I note that no such re-examination has occurred.
184 Mrs Kantor’s physiotherapist, Mr Rowe, stated he could feel some pelvic instability when he examined her in December 2010. However, I note this examination occurred during her pregnancy, at a time when pelvic instability can be a temporary condition related to the pregnancy.
185 Mrs Kantor claimed that she was told by Dr Barabash that she suffered pelvic instability, but the subsequent records of Dandenong Hospital dispute the certainty of such a diagnosis.
186 I note that Dr White is the only gynaecologist to have examined Mrs Kantor after the delivery of her third child, and she was of the opinion that Mrs Kantor did not suffer any pelvic instability.
187 In considering the “whole of the evidence”[225] I am not satisfied that the transport accident caused an organic injury to either Mrs Kantor’s pelvis or lower back.
[225]Davies v Nilsen & TAC [2014] VSCA 278
188 In closing submissions, Mr McGarvie referred me to the chronic regional pain syndrome diagnosed by Dr Ding in respect of Mrs Kantor’s right shoulder and carpal tunnel syndrome.[226] Mr McGarvie stated that this was an organic injury. However, in circumstances where Mrs Kantor did not claim her right arm pain arose as a consequence of the transport accident, I consider such a finding to be irrelevant to this application.
[226]T 235, L 20-31, T 236, L 1-24
Did the transport accident cause or aggravate Mrs Kantor’s NCS?
189 In closing submissions, Mr McGarvie conceded that the primary focus of Mrs Kantor’s claim under part (a) was the NCS, which resulted in impairment of her heart or neural system.[227]
[227]T 228, L 1-19
190 I accept that Mrs Kantor suffers NCS. Whilst there is a record of several fake seizures which impact upon her credibility, and some other incidents about which I have reservations, I accept that it is likely that Mrs Kantor has genuinely fainted on numerous occasions. I also accept the tilt table test result, which confirmed she suffered NCS.
191 In his report dated 9 May 2014, Dr Hamer explained that some individuals are pre-disposed to NCS or pre-syncope “as part of their constitution”.[228] He further explained the condition as follows:
“Episodes of low blood pressure fainting or near fainting are usually triggered by a physical or emotional event although when combinations of triggers occur, the individual components may not be immediately obvious. The problem is thought to stem from a maladjustment of one of the neurotransmitter receptors in the brain (as part of the serotonin neurotransmitter system), responsible for the response of the pulse and blood pressure to adrenergic stress, which normally should be to fight the stress with strong pulse and blood pressure but in those that faint, the blood pressure and sometimes the pulse rate collapse under the pressure.
Some patients with recurrent fainting go through stages in their life when their symptoms are frequent and have other times when they have episodes that are few and far between. In some cases, major life events can activate the fainting reflex by disturbing the status of the brain chemicals and typical examples that include serious illnesses, … or a major accident (including a motor vehicle accident) and it is not uncommon to find in clinical practice that frequent fainting can be activated following an independent life event. Thus, in your client’s case it is quite plausible that her pre-existing pre-disposition to fainting was activated by her motor vehicle accident, and may well be continuing to impact on her life.”[229]
[228]CB 61
[229]CB 61
192 I consider it necessary to view Dr Hamer’s comments as to the role the transport accident played in activating her NCS, in the context of him having obtained an insufficient history from Mrs Kantor. Dr Hamer was only aware of Mrs Kantor suffering “a near syncopal episode” during her first pregnancy; he was unaware of the prior fainting episodes, near fainting episodes and dizziness, which had occurred at least 11 times prior to the transport accident.
193 Dr Ding considered it was “biologically plausible” that the transport accident caused the NCS, however, such an opinion was offered on her understanding that Mrs Kantor had suffered only one fainting episode prior to the transport accident.
194 I note that Dr Joubert was of the opinion that the NCS was not related to the transport accident.
195 Dr Roberts considered the NCS was a pre-existing condition exacerbated by the transport accident, although in offering this opinion, I consider Dr Roberts had an incomplete history regarding Mrs Kantor’s prior episodes of fainting and near fainting.
196 Dr Hammond explained that NCS occurs because of abnormalities in the autonomic nervous system. He stated that the pathophysiology of NCS was complex and that it related to abnormalities of both neural and chemical pathways.[230] Dr Hammond explained the triggers for NCS include emotional upset, venepuncture, fear, painful or noxious stimuli, prolonged standing, heat exposure or exertion.
[230]CB 256
197 Dr Hammond considered that Mrs Kantor had an underlying predisposition for NCS which was constitutional or genetic in origin. He noted that her episodes of syncope were precipitated by episodes of pain, either pelvic or upper abdominal pain.
198 Professor Davis, who had been provided with Mrs Kantor’s full medical history pre-dating the transport accident, considered there were syncopal episodes prior to the transport accident consistent with the formulation of NCS. He noted that pain can potentially trigger episodes of NCS.[231]
[231]CB 197
199 Having considered the opinions from the neurologists, and accepting the medical records, which indicated that Mrs Kantor had suffered at least 11 episodes of fainting, loss of consciousness, near fainting, or dizziness prior to the transport accident, I am satisfied that the NCS was a pre-existing, but undiagnosed medical condition.
200 The history of syncope episodes after the transport accident have been caused by a range of factors, including physical pain from either Mrs Kantor’s pelvis, lower back or right arm, together with a range of psychological issues, including difficulties with her builder, work stress, and enrolling her child in kindergarten.
201 As I am not satisfied that Mrs Kantor injured her pelvis or lower back in the transport accident, in assessing the aggravation of her NCS, I must disregard the contribution from pain associated with her pelvis and lower back.
202 I must further disregard the emotional events which have brought on syncope events, such as running late for a meeting, enrolling her son in kindergarten, and difficulties with her builder.
203 I note that there were no reported syncope events relating to Mrs Kantor’s anxiety being either a passenger or driver of a car.
204 In assessing the aggravation of Mrs Kantor’s NCS condition, I am not satisfied that her fainting episodes are as common as she alleges. For the reasons detailed above, I have considerable concerns as to the reliability of Mrs Kantor’s evidence, and am satisfied that she has, at times, faked seizures. Given that many of her complaints of seizures rely upon self-reporting, and given my reservations as to her reliability and the observations from multiple doctors of non-organic complaints and deliberate pain behaviour, I am not satisfied she has had as many syncope episodes as she alleged.
205 In any event, for the reasons detailed above, I am not satisfied that the aggravation of her NCS has been caused by the physical or psychiatric injuries suffered in the transport accident. I therefore dismiss Mrs Kantor’s application that she suffers a serious physical impairment under part (a).
Is Mrs Kantor suffering a psychiatric disorder as a consequence of the transport accident?
206 In the alternative to her claim for a physical injury under part (a), Mrs Kantor claimed to suffer a severe psychiatric condition under part (c).
207 I note that in her affidavits, Mrs Kantor made little reference to suffering ongoing psychological symptoms since the transport accident. In her first affidavit sworn 8 January 2016, Mrs Kantor stated that in addition to her physical problems, she has struggled emotionally since the accident, as the pain has “frustrated and overwhelmed”[232] her at times. She said that the syncope episodes have caused her significant anxiety and that she was anxious and concerned about her future, especially her ability to return to work.[233]
[232]CB 12
[233]CB 12
208 In her subsequent affidavit sworn 28 June 2017, Mrs Kantor stated that she suffers from mood swings and has low patience levels. She also said that she felt vulnerable, as she does not know when or where a syncope episode might happen.[234]
[234]CB 18
209 I note that in her affidavits, Mrs Kantor made no mention of suicidal ideation, nor did she refer to the fact she had contemplated taking a drug overdose in late 2016.
210 I note that in the very extensive medical, hospital and ambulance records, there is no record of a suicide attempt by Mrs Kantor.
211 In his affidavit, Mr Kantor made reference to his wife trying to overdose on painkillers. However, he did not provide any detail as to where and when this occurred or the nature of the attempt.
212 Mr Kantor was not cross-examined on his reference to Mrs Kantor’s attempted overdose. However, I considered Mr Kantor to be an antagonistic witness, who gave evidence that was entirely consistent with that of his wife. In circumstances where Mrs Kantor’s credibility was significantly challenged over the course of two days of cross-examination, I did not consider it necessary for the TAC to have directly cross-examined Mr Kantor on this point.[235] In view of all the evidence, I am not satisfied that at any stage since the transport accident, Mrs Kantor has seriously contemplated suicide.
[235]Bedeux v Transport Accident Commission [2016] VSCA 127 at [88]
213 Mrs Kantor has not been treated by a psychiatrist. She was referred to Ms Dunlop for psychological counselling in June 2011, shortly after the birth of her second child, however, no report was tendered from Ms Dunlop. The only psychiatric evidence tendered was that of three medico-legal psychiatrists who had assessed Mrs Kantor for the purpose of this claim, together with the report of Dr Hundertmark who had examined Mrs Kantor for the purpose of assessing her ability to return to work.
214 Dr Hundertmark was of the opinion that Mrs Kantor did not suffer a psychiatric condition.
215 Dr Kornan examined Mrs Kantor in December 2013. Save for his observation that Mrs Kantor felt nervous whilst in a car, it is apparent that Dr Kornan’s diagnosis was based upon anxiety and pain disorder, attributable to symptoms that I consider to be unrelated to the transport accident. I also consider Dr Kornan’s opinion to be out-dated. In such circumstances, his report offered me little assistance in my assessment of Mrs Kantor’s current condition.
216 Associate Professor Doherty examined Mrs Kantor in May 2017. He was of the opinion that Mrs Kantor did not suffer somatic symptom disorder, as he considered the effects of pain did not significantly disrupt her daily life. Associate Professor Doherty came to no conclusion regarding the presence of factitious disorder, and considered the evidence before him did not allow him to make such a diagnosis. He was also of the opinion that the plaintiff was not suffering a conversion disorder.
217 I note that Associate Professor Doherty observed there to be a significant dysfunction between Mrs Kantor’s presentation during a psychiatric examination in which she appeared well without many symptoms, and the reported severity and persistence of pain and syncope. Associate Professor Doherty commented that in his opinion, there was neither an overstatement of symptoms by Mrs Kantor nor any attempts to emphasise symptoms. This observation of Associate Professor Doherty is inconsistent with my assessment of Mrs Kantor.
218 Professor Barton diagnosed Mrs Kantor as suffering an adjustment disorder, with depressed and anxious mood. This diagnosis was based upon matters which Mrs Kantor did not attest to in her evidence, including “multiple episodes of significant suicidal ideation.”[236] I therefore have significant reservations as to the reliability of this diagnosis.
[236]CB 369
219 However, even if I was to accept Professor Barton’s diagnosis, I am not satisfied that any such anxiety condition was caused as a consequence of the transport accident. I note that Professor Barton related her adjustment disorder to her chronic pain and NCS. As I do not accept that either of these were caused or aggravated by the transport accident, any adjustment disorder must be unrelated to the transport accident.
220 I therefore dismiss Mrs Kantor’s application that she suffers a severe psychiatric condition under part (c).
Conclusion
221 In view of the above, I dismiss Mrs Kantor’s application for a serious injury determination under both (a) and (c).
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