Lefteriotis v Transport Accident Commission
[2015] VCC 421
•14 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05352
| MARIA LEFTERIOTIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 February 2015 | |
DATE OF JUDGMENT: | 14 April 2015 | |
CASE MAY BE CITED AS: | Lefteriotis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 421 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of spine, cervical, thoracic and lumbar spine – are the consequences “serious” – psychiatric injury – whether or not the consequences are “severe”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833
Judgment: Application for serious injury certificate in respect of the cervical spine granted. Application for psychiatric injury certification dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr G Worth | Nowicki Carbone |
| For the Defendant | Mr D Myers with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 17 October 2013. 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 the transport accident which occurred on 27 November 2010 (“the said date”).
2 Section 93(6) of the Act provides a Court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff under s93(17) states:
“(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.”
4 In this application, the plaintiff, in effect, has two separate applications for serious injury. Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i)loss of body function to the spine, including the thoracic, lumbar and cervical spine; and
(ii)serious long-term severe mental or behavioural disturbance or disorder.
5 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.
6 The serious injury defined under ss(17)(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
7 In forming the judgment as to whether the consequences of the injury are “serious”, the question to be asked is: Can the injury, when judged in 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
8 A serious injury under s93(17)(c) requires the level of impairment to be “severe”.[3]
[3]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 846
9 The plaintiff swore and relied upon two affidavits dated 16 July 2013 and 19 January 2015. The plaintiff also relied upon an affidavit sworn by her husband, Alexander Lefteriotis, dated 19 January 2015. The plaintiff gave evidence and was cross-examined. The plaintiff was the only witness that gave viva voce evidence in this application.
10 In addition to the affidavits and evidence given by the plaintiff and her husband, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material and other documents tendered in this application.
11 The tendered evidence in this proceeding was as follow:
· Exhibit P1 – the Plaintiff’s Amended Court Book (“PCB”), pages 7-32 inclusive and pages 44-106 inclusive
· Exhibit P2 – the Defendant’s Court Book (“DCB”), pages 26-34 inclusive
· Exhibit D1 – notes of the general practitioner, Dr Gouras – two pages
· Exhibit D2 – Transport Accident Commission Claim Form dated 28 December 2010
· Exhibit D3 – clinical notes of the general practitioner, Dr Conejera, in particular entries dated 7 March 2012 and 20 January 2011
· Exhibit D4 – Defendant’s Court Book, pages 1-25 inclusive.
12 The issues in this application are as follows:
(a)What injuries did the plaintiff suffer to her cervical spine, thoracic spine or lumbar spine as a result of the transport accident? This issue includes whether the aggravation of any previous injury or condition to the plaintiff’s neck or back occurred as a result of the transport accident;
(b)Whether the injuries or consequences for the plaintiff as a result of the injury to her neck, thoracic spine or back are properly described as “in the range of cases” considered as a whole to be a “serious injury” under the Act;
(c)The credit of the plaintiff;
(d)Whether the plaintiff suffered any psychiatric condition as a result of the transport accident; and
(e)Whether the plaintiff’s psychiatric condition meets the “severe” test as required under the Act.
The Plaintiff’s background
13 The plaintiff was born in October 1961 in Greece. She is now fifty-three years of age.[4]
[4]PCB 7
14 The plaintiff migrated to Australia in 1980. Prior to migrating to Australia, the plaintiff had completed high school in Greece and tertiary education in childcare.[5] The plaintiff is a married woman and has two children who are twins. Both of her children are married and live independently of the plaintiff.
[5]PCB 7
15 The plaintiff commenced employment in the Greek Orthodox Community of Melbourne as a language teacher in 1980. The plaintiff has worked in that capacity at three separate schools for three days a week.[6] In her affidavit material, the plaintiff stated that she had reduced her teaching commitments to two days a week due to the symptoms suffered after the transport accident.[7] In the course of evidence, it became clear that the plaintiff had continued to work her full three days part time up until the end of 2012.[8] The plaintiff continues to work as a Greek language teacher on a part-time basis two days per week.
[6]PCB 8 and Transcript 22
[7]PCB 17
[8]Transcript 24
The transport accident involving the Plaintiff
16 The plaintiff described the accident in her affidavit dated 16 July 2013 in the following terms:
“On 27 November 2010 I was involved in a transport accident. I was driving along Alexandra Parade, North Fitzroy. I reduced my speed as I approached a red traffic signal at the intersection with George Street. Another vehicle travelling along Alexandra Parade failed to stop and collided with the rear of my vehicle.
I did not call the police at the time of the accident. However, I later reported the incident to the police.
After the accident I called my husband and asked him to pick me up. I felt faint and dizzy after the accident and I experienced pain in my neck, back and left shoulder.”[9]
[9]PCB 9
17 The plaintiff was unable to say to what extent the rear part of her car was damaged as a result of the transport accident. After contacting her husband, she continued on her way to the language school and subsequently, attended upon her general practitioner at the Sunshine City Medical Centre. Neither the ambulance or police services were required to attend at the scene of the transport accident on 27 November 2010.[10]
[10]PCB 9 and Transcript 23
Psychiatric and psychological injury
18 In the plaintiff’s application for serious injury certification, she relies upon a permanent severe mental or permanent severe behavioural disturbance or disorder. The test for serious injury certification and the principles relating to it are set out in Mobilio v Balliotis & Ors.[11]
[11]Supra
19 The transport accident involving the plaintiff in this application occurred on 27 November 2010. The plaintiff was referred by her general practitioner, Dr Conejera, to the psychologist, Dr Venina Ventureira, in July 2012. The plaintiff deposes that she attended on Dr Ventureira for counselling for a total of four sessions.[12] The plaintiff did not file or rely upon any report prepared by Dr Ventureira in respect of the treatment given to her in the course of those counselling sessions.
[12]PCB 11, paragraph 27
20 In March 2014, the plaintiff was again referred to a psychologist. The psychologist, Mr Antonio Ferrero, is based at the Sunshine City Medical Centre, the same medical centre as the plaintiff’s general practitioner. The plaintiff attended Mr Ferraro for anxiety and depression as a result of her transport accident on approximately six occasions.[13] Mr Ferrero prepared a report dated 30 November 2013 in respect of his treatment and the condition of the plaintiff. Mr Ferrero had diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder. I have carefully read the report of Mr Ferrero and note that the language he uses in that report is most unusual for medico-legal reports. In summary, his report appears to be little more than a regurgitation of the plaintiff’s complaints, with him putting psychological terminology around the statements made by the plaintiff. I do not place any weight on the opinion given by Mr Ferrero as to the plaintiff’s psychiatric or psychological condition.
[13]PCB 23, paragraph 9
21 The plaintiff, after seeing Mr Ferrero, attended upon a Ms Kim Carli, psychologist, for three sessions. The plaintiff states that she went to see Ms Carli on three occasions for the purpose of getting a woman’s perspective on her anxiety and depression.[14] The plaintiff did not rely on any medical report from Ms Carli to support her application in this case. I note however that she has recently received funding from the Transport Accident Commission for further attendance on Ms Carli.[15]
[14]PCB 23, paragraph 9
[15]PCB 23, paragraph 9
22 In her affidavit dated 16 July 2013, the plaintiff complains of being nervous whilst driving since the transport accident.[16] The plaintiff also complains about being constantly tired, irritated and angry, and says this is a result of the injuries she has received in the transport accident.[17] The plaintiff states that she had developed depression and anxiety as a result of the transport accident.[18] The plaintiff further states that her memory and concentration has been reduced as a result of the transport accident.[19]
[16]PCB 14, paragraph 43
[17]PCB 15, paragraph 48
[18]PCB 16, paragraph 52
[19]PCB 17, paragraph 55
23 The plaintiff attributes her reduction in work hours to her inability to remember things and concentrate.[20] It is clear, on the evidence from the plaintiff, that she continued to work her normal hours of work immediately after the transport accident for the completion of the Year 2010, all of the Year 2011 and into the Year 2012.[21] The plaintiff’s position in evidence was that she ultimately cut back her work commitments due to pain rather than the psychological aspects of her claim.[22]
[20]PCB 17, paragraph 58
[21]Transcript 24
[22]Transcript 24
24 The plaintiff had previously suffered from periods of depression and was treated for anxiety, depression, panic attacks, insomnia and poor concentration in the period from October 2008 until March of 2010 by Dr Gouras, general practitioner.[23]
[23]PCB 24, paragraph 12
25 The plaintiff was prescribed Endep by Dr Gouras for the treatment of her depression and other psychological conditions at that time.[24]
[24]Transcript 45
26 The plaintiff stated that she did not have a good recollection of the treatment from Dr Gouras.[25] In the period of the treatment from Dr Gouras, the plaintiff had also been prescribed Ducene.[26]
[25]PCB 24, paragraph 12
[26]Exhibit D1
27 The plaintiff, during the course of her evidence, was cross-examined about her poor memory of Dr Gouras’ treatment for psychological and psychiatric conditions. The plaintiff’s evidence in this regard was unsatisfactory. In her evidence, the plaintiff stated that she was not shown the medical notes of Dr Gouras at the time she swore her second affidavit dated 19 January 2015.[27] It was clear that the solicitors for the plaintiff had the notes from Dr Gouras for the relevant period 2008 to 2010 and had shown them to her prior to her swearing the affidavit dated 19 January 2015.
[27]Transcript 50
28 The plaintiff has not been prescribed any anti-depressant or anxiolytic medication by her general practitioner, Dr Conejera, since the transport accident.[28]
[28]PCB 26, paragraph 14
29 In summary, the extent of the treatment that the plaintiff has undergone for psychological and psychiatric symptoms is limited to the psychological sessions with Dr Ventureira, Mr Ferraro and Ms Carli.
Medico-legal opinions
Dr Nathan Serry
30 The plaintiff was referred to Dr Nathan Serry, psychiatrist, for medico-legal reporting by her solicitors. Dr Serry prepared three reports, dated 10 July 2013, 12 November 2014 and 12 January 2015.
31 In his report dated 10 July 2013, Dr Serry took a history from the plaintiff that she had initially seen a psychologist briefly but was not currently attending any psychologist.[29] The plaintiff also told Dr Serry that she did not have any past psychiatric history.[30]
[29]PCB 87
[30]PCB 89
32 In July 2013, Dr Serry’s opinion was that the plaintiff was suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood, and features of traumatisation. Dr Serry noted that the plaintiff’s psychiatric condition was partly a direct result of the transport accident and also secondary and reactive to the physical injuries sustained by the plaintiff in the same transport accident.[31]
[31]PCB 91
33 In his second report dated 12 November 2014, Dr Serry took a history from the plaintiff that she did not have any past psychiatric history.[32] Dr Serry noted that the plaintiff had had brief psychological input from two different psychologists but had not been prescribed any psychotropic medication by a general practitioner.[33] Dr Serry noted that the plaintiff was a determined and capable individual; however, she has never been able to return to her full premorbid level of functioning given the combined physical and psychiatric effects of the subject accident.[34] Dr Serry’s diagnoses was:
“The psychiatric illness resulting from the subject accident remains a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation. This is a condition of moderate severity.”[35]
[32]PCB 98
[33]PCB 99
[34]PCB 100
[35]PCB 99
34 In his final report dated 12 January 2015, Dr Serry had been supplied the subpoenaed records of Dr Gouras. Dr Serry does not make any comment about the previous treatment by Dr Gouras for anxiety, depression and panic attacks.[36] Dr Serry comments on all of the other enclosed medical material but for the subpoenaed documents of Dr Gouras. Dr Serry maintained his diagnosis as set out for the report of 12 November 2014. I find it is disconcerting that Dr Serry has not referred to the previous treatment by Dr Gouras for the psychological or psychiatric condition suffered by the plaintiff in the period of 2008 to 2010. In the context that Dr Serry has noted a history from the plaintiff that she did not have any past psychiatric symptoms such a report and diagnosis is unhelpful.
[36]PCB 104
35 I note that the test for psychiatric and psychological conditions is that the condition must be “severe”. Dr Serry very carefully uses the combination of the words “moderately severe” to describe the condition of the plaintiff which he diagnoses as Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation.
36 Given that Dr Serry does not take into account the previous treatment by Dr Gouras for the plaintiff’s psychiatric and psychological conditions in his assessment, even though he was aware of them, I am not satisfied, on the basis of his evidence in this case, that the plaintiff’s psychological condition or psychiatric condition is of the requisite standard to be regarded as a severe condition as required under the Act.
Dr Andrew Firestone
37 The plaintiff was examined by Dr Firestone, consultant psychiatrist, on behalf of the defendant. Dr Firestone prepared a report dated 30 January 2015.
38 Dr Firestone took a history from the plaintiff:
“In 2008 and again in 2010 she was treated for anxiety and depressive symptoms with the tricyclic antidepressant amitriptyline and with the minor tranquilliser diazepam.
No such drugs have been used since the accident.”[37]
[37]DCB 28
39 Dr Firestone noted that the plaintiff had been prescribed Lyrica some two months prior to his report but that the plaintiff said that she had not had any improvement from that medication. Dr Firestone noted that the plaintiff volunteered a general unhappiness as a result of her pain and dizziness and concern that her unhappiness in turn affects the rest of her family.[38]
[38]DCB 28
40 Dr Firestone noted that the plaintiff was a lively personality, gesturing expressively with her hands in keeping with her cultural background.[39]
[39]DCB 29
41 Dr Firestone’s opinion was that the plaintiff was not suffering from Post-Traumatic Stress Disorder as the accident itself was not life threatening.[40]
[40]DCB 31
42 Dr Firestone diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with depressive features. He noted that there is no psychiatric injury of significance, only an Adjustment Disorder consequent upon the accident and her pain and dizziness. The Adjustment Disorder does not interfere with her work.[41]
[41]DCB 32
43 I conclude, based on the medical evidence and the lack of treatment for psychological and psychiatric symptoms since the transport accident, that the plaintiff has failed to satisfy the requisite standard required under the Act to prove that she suffers from a severe mental or permanent severe behavioural disturbance or disorder as required under the Act.
The Plaintiff’s impairment or loss of body function
44 The loss of body function that the plaintiff claims resulted from the transport accident is an injury to the whole of her spine. Mr Richards, on behalf of the plaintiff, submitted that the plaintiff has been injured to the cervical, thoracic and lumbar spine as a result of the transport accident on 27 November 2010.
45 On the day of the transport accident, the plaintiff attended her general practitioner, Dr Conejera, and was referred for x-ray. On 29 November 2010, the plaintiff had x-rays to her cervical and thoracic spine.[42] It is to be noted that the plaintiff was not referred for x-ray to her lower back at that time. The first notation of low-back pain and low-back symptoms in the general practitioner, Dr Conejera’s notes, appears on 7 March 2012. On that date, the plaintiff attended her general practitioner complaining of a fall in the gymnasium, hitting her coccyx and, since then, all of the spine was painful.[43]
[42]PCB 44
[43]Exhibit D3 and Transcript 15
46 The complaints made by the plaintiff concerning low-back pain are not made to Mr Garry Grossbard, orthopaedic surgeon.[44]
[44]PCB 77 and Transcript 17
47 The plaintiff did not make a complaint about low-back pain to her physiotherapist, Ashley Dean.[45]
[45]PCB 65
48 The plaintiff was also treated by an occupational therapist, Arun Sharma. The treatment by Ms Sharma commenced on 16 January 2012. At the time of that assessment by the occupational therapist, Ms Sharma, the plaintiff was not complaining of any symptoms in her lower back.[46]
[46]PCB 51
49 I do not accept the plaintiff’s complaints and symptoms in her lower back are connected to the transport accident. The symptoms and complaints relating to her lower back and referred pain into her legs did not commence until after the accident in a gymnasium in March of 2012. The fact that the plaintiff has made a claim in this case seeking to include the lower back symptoms unnecessarily complicates her claim for injury to her cervical spine.
50 I accept that the injury to the plaintiff’s cervical spine is the relevant injury to be assessed in this serious injury application and not the alleged symptoms and injury to the thoracic spine and lumbar spine.
51 On the day of the accident, the plaintiff did not seek the assistance of ambulance or police officers. The plaintiff did attend her general practitioner, Dr Conejera, on that day. The plaintiff was referred for x-ray on 29 November 2010. The plaintiff has never been referred to an orthopaedic surgeon for treatment or further examination.[47]
[47]Transcript 16
Medical Opinions
Dr Luz Conejera
52 Dr Conejera, general practitioner, prepared four reports, dated 18 December 2013, 20 August 2014, 27 October 2014 and 19 December 2014.
53 In her first report, Dr Conejera diagnoses the plaintiff as suffering from whiplash, left shoulder pain, neck pain, migraine, dizzy spells, vertigo, Post-Traumatic Stress Disorder and Depression.[48]
[48]PCB 54
54 Dr Conejera enclosed with that report the radiological reports received in respect of the plaintiff’s cervical spine.
55 On 29 November 2010, the plaintiff’s x-ray of her cervical spine was reported as follows:
“… Moderately severe C6/7 cervical spondylosis with left sided bony foraminal stenosis. No cervical rib or focal bony destruction.
Comment:
1. Moderately severe C6/7 cervical spondylosis with apparent left sided foraminal stenosis could impinge onto the left C7 nerve root. CT of the cervical spine can be performed for further assessment.”[49]
[49]PCB 56
56 Following that report, the plaintiff was referred for a CT examination of her cervical spine on 1 December 2010. The findings on that occasion were reported as follows:
“Findings:
No significant disc prolapse or canal stenosis is seen at C2/3, C3/4, C4/5 and C5/6 disc levels but there is mild C5/6 cervical spondylosis.
Moderately severe C6/7 cervical spondylosis without disc prolapse but there is moderately severe left sided foraminal stenosis due to uncovertebral joint arthritis that could easily compress onto the left C7 nerve root.
No significant disc prolapse or canal stenosis is seen at C7/T1.
No cervical rib or focal bony destruction.
Comment:
1. Mild C5/6 cervical spondylosis without disc prolapse or canal stenosis.
2. Moderately severe C6/7 cervical spondylosis with moderately severe left sided bony foraminal stenosis that could easily compress onto the left C7 nerve root.”[50]
[50]PCB 55
57 In her report dated 20 August 2014, Dr Conejera confirmed her diagnosis as whiplash to the neck which was causing the conditions of migraine, dizziness and vertigo.[51]
[51]PCB 59
58 In her later report, Dr Conejera repeated her report of 18 December 2013 and addressed it to Nowicki Carbone.[52]
[52]PCB 60
59 Dr Conejera attached to her report of 27 October 2014 an x-ray report in respect of the plaintiff’s cervical spine which was performed on 6 August 2014. The x‑ray report was as follows:
“Cervical Spine
There is mild kyphosis at the C4/5 level. Mild to moderate multilevel spondylotic change particularly C6/7. No prevertebral soft tissue swelling. No cervical rib. Atlantoaxial articulation is normal.
On the oblique projections moderate to marked left foraminal narrowing at C6/7.”[53]
[53]PCB 63
60 The final report from Dr Conejera dated 19 December 2014 refers to the plaintiff being prescribed Lyrica for neuropathic pain from her shoulders and neck, radiating to her upper back. Dr Conejera states that the plaintiff had whiplash and soft-tissue injury to her shoulders and neck.[54]
[54]PCB 64
61 Dr Conejera continues to prescribe the plaintiff with Mobic, Tramal and Lyrica medications to manage the plaintiff’s pain symptoms. The plaintiff stated in her affidavit that she, on occasion, takes four Panadol tablets in addition to the medications prescribed by Dr Conejera.[55]
[55]PCB 21-22
62 It is clear from the very short and succinct reports from Dr Conejera that the plaintiff has suffered a whiplash injury to her neck. Dr Conejera accepts the level of pain described to her by the plaintiff and has prescribed the pain-moderating medication referred to in these Reasons.
63 The defendant in this case has continued to pay for the medication taken by the plaintiff at this stage.
Dr Anthony Kam
64 Dr Anthony Kam is a consultant radiologist and has advised in respect of the radiological investigations into the plaintiff’s spine. Dr Kam has had the advantage of reviewing the radiological examinations performed on the plaintiff.
65 In respect of the x-rays dated 29 November 2010, his opinion was that there was longstanding age-related changes at the cervical and thoracic spine unrelated to the subject transport accident.[56]
[56]PCB 106
66 In respect of the CT scan of the cervical spine dated 1 December 2012, Dr Kam states:
“… shows similar findings to the radiographs from 29 November 2010. No new or old cervical spine fracture is seen. There is reversal of cervical curvature with loss of lordosis. Multilevel age related changes are again identified with endplate marginal osteophyte formation. Mild narrowing of the neural exit foramen is again identified at C6/7 worse on the left. Tiny focal posterior central disc osteophytes at C4/5 C5/6 C6/7 cause mild impression upon the thecal sac.
In summary, the set of radiographs of the cervical and thoracic spine taken 2 days after the subject accident show no cervical or thoracic spine fracture. There are osteophytes at the cervical spine and thoracic spine that predates the accident. In particular, your client has multilevel age related changes to her cervical spine with foraminal narrowing at C6/7. The images also reveal reversal of cervical curvature.
… .”[57]
[57]PCB 107
67 It is clear from Dr Kam’s opinion that the plaintiff had pre-existing degenerative changes to her cervical spine. The transport accident has rendered the plaintiff’s neck condition symptomatic. Once the plaintiff’s pain in her neck has been activated, it has continued until the present time. The plaintiff’s previous medical history set out in Exhibit D1 does not reveal any pre-existing symptoms or complaints made by the plaintiff in relation to her neck pain.
Mr Garry Grossbard
68 Mr Grossbard, orthopaedic surgeon, prepared three reports, dated 23 May 2013, 16 September 2013 and 13 November 2014. Mr Grossbard’s reports are for medico-legal purposes and not as a treating orthopaedic surgeon.
69 In his initial report, Mr Grossbard took a history from the plaintiff that she described pain in the left side of her neck. He stated in her history that this was her greatest problem. After a review of the x-ray performed on 29 November 2010 and the CT scan performed on 1 December 2010, Mr Grossbard gave the opinion that the scans confirmed degenerative change but did not indicate that there was any disc prolapse. Mr Grossbard’s opinion was that there was evidence of left-sided foraminal stenosis which may affect the path of the C7 nerve root.[58]
[58]PCB 77
70 Mr Grossbard’s opinion in 2013 was that the plaintiff did not have any inherent shoulder pathology as a result of the pain being referred from her neck. He stated that the plaintiff’s cervical spine injury is without evidence of radiculopathy. He noted that the plaintiff had a full range of neck movement. In his opinion, the plaintiff has symptoms without evidence of motion disturbance or structural injury.[59]
[59]PCB 78
71 In his most recent report dated 13 November 2014, Mr Grossbard stated that there was tenderness in the mid-cervical area on the left side on examination of the plaintiff.[60] In that report, Mr Grossbard stated that he believed that the plaintiff had soft-tissue injuries to her cervical spine in the presence of pre-existing degenerative change but without radiculopathy.[61]
[60]PCB 81
[61]PCB 82
72 Mr Grossbard prepared a report dated 13 January 2015 where he sought to clarify matters raised with him after his examination of the plaintiff on 12 November 2014. He confirmed his finding that the plaintiff was suffering from mild cervical tenderness, particularly on the left side, with some interscapular and trapezius muscle tenderness. He stated however that there was dysmetria of the cervical spine motion.[62]
[62]PCB 84
Mr Robert Dickens
73 Mr Dickens, orthopaedic surgeon, prepared two medico-legal reports for the Transport Accident Commission, dated 17 March 2014 and 20 January 2015.
74 In respect of his examination on 4 March 2014, Mr Dickens took a history that the plaintiff had pain from the base of her neck to the base of her skull. The plaintiff described the severity of her cervical spine pain on the visual analogue scale as an average of 6 out of 10 and at its worst 8 out of 10, stating that she was never free of pain.[63]
[63]DCB 3
75 Mr Dickens noted on physical examination, in respect of the plaintiff’s cervical spine, as follows:
“She had an asymmetrical restriction of movement in the neck with tenderness particularly at the occiput but also down at the cervicothoracic junction and on the left side down the lateral side of the neck. Palpation also resulted in a feeling of discomfort below the cervicothoracic junction right throughout the thoracic spine down to the L1 vertebra.”[64]
[64]DCB 4
76 Mr Dickens’ diagnosis was as follows:
“As a result of the accident, the orthopaedic injuries appear to have been a soft tissue injury to the cervical spine without radiculopathy with aggravation of preexisting degenerative arthritis involving the cervical vertebra C5/6 and C6/7. …
…
… There were no preexisting injuries or diseases influencing the course of the current injury or vice versa except to note that she had preexisting degenerative arthritis in both her cervical and thoracic spinal areas. There have been no other injuries or diseases arising since the accident influencing the course of the current injury.”[65]
[65]DCB 6
77 In his latest report dated 20 January 2015, Mr Dickens noted that the plaintiff was taking medication of Mobic, Tramal, Circ and Panadol, and that she had been recently commenced on Lyrica.[66]
[66]DCB 12
78 Mr Dickens noted in his report that the plaintiff presented as a woman who is not in significant pain.[67]
[67]DCB 13
79 Mr Dickens confirms his previous diagnosis that the plaintiff had suffered from a soft-tissue injury to her cervical spine without radiculopathy in the presence of pre-existing degenerative pathology at the cervical level.[68]
[68]DCB 15
80 Mr Dickens did not find that the accident had caused any compression fracture in the thoracic spine.
81 In Mr Dickens’ opinion, the shoulder pain complained of by the plaintiff is a referral of pain from the cervical spine.[69]
[69]DCB 17
82 The summary of Mr Dickens’ opinion is that he accepts that the plaintiff has suffered a soft-tissue injury to her neck in circumstances where she had pre-existing degenerative changes to her cervical spine.
Associate Professor Richard Stark
83 Associate Professor Richard Stark, neurologist, prepared two medico-legal reports on behalf of the Transport Accident Commission, dated 7 April 2014 and 5 January 2015.
84 The plaintiff gave a history to Professor Stark that she had developed migraine headaches subsequent to the transport accident.
85 In his first report, Professor Stark made the following comment:
“It is likely that this lady has some degree of innate susceptibility to migraine even though she does not report any pervious migraine symptoms. It is well recognized that someone in this situation may have migraine aggravated by a neck injury so that the neck pain associated with the jolting injury to the neck triggers migraine attacks. Thus, I would regard the migraine episodes in this lady as being an indirect consequence of her neck injury.”[70]
[70]DCB 23
86 In his second report dated 5 January 2015, Professor Stark had been advised that the plaintiff had a previous history of being treated for migraine headaches. Professor Stark stated as follows:
“In a sense, this is not a surprising finding as I had commented in my assessment and comment that typically patients who develop migraine after a motor vehicle accident do have a previous susceptibility to migraine and I had been a little surprised that this lady had denied any such susceptibility. Thus, the finding of pre-existing headache does not negate the possibility that headache may have been aggravated by the accident.”[71]
[71]DCB 19
87 Professor Stark concludes:
“I suspect that this lady does have a pre-existing history of migraine which has probably been aggravated by her neck injury but the quantification of the extent of that aggravation is extremely difficult for the reasons outlined above. … .”[72]
[72]DCB 19
88 It is clear from these reports that Professor Stark was of the opinion that the plaintiff had suffered an aggravation of her migraine headache as a result of the transport accident. The difficulty Professor Stark had with a proper assessment of the plaintiff was that she had previously given him an incorrect history about her prior treatment for migraine headaches before the transport accident. He was unable to properly assess the level of aggravation or increase in symptoms of the migraine headaches as a result of the transport accident. He does however accept that there is an aggravation of her migraine headaches as a result of the transport accident.
The credit of the Plaintiff
89 Mr Myers, on behalf of the defendant, submitted that the plaintiff was not to be accepted as a credible witness in this case. Mr Myers relied on the history given by the plaintiff in respect of the low-back pain symptoms. He stated that the plaintiff was not to be accepted, given her affidavits in relation to her low-back pain and the referral of symptoms down her legs.[73] It was clear that the low-back pain symptoms came on after the injury of 7 March 2012.
[73]Transcript 15
90 In support of the submission in relation to the low-back pain exaggeration, Mr Myers relied on the fact that the plaintiff had never complained to Mr Grossbard about that condition until 2014. He stated that there was no mention of any leg pain in the general practitioner’s notes.
91 Mr Myers submitted that the Court could not rely upon the plaintiff in respect of the reduction of work. This part of the submission was entwined with the affidavit of the plaintiff’s husband, Alexander Lefteriotis. In Mr Lefteriotis’ affidavit, he states that the plaintiff was unable to return to full-time work. She was now limited to approximately two days per week. Mr Myers submitted that that statement by Mr Lefteriotis was a complete and total exaggeration of the plaintiff’s pre transport accident work history. The plaintiff only ever worked three days part time. Mr Myers further challenged the veracity of the plaintiff on the basis that when she reduced her hours it was not to do with any certification by her general practitioner that she could not continue with the part-time work at the three schools.[74]
[74]Transcript 31-32
92 Mr Myers also relied on the plaintiff’s answers in the Transport Accident Commission Claim Form. This was Exhibit D2 in the hearing.
93 In particular, Mr Myers referred to Question 23 and the answer provided by the plaintiff in respect of that Claim Form. In that answer, the plaintiff denied having any migraine or similar episodic headaches in the past. The plaintiff also denied having any psychological or psychiatric conditions in the past. Mr Myers stated that both of those answers were incorrect. In fact, he described them as being lies. He then referred to the transcript at page 40 where the plaintiff admits that the truthful answer was “yes”.
94 Mr Myers then relied upon the history given by the plaintiff to Professor Stark where she stated that she had never had migraines before the transport accident. Mr Myers relied on the answers given by the plaintiff at Transcript 41 and 42 where she admitted that she had had migraines prior to the transport accident and that she had not told Professor Stark about it.
95 In relation to the credibility of the plaintiff, I find that she is a person who had a tendency to exaggerate her symptoms and have a selective memory about some of her past treatment and symptoms. In particular this is relating to her migraine headaches and to her psychiatric condition between 2008 and 2010. However, I accept that the plaintiff did not have any prior symptoms in relation to her neck, particularly pain, and a more limited range of movement in her neck. I also accept that her headaches and or migraines have increased in their severity and frequency as a result of the transport accident and that is consistent with the history given to her doctors now and the treatment that she has received as a result of it.
96 In applications of this kind, it is difficult to make a full and proper assessment of the credibility of a witness, particularly when she is claiming for a psychological or psychiatric-type injury at the same time as a physical injury. The symptoms that she has exaggerated in respect of the psychiatric injury tend to overlay her credibility in respect of the complaints made about her physical injury.
97 The physical injury in this case, as I find it, is an injury to the cervical spine. Overall I accept the plaintiff’s evidence in relation to her complaints in respect of her neck injury.
Consequences of the injury to the cervical spine
98 The plaintiff, in her affidavits dated 16 July 2013 and 19 January 2015, sets out the number of consequences that she has suffered as a result of the injury to her cervical spine in the transport accident.
Sleep
99 The plaintiff complains that her sleep has been disturbed as a result of the pain in her neck and elsewhere in her body. In particular, I accept that the plaintiff is suffering from disturbance to her sleep as a result of the pain in her cervical spine.[75] In more recent times, the plaintiff has been prescribed Lyrica to deal with her pain at night and to assist her with a night’s sleep. The fact that I accept that the plaintiff’s sleep is disturbed as a result of her pain in her neck is a considerable consequence to her and would have the effect of leaving her tired and unable to concentrate in the daytime.
[75]PCB 16
Pain
100 The plaintiff complains of pain in her neck and states that it radiates both into her head and her shoulders. The plaintiff very clearly has stated in her evidence that the pain in her neck is the most significant problem for her. She states as follows:
Q:“Let’s look at the situation now. Are you saying now you have a serious problem with your lower back?---
A:I say I have serious problem. Serious – most serious problem with my neck.”[76]
[76]Transcript 17, Lines 11-14
101 The plaintiff states that she has pain in the neck all the time.
102 The plaintiff has not attended at a pain clinic for the purposes of dealing with her pain. The treatment for her pain levels has been managed by her general practitioner, Dr Conejera, by the prescription of medication. The plaintiff has been taking the medication since effectively the time of the transport accident until the current time. The medication regime has changed within the period of time from the date of the accident, 27 November 2010, until the day of the hearing in February 2015.
103 I find and accept that the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a very considerable consequence for the plaintiff in this case.
Medication
104 The plaintiff is currently prescribed the following medications:
§ Mobic
§ Tramal; and
§ Lyrica.
105 These medications are prescribed for the management of the plaintiff’s pain by her general practitioner, Dr Conejera. The plaintiff has in the past taken Imigran and Sumatriptan medication for her migraine headaches. The plaintiff deposed that she has also taken Panadol in addition to the medications prescribed by her general practitioner. The plaintiff is also prescribed Serc tablets by her general practitioner to deal with her symptoms of dizziness.
106 I accept that these medications and the prescription for them by her general practitioner have taken place since the transport accident and that the necessity for the plaintiff to take such serious pain modifying medications is a very considerable consequence for her. The plaintiff’s ongoing medical treatment involves supervision by her general practitioner and the prescription of the medications referred to in these Reasons.
Activities of daily living
107 The plaintiff has given evidence that she is now less able to do the housework due to her injuries. She maintains that she does not enjoy Greek dancing and being able to play with her grandchildren as a result of her injuries. I do not accept that the limitation to her activities of daily living are to such an extent that they, on their own, would be properly described as “very considerable” consequences for her. The plaintiff’s nature is to continue to be involved with as much activity with her family and household as she can.
108 The plaintiff stated that she was now unable to continue with the gym as she once did. She says that she is no longer able to involve herself in Zumba classes or step classes at the gymnasium. However, in her evidence, she stated that she was still attending the gymnasium three to five times per week and was able to engage in the activities of riding the bike and other gymnasium activities. The plaintiff still goes for walks.[77] The plaintiff still drives her car, although she maintains that she does so with fear and in pain.[78] The plaintiff also continues to do the shopping, sometimes assisted by her husband.[79]
[77]Transcript 73
[78]Transcript 73
[79]Transcript 74
109 The plaintiff has retained the ability to do a large part of her physical activities despite her injury to her neck. I accept that part of the reason for her ability to continue with as much of her pre-transport accident activities is as a result of the pain reducing medication so that she is able to continue with those activities.
Work
110 The plaintiff stated that she reduced her work hours as a result of the pain. The plaintiff continues to work two of the three part-time days that she was previously working. In part, I accept that she has reduced her hours in order to be more engaged with her family. In that time, that is from 2012 onwards, her two children have been married and had children of their own. This allows her to engage in grandmotherly type activities, and I do not accept that the reduction in the work hours is a very considerable consequence for her.
Psychiatric consequence
111 Mr Richards argued that the authority of Richards v Wylie,[80] applied in this case. He submitted that the psychiatric and psychological sequelae for the plaintiff as a result of the transport accident was appropriately to be added as a consequence suffered by the plaintiff. I do not accept that the plaintiff’s psychological or psychiatric condition has been altered to the extent that would amount to a very considerable consequence for the plaintiff in this case. I have otherwise previously dealt with the psychiatric and psychological issues for the plaintiff in these Reasons.
[80]Supra
Conclusion
112 I conclude that the level of psychiatric or psychological disorder suffered by the plaintiff as a result of the transport accident is not “severe” as required under the Act. The treatment regime for the plaintiff’s psychological complaints as set out in these Reasons do not support the finding for a serious injury. The plaintiff currently has no ongoing psychological or psychiatric treatment. The plaintiff does not take any medication for the amelioration of her symptoms in respect of any psychiatric condition.
113 The plaintiff’s application for serious injury certification for psychiatric and psychological disorder is dismissed.
114 I find that the plaintiff has satisfied the test that the aggravation of symptoms and consequences of pain suffered by her to her cervical spine as a result of the transport accident are “very considerable” and more than “significant or marked”. I find that based on the evidence, the plaintiff has suffered pain on a constant basis of varying intensity to her cervical spine and that the levels of pain require ongoing treatment by way of medication to ameliorate that pain. The pain interferes with the plaintiff’s sleep and that is also a very considerable consequence.
115 Whilst the exaggerated nature of some of the plaintiff’s complaints has made it difficult to accurately assess the level of pain and the consequences of it. I accept the medical opinions relating to the plaintiff’s pain, in particular that of the general practitioner, the prescription of pain medication. I accept the opinions of the orthopaedic surgeons that the plaintiff has suffered a whiplash injury to a degenerative cervical spine. I accept that the plaintiff will continue to experience these symptoms and consequences of neck pain for the foreseeable future.
116 The application for serious injury certification in respect of the physical injury to the plaintiff’s cervical spine as a result of the transport accident is granted.
117 I will hear the parties on costs.
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