Keam v Transport Accident Commission
[2019] VCC 1039
•15 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01714
| ABBEY MAREE KEAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 29 March and 1 April 2019 | |
DATE OF JUDGMENT: | 15 July 2019 | |
CASE MAY BE CITED AS: | Keam v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1039 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury application – injury to the low back – aggravation
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Bezzina v Phi & Anor [2012] VSCA 161; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr A J McG Moulds QC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 On 13 March 2009, the plaintiff was a passenger in a motor vehicle which was stationary at a roundabout in Mildura, when another car collided with the rear of it, pushing it into the car in front. The plaintiff felt pain in her back and neck and was taken to the Mildura Base Hospital. The plaintiff’s evidence is that after the transport accident, her back pain became more constant and more severe.
The application
2 The plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 ( “the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the transport accident which occurred in March 2009 (“the 2009 transport accident”).
3 In granting leave, the Court must be satisfied that the injury is a “serious injury” which is defined to mean a serious long-term impairment or loss of a body function.[1]
[1]Section 93(17) of the Act
4 The body function relied upon by the plaintiff is the low back. The plaintiff seeks leave to issue proceedings at common law.
5 In granting leave, I must be satisfied that the injury of which the plaintiff claims is a result of the 2009 transport accident. Further, I must be satisfied that the consequences the plaintiff alleges satisfy the serious injury test; that is, they are “at least very considerable”.
The issues
6 Counsel for the defendant submitted that as a result of the 2009 transport accident, the consequences are relatively modest. On any view, this case involves an aggravation issue and when one considers the plaintiff’s position before and her position after the 2009 transport accident, the plaintiff cannot succeed.
The evidence
7 The plaintiff relied upon two affidavits, both sworn by the plaintiff on 26 July 2018 and 7 November 2018. I have not summarised the plaintiff’s affidavits or her evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other materials which was tendered in evidence. I have read all the tendered material.
The credit of the Plaintiff
8 The plaintiff completed Year 11 at school. She answered questions directly but did not elaborate in her answers. She conveyed to the Court that she was keen to retain her work capacity, which was physical work. She was asked about events dating back to 2003 and what she was reporting to medical witnesses. I formed the opinion that she had difficulty with timelines and was a poor historian. I accept this was due to the fact that she was being asked to recall what she was reporting to medical witnesses dating back to 2003. On occasions she provided inaccurate information. I formed the view that reference to the contemporaneous clinical notes and histories is likely to be a more reliable guide.[2] This is particularly of relevance in this case where the plaintiff was not attributing her complaints to the 2009 transport accident when consulting with her medical practitioners
[2] Philippiadis v Transport Accident Commission [2016] VSCA 1
9 The plaintiff made concessions; for example she said that it was difficult to remember her complaints to doctors prior to the 2009 transport accident and how her condition changed after the 2009 transport accident. There was no attack on her credit. I accept that she was an honest witness who had difficulty with her memory.
10 Overall I am heavily reliant on what the medical witnesses recorded in their notes.
Background
11 It was not in dispute that the plaintiff had a history of back pain.
12 On 16 October 2003, the plaintiff was involved in a transport accident (“the 2003 transport accident”), when the vehicle she was driving hit a tree. She attended the Mildura Base Hospital. As a result, she suffered back pain. She was treated by a chiropractor. The plaintiff said she was able to live an active life following the 2003 transport accident.[3] The plaintiff did not lodge a claim form with the Transport Accident Commission in respect to the 2003 transport accident.
[3]Plaintiff’s Court Book (“PCB”) 12, paragraph 3
13 The plaintiff agreed that following the 2003 transport accident, she suffered low back pain “on and off”. She worked full time as a label operator at a winery in the Mildura area and played softball.[4]
[4]PCB 13, paragraph 3
14 In April 2007, the plaintiff attended the Mildura Base Hospital complaining of an exacerbation of chronic back pain. She reported:
(a) Back pain, mainly at night that came and went, since a transport accident three years ago;
(b) In the last two weeks the pain was increasing and she had been having spasms;
(c) Three days ago, at work the pain increased after heavy lifting, which was worse again after seeing a chiropractor the previous day.
15 The provisional diagnosis was musculoskeletal back pain.[5]
[5]Defendant’s Court Book (“DCB”) 431 – letter dated 20 April 2007 from the Mildura Base Hospital to Dr Qasto, general practitioner, at the Deakin Medical Centre
16 The plaintiff’s evidence was that in April 2007, she was working as a label operator in one of the local vineyards. She was required to bend and lift boxes of wine. As a result of her work, either dragging a pallet or lifting a box, she suffered a flare up of pain and consulted the Deakin Medical Centre.
17 The plaintiff’s medical records were before the Court which confirmed that by April 2007, the plaintiff was reporting and being treated for back pain. She was prescribed medication in the form of Tramadol, Panadeine Forte and Mobic. She underwent a CT scan of the lumbar spine, which revealed an L4-5 posterior central disc protrusion with some mass effect on the thecal sac and an L5-S1 disc bulge. Between May and August 2007, she was consulting her general practitioner. In September 2007, she was referred to a neurosurgeon, Dr L Marshman, at the Royal Adelaide Hospital. He obtained a history of low back pain for five months which came on when lifting at work. He recorded that she had been off work since then. He recommended functional x-rays, an MRI scan and an epidural injection, which were performed at that time.[6]
[6]PCB 27
18 The plaintiff’s evidence was that she was off work for six to eight months, following which she returned to work in the winery.
19 In November 2007, the plaintiff was reviewed at the Royal Adelaide Hospital when a further epidural injection was performed. She was advised to take pain medication, undergo proper physiotherapy and hydrotherapy. She was told there was no need for surgical treatment for her condition.
20 In April 2008, the plaintiff moved to Adelaide. She was employed as a factory worker for a packaging company, employed casually, but worked full-time hours. She suffered back pain that would come and go; however, she was able to work full-time hours.[7]
[7]PCB13, paragraph 4
21 In December 2008, the plaintiff was reviewed at the Royal Adelaide Hospital and was recommended to trial simple analgesia. In a letter from the Royal Adelaide Hospital dated 11 December 2008, the Registrar said:
“… This lady is known to us as having chronic low back pain and bilateral sciatica. She was initially treated with an epidural steroid injection in November 2007. She had good relief from this initially. … .”[8]
[8]DCB 45
22 The plaintiff was advised to trial simple analgesia in April 2007 and that in the event the pain persisted, a repeat injection could be performed.
23 In early 2009, the plaintiff moved back to Mildura after her relationship ended. Prior to the March 2009 transport accident, the plaintiff was unemployed; however, she was in discussion with her former employer about getting her job back as a label operator.
The 2009 transport accident
24 On 13 March 2009, the plaintiff was a passenger in a vehicle which was involved in the 2009 transport accident, the subject of this application. The plaintiff’s evidence was that she immediately felt pain in her neck and back and was taken to the Mildura Base Hospital by ambulance.[9] The ambulance records reported that the plaintiff complained of pain at a level of seven out of ten on top of her head, and lower lumbar pain due to her pre-existing back injury pain. The plaintiff reported that the vehicle had an airbag fitted which activated and she was wearing a seatbelt. The plaintiff’s evidence was that she was lying on the footpath because of her back pain. At the Mildura Base Hospital, she reported pain on the top of her head, having hit her head on the dashboard, headache, and lower back pain, pins and needles, which was normal for her legs, which she reported was due to an already existing back injury.[10] The plaintiff was administered medication, including morphine, and was discharged the same day at 9.10pm.
[9]PCB 13, paragraph 6
[10]DCB 418 to 424
25 In cross-examination, it was put to the plaintiff that she presented to the hospital that she had no tenderness in her lower back, but had tenderness in the middle of her back, and that she had leg problems that were essentially normal for her. The plaintiff disagreed, and her evidence was that her back pain was worse and she was given morphine. The plaintiff agreed the pain continued “on and off” and that it was “on and off beforehand”.[11] The plaintiff said the pain in her lower back worsened after this accident.[12]
[11]Transcript (“T”) 28, Line (“L) 3 -11
[12]T29, L2-9
26 On 25 March 2009, the plaintiff completed a TAC Claim Form. The claim was accepted.[13]
[13]PCB 178
27 On 20 April 2009, the plaintiff attended her general practitioner at the Deakin Medical Clinic in Mildura in relation to a cystic lump over the right sacroiliac region. The plaintiff reported the 2009 transport accident but said her usual mild-back pain had not been aggravated by the 2009 transport accident.[14] Upon examination, the records state “no tenderness over the lower lumbar sacral region”.
[14]DCB 17
28 On 7 May 2009, the plaintiff underwent an ultrasound of the sacroiliac region.
29 On 15 May 2009, the plaintiff reported to her general practitioner at the Deakin Medical Centre chronic low back pain and an inability to sit for greater than thirty minutes. She reported previous epidural injections with good results. The plaintiff was prescribed Tramadol and a plan to consider epidural injections if there was no effect with Tramadol.[15] The plaintiff denied that she was working at the time.
[15]DCB 18
30 In early June 2009, the plaintiff reported back pain on sitting, having left work early after aggravating back pain. She was able to work on standing, with pain coming back on sitting. The plaintiff was certified as unfit for work and a CT guided foraminal-epidural injection was performed on 4 June 2009.[16]
[16]PCB 28, DCB 22
31 By July 2009, the plaintiff had moved to Adelaide and commenced attending the Blakeview Medical Centre, where she was treated until about June 2011. Initially, she was seeking a medical clearance to commence a new job. She provided the following history:
· a work-related injury two years ago and not being on WorkCover
· increased pain on bending;
· seen by a neurosurgeon at the Royal Adelaide Hospital in December 2008 and managed conservatively
· undergone an MRI scan in September 2007
· had an epidural steroid injection in November 2007 with goof relief
· underwent a further CT-guided facet joint injection in the left L5-S1 with no central stenosis; and
· a month ago was given clearance and told not to lift in excess of 15 kilograms.[17] She resumed working at the packaging company.
[17]DCB 302
32 On 2 December 2009, the plaintiff reported back pain to her general practitioner at Blakeview Medical Centre. She was provided with a sick leave certificate, a letter for the Royal Adelaide Hospital and prescribed Panadeine Forte and Voltaren.[18]
[18]DCB 301
The May 2010 transport accident
33 On 17 May 2010, the plaintiff reported to her general practitioner at the Blakeview Medical Centre being involved in a motor vehicle accident where she suffered a headache and vomiting. She did not report any neck pain.[19]
[19]DCB 299
34 On 17 August 2010, the plaintiff reported she had quit her job and was applying for jobs in the wineries. She reported her chronic back pain and that her back was stable at the moment. She sought a clearance.[20]
[20]DCB 298
35 On 22 November 2010, plaintiff sought treatment from her general practitioner at Blakeview Medical Centre, reporting she suffers from lower back pain.[21]
[21]DCB 296
36 On 28 January 2011, plaintiff reported to her general practitioner that she worked a twelve-hour shift the previous day. The records states:
· She was sore this morning and was taking Nurofen, with minimal relief
· She had Mobic previously with success
· She was prescribed Mobic.[22]
[22]DCB 296
37 On 14 February 2011, the plaintiff was seen at the Royal Adelaide Hospital Neurosurgery Outpatient Service. She reported suffering low back pain since 2006 which she related to lifting a crate of bottles at work and possibly being aggravated by seeing a chiropractor. She reported being in a motor vehicle accident in 2005 and 2009. The staff specialist arranged for the plaintiff to have a CT scan and dynamic x-rays to radiologically evaluate her current situation.[23] I note that this was the first mention of the 2009 transport accident since the 2009 transport accident.[24]
[23]DCB 47
[24]DCB 47
38 On 28 June 2011, the plaintiff returned to her general practitioner at the Deakin Medical Centre in Mildura and reported having chronic back pain, seeing a neurologist in one month and a recent exacerbation. She was prescribed Panadeine Forte.
39 On 28 July 2011, the plaintiff attended the Royal Adelaide Hospital, Neurosurgery Outpatient Service. She reported an eight-year history of chronic lower back pain and suffering with bilateral pins and needles. The registrar noted her history of physical work including winemaking and heavy lifting. The plaintiff was recommended to change from a physical workload to a job which does not require lifting anything greater than five kilograms. She was advised that the presence of disc degeneration at her age, at multiple levels, suggests that her spine is likely to degenerate further over time.[25]
[25]DCB 314
40 On 3 October 2011, the general practitioner at the Deakin Medical Centre provided a Medical Certificate for Centrelink for the period of 3 October 2011 to 3 December 2011 for chronic lower back pain with a date of onset of 20 April 2007.[26] I note that this was about the time that the plaintiff was reporting the work injury.
[26]DCB 153
41 On 11 February 2012, plaintiff attended the Mildura Base Hospital, reporting exacerbated chronic back pain. An x-ray of the lumbar spine was performed.[27]
[27]DCB 410-416
42 On 22 February 2012, a CT-guided injection was performed.
43 On 24 February 2012, the plaintiff attended the Mildura Base Hospital, complaining of back pain post epidural.[28]
[28]DCB 408
44 On 22 March 2012, the plaintiff attended her general practitioner at the Deakin Medical Centre complaining of back pain, particularly at night, discussed seeing a neurosurgeon, and reported sciatica in both legs.
45 On 29 March 2012, the plaintiff underwent a CT scan of the lumbar spine which showed a mild increase in central prominence of L5-S1 disc protrusion.
46 On 12 April 2012, an MRI scan of the lumbar spine was performed which concluded small posterior central L4-5 and L5-S1 disc protrusions, no significant central canal stenosis and no mass effect on the exiting nerve roots.[29]
[29]PCB 33
47 On 19 April 2012, the plaintiff was referred to Mr Thien, neurosurgeon, in relation to chronic back pain, especially at night. The plaintiff did not consult Mr Thien.
48 On 22 April 2012, the plaintiff attended the Mildura Base Hospital reporting worsening back pain at night. She reported chronic lower back pain for six years.
49 On 14 May 2012, the plaintiff underwent a steroid injection into her low back.[30]
[30]PCB 34
50 On 29 June 2012, plaintiff attended the Royal Adelaide Hospital Neurosurgery Outpatient Service, reporting chronic back pain and intercurrent depression. There was nothing untoward to find on examination and a current MRI scan showed degenerative change at L4-5 and L5-S1.
51 On 11 December 2012, the plaintiff attended her general practitioner at the Deakin Medical Centre complaining of back pain, and requested a local steroid, which she said worked well previously.[31]
[31]DCB 334
52 On 13 December 2012, the plaintiff underwent a CT-guided nerve root injection.[32]
[32]PCB 35
53 On 17 January 2013, her general practitioner completed an MLC permanent incapacity treating doctor’s report, diagnosing an L4-5 and an L5-S1 disc bulge. The form stated that the medical condition was first diagnosed on 20 April 2013 and symptoms first appeared, or injury occurred, on 20 April 2007.
54 On 25 March 2013, the plaintiff was referred to Mr Gardiner, surgeon, for her knee, which was unrelated.[33]
[33]DCB 335
55 On 3 June 2013, the plaintiff attended her general practitioner at the Deakin Medical Centre, reporting low back pain and sciatica for the last seven years, post a car accident. The plaintiff requested a referral to a neurosurgeon. A letter of referral was sent to Flinders Medical Neurosurgery Department which described:
· Ongoing sciatica pain for the past seven years, post a car accident;
· Ten epidurals in the past for same;
· “She has not got any neurological sign at present but is looking for specialist input for her condition.”[34]
[34]DCB 335
56 On 11 July 2013, the Department of Neurosurgery at the Outpatient Clinic reported to the Flinders Medical Centre:
“Based on the information provided it appears that there is no significant compromise to nerves, and as a result patient has been triaged as routine. … .”[35]
[35]DCB 64
57 On 16 December 2013, the plaintiff attended her general practitioner, who recorded the following:
· Chronic back pain at L5-S1
· Disc prolapse and degenerative change
· Requested an injection as done one year ago.[36]
[36]DCB 336
58 On 17 February 2014, the plaintiff had a CT scan of the lumbosacral spine which reported mild to moderate posterior central disc bulge at L4-5 causing some indentation on the thecal sac and no significant narrowing of the spinal canal or neural foramina. There was no osseous abnormality.[37]
[37]PCB 39
59 On 18 February 2014, the plaintiff underwent a CT-guided nerve root injection.[38]
[38]PCB 41
60 On 30 June 2014, the plaintiff was referred by her general practitioner at the Deakin Medical Centre to Professor Matthew McDonald, neurosurgeon, in relation to her chronic back pain.[39] There was no history of the 2009 transport accident provided in the letter of referral.
[39]DCB 240
61 On 10 July 2014, the plaintiff reported to her general practitioner back pain when she bent down and her back locked up.[40] On the same day, the plaintiff attended the Mildura Base Hospital reporting a history of sudden onset of severe back pain since the previous day after bending forward to pick up things. She reported that she was unable to walk or ambulate due to severe pain. She provided the following past history:
[40]DCB 338
· A motor vehicle accident ten years ago
· A history of a fall two weeks prior
· A motor vehicle accident when she was eighteen years old.
62 The plaintiff underwent an x-ray of the lumbosacral spine.[41]
[41]DCB 338
63 On 14 July 2014, plaintiff attended the general practitioner at the Deakin Medical Centre, reporting that her back pain is worsening and that she recently had treatment at the Emergency Department. The general practitioner noted that there were some changes compared to the last scan result.[42]
[42]DCB 338
64 On 2 October 2014, the general practitioner at the Deakin Medical Centre completed a Centrelink medical report for disability support pension.[43] The form recorded the diagnosis of the plaintiff’s condition as L4-L5 and L5-S1 disc prolapse, with a date of onset as 2007.
[43]DCB 340
65 On 8 October 2014, the plaintiff consulted Professor McDonald, who said it was difficult to treat the plaintiff surgically. He did not think a two-level fusion would fix her pain. He noted that she had suffered pain for almost ten years and thought she would have ongoing pain issues. He said that a discectomy might help with some of her leg pain but it will make her back pain worse. He recommended facet blocks as some relief.[44]
[44]PCB 53
66 On 28 October 2014, the plaintiff underwent facet injections as advised,[45] without relief.
[45]PCB 14
67 On 1 May 2015, the plaintiff attended the Mildura Base Hospital after falling off a ladder. The plaintiff reported being in a motor vehicle accident but did not specify what year she was in a motor vehicle accident. The plaintiff reported a history of a disc prolapse with nerve involvement.[46]
[46]DCB 391-398
68 On 5 June 2015, the plaintiff attended Professor McDonald in relation to her significant back pain. He noted that the plaintiff had fallen off her pergola roof and reported an increase in her sciatica symptoms. He said the plaintiff was keen to be considered for a discectomy, even though she understands it will not help with her back pain.
69 On 2 July 2015, the plaintiff was referred by her general practitioner to Professor McDonald again, in relation to her back pain.[47]
[47]DCB 345
70 On 24 July 2015, the plaintiff underwent a left and right L4-L5/L5-S1 partial laminectomy, microdiscectomy and rhizolysis, which was performed by Professor McDonald.[48] Post surgery, the plaintiff reported developing numbness in the left leg and foot.[49]
[48]PCB 55
[49]PCB 15
71 In November 2015, the plaintiff attended physiotherapy and reported low back pain ever since being involved in a transport accident at the age of eighteen.[50]
[50]DCB 131
72 In January 2016, the plaintiff was admitted to hospital due to ongoing back pain under the care of Professor McDonald. Between January and June 2016, the plaintiff underwent facet blocks, and underwent surgery at Flinders Medical Centre for a revision of the left microdiscectomy.[51]
[51]DCB 81
73 In July 2016, the plaintiff’s general practitioner at the Deakin Medical Centre completed a Centrelink medical certificate in relation to her pain, post-surgery.[52]
[52]DCB 359
74 On 16 December 2016, the plaintiff underwent further injections into her low back.[53]
[53]PCB 15
75 On 11 April 2017, the plaintiff consulted with Professor McDonald with ongoing back pain and numbness in the left foot.[54]
[54]DCB 122
76 In November 2017, the plaintiff was referred to Mr Michael Wong, neurosurgeon and spinal surgeon, for a second opinion in relation to her low back pain.
The 2017 transport accident
77 On 4 December 2017, the plaintiff reported being involved in a further transport accident, the 2017 transport accident. The plaintiff lodged a TAC claim which was accepted.[55]
[55]DCB 380-387; PCB 57
78 In December 2017, Mr Wong reported that the plaintiff had been involved in a further transport accident. In May 2018, Mr Wong said the plaintiff had a significant L5-S1 disc degeneration with type 2 modic changes and bilateral foraminal stenosis. The plaintiff required an L5-S1 decompression and lumbar interbody fusion.
79 In November 2018, the plaintiff reported to her physiotherapist a history of an L4-5 and L5-S1 discectomy in 2015 and 2016, a motor vehicle accident in December 2017 with worsening lower back pain, left leg pain, left leg weakness and foot drop.[56]
[56]DCB 110
Current medical evidence
80 The current medical evidence was expressed by Professor Matthew McDonald, treating neurosurgeon, Dr Ruby Kumari, treating general practitioner, and Dr Michael Wong, treating neurosurgeon. The plaintiff was also medically examined at the request of her solicitors by Dr Ales Aliashkevich, neurosurgeon; Dr Joseph Slesenger, occupational physician; Dr Amanda Sillcock, occupational physician, and Ms Katrine Green, organisational psychologist.
81 There was no dispute as to the plaintiff’s current medical condition. The only dispute was whether the plaintiff’s current condition was caused by the 2009 transport accident.
Professor Matthew McDonald
82 Professor McDonald treated the plaintiff between October 2014 and April 2017. He obtained a history of the plaintiff injuring her back when she was working in a winery in 2006. He examined the plaintiff in June and July 2015, January 2016 and finally in April 2017.
83 In October 2014, Professor McDonald reviewed an MRI scan which showed degenerative discs at L4-5 and L5-S1, some disc bulging at both levels and some potential irritation of the S1 nerve roots in the lateral recess. He said she reported pain for nearly ten years, which he thought would be ongoing. He was of the view that a discectomy may help with some leg pain but reported it will make her back pain worse. He organised facet blocks for pain relief.
84 In June 2015, the plaintiff reported the facet blocks had not helped and that she had fallen off her pergola which had resulted in increased sciatica symptoms. Professor McDonald was reluctant to consider the plaintiff for surgery as he was of the view that fusion surgery would be unlikely to help her back pain. He thought a discectomy may give some relief of her sciatica symptoms.
85 In July 2015, Professor McDonald reported the plaintiff underwent a left and right L4-5 and L5-S1 partial laminectomy, microdiscectomy and rhizolysis.
86 In January 2016, Professor McDonald said in the last month, the plaintiff had developed increasing left sciatica and paresthesia. She was walking with a limp and had a fall. He said she was on significant medication, was struggling and was admitted to hospital.
87 In May 2016, the plaintiff returned to Professor McDonald, who noted the plaintiff was struggling with pain. He recommended a ridge revision of the left L5-S1 microdiscectomy, which was performed in August 2016.
88 In April 2017, Professor McDonald reviewed the plaintiff and reported that recent facet blocks had not provided relief. The plaintiff reported ongoing back pain and persistent numbness in the left foot to the ankle. After her second discectomy in 2016, she had a violent sneeze and developed left leg pain and numbness. He recommended an MRI scan and suggested a pain specialist might assist.
89 Professor Mc Donald’s report is of limited assistance to the issues I must determine. He obtained a history of the plaintiff’s injury being work related dating back until 2006. At no stage does he refer to the 2009 transport accident and the role, if any, it plays in the plaintiff’s current presentation.
Dr Kumari
90 In January 2019, Dr Ruby Kumari, the plaintiff’s general practitioner at the Deakin Medical Centre, reported in a letter to the Royal Melbourne Hospital, that the plaintiff suffered ongoing low back pain and was under the care of Dr Michael Wong for an ongoing low back problem as she was seeking a second opinion.
91 Dr Kumari provided a very limited history of relevance. She did not address whether or not the plaintiff’s current condition was related to the 2009 transport accident.[57]
[57]PCB 59
Dr Michael Wong
92 In November 2017, the plaintiff was referred to Dr Michael Wong, neurosurgeon and spinal surgeon, for a second opinion. He reported that he had examined the plaintiff and would report further after reviewing the plaintiff’s recent MRI scan of her lumbar spine.
93 In December 2017, the plaintiff returned Dr Wong and reported worsening lower back and left leg pain due to a transport accident earlier in the week. Dr Wong reported that the MRI scan of September 2017 of the lumbar spine demonstrated mild epidural scarring of the left L5 and S1 nerve roots, and said there did not seem to be any significant neural compression. He organised a further MRI scan of the lumbar spine.
94 In February 2018, Dr Wong reported that the MRI scan of February 2018 demonstrated significant L5-S1 disc degeneration with type 2 modic changes and bilateral foraminal stenosis. He recommended the plaintiff undergo an L5‑S1 decompression and lumbar interbody fusion. He considered this to be the likely cause of the plaintiff’s chronic low back pain.
95 Dr Wong’s reports only address the plaintiff’s current condition. Dr Wong does not address the cause of the plaintiff’s low back condition, and is therefore of little assistance to the issues I must determine.
Physiotherapists
96 In June 2018, Ms Meagan Morse, physiotherapist, reported that she had seen the plaintiff on one occasion and recommended the treatment suggested by Dr Wong.
97 In January 2019, Mr Steven Willman, physiotherapist, said the plaintiff currently has no capacity for employment but potentially will have a capacity for some employment with minimal lifting and bending/squatting. It was his opinion that the plaintiff’s pain and function will improve once she has surgery on the lumbar spine.
Dr Slesenger
98 In July 2018, the plaintiff was examined by Dr Joseph Slesenger, an occupational physician. He had limited material before him relating to plaintiff’s treatment. Dr Slesenger noted that in 2011 to 2012, the plaintiff had moved back to Adelaide and for eighteen months worked in a paper factory full time. He noted that she had time off work for injections until she was advised by her general practitioner that she cease employment as the frequency of injections was increasing. This was consistent with the plaintiff’s evidence in court that the injections were what enabled her to continue working.
99 Dr Slesenger was of the view that it is difficult to determine whether the 2009 accident was a cause of the plaintiff’s low back injury. He noted that the records from 2009 indicate that there was a significant pre-existing impairment which is difficult to quantify as there was a gap in the records with which he was supplied. He also noted the treating general practitioner’s note shortly after the 2009 accident that the plaintiff‘s symptoms were not aggravated.
100 Dr Slesenger was ultimately satisfied that there was an indication that the 2009 accident caused an aggravation of the plaintiff’s symptoms. He said that following the 2009 accident, the plaintiff had an increased attendance with her general practitioner, a failed response to treatment and ultimately required surgery. He was of the opinion that the 2009 accident is partially causal with regard to the plaintiff’s symptoms between 2009 and 2017 and that her pre-injury impairment is a significant factor.
101 In coming to this view, Dr Slesenger did not refer to the work injury in 2007 or the medical treatment the plaintiff received at that time. He noted that the plaintiff may have been treated in Adelaide but did not have those records. He was aware that the Blakeview Medical Centre records made no reference to the 2009 transport accident and that the plaintiff was attributing her condition to the 2003 transport accident and work-related injury of 2007. There was no material before him to suggest that the surgical intervention was required due to the aggravation sustained in the 2009 transport accident.
102 Dr Slesenger’s report is of limited value. He had an incomplete history of the plaintiff’s condition and treatment prior to 2009. He does not refer to the workplace injury, or the six months the plaintiff was off work in 2007. He was not aware of the ongoing injections in 2008. Given all of these issues, the report is of limited value. Further, he makes limited reference to Professor McDonald’s reports. He does not note that Professor McDonald has no history of the 2009 transport accident. He did not have the medical reports from the Neurosurgery Unit at the Royal Adelaide Hospital which in 2008 refer to the problems at that time, including sciatica.
Dr Aliashkevich
103 In June and December 2018, Dr Ales Aliashkevich, neurosurgeon, medically examined the plaintiff at the request of the plaintiff’s solicitors. He provided two reports dated 12 June and 11 December 2018. In his report of December 2018, he referred to Dr Slesenger’s report.
104 Dr Aliashkevich was asked to provide an assessment of the plaintiff’s 2009 and 2017 back injuries only. It was his view that the plaintiff suffers from multifactorial and complex chronic low back and bilateral leg pain related to her multiple injuries, steroid injections and surgeries.
105 Dr Aliashkevich obtained a history of the plaintiff being involved in her first transport accident on 18 October 2003 when she lost control of the car she was driving and hit a tree. She was taken to the Mildura Base Hospital and underwent an x-ray of her neck. She was discharged home shortly after her admission. She attended a chiropractor for persisting low back pain and spasms. He was aware she was attending the Royal Adelaide Hospital, had conservative treatment, including injections, and underwent a CT scan of her lumbar spine which was performed on 1 May 2007 which reported L4-5 posterior central disparate shoot protrusion with some mass effect on the thecal sac and L5-S1 disc bulge. On 12 September 2007, she underwent a CT-guided left L5 nerve root injection at the L5-S1 level. He said she was able to continue reasonably normal daily activities without significant restrictions and that she was working in the wineries and performing packaging jobs until around 2009 to 2010.
106 Dr Aliashkevich was informed of the plaintiff injuring her back at work in the 2007. He was not aware that she was off work for six to seven months due to a work-related injury involving lifting. He was aware the plaintiff underwent injections but was not aware that the plaintiff said the injections enabled her to continue her work.
107 In relation to the second transport accident of 13 March 2009, Dr Aliashkevich was informed that the impact from the accident had caused the seatbelt to break.[58] He was aware the plaintiff was taken to the Mildura Base Hospital, where she experienced pain in her lower back, underwent an examination, was provided with pain medication and discharged into the care of her general practitioner, Dr Prashanthi Godakumbura, at the Deakin Medical Centre. On 20 April 2009, Dr Godakumbura recorded:
“Past history of L4/5 and L5/S1 disc bulge, had 3 epidural injection[s], had a car accident 1/12 ago, patient was in a stationary car, felt a lump at lower back x 3/52, usual mild back pain, not aggravated after the accident.”
[58]DCB 461. According to the police report, I note that the seatbelt was worn, indicating that the plaintiff was wearing a seatbelt, not necessarily that the police had inspected the seatbelt.
108 Dr Aliashkevich was aware of her persistent pain, need for physiotherapy and steroid injections, return to Adelaide, including her return to casual employment with a paper packaging company which involved working around 8.5 hours per day, five days per week for about six to twelve months.
109 Dr Aliashkevich was not aware of any treatment at Blakeview Medical Centre between May 2010 and January 2011 or her attendances upon medical practitioners until February 2012. He was only aware of her radiological investigations and injections.
110 Dr Aliashkevich was provided with the reports of Professor McDonald of October 2014, July 2015, January 2016, and was aware of Professor McDonald’s treatment of the plaintiff until 2017.
111 Dr Aliashkevich had access to the medical reports of Dr Wong.
112 It was Dr Aliashkevich’s opinion that the plaintiff suffered from multifactorial and complex chronic low back and bilateral leg pain related to her multiple injuries, steroid injections and surgeries. He said she had significant psychosocial factors which make her condition even more complicated. He said, having regard to the history and mechanism of the transport accident in 2003, 2009 and 2017, her history of multiple falls and the history of her work-related injury in 2006, he considered that her current back condition is consistent with the aggravation of an organic pre-existing degenerative spine disease.
113 In relation to the low back injury of 2009, he said that was consistent with the stated accident but he is unable to tell whether it has caused significant exacerbation of her pre-existing condition or not. He said that on one side, there was an indication of forceful impact during the accident, producing breakage of the seatbelt,[59] but on the other side, there is a clear documentation in her general practitioner’s notes that her usual mild back pain was not aggravated after the accident.
[59]I note that the police report of the 2009 transport accident does not record a “breakage” of the seatbelt
114 Dr Aliashkevich was asked to consider the material differences between the back injury the plaintiff sustained in 2009 versus the back injury she sustained in 2017. He said, from a neurological perspective, the main material difference between the back injury sustained in 2009 and the back injury sustained in 2017 was the fact that the plaintiff underwent two major lumbar decompressive surgeries in 2015 and 2016 and had an undisplaced fracture through bilateral L5 and left-sided L4 lamina diagnosed in 2016. It was his opinion that the two previous lower back surgeries and lumbar fractures have significantly weakened the plaintiff’s lumbar spine prior to the accident she sustained in 2017. It was accepted by both counsel for the plaintiff and the defendant that there was no undisplaced lumbar fractures.
115 Dr Aliashkevich was asked to detail the restrictions imposed on the plaintiff, including restrictions in day-to-day activities of daily living, and state whether those restrictions can be considered as being permanent when considering the 2009 back injury alone and the 2017 back injury alone.
116 Dr Aliashkevich said there was significant progression of the plaintiff’s limitations and pain after the 2017 transport accident. He noted the following:
(a) After the accident in 2009, the intensity of the plaintiff’s low back pain was around 4 out of 10, while after the transport accident in 2017, it increased to 6 out of 10 and more;
(b) After the accident in 2009, she had less severe leg pain and had no leg numbness, while after the accident in 2017, her leg pain significantly deteriorated, involving both legs, left more than right, and also produced increased numbness in her left foot;
(c) After the accident in 2009, she was still doing some daily activities like cooking, cleaning and washing, and could lift weights of up to 5 to 7 kilograms. After the 2017 accident, she had more significant limitations and cannot lift weights over 2 kilograms.
117 Dr Aliashkevich emphasised the fact that the 2017 transport accident has been much worse for the plaintiff’s symptoms than the 2009 transport accident.
118 Dr Aliashkevich is unable to provide a definitive opinion on whether the 2009 transport accident caused or materially contributed to a significant aggravation to the plaintiff’s low back injury. He was of the opinion that the plaintiff’s current back condition was consistent with the aggravation of organic pre-existing degenerative spine disease; however, he could not attribute the aggravation to the 2009 transport accident, based on the information he had. He has a more accurate history than other medical witnesses relied upon, however, it is incomplete. Dr Aliashkevich said the plaintiff had not been able to work since around 2009; however, that is not accurate, as the plaintiff was working at Detmould, five days per week, working about eight hours per day. Further, the plaintiff’s evidence was that she ceased that work because she was sick of working shift work and she obtained work sorting potatoes.
Dr Sillcock
119 Dr Amanda Sillcock, occupational physician, examined the plaintiff in February 2019 at the request of the plaintiff’s solicitor. She had a limited history of the plaintiff’s pre-2009 transport accident condition; however, she was aware of the 2003 transport accident but was not aware of the 2007 work-related injury. She placed reliance on the report of June 2015 of Professor McDonald, where he said the plaintiff’s pain increased after she fell off the roof of her pergola, which she said the plaintiff had not reported to her. The plaintiff reported to her losing all feeling in her left leg around September 2015 and it was worse after she sneezed. The plaintiff reported further surgery. The plaintiff’s pain worsened and she sought an opinion from Mr Wong. She was aware of the 2017 transport accident. The plaintiff reported constant pain in her low back at an intensity of 8 out of 10, except when she is asleep or receiving massage from her physiotherapist. The plaintiff reported that sitting aggravates the pain and she has weakness in both legs.
120 It was Dr Sillcock’s opinion that the plaintiff is suffering from lumbar disc lesions at L4 and L5-S1.[60] She said the plaintiff’s injuries were consistent with the 2009 and 2017 transport accidents. She did not consider the plaintiff had a realistic capacity for work because of her injuries. She reported that the plaintiff had not worked since 2011 as a result of the 2009 back injury and despite her numerous injections and surgical treatment, her condition had not improved enough for her to return to work. Given this background, she could not say whether the plaintiff would not be working because of the 2017 back injury alone.
[60]PCB 158
121 Given the limited history that Dr Sillcock had about the plaintiff’s pre-2009 accident condition, and she was not aware of the 2007 work injury, her report is of limited assistance to the issues I must determine.
Analysis
122 The majority of the doctors who expressed views on the current medical evidence did not have an accurate history of the plaintiff’s condition. Accordingly, they were of limited value. Dr Aliashkevich had the most accurate history, although it was not complete. He was unable to say whether the plaintiff’s current condition and consequences are attributable to the 2009 transport accident
123 I must assess the plaintiff at the current time.
Aggravation Injury
124 It was not in dispute that the plaintiff suffered and was treated for a low back injury prior to the 2009 transport accident. The wrongdoer must take the victim as he finds him or her. He must compensate only for the damage he has caused.
125 In accordance with Petkovski v Galletti,[61] I am required to consider the plaintiff in respect to consequences immediately before the 2009 transport accident and her consequences today, and determine whether any additional consequences are referrable to the 2009 transport accident and, if so, whether they constitute a “serious injury”.
[61][1994] 1 VR 436
126 Based on the evidence, I accept that immediately prior to the 2009 transport accident, the plaintiff’s medical condition was:
(a) She was suffering ongoing chronic low back pain and bilateral sciatica;[62]
[62]ibid
(b) She had been involved in the 2003 transport accident and reported a lifting incident at work in 2007;
(c) She was being treated at the Royal Adelaide Hospital Neurosurgery Unit conservatively for low back pain;
(d) She was off work between April and November 2007 for up to seven to eight months as a consequence of her work-related injury. I refer to the medical report from Dr Marshman at the Royal Adelaide Hospital Neurosurgery Unit.[63] The plaintiff’s evidence was that she underwent a series of CT injections in 2007 and 2008. At this time, the plaintiff was discussing the possibility of surgery with the Neurosurgery Unit at the Royal Adelaide Hospital.[64] Although, I note that the medical advice was conservative treatment; and
(e) The plaintiff’s evidence was that her sporting activities were affected by an unrelated knee injury.
[63]DCB 43
[64]DCB 44-45
127 The plaintiff’s evidence was that the injections became less effective and that prior to the 2009 transport accident, the injections kept her at work and in their absence she could not have worked.[65]
[65]T83
128 The plaintiff’s evidence was that prior the 2009 transport accident, she was performing physical work in Adelaide, working full-time hours in a packaging company. The plaintiff returned to Mildura in early 2009.
129 I accept that a young fit person is unlikely to seek out a series of injections unless there are symptoms in her low back and legs. I accept that this is sufficient to indicate a pre-existing problem of some concern to the plaintiff prior to the 2009 transport accident.
130 Following the 2009 transport accident, the plaintiff attended the Mildura Base Hospital, where she reported no increase in low back pain.
131 The plaintiff attended her general practitioner at the Deakin Medical Centre and reported a past history of L4-5 and L5-S1 disc bulge and three epidural injections. She reported the 2009 transport accident to her general practitioner, and said that her usual mild back pain had not been aggravated by the transport accident. She was examined and the record states “no tenderness over lumbo sacral spine”.[66]
[66]DCB 17
132 Based on the medical records, following the 2009 transport accident, the plaintiff attributed her complaints to the general practitioner at the Deakin Medical Centre to the work-related injury and the 2003 transport accident. The plaintiff did not disclose the 2009 transport accident to the Blakeview Medical Centre, rather, she related her medical condition to the work-related injury and earlier 2003 transport accident. Whilst receiving treatment at the Royal Adelaide Hospital, both before and after the 2009 transport accident, the plaintiff related her medical condition to the earlier 2003 transport accident and the work-related injury in 2007. The plaintiff reported the 2009 transport accident to the Royal Adelaide Hospital.[67]
[67]DCB 47
133 Professor McDonald obtained a limited history from the plaintiff of being injured in a winery in 2006 and noted that the plaintiff reported “she has had pain for nearly 10 years”.[68]
[68]PCB 53
134 Accordingly, based on the medical material, I accept that between the years 2009 and 2017, the plaintiff reported low back pain to the doctors she saw but was not attributing the complaints of pain to the 2009 transport accident.
135 The plaintiff’s evidence was that after the 2009 transport accident, her back pain became more constant and severe.[69] On 1 June 2009, she underwent a CT-guided injection into her low back. She returned to Adelaide. She continued to work performing physical work until at least July 2011, when she ceased working on the advice of her general practitioner at the Blakeview Medical Centre.[70]
[69]PCB 13
[70]PCB 13 and 14
136 The plaintiff’s current evidence is that since 2009, she has had low back pain and numbness in both legs and feet, particularly affecting the left leg and foot. Since about 2011, the back and left leg symptoms have been constant and, as a result, she has not been able to work. She feels frustrated, as she is unable to work, as she always enjoyed working and earning an income.
137 Her sleep is affected because of the pain. She takes melatonin to assist but wakes during the night with back pain. Prior to the 2009 transport accident, she played softball twice per week but ceased playing softball because of her back and leg symptoms after the 2009 transport accident. She used to enjoy painting and drawing.
138 In court, the plaintiff’s evidence was that she accepted that the 2009 transport accident was so long ago, that it was now too long ago for her to distinguish what her condition was before and after the 2009 transport accident.
139 Following the 2009 transport accident, the plaintiff was involved in a transport accident in 2010, a fall from a pergola which she reported worsened her sciatic pain and the 2017 transport accident. It was accepted that the 2010 transport accident did not cause any aggravation to the plaintiff’s low back injury.
140 In assessing whether the plaintiff’s current condition and consequences are as a result of the 2009 transport accident, I must disentangle the aggravation and consequences to the low back injury of the fall the plaintiff had from the pergola and the 2017 transport accident. On the evidence before me, I cannot be satisfied that the plaintiff’s current condition and consequences are sufficiently disentangled from the fall from the pergola and the 2017 transport accident. Further, on the medical evidence before me, I am not satisfied that the plaintiff’s current condition and consequences are attributable to the 2009 transport accident alone.
141 I also note that the radiological findings in April 2007 were that the plaintiff had an L4-5 posterior central disc protrusion with some mass effect on the thecal sac and L5-S1 disc bulge. An MRI scan in 2012 showed the plaintiff as having a small posterior central L4-5 and L5-S1 disc bulge.
142 Further, there was no opinion of a medical witness before me upon which I can rely, which attributes her current medical condition and current consequences to the 2009 transport accident.
143 Where the claimant has an injury with numerous consequences, he or she must establish, at the time of applying for leave, that the injury which has been caused by or is the result of the accident is a “serious injury”. Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[71] In this case, the plaintiff reported that her condition was related to the 2003 transport accident and her work-related injury, not only at the time of the 2009 transport accident but subsequently, to the medical practitioners who treated her. The medical records and opinions of the medical witnesses also do not support the view that the 2009 transport accident materially contributed to a significant aggravation of the plaintiff’s low back injury.
[71]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
144 In Bezzina v Phi,[72] where two serious injuries were claimed, the Court of Appeal said the judge must examine the impact of the injury on the applicant as a whole. Further, I am bound, when examining the consequences of the claimed serious injury, to look at how they affect the applicant as she was, and would likely have been, absent the injuries she sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.
[72]ibid
145 It was not in dispute that the plaintiff cannot work.
146 Counsel for the plaintiff submitted that the inability to do not only pre-injury work, but any work by March 2012 is a serious consequence. Counsel for the plaintiff submitted that if I was to accept that the plaintiff cannot now work, and her inability to work was a consequence of the injuries she suffered in the 2009 transport accident, that would amount to a serious injury consequence.
147 The evidence is that after the 2009 transport accident, the plaintiff returned to work performing physical manual work. There was no medical evidence which supports the view that the 2009 transport accident is responsible for the plaintiff’s inability to work by March 2012, or her current condition.
148 Counsel for the plaintiff relied upon the fact that at the time of the 2009 transport accident, spinal surgery had not been recommended. I accept that the Royal Adelaide Hospital was not recommending surgery before the 2009 transport accident. I also note that in October 2014 and June 2015, Professor McDonald reported that he would be reluctant to consider surgery. He said he did not think she would be helped with a fusion surgery. In fact in 2014, he said a discectomy may help with some of the leg pain but will make her back pain worse. By June 2015, he said she may get some relief of her sciatica symptoms.
149 A partial laminectomy, microdiscectomy and rhizolysis was performed. In January 2016, Professor McDonald reported that the plaintiff had ongoing back pain, which is not unexpected, but she had developed increasing left sciatica and paresthesia.
150 There was no medical evidence to suggest that this surgery was related to the 2009 transport accident. In fact Professor McDonald had no history of the 2009 transport accident. No other medical evidence supported this. Dr Aliashkevich, who had the most accurate history, did not comment on whether the surgical intervention was related to an exacerbation of the plaintiff’s condition following the 2009 accident. He was unable to provide a definitive opinion on whether the 2009 accident had materially contributed to a significant aggravation of the plaintiff’s low back injury.
151 Counsel for the plaintiff relied upon the fact that after the 2009 transport accident, the plaintiff reported the pain was worse because she required morphine. The plaintiff was administered morphine at the Mildura Base Hospital when admitted, on the day of the 2009 transport accident. The evidence was that she was administered morphine on one occasion. There was no evidence that the plaintiff was administered morphine on an ongoing basis. Further, she was discharged shortly thereafter and reported her usual back pain, which had not been aggravated by the transport accident, to her general practitioner at the Deakin Medical Centre.
152 Counsel for the plaintiff accepted that there was a lack of reference to the 2009 transport accident in the medical notes. He submitted that this could be explained by the fact that the plaintiff had not thought of making a claim for compensation and rather, the plaintiff was reporting her pain and symptoms. Counsel for the plaintiff submitted that this is consistent with the fact that the plaintiff never pursued compensation. In 2007, the plaintiff did not lodge a WorkCover claim when injured at work. When the plaintiff did lodge a Claim Form in relation to the 2009 transport accident, the plaintiff never sought payment for her treatment from the Transport Accident Commission. Counsel said this is consistent with a person who does not make claims on a statutory authority.
153 I accept the plaintiff did not lodge a claim form with the Transport Accident Commission in relation to the 2003 transport accident or a WorkCover claim in 2007, nor did she seek recovery of the medical expenses relating to the 2009 transport accident; however, I note that she was reporting to the doctors she consulted, that the injuries she suffered were as a result of the work accident in 2007 and the 2003 transport accident. The plaintiff was not reporting injuries to doctors arising from the 2009 transport accident. Further, following the 2009 transport accident, the plaintiff reported to her general practitioner at the Deakin Medical Centre that her usual mild low back pain had not been exacerbated by the 2009 transport accident. Dr Aliashkevich referred to this note of the general practitioner from the Deakin Medical Centre when considering whether the 2009 transport accident had materially contributed to a significant exacerbation of the plaintiff’s low back injury.
154 I take the view that the plaintiff not seeking reimbursement of her medical expenses in relation to the 2009 transport accident is not related to the lack of reference the plaintiff made to the 2009 transport accident to her treating doctors at the time. The plaintiff has made complaints of a low back injury and pain to medical witnesses following the 2003 transport accident, the work-related injury in 2007, and the 2017 transport accident. Further, the plaintiff attributed her injury in part to the work-related injury to her treating doctors and she did not lodge a WorkCover claim.
155 I must determine whether or not the plaintiff has suffered a serious injury as a result of the 2009 transport accident. The plaintiff had difficulty in providing an accurate history in court and to medical witnesses. She agreed that given the time which has passed since the 2009 transport accident, she cannot distinguish her condition from prior to the 2009 transport accident and following the 2009 transport accident. Accordingly, I am reliant on what the treating doctors noted at the time and the current medical evidence.
156 I would have to be satisfied that there was an aggravation by the 2009 transport accident which amounted to a “serious injury”. The medical evidence does not support such a finding.
157 As I have indicated, the majority of the medical witnesses did not have an accurate history of the plaintiff’s condition. Dr Aliashkevich had the most accurate history, which was incomplete; however, he was unable to say whether the plaintiff’s current condition is attributable to the 2009 transport accident.
158 Accordingly, the plaintiff does not satisfy the requisite test that her current condition and her consequences are attributable to an aggravation of her pre-existing low back injury which amounts to a “serious injury” as a result of the 2009 transport accident.
159 Accordingly, I dismiss the plaintiff’s application.
160 I will hear the parties on costs.
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