Kolesnakova v Transport Accident Commission
[2013] VCC 624
•22 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00245
| MARITA KOLESNAKOVA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 March 2013 | |
DATE OF JUDGMENT: | 22 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Kolesnakova v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 624 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application in respect to two separate transport accidents – impairment of cervical spine – impairment of lumbar spine – psychiatric injury – whether or not the consequences are “serious” for the physical impairments or “severe” for the psychiatric impairment
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for serious injury in respect of the cervical spine impairment dismissed; Application for serious injury in respect of psychiatric injury and lumbar spine granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr R H Stanley | Slater & Gordon |
| For the Defendant | Mr G A Lewis SC with Ms B A Myers | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 This proceeding is an application brought by Originating Motion dated 19 January 2012. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of two transport accidents. The first transport accident occurred on 21 January 2006 (“the first accident’). The second accident occurred on 5 October 2006 (“the second accident’).
2 In respect of the first accident, the plaintiff seeks leave to bring proceedings for damages arising out of a cervical spine injury received in the course of that accident.
3 In respect of the second accident, the plaintiff seeks leave to bring proceedings for damages arising out of an injury to her cervical and lumbar spine and also a severe long term mental or behaviour disturbance or disorder.
4 Section 93(6) of the Act provides a Court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
5 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function; or
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
6 In this application, the plaintiff in effect has four separate applications for serious injury. The four applications are as follows:
(1)serious long term impairment of the cervical spine arising out of the first accident;
(2)serious long term impairment of the cervical spine arising from an aggravation of an injury to her cervical spine in the second accident;
(3)serious long term impairment of the lumbar spine arising from the second accident; and
(4)severe long term mental or severe long term behavioural disturbance or disorder arising from the second accident.
7 The enquiry under s93(17) of the Act focuses attention first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The serious injury defined by ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
8 In forming a judgment as to whether the consequences and the injury are serious, the question to be asked is: Can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and “more than significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
9 In this case, the plaintiff has the onus of establishing whether the aggravation to her cervical spine injury in the second accident is “serious” under the definition in the Act.[3]
[3]Petkovski v Galletti [1994] 1 VR 436
10 A serious injury under s93(17)(c) requires the level of impairment to be “severe”.[4]
[4]Mobilio v Balliotis [1998] 3 VR 833
11 The plaintiff swore and relied upon two affidavits dated 2 November 2011 and 1 February 2013. The plaintiff gave evidence and she was cross-examined during the course of the hearing. The plaintiff also relied upon an affidavit sworn by her son, Raymond Yu, dated 27 February 2012. Mr Yu was not cross-examined.
12 In addition to the affidavits and evidence given by the plaintiff, the parties to the case relied upon numerous medical reports and records which were tendered during the course of the proceeding. I have read all of the tendered medical material but do not propose to refer to all of it during the course of these reasons.
13 The tendered evidence in this proceeding was:
·Exhibit A – the Plaintiff’s Amended Court Book (“PCB”), pages 8 to 157 and pages 181 to 262;
·Exhibit B – report of Mr G Lowe dated 25 February 2008;
·Exhibit 1 – DVD of surveillance of the plaintiff for 17 January 2008;
·Exhibit 2 – GP Mental Health Care Plan dated 9 June 2010;
·Exhibit 3 – DVD of surveillance of the plaintiff for 14 January 2013;
·Exhibit 4 – Defendant’s Court Book (“DCB”) pages 37 to 37 inclusive, pages 188 to 158 inclusive and pages 65, 67, 69, 71, 73 and 75.
14 The issues in this application are as follows:
(a)What injuries did the plaintiff suffer to her cervical spine as a result of the first transport accident? This issue includes whether or not the plaintiff’s condition from the first transport accident was serious and long term.
(b)Whether the injury to the plaintiff’s cervical spine in the second accident was an aggravation injury and to what extent. This is a “range” issue for the level of aggravation to the plaintiff’s cervical spine in the second accident.
(c)Whether the injury to the plaintiff’s lumbar spine as a result of the second accident is properly described as in the range of cases to be considered a serious injury under the Act.
(d)Whether the plaintiff suffered a psychiatric condition which was properly described as severe as a result of the second transport accident.
(e)The credit of the plaintiff.
The Plaintiff’s background
15 The plaintiff was born in 1961 in China. She is now fifty-two years of age.[5]
[5]PCB 8
16 The plaintiff originally migrated to Australia with her family in 1979. Her parents are of Russian background but lived in China. The plaintiff completed her secondary education in China prior to coming to Australia.[6]
[6]PCB 96
17 The plaintiff has been married but is now a divorced woman. She has a twenty-five-year-old son who lives with her. The plaintiff originally commenced work in a factory in Sydney for three years and a couple of months, prior to moving to Melbourne.[7] The plaintiff then worked for Natra in Noble Park for a period of twenty-one years.
[7]Transcript (“T”) 17
18 In approximately 1999, the plaintiff commenced work with Australian Automotive Air Pty Ltd. Her role there was as a quality controller and machine operator. At the time of the first accident, the plaintiff was supervising fifty fellow workers.[8]
[8]T19
The first accident – 21 January 2006
19 The plaintiff was injured in a transport accident on 21 January 2006. The plaintiff was seated in her vehicle which was stationary when it was hit from behind by another car. Immediately after the accident, the plaintiff was able to exchange details with the other driver and she went home. She was shocked and very shaken by the accident.[9]
[9]PCB 9
20 The next morning the plaintiff awoke to realise that she had a stiff and painful neck. On that day, she attended her general practitioner, Dr David Phan at the Ashwood Medical Centre.[10]
[10]PCB 10
21 Dr Phan prepared a report dated 21 July 2006 in respect of the plaintiff’s condition. He diagnosed the plaintiff with a whiplash injury to her neck as a result of the impact to the rear of her car.[11] In his report, Dr Phan referred to an MRI scan of the plaintiff’s cervical spine performed on 13 July 2006 and noted:
“Disc degenerative changes at C3/4 to C6/7. Disc protrusions at C4/5, C5/6 and C6/7 indents cervical cord at C4/5 and C5/6. At C6/7, protruded disc impinges the left emerging C7 nerve root.[12]
[11]PCB 95A
[12]PCB 95C
22 The plaintiff’s treatment involved prescription of Voltaren Rapid 50 milligram and physiotherapy sessions to assist with the pain to her neck. In March of 2006, the plaintiff’s complained of pain and she ceased work. She remained off work until the middle of September 2006. The plaintiff returned to light duties on a part time basis and at the time of the second accident, she was working five days a week, four hours a day.
23 The plaintiff was examined by Mr David Conroy, orthopaedic specialist, for medico-legal purposes on behalf of the Transport Accident Commission. Mr Conroy examined the plaintiff on 12 September 2006. His report appeared in both the PCB and the DCB. In his report dated 12 September 2006, Mr Conroy noted the MRI scan findings as follows:
“An MRI of the cervical spine dated 13 July 2006 confirming the disc degenerative changes in the mid-cervical spine but showing a disc protrusion to the left at the C6/7 level impinging on the 7th cervical nerve root. I did not think any other investigations indicated.”[13]
[13]DCB 117.2
24 Mr Conroy diagnosed the plaintiff’s injury at that time as an aggravated cervical intervertebral disc degeneration.[14] Mr Conroy was of the opinion that the plaintiff would benefit from an active exercise program supervised by a physiotherapist. At that time, in his opinion:
“5 She is capable of resuming suitable light work, where rapid and repetitive movement of the arms and hands are not required and where she is not obliged to do any heavy lifting on a full-time basis.”[15]
[14]DCB 17.2
[15]DCB 117.4
25 The plaintiff within a short period of time was in fact working four hours per day, five days a week up until the day of her second accident on 5 October 2006. On the evidence available at that time the plaintiff’s condition was improving and her capabilities were also improving. The intervention of the second more serious transport accident stopped the course of rehabilitation for the plaintiff, particularly in respect of her cervical spine.
26 Mr Conroy is the only doctor to have reported on the plaintiff’s condition both before and after the second accident. Mr Conroy again reviewed the plaintiff for the Transport Accident Commission on 5 June 2007. At the time of his review on 5 June 2006, there were no further radiological examinations taking place in respect of the plaintiff’s cervical spine. Mr Conroy noted his opinion as follows:
“My presumption is that at the time of the accident of 5th October 2006 there was a pre-existing aggravated cervical spondylosis that has been deteriorated, and the accident on 5th October has precipitated symptomatic lumbar spondylosis leading to a chronic pain disorder.”[16]
[16]DCB 120
27 The plaintiff, in her evidence, stated that she had never been free of neck pain since the first accident in January 2006.[17]
[17]T19, L11 and 12
28 The plaintiff, in her evidence, stated as follows:
MR MIGHELL:
Q:“I want to ask you about your neck injury. Before the second accident, that is in October 2006, before that you just returned to week for a couple of weeks, is that right?‑‑‑
A:(Through Interpreter) Yes.
Q:Were you working part-time?‑‑‑
A:(Direct) Yes.
Q:How is your neck?‑‑‑
A:It's not very good.
Q:After the second accident how was your neck?‑‑‑
A:(Through Interpreter) Much pain. Much painful than the first accident. Much painful than that suffered in first accident. Much painful than suffered in ‑ ‑ ‑
Q:All right, and over time what happened to the neck pain? Did it go back to how it was before the October 2006 accident or did it remain bad?‑‑‑
A:It just remained that bad.”[18]
[18]T73, L11-23
29 It is clear from this evidence that the plaintiff says that the neck pain is much more serious after her second accident. The supervening event of 5 October 2006, which was a further insult to her already painful neck, has made it very difficult to assess the “seriousness” of the injury to the plaintiff’s neck as a result of the 21 January 2006 transport accident. There has been no recent up-to-date radiological examination of the plaintiff’s neck since prior to the first accident.
30 I conclude that I am not satisfied on the evidence and the medical reports in this case that the plaintiff has suffered a serious long term impairment or loss of function to her neck as a result of the accident on 21 January 2006.
The second transport accident
31 The plaintiff was involved in a transport accident on 5 October 2006. The plaintiff described this accident in her first affidavit. The circumstances of the transport accident were that the plaintiff’s vehicle was struck in the driver’s door area after another vehicle attempting to cross multiple lanes of traffic at high speed lost control. As a result of that impact, the plaintiff’s vehicle careered off the road and collided into a tree. The accident was a significant collision.[19]
[19]PCB 11, paragraph 27
32 The plaintiff was taken by ambulance to the Dandenong Hospital after the transport accident. X-rays were taken of the plaintiff at the Dandenong Hospital and she was sent home at approximately midnight, which was twelve hours after the accident. The reason for her being sent home was that there was a shortage of beds at the hospital.[20]
[20]PCB 11, paragraph 30
33 The plaintiff attended her general practitioner, Dr Pham, the next day. The plaintiff spent the next three weeks after the accident in bed.[21]
[21]PCB 11, paragraph 31
34 As a result of this transport accident, the plaintiff claims serious injury certification for:
(a)aggravation of and further injury to the cervical spine;
(b)injury to the lower back; and
(c)psychiatric or psychological injury.
Aggravation of the cervical spine as a result of second accident
35 The plaintiff underwent an MRI cervical spine examination on 13 July 2006. The report of the radiology on that occasion was:
“Disc degenerative changes at C3/4 to C6/7. Disc protrusions at C4/5, C5/6 and C6/7 indents cervical cord at C4/5 and C5/6. At C6/7, protruded disc impinges the left emerging C7 nerve root.”[22]
[22]PCB 95C
36 This MRI examination took place prior to the second accident. The plaintiff, shortly prior to the second accident, had managed to commence work again on a return to work program.
37 The plaintiff was then examined by way of CT scan to the cervical spine on 19 July 2012. The conclusion from that report was as follows:
“Intervertebral degeneration as described. Central canal narrowing at C4/5 and C5/6. There is compression of the existing left C5 and right C6 nerve roots but no further neural compression.”[23]
[23]PCB 93
38 The later radiology examination does not indicate any additional injury to the plaintiff. The plaintiff’s evidence is that she suffered far more pain in her neck region after the second accident.[24]
[24]T73, L15-23
39 Mr David Conroy examined the plaintiff before and after the accident of 5 October 2006. He diagnosed that the plaintiff had suffered a deterioration in her previously aggravated cervical spondylosis condition in her cervical spine.[25]
[25]DCB 120
40 I have read the reports of Mr Elder, Mr Shannon, Mr Conroy, Mr Moran and Associate Professor Stark, and conclude that the symptoms and consequences attributed to the cervical spine injury after the second accident do not amount to a serious injury. In these applications, it is incumbent upon the plaintiff to satisfy the Court that the aggravation of the neck injury is of a level of seriousness which is at least very considerable and more than significant or marked. The plaintiff has failed to satisfy this test in respect of her cervical injury arising from the second accident.
The lumbar spine injury
41 The plaintiff has been referred to pain rehabilitation services at Cedar Court in October 2008. The plaintiff has also been referred to the Pain Medicine Clinic at Monash Medical Centre in September of 2010.
42 In the course of her treatment from October 2006 until the present time, she has been prescribed and taken pain-relief medication in the form of Tramadol and Norspan patches. The plaintiff continues to be prescribed multiple pain-relief medications. On 11 January 2013, the plaintiff was prescribed the following medications by her general practitioner, Dr Chaya Devadittiya:
“Tramadol 100 mg Tablet, modified release 100 mg Twice a day
Endep 25 25mg Tablet 1 Daily
Endep 50 50mg Tablet 1 Before bed
Gabapentin 100mg Capsule 3 Three times a day
Mobic 15mg Tablet 15 mg Daily
Panadeine Forte 500mg;30mg Tablet 1 Before bed prn
Panadol Osteo 665mg Tablet 2 Three times a day prn
Somac 40mg Tablet 40mg Daily
Stilnox CR 12.5mg Tablet, modified release 1 Daily.”[26]
[26]PCB 208L
43 The plaintiff was prescribed these painkilling medications after she had had a fall. The plaintiff continues to complain that, as a result of her back injury, she has falls due to the impact or referred pain down her left leg.
44 The plaintiff has received medical treatment for her left knee symptoms. The plaintiff walks with her knee in a permanently flexed manner and in effect walks on her toes. She uses a crutch to assist her in walking and general mobility. The plaintiff has not in this application sought certification for the injuries or symptoms arising out of her left knee body function. The left knee has been fully investigated by orthopaedic surgeons and does not form part of the application for serious injury.
45 In the course of the hearing, the following evidence was given by the plaintiff in respect of her let knee.
Q: “And as of July last year you could not fully straighten your left
leg?---
A: No, since the accident my left leg could not be as straight. This is why I was limping.”
HIS HONOUR:
Q: “Why do you say you can’t straighten your left leg?---
A: I don’t know why. When I try to straighten it there is a ligament there, it tends to pull quite hard. That is why when I sleep at night time I need to put a pillow underneath my thigh.”
MR LEWIS:
Q: “What do you feel is wrong when you try to bend your left leg?---
A: My left knee cannot bend like a normal person.
Q: Why not?---
A: Why not – I don’t know why because each time when I bend at the knee, also at the back of the thigh, I start to experience severe pain.
Q: So it’s pain that stops you bending the knee, is that right?---
A: Correct.”[27]
[27]T32, L29 – T33, L12
46 This presentation in respect of the plaintiff’s left knee condition has been described by some of the examiners as being bizarre. I make no finding about the left knee injury in this application.
Medical opinions in respect of the Plaintiff’s back injury
Associate Professor Richard Stark
47 Professor Stark, neurologist, prepared a report dated 23 August 2007. After his examination of the plaintiff, he reported as follows:
“The lower back problems appear to have arisen from the second accident [5 October 2006]. Again these are very limiting. The x‑rays suggest that there had previously been degenerative change present but this was apparently asymptomatic. Thus the accident appears to have rendered a previously asymptomatic degenerative spine symptomatic. Again there is pain radiating to the left leg but no objective evidence of radiculopathy.
There also appears to be quite marked swelling of the left knee and this would suggest a significant orthopaedic problem there. This is outside my area of expertise.”[28]
[28]PCB 125
48 In his report dated 22 October 2012, Professor Stark stated that he was of the opinion that the lower back symptoms developed after the accident in October 2006 and he would regard the lower back problems as being completely due to that accident.[29] Professor Stark in two reports dated March of 2013, states that he was not of the view that the plaintiff was fabricating all of her symptoms. This comment from Professor Stark arose from his viewing of DVD material sent to him which was surveillance of the plaintiff using an elbow crutch in January of 2013.
[29]PCB 134
Mr Peter L Moran
49 Mr Moran, orthopaedic surgeon, prepared four reports in respect of the plaintiff’s application. The reports are dated 17 January 2008, 20 March 2011, 14 November 2012 and 26 February 2013. In his first report, Mr Moran described the plaintiff’s back condition as follows:
“Miss Kolesnikova (sic) presents with a chronic spinal pain syndrome, with clinical signs of lumbar nerve root involvement on the left side.”[30]
[30]PCB 138
50 In a later report dated 20 March 2011, Mr Moran reported his findings on examination as follows:
“In the lumbar spine, I noted asymmetrical paravertebral muscle spasm, in association with flattening of the normal lumbar lordotic posture. This was more pronounced on the left side.”[31]
[31]PCB 140
51 Mr Moran pronounced his opinion as follows:
“Ms Kolesnakova describes two transport accidents, the second being a significant collision in which she was subjected to complex deceleration, angular and rotational stresses, that have left her with severe neck and back pain, and leg pain, which I believe arises as a result of nerve root compression in the lumbar region.”[32]
[32]PCB 141
52 In November of 2012, Mr Moran again examined the plaintiff. In his report dated 14 November 2012, he noted his examination as follows:
“In the lumbar spine, I noted asymmetrical para vertebral muscle spasm, with quite marked spasm evident on the left side. This is associated with flattening of the normal lumbar lordotic posture. Forward bending was limited to 40o and extension to less than 10o.[33]
[33]PCB 144
53 In Mr Moran’s opinion, the plaintiff:
“… from chronic and unremitting spinal pain with evidence of an incomplete L4 radiculopathy in her left leg.”[34]
[34]PCB 145
54 The final substantive report from Mr Moran is dated 26 February 2013. He reported:
“With respect to examination of the thoraco-lumbar spine, she did tend to hold her left hip flexed, and was reluctant to fully extend her hip, as this provoked thigh pain. This is not inconsistent with mid lumbar nerve root compression and femoral neuralgia.”[35]
[35]PCB 145A-145B
55 Mr Moran did not agreed with the proposition put by Dr Elder, who examined the plaintiff on behalf of the defendant, that she was in effect fabricating her symptoms. Mr Moran had viewed the DVD-surveillance films dated 8 January 2000 and 8 and 14 January 2013 and did not find any inconsistency between the plaintiff’s disability and the surveillance footage.
Mr David Conroy
56 The plaintiff was examined by Mr David Conroy, orthopaedic specialist, and he reported on 5 June 2007. In his examination, Mr Conroy noted:
“There was half the anticipated range of movement for flexion forwards and laterally in the lumbar spine and a third only of the range of extension. Neurologic examination of the upper and lower extremities was normal.
…
“I viewed the CT scan of the lumbar spine dated 31st January 2007 showing marked lower lumbar disc degenerative changes, maximal at the L5/S1 level, without evidence of nerve root involvement.”[36]
[36]DCB 119
57 In respect of the back injury, Mr Conroy was of the opinion:
“My presumption is that at the time of the accident of 5th October 2006 there was pre-existing aggravated cervical spondylosis that has been deteriorated, and the accident on 5th October 2006 has precipitated symptomatic lumbar spondylosis leading to a chronic pain disorder.”[37]
[37]DCB 120
Dr David Elder
58 The plaintiff was examined by Dr David Elder, consultant in occupational medicine, on behalf of the defendant and he reported on 4 December 2007. In that report, he notes under “Clinical Examination”:
“Her presentation was extremely bizarre. It took her nearly two minutes to walk to 20 or 30 metres from the waiting room to my room. As she did so she walked with her right knee bent and on her right tiptoes. She would clutch at various parts of the furniture or walls and occasionally her partner as she walked.
…
Similarly the range of movement in the lumbo-sacral spine was almost nonexistent in the standing position but she was able to demonstrate a seated straight leg raise with no discomfort.”[38]
[38]DCB 126
59 Dr Elder gave his opinion as follows:
“I cannot offer any organic medical diagnosis that would explain the worker’s presentation. I have noted the significant differences between her presentation today and that described by her rehabilitation physician in March 2007. The level of difference suggests that there is deliberate fabrication.”[39]
[39]DCB 127
60 Dr Elder had inferentially suggested in his first report that the plaintiff be surveilled. After viewing the surveillance video of January 2008, he reported on 28 February 2008 that the video did not change his opinion and in fact confirmed his view that the plaintiff was fabricating her symptoms.[40]
[40]DCB 131
Michael Shannon
61 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant for the purposes of this application. His first report is dated 10 July 2012. In his examination of the plaintiff, he made the following findings:
“Similarly she has about two thirds restriction of movement in the thoracolumbar spine, although there is no significant spasm.
She does however, stand tilted to the left with her left knee flexed.
She has positive Waddell signs of axial compression and pelvic rotation suggesting a non organic component.
…
In particular there is no wasting of the thigh or lower leg.”[41]
[41]DCB 137
62 Mr Shannon notes the CT scan of the lumbar spine in January 2007 and reports it as follows:
“A CT scan of the lumbar spine in January, that is subsequent to the third accident, is reported to show severe L5-S1 disc degeneration with moderate right foraminal stenosis compromising the L5 nerve root. There is L4-5 minor spondylolisthesis secondary to bilateral pars defects and mild degenerative change. There is no evidence of focal disc protrusion.”[42]
[42]DCB 138
63 Mr Shannon’s prognosis is largely that the plaintiff suffers from a Pain Syndrome. In arriving at that prognosis, Mr Shannon offered the following comments:
“Impairment assessment is extremely difficult because of considerable lack of co-operation with the examination and there [are] a number of conflicting and non organic features to her presentation including strongly positive Waddell signs of axial compression and pelvic rotation and the absence of muscle wasting despite an apparently significantly abnormal gait for about five years.”[43]
[43]DCB 140
64 In his last report dated 15 August 2012, Mr Shannon had been shown the video surveillance films of January 2008. He obviously has not been shown the video surveillance of January 2013. After viewing the film, Mr Shannon stated in his report:
“I suspect in fact that she has not really a chronic pain syndrome and I am inclined to the view expressed by Dr Elder that there may well be some fabrication of physical findings.”[44]
[44]DCB 146
65 It is clear from an examination of these medical reports that there is a division in opinion on the plaintiff. In particular, Dr Elder and Mr Shannon are of the view that the plaintiff is fabricating her symptoms and consequently does not properly suffer from an injury to her lower back.
66 The other body of medical opinion which is from Associate Professor Stark, Mr Moran and Mr Conroy, Dr Clayton Thomas and her treating general practitioner all agree the plaintiff does have a physical injury resulting in pain consequences for her.
67 I accept that the plaintiff has received an injury to her lower back as a result of the accident on 5 October 2006. The impact to her car was a significant impact and the radiological conclusions demonstrate a basis for the pain that she now suffers. I accept that the plaintiff’s symptoms in respect of her left knee and her presentation in Court and on the video in January 2013 is bizarre in nature. It does not preclude a conclusion that the plaintiff genuinely suffers from lower back pain and symptoms and I accept that that is the case.
68 The consequences for her are back pain which impacts upon her activities of daily living and her ability to work. It is to be noted that the plaintiff has not worked since the accident of 5 October 2006. I find that this is a very significant consequence for the plaintiff, in particular when contrasted with her pre-accident work history and proven inclination to work.
The psychiatric and psychological injury
69 The plaintiff seeks certification under ss(c) of the “serious injury” definition. The plaintiff claims that she has a permanent severe mental or permanent severe behavioural disturbance or disorder. This condition has arisen as a result of the accident on 5 October 2006.
70 In considering this aspect of the plaintiff’s application, it is necessary to consider her history in respect to psychological or psychiatric conditions. In 2003, the plaintiff, unfortunately, was involved in a transport accident wherein a pedestrian was killed as a result of that collision. It was not in any way suggested that the collision occurred as a result of the plaintiff’s negligence or fault. The deceased walked out in front of the plaintiff’s car in the early hours of the morning when she was on her way to work. She had no opportunity to avoid the person that her vehicle subsequently struck. As a result of that accident and its sequel, the plaintiff received some psychological treatment. The plaintiff recovered from that position and returned to work. She worked in her capacity as a supervisor of some fifty other employees for the years of 2004, 2005 and up until the first accident in January 2006. For all intents and purposes, the plaintiff had recovered from the psychological difficulties she suffered as a result of the 2003 accident.
71 Mr Lewis, on behalf of the defendant, challenged the plaintiff on the effect of the 2003 accident in two ways. First of all, he challenged her on the basis that she had not told her treating psychologist and psychiatrist of the 2003 accident initially in the course of her treatment and assessment. Secondly, he challenged her on the basis that her explanation for not telling those treaters was a clear indication that she had not recovered from the 2003 psychological injury. He relied upon the answers given in evidence. The plaintiff stated: “Because I did not want to remember what had happened in 2003 so that’s why I did not want to discuss that matter.”[45] This evidence is the plaintiff’s explanation for not telling Dr Epstein and other treaters about her prior accident in 2003. I think it is reasonable for a person who has been involved in such a tragedy to attempt to try and forget or, as she puts it, try not to remember a prior event which is of great sadness to her.
[45]T29, L10-12
72 The plaintiff has been referred by her general practitioner, Dr Cullis, to Dr Reshma Sood, clinical psychologist, in June of 2010. The referral was for psychological treatment of her symptoms of anxiety and insomnia which arose in the context of chronic pain and adjustment to a series of losses in respect of the two motor vehicle accidents. Dr Sood took a history from the plaintiff that she had been receiving antidepressant medication since 2008. The plaintiff complained of chronic symptoms of severe headache and back ache. She also complained of chronic insomnia which was at that time becoming more pronounced.
73 In her report dated 12 December 2011, Dr Sood gave the following opinion.
“It is difficult to comment on Ms Kolesnikova’s (sic) mental health prognosis while her medical symptoms continue to remain unstable and she is being trialled on different pain medications. My belief is that, while psychological therapy may be of some benefit for Ms Kolesnikova’s (sic) mental state, her future capacity for work is likely to depend upon her level of pain and physical incapacity. I believe that if her pain was managed so that was she was able to physically undertake some work, Ms Kolesnikova (sic) could return to the workplace with some support and a return-to-work plan.”[46]
[46]PCB 87
74 In her later report dated 28 October 2012, Dr Sood diagnosed the plaintiff with a Major Depressive Disorder. The differential diagnosis is Adjustment Disorder with Mixed Anxiety and Depressed Mood and generalised Anxiety Disorder. Dr Sood also diagnoses a Pain Disorder associated with a general medical condition.[47]
[47]PCB 90
75 The plaintiff continues to be treated by Dr Sood every fortnight to three weeks. This has been ongoing treatment for a considerable time, being from 2008 until the time of the hearing.
76 The plaintiff has been examined for the purposes of this application by two psychiatrists.
(a) Dr Michael Epstein, psychiatrist
77 Dr Michael Epstein first reported on the plaintiff on 8 August 2007. In his initial reports and examinations, the plaintiff did not tell Dr Epstein about her 2003 accident and the sequel to it. Dr Epstein diagnosed the plaintiff as having developed Panic Disorder and agoraphobia as a result of the second accident. He also gave the opinion that her Post Traumatic Stress Disorder symptoms appeared to have primarily come from the second accident, rather than the first accident. Dr Epstein’s opinion was:
“The combination of physical and psychiatric effects of her injuries has led on to the development of a chronic Adjustment Disorder with depressed mood. She has not had any psychiatric or psychological treatment but in my view would benefit from such treatment.”[48]
[48]PCB 101
78 As I have previously noted, the plaintiff was subsequently sent to Dr Sood for psychological treatment.
79 Dr Epstein again reported on the plaintiff’s condition on 23 December 2010. In that report, Dr Epstein diagnosed that the plaintiff as follows:
“… a chronic Pain Disorder with a medical condition and continues to have symptoms of a Post Traumatic Stress Disorder and still has some Panic Disorder with Agoraphobia.
The combination of the physical and psychological effects of the second accident and the profound effect it has had on her quality-of-life has led on to the development of a chronic Adjustment Disorder with depressed mood.”[49]
[49]PCB 108
80 On 17 March 2011, Dr Epstein again reported on the plaintiff’s condition. In this report he dealt with the question of whether or not the plaintiff had received an acquired brain injury as a result of the transport accidents referred to in this application. Dr Epstein did not form the view that the plaintiff had suffered from an acquired brain injury. He maintained his diagnosis of the plaintiff as suffering from:
“… a chronic Pain Disorder, a Post Traumatic Stress Disorder, Panic Disorder with Agoraphobia and a combination of these has led to a chronic Adjustment Disorder with depressed mood.”[50]
[50]PCB 112
81 The plaintiff was then next examined by Dr Epstein on 30 October 2012. On this occasion, the examiner, Dr Epstein, was given the full history in relation to her 2003 accident and that she was undergoing treatment by a psychologist back to 2008. In this report, he confirmed his previous diagnosis in respect of Post Traumatic Stress Disorder and Chronic Pain Disorder. Dr Epstein concluded:
“The combination of the physical and psychological effects of the accident in October 2006 and the profound effect it has had on her quality of life has led on to the development of a chronic Adjustment Disorder with depressed mood.
She has been having psychological treatment that should continue if only to prevent further deterioration.
He condition appears to be stable and her prognosis for improvement is poor.”[51]
[51]PCB 121
82 In his final report dated 14 March 2013, Dr Epstein gave his opinion as follows:
“The psychiatric symptoms arising from this transport accident, which I noted was much more frightening than her previous accidents, had led to a marked exacerbation of her symptoms of Post Traumatic Stress Disorder and the development of a chronic Adjustment Disorder with depressed mood. Given the passage of time since the transport accident and the persistence of her symptoms it seems unlikely that these symptoms will improve. Her psychiatric symptoms referable to this accident significantly reduce her ability to participate in unrestricted pre-injury employment.”[52]
[52]PCB 122A
83 It is clear from Dr Epstein’s reports and opinions that he finds that the plaintiff suffers from a present psychiatric condition which is referable to the second accident on 5 October 2006 and it impacts upon her ability to participate in unrestricted pre-injury employment.
(b) Dr Lester Walton, psychiatrist
84 The plaintiff was examined by Dr Lester Walton on behalf of the defendant in this proceeding. Dr Walton reported on 17 July 2012. After taking an extensive history and assessment of the plaintiff, Dr Walton diagnosed the plaintiff with the condition:
“Chronic post-traumatic stress disorder, chronic depressive disorder.”[53]
[53]DCB 153
85 Dr Walton was of the view that the final accident on 5 October 2006 permanently aggravated the psychiatric condition suffered by the plaintiff. Dr Walton was of the view that the plaintiff was going to suffer her symptoms into the foreseeable future.[54] In Dr Walton’s opinion, the plaintiff’s work capacity was as follows:
“It is this woman’s ongoing pain which is most relevant to defining her work capacity at present but the psychiatric symptoms do amount to a significant partial incapacity for all work. The psychological contributions to incapacity relate to the first and third accidents.”[55]
[54]DCB 155
[55]DCB 155
86 The first and third accidents Dr Walton is referring to relate to the 2003 and the October 2006 accidents. Dr Walton clarifies the position of the plaintiff in respect of her employment as follows:
“Independent of any incapacity for work on the basis of her chronic pain, Ms Kolesnikova’s (sic) chronic depression and cognitive difficulties do adversely impact upon her work capacity amounting to a significant partial incapacity for work on psychiatric grounds.”[56]
[56]DCB 156
87 It is clear from the two expert opinions of Dr Walton and Dr Epstein that the plaintiff has suffered a significant and very considerable impact upon her ability to engage in employment as a result of her psychiatric injuries arising from the accident on 5 October 2006.
Credit of the Plaintiff
88 Mr Lewis, in the opening and closing addresses, indicated that the credit of the plaintiff was a crucial issue in this case. I have had the advantage of seeing the plaintiff give evidence and whilst there have been some inconsistencies in the factual matters peripheral to her symptoms and complaints, I accept the plaintiff as a witness of truth.
89 I accept that she has some considerable psychiatric and psychological issues and this can sometimes manifest itself in the appearance of a lack of credit. In the case of the plaintiff, I accept that she is trying to give her evidence in a truthful and honest manner.
90 I have viewed the surveillance videos of 2008 and 2013 and find that neither of these videos impact upon the credit of the plaintiff. In the first video, she is moving in a careful and somewhat protective manner. In the second video, it is consistent with her presentation in Court, and whilst it has been described as bizarre by Dr Elder, it is a consistent presentation to the Court and to her doctors.
91 I conclude that the plaintiff is a reliable witness.
Conclusion
92 I find the plaintiff has failed to satisfy the test of proving that her cervical spine injuries as a result of the first accident in January 2006 and its consequences for pain and suffering are “very considerable” and more than “significant or marked”. I have set out my reasons for that finding earlier in this judgment.
93 I find the plaintiff has failed to satisfy the test that the aggravation of the symptoms and consequences of pain and suffering to her cervical spine as a result of the transport accident on 5 October 2006 are “very considerable” and more than “significant or marked”. The plaintiff’s application in respect of serious injury for the loss of body function of the cervical spine as a result of the 5 October 2006 accident is dismissed.
94 I conclude that the plaintiff has satisfied the test that the symptoms and consequences of pain and suffering to her lumbar spine as a result of the transport accident on 5 October 2006 are very considerable and more than significant or marked. Further, I am satisfied that those consequences are for the foreseeable future in the sense that they are permanent.
95 I conclude that the psychiatric or psychological disorder suffered by the plaintiff is “severe” as required under the Act. This disorder arises from the transport accident which occurred on 5 October 2006. The opinion of Dr Michael Epstein, psychiatrist, and Dr Lester Walton, psychiatrist, are very similar and support the conclusion that the psychiatric condition suffered by the plaintiff is “severe”. The plaintiff’s application for serious injury certification for psychiatric and psychological disorder is granted.
96 I will hear the parties on costs.
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