Ladas, Eva v Transport Accident Commission
[2009] VCC 1759
•11 December 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No.5237 of 2008
| EVA LADAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 November 2009 |
| DATE OF JUDGMENT: | 11 December 2009 |
| CASE MAY BE CITED AS: | Ladas, Eva v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1759 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment to the lumbar spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with | GPZ |
| Mr M Gray | ||
| For the Defendant | Mr M Titshall QC with | Solicitors for the Transport |
| Ms A Magee | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred in 5 December 2005 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a) - “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this case is the lumbar spine.
5 The inquiry under sub paragraph (a) of the definition 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.
6 The serious injury defined by sub paragraph (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 itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an 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”: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross examined. Dr Kalfas, the plaintiff’s general practitioner, was required to attend for cross examination. In addition, both parties relied on medical reports and other material, which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
Pre accident
9 The plaintiff was born on 26 March 1952 and is presently aged fifty seven.
10 The plaintiff has been unemployed since 1997, having sustained injuries whilst working at a delicatessen (“the work injury”).
11 The plaintiff was awarded $175,000 compensation and received two years weekly payments in relation to the work injury. Since her payments ceased in 2000 the plaintiff has been in receipt of a disability support pension.
12 The plaintiff deposed her back was not a major problem in her work injury but has been a significant problem since the said date.
13 In cross examination the plaintiff said that with her work injury she had pains throughout her whole body. The pain was mainly in her neck. She agreed that as a result of her work injury she suffered headaches, neck aches, arm pain, mid back pain, lower back pain and leg pain. She also suffered a psychiatric injury. She had dizziness and insomnia but not like now. She also made a similar comment in relation to her inability to experience pleasure and her lowered drive or motivation related to the work injury.
14 Before the said date, the plaintiff used to walk a lot but she agreed however that since leaving work in 1997 she had not had a great deal of physical activity. She said she was “always thinking deep in her mind” that one day she would get back to work.
15 In November 2005 there was always a “small hope” in her mind that she would be able to get over it and get her life back again. She would be able to get out, go dancing and able to go travelling. She would be able to go and have dinner or coffee. Then she had the accident and “everything was gone and she went right back.” Now her pain will not allow that hope.
16 The plaintiff agreed that she told a psychologist Ms Alexopoulos that after the work injury she had become isolated spending much of her time alone in the beginning and that she was often tearful, had nightmares and was frightened but she was not consistently low in mood for a long time.
17 In cross examination the plaintiff made a number of concessions as to her pre accident condition.
•
From as early as 1998 she had problems with anxiety causing her to grind her teeth. She was given a splint by Mr Story in the late 1990s but it was very uncomfortable and she did not wear it.
•
She was an in patient in Melbourne Clinic twice in 1999 because of major depression and chronic neck pain.
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When she was discharged on 7 April 1999 the plaintiff could recall she was being prescribed Tolvon, Losec, Neurontin, Valium and Mersyndol.
•
After the second discharge on 2 September 1999, Losec, Valium, Neurontin – 400 milligrams, Anatramal, Nurofen and Mersyndol were prescribed.
•
In April 2000 she was referred to Dr Christophi with a complaint of left sided groin pain. She told him that that pain was fairly constant, aggravated by activities and prolonged standing. An ultrasound and a colonoscopy were carried out of which the results were normal.
•
In October 2004 after being admitted to Dandenong Emergency Department following a suicide attempt when Centrelink refused to have her pension paid to Greece, she was then admitted again to the Melbourne Clinic for about three weeks.
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Before the accident she was prone to comfort eating with consequent weight gain but said she managed to lose weight and when she had her neck operation she lost fifteen kilograms. Before the accident she took weight tablets.
•
On 10 August 2005, after coming back from Greece the plaintiff asked Dr Kalfas to organise a disabled parking sticker for her.
•
On 15 November 2005 when she saw Dr Piperoglou she told him that a truck cut in front of her car whilst she was on her way to his surgery and she had had a panic attack.
•
At that time she was quite distressed and tearful and in a depressed state and not coping with her life, especially at night when she felt terribly lonely. Dr Piperoglou offered her a stay at the Melbourne Clinic but she declined. She did not attend a psychologist, Mena, whom Dr Piperoglou recommended at this time because she thought her psychiatrist was helping her more than a psychologist would.
•
On 21 November 2005 when she attended Dr Kalfas she had had longstanding, long term neck and right arm pain, long term anxiety and depression however there was no comparison between her condition then and now. She was also prescribed Neurontin at that time but it has now been doubled in its dosage. Her Prozac was doubled by Dr Piperoglou around that time.
•
She was taking up to eight Nurofen tablets a day, two or three times a week, in November 2005. She had never said she did not have back pain then.
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She was still having problems with ongoing grinding of her teeth day and night which she thought was absolutely to do with her anxiety.
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On 5 December 2005 Dr Piperoglou gave her prescriptions for Prozac, Valium, Neurontin and Losec. Nurofen was being prescribed by Dr Kalfas for the pain in her lower back. The Neurontin was prescribed for worsening pain.
The Accident
18 The plaintiff was involved in a transport accident on the said date when her Toyota Corolla was hit on the left hand side by a car which had travelled through a ‘Stop’ sign (“the accident”).
19 The Corolla, an old car, was a write off. There was damage from the door to the front on the left hand side. On impact, the plaintiff’s car almost came into the air and landed close to three young children.
20 The plaintiff deposed, as a result of the accident, she suffered an injury to her neck, back and right side as well as a psychological injury. Her back injury has resulted in a substantial degree of pain and suffering and a significant impairment and loss of function. She also suffered a further injury to her neck, which had been injured previously at work.
21 After the accident, the plaintiff was taken by ambulance to Monash Medical Centre where she told staff of an increase in her earlier neck problems and that she had a pronounced tingling in her right hand and tingling and numbness in her toes. She was discharged wearing a collar.
22 In cross examination the plaintiff said her lower back was also hurting. She did mention this injury at the hospital and she was sent for x-rays and an MRI. She then said it might have been Dr Kalfas who sent her for the CT scan in January 2006.
23 The plaintiff attended her general practitioner, Dr Kalfas, on 23 January 2006. She complained to him about continuing pain in both legs, numbness and tingling of her toes, particularly the right, and pain in her back as well as an increased level of neck pain.
24 On 20 February 2006 Dr Kalfas provided the plaintiff with a referral to a psychiatrist Dr Piperoglou. Dr Kalfas also referred the plaintiff to neurosurgeon, Mr Danks and to Dr Drago, neurologist.
25 During 2006 and 2007, the plaintiff’s psychiatric state deteriorated and her neck and back pain increased.
26 Dr Kalfas also referred the plaintiff to a physiotherapist and a dietician and referred her for laser acupuncture treatment. He indicated to the plaintiff that she may need surgery but she has tried to avoid it.
27 The plaintiff’s back condition deteriorated to the extent that in September 2007 she attended Dr Kalfas with worsening of her sciatica and back pain, limping into his surgery. He prescribed Endone, administered a Cortisone injection and referred her back to Dr Drago. Dr Drago arranged nerve conduction studies to be taken and the plaintiff underwent an MRI scan of her lumbar spine on 25 October 2007.
28 The plaintiff’s worst problem from the accident is her back followed by her psychiatric state and then her neck. In cross examination the plaintiff repeatedly stressed all her problems have worsened since the accident.
29 Whilst she deposed that following the accident Dr Piperoglou commenced her on Neurontin and also Topamax, this is clearly incorrect.
30 The plaintiff has very severe pain in her back. Her back pain is most severe in the morning, but it is always present, fluctuating in severity from at most severe to just bearable. She believes her back condition has deteriorated.
31 The plaintiff demonstrated her pain as in her mid lower back. She limps with more problems with her right leg but sometimes with her left. She can sit for ten to fifteen minutes without pain and she has problems bending.
32 At times her lower back pain is so severe that the pain comes from her back into her groin and ovaries.
33 The plaintiff continues to suffer from neck pain which is variable. It is not as extreme as her back pain and it does fluctuate. Dr Kalfas treats her for both her neck and back pain. She has also complained of neck and head pain this year and those pains are worse. She also has pain in her right leg and sometimes she loses control of it. It goes numb and she has pins and needles.
34 When the plaintiff saw Dr Kalfas on 20 April 2009 she was crying and hyperventilating, describing unremitting lower back pain, inability to sleep alternating left and right referred pain into the legs and spinal stiffness when she had a lot of pain in her back. She complained that she does not sleep at all, she has constant headaches.
35 On 27 July this year the plaintiff attended Dr Kalfas complaining of pain and colour change in her elbows, which she had not experienced previously.
36 The plaintiff had an injection in her right shoulder two weeks prior to the hearing. As time has gone by she cannot do what she wants to do as she tightens up and that causes more pain.
37 Before the accident there was no back pain really compared to what it is like now. At present, four to five times a week the pain is ten out of ten. She is never entirely free of back pain. When she has very severe back pain she gets the leg pain. She cannot remember ever limping before. If she sits for a long time she gets numb and she gets more pain if she stands for a long time.
38 On re-examination the plaintiff said she used to walk a lot for at least half an hour three to four times a week. She has stopped since the accident because she gets pain and numbness in her lower back if she walks. Walking used to be very important to her because she is a very proud woman in terms of fitness and her appearance.
39 The plaintiff bought another car two or three months after the accident and drives in it when she needs to go to the doctor, go shopping and to see her children. Rarely she goes for a coffee.
40 Since the car accident the plaintiff has had one relationship which lasted a year starting in about the middle of 2008 with a man she had met through telephoning a wrong number. They have lived together at her home since January 2009 but since September have had a platonic relationship. In the beginning they used to go out for dinner a few times but they did not go away together. The relationship broke up because the plaintiff has no interest in sex
41 Since the accident, the plaintiff has become forgetful and absent minded and suffers from nightmares. She has become increasingly angry and irritable and suffers from mood swings.
42 The plaintiff’s sleep is disturbed and she suffers from more frequent and longer lasting headaches. She plaintiff feels depressed most of the time and finds it difficult to enjoy anything. There are times when she does not want to leave the house. She cries several times a week and has lost motivation and interest in most activities. She feels her life is hopeless and has occasionally considered suicide.
43 The plaintiff’s psychiatric state is severe. It has deteriorated from the level it was shortly after the accident. She becomes forgetful and absent minded. When under stress, she tends to over eat and she has put on weight.
44 The plaintiff’s energy levels have been reduced and she suffers from loss of libido. She has frequent panic attacks, approximately two or three times a week, when she has palpitations, difficulty breathing and tightness in her chest, as well as feelings of dizziness. She has a fear of driving in heavy traffic.
45 The plaintiff continues to see Dr Piperoglou every four to six weeks.
46 Since the accident, in addition to prescribing Neurontin, Dr Piperoglou doubled the plaintiff’s Valium intake and put her on a dose of Topamax.
47 The plaintiff continues to see Dr Kalfas who has prescribed Topamax and Nurofen for her back as well as other medication for her psychiatric state. He has given her Voltaren injections, prescribed heat cream and advised her to continue physiotherapy and to wear a lumbar support. He has also prescribed Losec, Panamax and Nurofen, and given her injections of Toradol and prescribed Mersyndol Forte.
48 In examination-in-chief the plaintiff said that Topamax had been replaced by Cymbalta. The plaintiff is presently taking eight hundred milligrams of Neurontin, the dosage having been increased from six hundred milligrams. She takes it for pain and to calm her.
49 The plaintiff was involved in another transport accident on 12 February 2008, when a truck hit her car. She was taken by ambulance to the Dandenong Hospital where she stayed there for a short time then went home. She had no pains; she had no problems; she got out of the car on her own. After the 2005 accident she could not do that. The impact in 2008 was nothing like the accident.
The Plaintiff’s Medical Evidence
50 Dr Kalfas first saw the plaintiff in July 1997 in relation to neck and upper limb pain. She told him that she had developed that pain in 1989 working in a delicatessen and she had a year and a half off work.
51 She told him that she was troubled in late 1995 by low back pain radiating into her right leg, which continued until April 1996. The plaintiff was certified totally unfit for work on a permanent basis from the end of 1996.
52 Dr Kalfas noted that on examination in that period the plaintiff was an anxious lady complaining bitterly about her symptoms and the disabling effects on everyday function, with tears in her eyes.
53 Dr Kalfas referred the plaintiff to Dr Drago for EMG testing of her right upper limb. Dr Kalfas also referred the plaintiff to Dr Blomberry in September 1997. He thought the plaintiff was suffering reflex dystrophy of the right arm.
54 In August 1997 Dr Kalfas referred the plaintiff to rheumatologist, Dr Harkness, who confirmed that diagnosis and Dr Kalfas’ view that the plaintiff should not return to manual work.
55 As 1997 wore on the plaintiff attended Dr Kalfas several times in a distraught state requiring injection of the non narcotic analgesic Toradol for relief and also Valium. She also had stress related temporomandibular joint pain and Dr Kalfas referred her to Mr Story.
56 In October 1997 Dr Kalfas noted the plaintiff’s parlous state was commented upon by Dr Malios, who reiterated she was permanently and totally unfit for pre injury work suffering as she did from an industrial overuse syndrome.
57 Following a MRI scan of the cervical spine in February 1998, neurosurgeons Mr Pullar, in March 1998, and Mr Rogers, in April 1998, offered decompression and fusion surgery which was performed by Mr Rogers on 14 July 1998.
58 The plaintiff was also referred to Dr Pianko, gastroenterologist for symptoms arising from the use of medication. After gastroscopy and ultrasound there was no abnormality revealed.
59 There was a further referral to Dr Blomberry in September 1998 in relation to persistent swelling of the right arm and the plaintiff complained of a painful stiff right shoulder in October 1998.
60 After a right shoulder ultrasound in October 1998, Dr Harkness confirmed adhesive capsulitis and noted the plaintiff to be obviously tense and anxious with a psychological state causing her pain in the muscles of mastication.
61 Dr Drago wrote to Dr Kalfas on 24 January 1998 advising him that when he examined the plaintiff he found significant restriction of movement at the lower back accompanied by the soft neurological abnormality of pin prick impairment in parts of her right lower limb.
62 The plaintiff’s neck and back spasm flared up in early 1999 leading Dr Kalfas, on 25 January 1999, to administer an injection of Toradol and to refer the plaintiff to Mr Kokobas for physiotherapy.
63 On 26 November 1999 the plaintiff complained to Dr Kalfas of neck, right arm, lower back and right thigh pain and it was noted she had recently undergone an MRI of her lumbar spine.
64 On 5 March 2001, the plaintiff presented with a brief history of lower back and bilateral leg pain, numb feet, and an increase in chronic neck pain and Dr Kalfas treated her with a Voltaren intramuscular injection.
65 On 2 July 2001 the plaintiff complained of pain down the right leg over the previous month and she was referred for a CT scan.
66 Dr Kalfas included a back problem in a treating doctor’s total and permanent disability claim report dated 12 November 1999, where he also referred to major depression, cervical disc prolapse and right brachialgia, and right shoulder tendonitis.
67 The plaintiff’s lower back was not mentioned in Dr Kalfas’s Centrelink Disability Support Pension report dated 28 June 2002.
68 Dr Kalfas noted lower back and leg problems were not again mentioned in the thirty or so file entries until 23 January 2006, the first attendance after the accident.
69 In more recent times Dr Kalfas has arranged for further investigations and on a number of occasions he has administered intramuscular cortisone injections. After one such injection in July 2007, the plaintiff was highly anxious that she would lose her right leg and become paralysed.
70 Further injections have been carried out twice in September 2007, twice in July 2008 and one injection in August 2008. The plaintiff also had an injection in February, April and June 2009.
71 In October 2007 the plaintiff attended Dr Kalfas with right knee complaints as a result of which her referred her to Dr Harkness rheumatologist
72 When seen on 27 July 2009 Dr Kalfas noted that he reassured the plaintiff, whom he described a highly anxious lady, that the increase in the extent of her back pain generalising now to her whole trunk and also involving the elbows in typical fibromyalgic fashion, did not signify cancer.
73 Dr Kalfas was required to attend for cross examination. In examination-in- chief, he confirmed the plaintiff had suffered a lumbar disc injury at L3-4 and L4-5 and he believed she had a fissure of the L3-4 disc with some facet joint involvement at both levels and also some canal stenosis. These findings in his view were consistent with lower back pain and also referred pain into the leg.
74 Dr Kalfas confirmed that the plaintiff had had a significant psychiatric state prevalent before the accident.
75 Dr Kalfas agreed that the plaintiff’s anxiety state before the accident was just not getting better and her prognosis was that in all likelihood it would continue forever and necessitate continuous long term psychiatric counselling and medication with psychological counselling from time to time. He considered the plaintiff’s anxiety state was also coupled with a depressive state and that had been a significant problem for her between 1997 and 2005.
76 In the last few years leading up to the car accident going on his notes there was really no trouble with the plaintiff’s lower back. Since the accident the plaintiff had had constant lower back pain so he thought the accident was playing a substantial role. He has given the plaintiff intramuscular injections and prescribed medication. Dr Kalfas could not remember if the plaintiff had said that the injections helped but to his knowledge they did ease her pain.
77 Dr Kalfas thought, in the absence of surgery, that the plaintiff would continue to require painkillers for her back but he has also had to give her injections because painkillers had not been a good controlling mechanism. He has also referred the plaintiff for acupuncture. He considered her problem was long term.
78 Dr Kalfas considered the plaintiff’s condition was predominantly a physical injury which was aggravated and heightened by psychological input.
79 In cross examination Dr Kalfas said there seemed to have been a generalised worsening of the plaintiff’s condition lately with spreading of pain to affect the body diffusely. However he then agreed that that widespread nature of pain had been noted back in the late 1990s but he said it was not in the constant way it is now. Dr Kalfas had also seen muscle spasm from way back into the 1990s.
80 Dr Kalfas agreed that from the late 1990s there was a dramatic change both physically and mentally with the plaintiff and she had changed into someone who was totally and permanently incapacitated as a result of her work injuries.
81 In addition to seeing Dr Piperoglou the plaintiff had psychological counselling from time to time before December 2005 to help with her anxiety and depression but Dr Kalfas could not say for how long. He assumed that the plaintiff had attended a psychologist Mena Kobatsiari.
82 Dr Kalfas agreed that the plaintiff had suffered grinding of her teeth for eight years or so before the accident as a result of her anxiety state. She had been referred to Mr Story for this problem and he provided her with a splint.
83 Dr Kalfas agreed with Dr Piperoglou’s comments in his letter of 18 October 1999 that the plaintiff suffered from chronic depression and chronic pain in the cervical and lumbar spine and was totally incapacitated.
84 Dr Kalfas confirmed he had given the plaintiff assistance with her application for a disabled parking sticker following an examination on 10 August 2005.
85 Dr Kalfas agreed the plaintiff suffered from abdominal bloating before the accident and that had been a fairly constant problem for her over the years from the late 1990s. She was referred to a stomach specialist, Dr Pianko, whom she saw on 7 September 2005 and before that date. Dr Pianko thought the bloating was consistent with irritable bowel and non ulcer dyspepsia. He tried to be reassuring to the plaintiff but noted these problems seemed to be related to her anxiety. This view also held by another specialist, Dr Tang, whom the plaintiff had also seen in relation to this problem.
86 Dr Kalfas agreed that before the accident the plaintiff was also gaining weight, getting divorced and there were further anxiety problems that were “snowballing.”
87 Dr Kalfas agreed that weight problems had been an age old problem for the plaintiff. He confirmed the contents of his letter to QBE in May 2005 in which he noted the plaintiff had been afflicted by chronic work related pain in her neck, back and right upper limb, severe anxiety with reduced ability to cope. In that correspondence he requested funding for dietetics as the plaintiff found it difficult and uncomfortable to walk as he had advised. This problem has been continuing.
88 Dr Kalfas agreed that he had prescribed the plaintiff Xenical weight medication from 2000 to 2004 and that he had suggested QBE pay for weight treatment because it was related to the plaintiff’s anxiety.
89 Dr Kalfas was not aware of the accident on 12 February 2008 and on the first attendance after that date, on 28 February, the plaintiff had complained of a swollen right knee.
90 Dr Kalfas agreed that the description of the plaintiff by Dr Piperoglou in the letter of 15 November 2005 was fairly typical of the way the plaintiff presented up until that time. He confirmed the plaintiff was an inpatient at the Melbourne Clinic between 7 and 27 October 2004 after spending two days in the Dandenong Hospital following the Centrelink Episode.
91 Dr Kalfas agreed that the fusion did not cure the plaintiff’s neck problems and she had continued to complain of neck pain. He agreed she had complained of headaches for years and before the accident she had also complained of pain into her shoulders which he attributed to a discrete inflammatory problem.
92 Dr Kalfas confirmed the plaintiff was referred to Dr Blomberry, vascular surgeon, in September 1997 who diagnosed RSD of her right arm and shoulder and had carried out an infusion in September 1998 after which Dr Blomberry concluded the plaintiff was obviously well entrenched in a Chronic Pain Syndrome.
93 Dr Kalfas agreed that prior to the accident there was a mishmash of psychiatric and physical conditions intertwined. He agreed that the plaintiff’s psychiatric condition was taking a real front seat and it was in her mind magnifying her pain state. There was no cure and the plaintiff had been unsuccessfully treated constantly through the late 1990s for her psychiatric problems.
94 Dr Kalfas agreed that Dr Piperoglou was also prescribing physical modalities as well as mental. Dr Kalfas explained that Neurontin is used to reduce neuropathic pain, namely pain generated by the nervous system. He agreed that that medication is used in treating Chronic Pain Syndrome.
95 Dr Kalfas agreed that medical specialists had advised him the plaintiff suffered from a degenerative condition of her lumbar spine. He agreed that the degenerate facet joint finding was not a trauma related problem and that disc bulging was commonly seen as a degenerate problem.
96 Dr Kalfas confirmed there was a bulge to the left shown in the January 2006 CT scan. He agreed that because there was a report of contact and compression of the exiting left sided nerve root at L3-4 it did not necessarily mean there were going to be leg symptoms but insofar as there could be, the left hand side would be affected. He agreed the presence of osteophytes showed degenerative change in the facet joints. He agreed there was no direct evidence of internal disc disruption shown on the CT scan.
97 When shown the MRI of 15 March 2006, Dr Kalfas said it would not surprise him that the plaintiff had mildly reduced disc space just because of age and this finding was not indicative of symptoms. He made the same comment in relation to the facet joint findings.
98 In answer to whether the plaintiff had a neurological deficit, Dr Kalfas said she had absent ankle jerks but then agreed neurologists involved in the plaintiff’s case did not think this finding was of any significance and he deferred to their opinion.
99 He agreed there was nothing on the MRI or CT scans that demonstrated aggravation of the facet joint degeneration other than just the progress of degeneration.
100 Dr Kalfas agreed that the radiologist who saw the October 2007 did not attach anything of significance to the possible area of left lateral annular fissuring in terms of symptomology.
101 Dr Kalfas then went on to say that you might carry out a lumbar fusion in cases of lumbar discogenic pain without discrete compression but only after a confirmatory discogram and that “no one was going down that path.”
102 He agreed the plaintiff’s neck was a real problem for her and had not resolved in terms of pain. He had increased the medication for her neck following the accident. He did not know the source of her fairly regular complaints of headaches. There was predominately right upper limb pain and the RSD condition had persisted from the late 1990s. Dr Kalfas agreed that the plaintiff’s chronic pain syndrome referred to by Dr Harkness and Dr Blomberry was likely to continue indefinitely and there had been some heightening of the syndrome recently.
103 He agreed that the plaintiff complained of pain down the whole of her spine often and that was the complaint she first made when she attended on 23 January 2006 after the accident.
104 Dr Kalfas conformed that in the initial medical certificate he made no reference to specific lumbar pain complaints and had highlighted the whole area of the plaintiff’s spine as being the site of her pain. He agreed that she had complained of problems in the whole of her spine before and after the accident.
105 He described the plaintiff’s complaints on examination on 27 July 2009 as diffuse discomfort involving the front and back of the trunk and the elbows. He seemed to say that the elbow pain could be connected to her back.
106 Dr Kalfas thought at present the plaintiff’s problem was multifactorial with a combination of physical and psychological. In so far as it was physical it affected the neck, back and all parts of the body as well. He agreed this “mis mash” was present before the accident.
107 When he was re-examined, Dr Kalfas confirmed he did not see resolution of the plaintiff’s lower back pain in the near future. He explained that there had been an aggravation of the facet joints in the accident and the longevity of that aggravation was as long as the plaintiff remained with heightened muscular tension in that area putting stress on her joints. He thought her psychological problem was going to be long term
108 Dr Kalfas explained that in his letter to QBE of 8 May 2004 he referred to the plaintiff’s lumbar back as an ongoing problem at that time because he “must have just been referring to the plaintiff’s past in a general sense.”
109 Dr Kalfas said sometimes he had difficulty communicating with the plaintiff on examination and sometimes she had been non responsive to actual information he had sought. He also thought that her psychiatric condition would affect her ability to understand questions in court.
110 Dr Drago neurologist first assessed the plaintiff on 26 July 1997. The plaintiff told him she first noticed some back pain and right leg discomfort and swelling about five to six months into her last job.
111 On examination by Dr Drago, the plaintiff had some tenderness in the lumbosacral spine with restriction of forward flexion to ninety degrees and some right sided paraspinal muscle spasm in her lumbar spine with some tenderness on palpation over the course of the sciatic nerve in the right buttock.
112 He considered she had changes and symptoms related to musculo ligamentous injury and the colour and temperature changes and swelling of the limbs was suggestive of reflex autonomic based neuropathic pain.
113 Dr Drago reviewed the plaintiff on 6 December 1997, when her back was not mentioned. He last saw the plaintiff on 24 January 1998, when she was experiencing some dizziness, temperature changes and also complaining of increasing back pain in addition to the right leg pain she described at the initial consultation. She was also describing some left sided buttock and inner thigh pain.
114 On examination the plaintiff had decreased forward flexion of her lumbar spine to thirty degrees and restricted right and left lateral flexion by a reduction of thirty degrees of normal full range.
115 With reference to her complaint of back pain radiating into her legs Dr Drago noted he had not identified any abnormal refexes or objective physical signs but the plaintiff’s symptoms were significant and he thought she had some degenerative lumbar disease on CT scanning. He considered there was certainly some functional overlay in her symptoms and signs making accurate clinical assessment difficult.
116 Dr Drago next saw the plaintiff on 6 July 2006. She told him of major back pain with bilateral sciatica following the accident. On review in September and October 2006 the plaintiff continued to complain bitterly of lumbosacral pain with pain radiating down the legs particularly the left. He noted there was no evidence of lumbar radiculopathy on recent testing. He suggested facet joint injections.
117 Dr Drago noted that at the time of the original presentation in 1997, the plaintiff described chronic lumbo sacral pain. There was no disc pathology demonstrated on imaging at that time but the plaintiff did have facet joint pathology at multiple levels in the lumbar spine. Nerve conduction studies and muscle sampling did not confirm any neuropathic problem at L3-4.
118 Following an MRI on 25 October 2007 Dr Drago reviewed the plaintiff in early November 2007. At that time her major symptoms were of back pain and right leg pain. Dr Drago mentioned that a note was made in the radiologists report of this MRI of the fact that the lateral disc damage shown was on the left side whereas most of the plaintiff’s symptoms were right sided. Dr Drago concluded there had been a progression of pathology albeit minor at the L3-4 level
119 Dr Drago considered it likely there were multiple causes for the plaintiff’s pain. He considered her psychological state was a major contributor.
120 The plaintiff was initially referred to Dr Piperoglou, psychiatrist, for
assessment and management of a pre existing nervous disorder in 1994. Dr
Piperoglou first reported however in 2008.
121 The plaintiff has continued to see Dr Piperoglou regularly since 1994 save for the period between May 2000 and August 2003. During that time he presumed her condition was stable and that her anti-depressants were being prescribed by someone else.
122 The plaintiff first reported nervous symptoms relating to the accident on 24 January 2006.
123 Dr Piperoglou diagnosed exacerbation of pre existing mixed anxiety/depressive order and residual features of post traumatic stress disorder.
124 He noted as of March 2008, the plaintiff’s symptoms were lower back pain radiating into both legs, worsening chronic pain in her neck, more frequent and longer lasting headaches, sleep disturbance, heightened anxiety with worsening depression, forgetfulness, bad dreams, stomach upset, over eating and increased anger and irritability.
125 Dr Piperoglou commented that the plaintiff did suffer from pre existing mixed anxiety/ depression secondary to a prior work related incident causing chronic neck pain and to a lesser extent lower back pain which she suffered in 1996.
126 Dr Piperoglou noted that the plaintiff’s pre-existing psychiatric condition required hospitalisation twice in 1999 but not again over the years until October 2004 after the plaintiff had an acute decompensation following stress with Centrelink.
127 Dr Piperoglou noted prior to the accident the plaintiff was taking Prozac, twenty milligrams daily, and Valium, ten milligrams. Following the accident, she was commenced on Neurontin for chronic pain, anxiety and mood swings and put on a low dose of Topamax for mood swings. As of March 2008 she was then taking Neurontin, six hundred milligram tablets three times a day, and Topamax, fifty milligrams a day.
128 In Dr Piperoglou’s view, the plaintiff’s ongoing chronic pain and economic difficulties were obviously perpetuating factors.
129 Dr Piperoglou recently reported, on 25 September 2009, having seen the plaintiff on thirteen further occasions since his earlier report.
130 He noted that since the last report the plaintiff continued to complain of teeth grinding, chronic neck and lower back pain and dry mouth, a tendency to over eat, feelings of depression, heightened anxiety, stomach bloating, sleep disturbance and attacks of acute anxiety.
131 He noted the plaintiff continued to suffer from anxiety, depressive disorder and residual features of post traumatic stress disorder.
132 Dr Piperoglou tried various anti depressant medications, increasing the dose of Cymbalta from thirty to sixty milligrams on 24 August 2009. He noted at that time the plaintiff was complaining of recent weight gain due to a tendency to over eat, presumably from stress, and he commenced her on a low dose of Duromine, fifteen milligrams in the morning, to decrease her appetite.
133 The plaintiff was attended by an ambulance at the accident scene on the said date. She complained of central chest pain, increasing on palpation. She also complained of pain in the cervical and upper thoracic spine, increasing on palpation together with bilateral shoulder pain.
134 Following the accident, the plaintiff was taken by ambulance to Southern Health. At the hospital, she complained of pain in her neck, shoulders and upper chest.
135 The plaintiff said that her previous neck pain had been exacerbated by the accident and she had an aggravation of occasional tingling in the right hand. She also had tingling and numbness in the toe and pain in the chest and shoulders.
136 It was noted that x-rays showed no bony injury and it was considered safe to discharge the plaintiff home wearing a collar. She then developed vomiting and was advised to stay at the hospital, but she discharged herself against medical advice.
137 The plaintiff attended the Neurosurgery outpatient clinic on 22 February 2006, complaining that her pre-existing back pain had been worse since the accident and was radiating into both legs. She had some abnormal sensation in the lower back and toes.
138 It was noted at that time that the CT scan of the lumbar spine taken on 24 January 2006 showed a broad based disc bulge at L3-4 more marked at the left than the right. It was noted this finding did not correlate with the plaintiff’s symptoms so an MRI scan was ordered which was performed on 15 March 2006. The bulges shown at L3-4 and L4-5 were not considered to be significant but it was noted the plaintiff had signs of facet joint problems.
139 The plaintiff was referred by Dr Drago to Mr Drnda neurosurgeon. She saw him once on 3 December 2007.
140 The plaintiff told Mr Drnda that she blamed the accident for her low back pain and right leg pain and said she occasionally had left leg pain which was much less pronounced and infrequent.
141 On examination the plaintiff was neurologically intact. Straight leg raising was negative and not producing sciatic type pain, but produced increased back pain. Femoral stretch also produced muscular pain but no radiculopathy type of pain. Reflexes were normal, as was muscle strength.
142 Mr Drnda noted the MRI showed that at L3-4 there was a mild right sided lateral recess stenosis and mild to moderate stenosis on the left. There was an annular fissure in the disc which was towards the left foramen. There was no obvious neural compression. He noted the other discs in the lumbar spine appeared to be normal and the foramina and central canal were capacious. He suggested the plaintiff undergo an epidural injection but she was afraid of the procedure and refused to do so.
143 Whilst commenting he was not aware of the mechanism of the accident, by the plaintiff’s statement of developing back pain and right leg pain after the injury, Mr Drnda assumed that the plaintiff developed L3-4 disc rupture with some protrusion which in his view could certainly happen if she was exposed to sudden flexion extension movements in her lower back.
144 He thought the plaintiff did not appear to be capable of any employment, given her chronic low back and right leg pain as well as her mental state, and he thought her prognosis was poor, given the chronicity of her pain and the degree of depression she had developed.
145 Mr Drnda concluded the plaintiff was left with an incapacity for work due to chronic pain. However, she did not have any neurological deficit and most of her problems were probably psychological.
146 Dr Hjorth, consultant neurologist, first saw the plaintiff on 22 March 2007. She told him after the accident she had pain in her chest, neck and shoulders and down to the lower back region.
147 On examination, she told him she had lower back pain that sometimes went down one leg or the other and that her neck pain was worse than it was before the accident. She told him that in the past she had had nothing much apart from neck trouble.
148 On examination there was markedly restricted range of lumbar movement and straight leg raising was fifteen degrees on each side. The ankle jerks were absent bilaterally but he could not account for that finding not finding any focal weakness and there was no sensory loss to pin prick.
149 He noted that in the car accident the plaintiff aggravated pre-existing cervical spine trouble and also aggravated pre existing lumbar spine trouble. The plaintiff had very severe pain with widespread symptoms and detailed investigation had failed to find evidence of spinal cord compression or nerve compression.
150 He noted the plaintiff was very emotionally upset at the result of the accident and there were numerous reports from doctors who had been struck by the struggle to make progress in management.
151 Dr Hjorth re-examined the plaintiff on 23 September 2008 when she complained of pain at the back of both legs, more on the right and lower back pain. There was pain in the neck, her right knee was swollen, she could not sleep and the whole length of her spine was stiff with pain from top to bottom.
152 His overall conclusions were much the same as they were in his previous report. He noted although the plaintiff undoubtedly had organic pain there was also a considerable emotional disturbance adding to her disability.
153 Dr Hjorth re-examined the plaintiff on 28 July 2009.
154 She told him there had been a lot of increased pain. She had lower back pain, pain in either leg or both, stomach bloating, headache and dizziness. She was worried about cancer. She was crying a lot and not happy.
155 On examination Dr Hjorth noticed there was a very pronounced lumbar lordosis which may have no significance but he noted there was a condition called “Stiff Man’s Syndrome” which can could increased lumbar lordosis and increased tone or spasm in the limbs.
156 In his view the plaintiff remained a woman completely disabled by ongoing pain and he accepted her present disability resulted from the accident.
157 The plaintiff was examined by Mr Charles Flanc for medico-legal purposes on 13 February 2007.
158 The plaintiff told him after the accident she had pain in her chest which was the most severe pain at that time. She also had pain radiating down the whole of her spine, although she told him the most severe pain affected her lower back.
159 On examination, the plaintiff told him that her lower back pain was most severe. She had pain radiating down the back of each leg with the left leg being more severely affected. She told him her neck pain was a bit more severe since the accident. She also had stomach and psychological problems.
160 Mr Flanc noted the plaintiff suffered from some lower back pain which was mild prior to the accident and she could not remember whether it radiated down her legs.
161 On examination, the plaintiff walked slowly with a limp affecting her right leg. She stood with a downward tilt of the right shoulder which she attributed to the severity of her neck pain. He found no deformity of her lumbar spine and noted she was tender diffusely across the lower back to even light touch.
162 The plaintiff’s lumbosacral movement was very difficult to assess because she had quite a marked pain response. Movement was severely restricted and associated with muscular spasm. He measured maximum flexion at thirty degrees and lateral flexion at twenty degrees to each side.
163 The straight leg raising test resulted in back pain at twenty degrees elevation of each leg. Full knee and ankle jerks were weak but probably present. Sensation to touch was equal in both legs.
164 Mr Flanc concluded that investigations indicated the plaintiff was suffering from disc degeneration at L3-4 and L4-5 and her history was consistent with a significant aggravation of this condition.
165 Mr Flanc noted the material provided from Dr Kalfas and Dr Drago suggested the accident resulted in a significant aggravation of the plaintiff’s pre-existing back pain. He also noticed she appeared to have a significant psychiatric disturbance.
166 Mr Flanc re-examined the plaintiff on 23 September 2008.
167 The plaintiff told him her lower back pain was still her most severe symptom, worse in the morning but there was always constant pain aggravated by sitting for longer than ten minutes or to thirty minutes or by bending over. The left leg was now more severely affected than the right. She continued to suffer from neck pain which became more severe several months after the accident having been only slight before it.
168 On examination, the plaintiff walked slowly but without a limp. Again, there was the downward tilt of the right shoulder. The plaintiff was very reluctant to move due to lower back pain and all movements were restricted to under twenty degrees. There was also diffuse tenderness across the lumbo-sacral spine.
169 Mr Flanc concluded the plaintiff continued to suffer from pain in the neck and lower back, radiating into both legs. He still considered the accident had resulted in a significant aggravation of the pre-existing disc degeneration of her lumbar spine, especially at L3-4 by making it more symptomatic.
170 He noted the medical information indicated that the plaintiff also had a Chronic Pain Syndrome with a psychological influence but despite that it was his opinion a significant component of the lower back pain was still related to physical factors.
171 He was unable to find any objective neurological abnormality in relation to the lower limb examination. He did not think any aggravation of the plaintiff’s neck condition related to the car accident was probably that significant.
172 Mr Flanc re-examined the plaintiff on 28 July 2009.
173 He noted on examination the plaintiff was very reluctant to move. There was slight diffuse tenderness across the whole of the lower back. Flexion was measured at about thirty degrees and extension ten degrees and the plaintiff had significant pain response.
174 Mr Flanc repeated his earlier view and noted the severity of the plaintiff’s pain had increased even further since the last examination and she displayed features of great anxiety and stress. He thought it quite likely that these psychological factors were influencing the severity of her pain, although this was outside the area of his expertise.
175 The plaintiff was examined on two occasions by a psychiatrist, Professor Paoletti, initially in February 2007 and more recently in July of this year.
176 In July 2009 the plaintiff was seen without an interpreter present.
177 On examination, the plaintiff’s stream of thinking was normal, her form was coherent. She had depressive ideation with occasional suicidal ideation reported. She had ongoing anxious phobic thoughts in traffic with some avoidance. There was no evidence of hallucinations or illusions, nor flashbacks of the accident.
178 Her concentration was better than on the previous examination as was her memory. There were no apparent deficits in orientation. He noted the plaintiff had reasonable insight into her illness and no impulsivity was displayed.
179 From a psychiatric point of view in Dr Paoletti’s opinion the plaintiff continued to suffer from a mixed anxious depressive state which he would code as depressive disorder under DSMIV with features of major depression and anxiety disorder.
180 He continued to be of the view the plaintiff required psychiatric treatment. He thought she still had no current work capacity even on psychiatric grounds alone.
Investigations
181 A CT scan of the lumbar spine taken on 31 October 1996 showed degenerative changes in relation to the dorsal facet joints at the L4-5 and L5- S1 levels. No disc bulge or nerve root compression was seen.
182 An x-ray of the lumbar spine taken on 8 May 1997 showed small marginal osteophytes throughout the lumbar spine. There was no significant degenerative facet joint disease seen and no fracture or pars defect demonstrated. An enlarged left sided L5 transfer process was demonstrated and it was noted that the narrowing of the L5-S1 disc may be, in part, related to the L5 vertebral body being transitional in nature.
183 There was an MRI of the lumbar spine carried out on 10 November 1999. It was concluded there were end plate irregularities consistent with previous osteochondritis. There was slight narrowing of the L4-5 disc space and minimal facet degenerative changes. There was no evidence of disc herniation or compression of neural structures. At L4-5 minor degenerative facet joint changes were noted with slight ligament flavum hypertrophy noted.
184 A CT scan of the cervical spine taken on 5 December 2005 showed no spine fracture, subluxation or dislocation.
185 Dr Kalfas organised a CT scan of the lumbar spine on 24 January 2006. At L3-4, there was broad based disc bulge seen particularly at the left paracentral region with foraminal extension where there was contact and compression of the exiting left sided nerve root. The right sided nerve root exited freely. Facet osteophyte and ligament flavum thickening was noted. The L4-5 intervertebral disc neural exit foramina and spinal canal were normal. There was facetal degenerative change evident.
186 At L5-S1 the intervertebral disc was normal. There was a posterior osteophyte seen of the superior end plate of S1. This was contacting the thecal sac, but not displacing it. Nerve roots exited freely. There was no destructive process.
187 An MRI scan of the lumbar spine was taken on 15 March 2006. Alignment was satisfactory and all discs mildly reduced in height. At L3-4 there was a mild central canal stenosis produced by diffuse bulging of the disc annulus and possibly a small central extrusion in addition to hypertrophy of the facet joints. At L4-5 there was slight bulging of the disc and no other abnormality. No abnormality was seen at L5-S1.
188 Nerve conduction studies were carried out on 28 August 2006 following complaint by the plaintiff of ongoing bilateral back and lower limb pain, worse on the right.
189 Motor and sensory nerve conduction studies were normal, as was needle muscle examination. There was no electrophysiological evidence of large fibre peripheral neuropathy or of a right lumbosacral radiculopathy.
190 An MRI scan of the lumbar spine was carried out on 25 October 2007 at the request of Dr Drago. It was concluded there was multifactorial mild bilateral subarticular recess stenosis at L3-4 with possible left lateral annular fissuring of the disc. There was probable compromise of the transversing descending L4 nerve roots on both sides. It was noted the significance of the possible left lateral disc change was doubtful given it did not correlate with the site of the plaintiff’s symptoms.
Other Documentation
191 The Victoria Police Collision Report set out that the plaintiff’s vehicle was hit from the left by a vehicle which failed to give way when turning left. It was noted there was major damage to the plaintiff’s vehicle, which was towed away.
The Defendant’s Medical Evidence
192 The defendant tendered a number of documents from the clinical file of Dr Piperoglou.
193 By letter dated 18 October 1999, Dr Piperoglou advised that the plaintiff suffered from chronic depression and chronic pain in her cervical and lumbar spine. As a result of those conditions, she was totally and permanently disabled and would not work again.
194 By letter dated 9 October 2003, Dr Piperoglou advised the plaintiff suffered from chronic pain in the neck and lower back and secondary depression. He noted the climate in Greece lessened her pain dramatically and made life more bearable for her. He advised she would benefit from an extended stay in Greece for at least twelve months and that she wished to apply to take her Disability Support Pension overseas for that period of time.
195 By letter dated 9 July 2004, Dr Piperoglou advised the plaintiff suffered from a work related mixed anxiety/depressive disorder and chronic pain in the cervical and lumbar spine.
196 He noted she was intolerant of most anti-depressant medication, except Prozac/low dose, which cause her to suffer from abdominal bloating, nausea, stomach upset and pain. For this reason, he thought the plaintiff required the alternative homeopathic medication, Mood Lift with SAM-e, which had proven anti-depressant properties and was widely used in Europe for this purpose.
197 Dr Piperoglou wrote to Dr Kalfas on 15 November 2005.
198 He advised he had reviewed the plaintiff that day. She was quite labile, distressed and tearful after a truck cut in front of her on the Monash Freeway close to his rooms. He noted she was certainly depressed and not coping with her life, especially at night when she said she felt lonely.
199 Dr Piperoglou offered the plaintiff a stay in the Melbourne Clinic for some “TLC”, but she declined this. Dr Piperoglou asked Dr Kalfas to refer the plaintiff to a psychologist called Mena for more intensive counselling, at least once a week.
200 He noted, in terms of medication, Prozac had been increased to twenty milligrams and the plaintiff was taking Valium, Neurontin and Nurofen.
201 Dr Piperoglou completed a psychiatrist’s questionnaire provided by QBE on 21 May 2007. At that stage, Dr Piperoglou diagnosed mixed anxiety depressive disorder and psychological amplification (functional overlay) to the plaintiff’s chronic pain.
202 He noted the plaintiff was attending every two to six weeks, depending on how she was coping. She was then taking twenty milligrams of Prozac for depression, ten milligrams of Valium for anxiety and as a muscle relaxant and Nurofen, Neurontin for her neuralgia and lower back pain and Valium. When asked to detail any pre existing or non work related injury issues (eg. physical or social) impacting on the plaintiff’s condition, Dr Piperoglou answered “NO.” Dr Piperoglou thought the plaintiff needed to stay on anti-depressants to avoid worsening of her clinical state which had resulted in hospitalisation in the past.
203 Dr Kalfas provided the initial medical certificate for the Transport Accident Commission on 23 January 2006. He noted the accident related conditions were sternal pain, anxiety, neck pain and bilateral leg pain. He completed a diagram showing the site of the plaintiff’s pain covering the whole of the spine from the neck to the lower back and from the backs of both legs down to the feet.
204 The plaintiff was examined by Michael Shannon on 23 February 2009.
205 The plaintiff told Mr Shannon she had problems with nerves, headaches, pain in the middle of the low back radiating down both legs, and a burning pain in the neck into the trapezius muscles. She told him that she got upset easily and at times cried with pain. She had good and bad days and could now walk for less than half an hour, whereas prior to the accident she liked walking a lot.
206 The plaintiff told Mr Shannon she had had a neck injury at work in 1996 after which she ultimately had an anterior cervical fusion in 1998 which helped her neck and right arm but she did not get back to work. She did not tell him of any back problem before the accident.
207 On examination, thoraco lumbar movements were limited by two thirds. Waddell’s signs were positive, suggesting a non organic component. Straight leg raising was to thirty degrees but improved to seventy degrees in the sitting position which the plaintiff achieved with some assistance. There was no neurological abnormality.
208 Mr Shannon had available the CT scan of the lumbar spine of January 2006 and an MRI of the lumbar spine.
209 He noted that in November 1999 the plaintiff had had an MRI of the lumbar spine which showed degenerative change at L2-3, L3-4 and L4-5 with mild diffuse bulging at each of those levels, but no focal disc protrusion.
210 He noted also an x-ray of the lumbar spine in May 1997 and a CT scan in 1996 which showed degenerative change but no disc bulge.
211 Mr Shannon diagnosed a soft tissue injury to the cervical and lumbar spine and was of the view that the plaintiff’s prognosis was largely dependent on psychological factors.
212 From the material with which he had been provided, Mr Shannon noted that the plaintiff had significant pre existing problems with her neck, right shoulder, right arm and low back, as well as psychological problems prior to the said date.
213 In his view, the accident initially resulted in soft tissue injuries from the seat belt and it was consistent that the plaintiff aggravated underlying degenerative change in her neck and back. His impression, however, was that her neck and back were not substantially worse now than in the years leading up to the accident and that the plaintiff had also had significant psychological problems in those years.
214 In Mr Shannon’s view, there were a number of non organic features to the plaintiff’s presentation, but he noted that she certainly did have degenerative change in both her neck and back and she had a pre existing right shoulder and right upper limb problem.
215 He suspected the accident had resulted in no more than temporary aggravation of the underlying condition. He thought there was no indication for surgery.
216 Dr Ingram, psychiatrist, examined the plaintiff on 21 May 2009. The plaintiff told him that she continued to have chronic neck and lower back pain.
217 The plaintiff told him that prior to the accident, she had been able to lead an active life and go for regular walks and drives, but since the accident she has become more limited because of pain and goes out much less and seemed to have fewer interests.
218 She told him, since the accident, there had been a significant problem in her sexual relationship. She had lost her libido and lost her pleasure due to pain.
219 The plaintiff told Dr Ingram that although she continued to have depression and anxiety up until the time of the accident, it had been tolerable and most of the time she had been able to get on with her life and enjoy activity.
220 She felt, since the accident, her depression had become significantly worse and she felt depressed most of the time and found it difficult to enjoy anything that she did. She cried several times a week and there was a general loss of motivation and interest in other activities.
221 At times she felt hopeless and, whilst she had suicidal thoughts on occasion, the only time she had actually tried to take an overdose, she told him, was several years before the accident.
222 The plaintiff told Dr Ingram her sleep had been significantly disturbed and that she had bad dreams every few weeks. She was eating more since the accident and there had been a significant increase in her weight.
223 Dr Ingram was told by the plaintiff that she was having frequent panic attacks since the accident, generally two or three times a week, characterised by palpitations, difficulty breathing and chest tightness, and feelings of dizziness. She still thought about the accident at times and, when she did, she remembered clearly what happened and this had sometimes precipitated a panic attack.
224 On mental status examination, the plaintiff’s affect was moderately severely depressed and she also seemed mildly anxious, although she engaged well with normal reactivity. There was a preoccupation with her pain and depressive themes, although there was no formal thought disorder or perceptual abnormality and her memory, concentration and intelligence seemed normal.
225 In Dr Ingram’s view, the plaintiff was mainly suffering from chronic adjustment disorder with depressed and anxious mood. She also had some residual symptoms of post traumatic stress disorder, as well as phobic symptoms in relation to driving.
226 Dr Ingram thought twenty milligrams a day was too low a dosage of Prozac and the plaintiff should be encouraged to try a higher dose.
Findings
227 I accept that the plaintiff suffered an injury to her lumbar spine in the accident.
228 Although there was no record of a complaint of back pain on the said date to ambulance officers or at the Hospital, when the plaintiff attended Dr Kalfas on 23 January 2006 she reported back pain and he organised a CT scan of her lumbar spine the following day.
229 Whilst it is the impairment not the injury which is the relevant matter for consideration, there is a dispute as to the nature of the plaintiff’s back injury. Counsel for the defendant submitted that there was no convincing evidence of the plaintiff having suffered any injury to the lumbar spine whatsoever in the accident. It was conceded that best the plaintiff had suffered a muscular strain or a temporary aggravation of her pre existing back condition.
230 Counsel for the plaintiff relied upon medical opinion that the plaintiff had suffered a prolapse or rupture at L3-4 or a significant aggravation of pre existing disc degeneration as a result of the accident.
231 Whilst there is mention of a functional component to the plaintiff’s presentation by Dr Drago, both before and after the accident, Mr Flanc and Dr Hjorth all accepted that the plaintiff’s back complaint had a significant organic basis.
232 Only Mr Drnda thought most of her problems were largely psychological and Mr Shannon found there was only a temporary aggravation of the plaintiff’s underlying condition.
233 I accept the view of most medical practitioners in this case that as a result of the accident the plaintiff suffered an aggravation of facet joint degeneration that was evident on pre accident investigations. All practitioners agreed there was no evidence of any neurological abnormality.
234 As the evidence discloses a pre existing back condition I must consider the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident incident is serious and long term.
235 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
236 The plaintiff therefore to reach the threshold of serious injury is required to establish the aggravation is long term at the time of the hearing in its effects and the effects of the aggravation must have consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.
237 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
238 In addition to being “serious” the impairment must be long term.
239 Counsel for the plaintiff conceded that the plaintiff had a minor impairment of her back prior to the accident.
240 In her viva voce evidence, the plaintiff said that following the work injury she had a back problem for which she was taking up to eight Nurofen tablets a day at the time of the accident. However as she repeatedly stressed in answer to many questions in cross examination, her back problem was nowhere near as bad as it has been since the accident.
241 It is of note that when the plaintiff attended the neurosurgery outpatient clinic on 22 February 2006 she complained her pre existing back pain had been worse since the accident.
242 The plaintiff had first reported low back pain radiating into her right leg to Dr Kalfas as part of her work injury in late 1995.
243 Dr Kalfas injected the plaintiff’s neck and back after a flare up in spasm in January 1999 and referred her for physiotherapy. In November 1999 the plaintiff complained of right thigh pain. In March 2001, she reported low back and bilateral leg pain and an increase in chronic neck pain and she was given a Voltaren injection. She was referred for a CT scan of her lumbar spine after complaint of right leg pain in mid 2001, the report of which is not before the court – but noted by Dr Kalfas to show only minor degenerative lipping at L3-4 and L4-5.
244 Whilst there was no mention of back complaint in Dr Kalfas’ notes from that date until after the accident, Dr Kalfas agreed in cross examination that the plaintiff had had problems with back spasm and diffuse spinal pain over many years with the latter more constant after the accident.
245 When cross examined, Dr Kalfas did not seek to correct comments made by him in his letter to QBE of 8 May 2004 where he included back pain in the list of complaints made by the plaintiff at that time. His attempt to resile from this comment in cross examination was not particularly convincing saying he had included the back because he was “referring to her past in a general sense.”
246 The plaintiff also had left sided groin pain prior to the accident that she agreed was fairly constant and aggravated by activities and prolonged sitting in relation to which she was referred to Dr Christophi in 2000. There was no report available from Dr Christophi.
247 Other doctors who appear to have been involved in the plaintiff’s care before the accident, from whom reports are not available, organised investigations of her lumbar spine. Dr Mundie organised the CT scan taken in October 1996, Dr Kominatas organised x rays on 8 May 1997 and Dr Malios arranged the MRI taken on 10 November 1999.
248 Facet joint degeneration, osteophytes and reduction in disc height were all evident on these pre accident investigations.
249 There is only limited evidence available from Dr Piperoglou as to the plaintiff’s pre accident back condition. Clearly, he was involved in the treatment of her physical pain as well as her psychiatric condition prior to the accident, prescribing Neurontin and Nurofen during that time. It is apparent from the plaintiff’s evidence and correspondence from Dr Piperoglou predating the accident that this was the case, contrary to Dr Piperoglou’s comments in his 2008 report.
250 Further whilst in that same report he noted that the plaintiff’s back pain prior to the accident was less severe than her neck pain, in correspondence in 1999, 2003 and July 2004 Dr Piperoglou advised that the plaintiff suffered from chronic depression and chronic pain in her cervical and lumbar spine.
251 Dr Piperoglou’s response to the work injury insurer QBE Insurance questionnaire in May 2007 specifically excluded the plaintiff’s accident injuries or any other cause as impacting upon what he described as the plaintiff’s mixed anxiety/ depressive disorder and functional overlay to the plaintiff’s chronic pain. Dr Piperoglou noted he was prescribing, inter alia, Neurontin for neuralgia and lower back pain.
252 When the plaintiff saw Dr Drago in July 1997, she complained of tenderness in the lumbosacral spine with restricted movement and right sided paraspinal muscle spasm. On examination in January 1998 she complained of increasing back pain and right leg pain and some left sided pain. He thought her symptoms were significant and that she had some lumbar degenerative disease on scanning.
253 It seems therefore that when Dr Drago later reported in December 2006 it was incorrect to describe her lumbosacral symptoms in January 1998 as minor.
254 Initially, and on most occasions since the accident, the plaintiff has complained of right sided symptoms although more recently her left complaints have increased. Investigations undertaken subsequent to the accident have revealed left sided findings.
255 It was noted by Neurosurgery out patients at Southern Health on 22 February 2006 that the broad based disc bulge at L3-4 shown on the January 2006 CT scan of the lumbar spine was more marked on the left than the right - a finding which did not correlate with the plaintiff’s symptoms. The MRI which was subsequently arranged showed bulges which were not considered to be significant but she had signs of facet joint problems.
256 There is no separate report from Mr Danks, neurosurgeon who treated the plaintiff at Southern Health.
257 As Dr Drago mentioned in his latest report, Dr Holt radiologist who reported on the MRI taken on 15 March 2006 and the MRI taken on 25 October 2007 noted the fact that the lateral disc change was on the left side whereas most of the plaintiff’s symptoms were right sided.
258 When cross examined Dr Kalfas agreed that disc bulging was commonly seen as a person degenerates and that the presence of osteophytes shows this degenerative change in the facet joints. He agreed there were no neurological deficits.
259 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether her evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
260 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
261 No medico legal examiners were made aware that the plaintiff was being prescribed Nurofen or Neurontin prior to the accident for her back pain. The plaintiff told Mr Flanc that prior to the accident, she could not recall pain radiating down legs.
262 Dr Hjorth was not provided with any medical reports. The plaintiff told him that she was almost back to normal from her work injury before the accident. She told him there was no past history apart from neck trouble and that her back pain was of particular concern to her on the accident date.
263 Before the accident other longstanding problems significantly affecting the plaintiff’s life included neck pain which had not recovered despite surgery, pain in her upper limbs and left groin and problems with teeth grinding, abdominal bloating and concerns with weight. Further the plaintiff’s condition was such that Dr Kalfas had assisted her to obtain a disabled parking sticker in August 2005.
264 The manner in which the plaintiff presented to Dr Kalfas during the late 1990s was very similar to her presentation to Dr Piperoglou just three weeks before the accident. Dr Kalfas agreed this was the case.
265 On examination throughout 1996 and 1997, Dr Kalfas noted the plaintiff was an anxious lady complaining bitterly about her symptoms and the disabling effects on everyday function with tears in her eyes. Dr Kalfas noted that the plaintiff’s “parlous state” was commented upon by Dr Malios in 1997.
266 When she saw Dr Pipergoglou on 15 November 2005, the plaintiff was distressed, labile, tearful and lonely. She was depressed and not coping with life to the point where he suggested an inpatient stay at the Melbourne Clinic.
267 Of recent times the plaintiff’s presentation has been similar, crying and hyperventilating as she described a multitude of problems to Dr Kalfas when examined on 20 April 2009.
268 Taking into account all the evidence, I am not satisfied that the consequences of any aggravation suffered in the accident can be described as serious.
269 The plaintiff had ongoing back problems at the time of the accident and was still taking significant medication.
270 The plaintiff has been totally and permanently incapacitated for employment from the late 1990s due to her neck, back and anxiety conditions- conditions which I accept persisted from that time to the said date and were not likely to change.
271 Whilst I am permitted to take into account the plaintiff’s expected mental response to her physical injury, it is impossible in this case to identify that which is allowable as her mental condition was so fragile before the accident – an inpatient stay at the Melbourne Clinic having been suggested by Dr Piperoglou just three weeks before the accident.
272 Since the accident the plaintiff has been able to drive to do her daily tasks such as shopping and visiting friends for a coffee, having bought a new car not long after the accident. She is able to do her housework albeit with problems with heavy tasks – a situation that predated the accident.
273 I am not persuaded that any claimed interference with these activities as a result of the accident is serious.
274 Whilst the plaintiff claims she has had a reduced ability to walk and that she enjoyed this activity prior to the accident, it is clear from Dr Kalfas’ correspondence to QBE in the year prior to the accident the plaintiff had difficulty walking and was not comfortable doing so because of her neck, back and right upper limb pain and severe anxiety.
275 Any increase in medication for her back condition following the accident cannot be described as more than significant or marked. On any view, immediately prior to the accident, the plaintiff’s medication intake for her psychiatric condition and her spinal problems was significant. Her evidence as to an increase in Neurontin from four hundred milligrams prior to the accident to eight hundred milligrams was not confirmed by her treaters. It was not clear from Dr Kalfas’ evidence what if any changes were made to the plaintiff’s medication regime after the accident to deal with her back complaint. He did however increase her medication for her cervical pain as that condition was aggravated by the accident. Further as Dr Kalfas explained the Neurontin that he presently prescribes is to treat her chronic pain syndrome – a condition which is increasing in severity.
276 Whilst the plaintiff continues to receive spinal injections, she had this treatment for her back before the accident, albeit the last occasion being 2001.
277 I do not accept that the plaintiff’s situation is one envisaged by AJ Dodd Streeton in Kelso v Tatiara Meat Co Pty Ltd (2007) VSCA 267, at p 26, where Her Honour accepted the endurance of permanent daily pain requiring frequent medication must according to ordinary human experience raise a real prospect of a very considerable consequence.
278 Taking into account all the evidence, I am not satisfied that the plaintiff suffered any aggravation to her lumbar spine in the accident which is serious.
279 Accordingly, the plaintiff’s application is dismissed.
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