Lin v Transport Accident Commission
[2012] VCC 1533
•29 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04830
| VICKY LIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 October 2012 | |
DATE OF JUDGMENT: | 29 October 2012 | |
CASE MAY BE CITED AS: | Lin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1533 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – impairment to the lower back, chronic pain syndrome
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
JUDGMENT – Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan QC with Mr R Stanley | Henry Carus & Associates |
| For the Defendant | Mr P Jewell SC with Mr S Jurica | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by Originating Motion by which 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 a transport accident which occurred on 19 January 2009 (“the said date”).
2 Section 93(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” ultimately relied upon by the plaintiff is under
s93(17)(c) – “a severe long term mental or severe long term behavioural disturbance or disorder.
4 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 129, at 140-1.
5 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
6 Winneke P, in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
7 I accept that a chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
8 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied upon medical reports and other tendered material, which I have considered.
The Plaintiff’s Evidence
9 The plaintiff is aged fifty four having been born in October 1958 in China.
10 After completing Year 10 and working as a sewing machinist for about ten years, the plaintiff migrated to Australia as an English student in September 1998.
11 Initially, the plaintiff studied English for about a year or two. She worked part time as a sewing machinist before marrying in about 1992. She ceased work at that time for the birth of her first child and remained at home for two or three years.
12 The plaintiff was then employed as a sewing machinist and later in a leather factory until about 2000. She divorced in 1999. She then worked as a machinist in the factory for a further two years. She later moved to Hampton Park and ceased work.
13 As at the said date, the plaintiff was on holidays. She was a self employed domestic cleaner, a role which enabled her to work while caring for her son.
14 When the plaintiff ran her own cleaning business, she wrote out invoices and did limited paperwork. She put fliers in letterboxes to get work. When she last worked, she was paid about twenty dollars per hour.
15 In cross examination, the plaintiff described her hobbies before the said date as bicycle riding, jogging, driving, table tennis and “many more.” She was not aware she had not mentioned these activities in her affidavit.
16 In cross examination, the plaintiff was taken through notes of Southern Cross Clinic (“the Clinic”) detailing her state of health before the said date.
17 The plaintiff could not recall complaining In March 2003 of back pain with prolonged standing. She could remember on 22 September 2004 that she slipped on the floor at home and had back pain, pain in her coccyx and also and also mid lower cervical pain. She could not remember being prescribed Voltaren at that time.
18 The plaintiff agreed she attended the Clinic in the middle of 2004 because she was depressed about issues relating to her son.
19 The plaintiff agreed that on 13 September 2005 she complained of coming and going low back pain as well as mid back pain for the last few months. She also reported pain of a similar nature down both legs with occasional pins and needles. She could not remember being sent for a CT scan.
20 The plaintiff could recall reporting to the Clinic having low back pain after vacuuming on 17 May 2007 and being prescribed medication but she could not remember if it was Panadeine Forte.
21 The plaintiff agreed on 2 May 2007 she attended the Clinic complaining of longstanding coming and going palpitations.
22 Further, the plaintiff agreed that prior to the said date she had stomach problems in relation to which she had undergone an endoscopy and colonoscopy.
The Accident
23 On the said date, the plaintiff’s vehicle was hit from behind by another vehicle (“the accident”).
24 Following the accident, the plaintiff felt pain in her neck and lower back. She drove herself to her local doctor, Dr Wang, who advised her that she had whiplash injuries and prescribed anti inflammatory medication.
25 After about a week, the plaintiff was no better and still had a lot of neck pain radiating to her left shoulder, pain in her left buttock, left thigh, lower leg and her left foot. She found it difficult to go back to her normal duties and was not able to work.
26 The plaintiff returned to Dr Wang, who arranged a CT scan of her cervical and thoracic spines which the plaintiff was advised did not show any significant pathology. She was prescribed anti inflammatory medication. However, she had to cease taking that medication as it gave her severe stomach upset.
27 Due to ongoing pain in her neck and back, the plaintiff was referred by Dr Wang to Mr Khan, orthopaedic surgeon, whom she first saw in April 2009. He arranged for her to have an MRI scan which he advised her showed multi level disc desiccation in the lumbar spine particularly at the L2-3 and L3-4 levels. He did not consider surgery was warranted and advised the plaintiff to undergo rehabilitation and referred her to Dr Thomas at the Victorian Rehabilitation Centre (“VRC”).
28 In cross-examination, the plaintiff agreed initially she did not complain of arm pain when she saw Mr Khan in April 2009, but by September that year when she saw Dr Thomas she had problems with her arms, hands and left leg.
29 The plaintiff then told Dr Thomas she had a lot of pain in her neck and lower back as well as her upper thoracic spine. She also had symptoms in her upper limbs and left leg and numbness in her hands, particularly her two little fingers. This was made worse because she was unable to take medication because of the side effects.
30 Dr Thomas considered the plaintiff should be assessed for a pain management program and she was referred to the VRC. However the plaintiff did not find that program eased her pain.
31 In cross examination, the plaintiff agreed the VRC program helped her. After completing the program, the plaintiff was able to do more housework, hang out the washing and change the linen. She increased her social activities. Her confidence also improved and her mood was better. She undertook some woodwork sessions which she enjoyed and was exploring the idea of going back to work.
32 There was however no funding to continue the program. Initially, when the plaintiff finished the program, she was a lot better than when she started it. But since then she has got worse.
33 Due to her ongoing pain and symptoms, the plaintiff was referred to a neurologist, Dr Punchiewa, whom she saw in June 2011. He organised for some scans. Thereafter, he advised the plaintiff there were no significant changes on the MRI scan to warrant surgery. He strongly recommended the plaintiff take Cymbalta for treatment of depression.
34 The plaintiff deposed in February 2012 that she continued to experience a lot of pain in her neck and back, radiating to her left shoulder, left buttock, left thigh, lower leg and left foot. She suffered from headaches which could be very debilitating and they seemed to come from her neck. She also had altered sensation in both hands, mainly the left.
35 The plaintiff was very distressed by the accident and she often felt teary, vulnerable and hopeless. She was then having psychological counselling with Ms Wong and taking anti depressant medication.
36 The plaintiff did some light domestic chores around the house slowly, although they aggravated her pain. She was not able to do gardening or weeding and her son assisted her.
37 The plaintiff’s tolerance for walking and sitting had been reduced, which limited her ability to do shopping which she enjoyed and still preferred to do to get out of the house.
38 The plaintiff found it difficult to lift her arms above shoulder height without experiencing pain. She had a reduced range of movement in her neck and back and experienced pain if she exerted herself while she was lifting heavy weights.
39 The plaintiff was then constantly teary and upset and constantly thought about the accident and its effects on her life and her ability to work. She was concerned at that stage about her ability to work in the future and was concerned for her welfare and that of her son. Further, she was losing a considerable income as a result of her injuries.
40 In her September 2012 affidavit, the plaintiff confirmed the circumstances of her earlier affidavit. She described the accident as having left her with both upper and lower body pain.
41 In the upper body, the plaintiff continues to experience a lot of pain in her neck and back radiating to her left shoulder, left arm and hands. In the lower back, she has pain in her left buttock, leg and foot. The pain in her lower back is intermittent, although she experiences a sense of weakness in the left side of her body which is very troubling. She also suffers numbness and pins and needles in the whole of her back.
42 Travelling by car or public transport is regularly a problem and the plaintiff very often has to travel with her hand between the chair and her back because the jolting hurts her body.
43 The plaintiff continues to live with her son who is at university and busy with his studies and unfortunately does not help much with the housework, save to put out the rubbish. Otherwise getting him to do things leads to a lot of arguments.
44 Even carrying the laundry to the washing line and hanging it out is difficult for the plaintiff, and she has to do it herself if her son is not home. It is a particularly difficult task, hanging out towels and sheets, because of the problem lifting her left arm above shoulder height.
45 It is very difficult to clean the toilet or bathroom, thus the plaintiff only does this cleaning monthly, which is very disappointing for her because she is very houseproud but her injuries have made it difficult to do heavier tasks. Similarly, because vacuuming is difficult, she only does it about once every two to three months.
46 As the plaintiff does not have a dishwasher, she has to wash the dishes herself, which she tries to do once a day, but sometimes she leaves the dishes in the sink for two days because it is painful to stand for lengthy periods on the hard kitchen floor. This situation has forced her to buy padding for the floor to make it easier for her to stand at the sink, but even that does not really help her pain.
47 The plaintiff has to wear special sports shoes which have better support as she can no longer wear her heels.
48 Generally the plaintiff has no problems with personal care but finds it difficult to brush her hair because doing so can cause neck pain.
49 After the plaintiff was injured, she freely relied on friends to help with food preparation, shopping and attending appointments. However, over time she started to feel more embarrassed about relying on her friends, so she started to do the tasks herself even though they are difficult for her to complete.
50 When the plaintiff goes to the supermarket she has to ask the staff to pack less groceries into bags so it is easier for her to lift them out of the trolley into the car. It takes her a long time to finish the shopping because she has to move slowly because of her injuries. Wheeling the trolley from the supermarket to the car is also slow and difficult, particularly if she has to go up slopes or over uneven ground.
51 Generally the plaintiff has to walk slowly because of her injuries and she cannot move quickly to catch the train or bus. Once, she was not able to move fast enough to stop a trolley from hitting her car in the car park, even though she was only a few metres away.
52 Because of her injuries, the plaintiff has had to stop sleeping on a mattress because she cannot tolerate sleeping on anything that is not completely flat. She now sleeps on a dining room table, which she bought especially to sleep on, which she covers with layers of blankets. That situation upsets her because her bedroom looks ugly and she feels jealous when she sees the bedrooms of her friends.
53 In cross examination, the plaintiff explained that on a trip to China she slept on a hard wooden mattress.
54 In that trip, the plaintiff had acupuncture treatment paid for by her family. She also took herbal medicine The plaintiff disagreed that the reason she went to China was to see her elderly mother. Whilst she missed her mother, the plaintiff went to China to have treatment.
55 The plaintiff currently takes Celebrex as a painkiller. She also takes Endep and some medication for her stomach problem
56 The plaintiff had acupuncture treatment in Oakleigh three times in September 2011 and once in October. This year, she had three visits in August. She has attended on other occasions but does not have further receipts.
57 Because of her injuries, the plaintiff cannot carry a leather handbag as it would be too heavy on her back. Instead she has to use a light thin linen bag and fills it only with lighter items. The plaintiff cannot even tolerate putting a wallet in her bag because it is too heavy to carry. She cannot use any of the bags her friends have given her in the past.
58 In cross examination the plaintiff agreed that she is able to do shopping locally and she re-arranges the bags so they are not too heavy. She confirmed her inability to carry a handbag and a leather wallet because of constant chronic pain.
59 The plaintiff can manage simple conversations but does not completely understand everything in English one hundred per cent. IN early 2012 she arranged to study English through Centelink. The course at Narre Warren Community Learning Centre commenced in May 2012. The plaintiff currently attends on Monday, Wednesday and Friday for three hours, for two days, and then four and a half hours on the third day.
60 The plaintiff really enjoys the course but unfortunately she is often unable to finish some lessons because of pain. Very often, she has to stand during the lesson which is a bit embarrassing. In cross examination, the plaintiff described an incident in class where because she was feeling unwell, a fellow student volunteered to take her home. When that student lightly touched the plaintiff on her left arm, the plaintiff became visibly upset and her pain was very bad.
61 The plaintiff agreed that even touch of her skin will trigger sharp pain.
62 Immediately after the accident, the plaintiff tried to return to cleaning work about half a dozen times but could not continue because of pain. The last time she tried was about two months after the accident but she had to stop in the middle of cleaning someone’s house, which was very awkward and embarrassing. It upset the plaintiff that she was unable to work as she was self employed and enjoyed her work.
63 In cross examination, the plaintiff agreed she had spoken to someone at VRC about going back to work. She was willing to return but her health was not quite up to it. She could not lift heavy items as she had back pain.
64 The plaintiff had looked for work in a curtain factory but the work was very heavy. She agreed she would be able to work as a sewing machinist again and would try to do so, but her back pain, physical pain or neck pain may stop her. Because of her neck and back pain and pins and needles, she would be unable to sit for the prolonged periods that would be required if working as a machinist.
65 Since the accident, the quality of the plaintiff’s sleep is erratic. Once or twice a week she wakes up in the middle of the night and she has a lot of difficulty going back to sleep because she is so anxious and traumatised about the accident, particularly the day after she has been driving.
66 The plaintiff has to watch television lying down and cannot sit for long periods. When she sits on a chair at home, she has to sit on a special cushion or pads to support her back. Because of her low sitting tolerance, it is difficult for the plaintiff to socialise with friends as she has to regularly alternate between sitting and standing.
67 In cross examination, the plaintiff agreed she told Dr Weissman that sitting was unbearable and caused her a pinching sensation. She was better off standing. She did not really pay attention to her sitting tolerance.
68 Further, the plaintiff agreed that she can sit down sometimes to watch television but does not know for what fixed time She drives an automatic car up to twenty kilometres if she needs to.
69 The plaintiff had to walk around in the plane on the way to China as she was not able to sit.
70 The plaintiff feels very distressed by the accident and is often teary and feels vulnerable and hopeless. She stopped seeing Ms Wong for counselling in April 2012 because the sessions were making her feel worse. She feels upset all the time and very ashamed about her injury.
71 In cross examination, the plaintiff confirmed she stopped seeing Ms Wong because counselling was not helping much. She did not believe that she told Ms Wong during sessions that she was worse than she really was.
72 The plaintiff also denied she was exaggerating when she told Dr Weissman that she could not move and that she had no hobbies.
73 In cross examination, the plaintiff advised that she completed her TAC claim form with the assistance of two friends.
74 When she answered “no” to previous back problems, the plaintiff was not absolutely sure what the question meant. She agreed that before the accident sometimes she had low back troubles but her back pain is much worse now. She also agreed she had asthma before the accident, even though that question was also answered “no” on the claim form.
75 The plaintiff continues to have a lower tolerance for walking and sitting for lengthy periods and because of that she is generally housebound. She is particularly upset that she cannot engage socially as much any more with friends because of her reduced tolerance for sitting and walking. Just before the accident, she went climbing in the Grampians with friends, an activity of which she was very proud. Now this is a thing of the past and that situation makes her very sad.
76 In re-examination, the plaintiff confirmed she had been climbing in the Grampians and that she enjoyed walking before the accident. Further, she confirmed she cannot engage socially as much. She is very sensitive and embarrassed that other people have to help her and look after her because of her pain.
77 The plaintiff’s injuries have had a very significant impact on her life.
Plaintiff’s Earnings from Vicki Lin Cleaning 2005 $1,490 2006 $2,561 2007 $2,657 2008 $7,057 2009
* Last invoice 19 March 2009
*$7,794
Treating Doctors
78 On 22 January 2003, Dr Reeves wrote to Dr Won, asking him to see the plaintiff about a lump in the right side of her neck. A cervical lymph node biopsy was carried out at Dandenong Hospital on 6 February 2003.
79 A number of reports were provided by doctors at First Health Medical Clinic in Hampton Park (“First Health”).
80 In his initial report in May 2009, Dr Wang noted the plaintiff’s case was complicated and he was unable to supply a report with a clear diagnosis at that stage.
81 By November 2010, Dr Wang thought the plaintiff presented with clear anxiety, depression signs, was emotional and tearful and worried about her body function. She had multiple tender spots on her back. He noted no obvious signs were identified on investigations.
82 Dr Wang thought the plaintiff had neck and back pain secondary to whiplash, widespread pain post motor car accident and Post Traumatic Stress Disorder (“PTSD”) due to slow recovery and prolonged pain condition. He believed there was genuine pain when examining the plaintiff’s range of back and neck movement.
83 Dr Wang last reported in August 2012. He noted that the plaintiff had been under his care since 14 March 2008 and following the accident, she mainly presented with neck whiplash injury and neck pain with no radiculopathy.
84 Dr Wang noted that, whilst the plaintiff had been reviewed by specialists since, there was no clear reason that could be identified for her pain. The pain gradually extended to almost all of her back, with only limited response to pain management and physiotherapy.
85 Dr Wang reported the plaintiff was a very active person working very hard as a single mother and such disabling pain limited her activity and made her very stressed and depressed as it became prolonged. That situation had also affected her treatment outcome.
86 Dr Wang advised pain management had been tried generally and also medication for neuropathic pain such as Lyrica, but the result had not been sound. Hydrotherapy and physiotherapy had been arranged but again, she had not responded well.
87 Dr Wang noted the plaintiff had had several sessions of psycho counselling arranged but the result was the same.
88 As time was going on, Dr Wang advised the plaintiff’s situation was not improving and she needed further work on her treatment plan including pain management, psycho counselling and social support.
89 Dr Wang thought the plaintiff was unlikely to return to pre injury status, noting her back pain involved almost the whole of the back and she was unable to sit or stand for long and that really affected her daily activities.
90 Dr Wang thought it hard to predict any positive outcome in the near future and he noted it was difficult for him to comment accurately and the plaintiff needed thorough assessment.
91 Mr Khan, orthopaedic surgeon, first saw the plaintiff on referral from Dr Wang on 1 April 2009. The plaintiff then told him of developing pain in the mid thoracic spine following the accident.
92 On examination, the plaintiff had an ache in her neck which was mild. She had mid lumbar pain going up along the thoracic spine in the mid line. She had no referred pain.
93 Movements of the cervical spine were reasonably good and lumbar spine movements revealed some restrictions. Straight leg raising test was negative on both sides.
94 Mr Khan noted a report on the 2009 CT scan of the cervical spine showed no bony injury and mild spondylosis at C5-6. Mr Khan thought the plaintiff may require some pain management and rehabilitation and thought there was no indication for surgery.
95 Mr Khan wrote to Dr Wang on 30 April 2009. Mr Khan advised he had told the plaintiff to approach the defendant and get a certificate so that she could have the appropriate treatment and he could institute further investigations.
96 Mr Khan advised the defendant on 24 June 2009 that the plaintiff had a flare up of multilevel degenerative changes in the lower cervical and upper lumbar spine and required pain block injections.
97 In July 2009, Mr Khan advised Dr Wang the plaintiff still had pain in the thoracolumbar spine maximal at the lower thoracic region. She had minor scoliosis with kyphosis in that part of the spine and movements were associated with pain. There were no neurological signs. He had referred the plaintiff to the VRC for intensive physical treatment.
98 Mr Khan reported to the defendant at length in August 2009.
99 In addition to initial symptoms, Mr Khan advised there was global restriction of movement of the plaintiff’s lumbar spine. Noting the investigation results, he advised the plaintiff required treatment at the VRC, with consideration of facet joint blocks to the lumbar and mid thoracic spine.
100 Dr Thomas at the VRC saw the plaintiff on 8 September 2009.
101 The plaintiff then reported fairly diffuse and widespread pain. She complained of neck pain, interscapular pain and low back pain, indicating more of the mid upper lumbar than the lower lumbar area. She complained of symptoms in both upper limbs and the left leg and also numbness in the hands, particularly the two little fingers.
102 On examination, the plaintiff had good general mobility. She had diffuse and widespread tenderness in a very non organic pattern and was really quite tender to every area palpated from her mid lumbar spine upwards. Movements of her neck and lower back were minimally reduced. There were no neurological abnormalities and straight leg raising was unremarkable.
103 Dr Thomas viewed the MRI scan of the cervical spine and lumbar spine taken in May 2009.
104 After the initial examination, Dr Thomas concluded the plaintiff was suffering from a non specific pain syndrome and he was not able to determine what, if any, organic problems were present. He noted nonetheless she did present with complaints of severe pain and associated disability and she warranted an assessment for a pain management program. With discussion, she accepted referral to the VRC. Dr Thomas advised that if the plaintiff underwent a problem, he would review her at the completion of the program.
105 Dr Thomas was not convinced that medication was likely to have a positive benefit or that interventional procedures were likely to be useful in view of the diffuseness of the plaintiff’s complaints and the non organic aspects to her presentation.
106 Dr Thomas reported that a team meeting took place at VRC on 19 January 2010 at which time it was felt that the plaintiff presented with significant problems with pain complaints and although gains were likely to be modest, in view of her situation, the program was felt to be reasonable.
107 A Rehabilitation Assessment Report was carried out by the VRC on 8 January 2010, following which it was recommended the plaintiff participate in a twelve week multi disciplinary individual program.
108 In that assessment it was noted the plaintiff reported constant cervical, thoracic and lumbar spine pain radiating into her head, abdominal region and left lower limb. She also reported paraesthesia in all limbs. It was noted the plaintiff displayed pain behaviours throughout the assessment.
109 When assessed by the psychologist, the plaintiff launched into a monologue about the impact of her pain such that required redirection by the psychologist. The plaintiff did not answer questions and it was difficult to obtain a clear and precise indication of the frequency, duration or severity of her symptoms.
110 A Discharge Report was completed in August 2010. It was noted in the report that the plaintiff had made some improvement both physically and mentally, following the completion of the program. With an increase in her ability to underrate housework and social activities.
111 Post discharge it was suggested that the plaintiff could benefit from community based psychology to continue to discuss her emotional concerns,
112 Simon Pertot vocational consultant and psychologist from Ors Group wrote to Dr Wang on 22 November 2011 following an assessment of the plaintiff on behalf of the defendant.
113 Mr Pertot advised it became evidence the plaintiff may be experiencing some depression and related issues as well as difficulties with pain management. In discussion with the plaintiff, she suggested she would like a possible referral to a psychologist.
114 Dr Punchiewa, consultant neurologist, saw the plaintiff on referral from Dr Wang in mid 2011. There was no interpreter present on the initial examination.
115 On examination, the plaintiff had mild paresthesia affecting the medial two digits of the left hand and mild hyperreflexia throughout. There was mild non specific give way type weakness in the upper and left lower limbs. With encouragement, the plaintiff did not appear to have significant motor deficits. She was reluctant to walk on her heels or toes but appeared to have no deficits when she attempted this movement.
116 Dr Punchiewa thought the plaintiff had a possible whiplash injury and had ongoing pain and paresthesia mostly affecting the left and upper and lower limbs. Radiculopathies and plexopathies were potential differential diagnoses but he thought most of her symptoms were predominantly related to the musculoskeletal aetiology. He thought post traumatic stress may also be a contributing factor.
117 Dr Punchiewa organised an MRI scan of the plaintiff’s brain and spine and nerve conduction EMG of the upper and lower limbs at the left and a blood screen to exclude significant structural lesions as well as the causes for a neuropathic process.
118 The next examination was in September 2011 with the assistance of an interpreter.
119 The plaintiff advised, since the last review, there had been no significant change. Further, the examination was unchanged with the plaintiff having non specific sensory motor symptoms on the left and weakness generally of a give way type and sensory findings were inconsistent.
120 Dr Punchiewa noted the results of the MRI scan of the brain and spine, nerve conductions and blood tests and concluded the plaintiff had non specific sensory motor symptoms and the degenerative mild non specific changes shown on MRI scan of the cervical spine, may only be mildly contributing to her symptoms. He thought musculoskeletal aetiology or post traumatic stress might be the major contributing factor. He thought there were no significant signs on MRI to suggest surgery.
121 Dr Punchiewa strongly recommended Cymbalta for treatment of depression, which he thought may also be an effective neuropathic analgesic. He thought it may be effective in controlling all the plaintiff’s symptoms and replace a number of the medications she was currently taking. He advised there were no further extensive investigations required and he had not ordered a follow up.
122 A mental health psychology treatment plan was provided by Ms Wong, psychologist, in August 2011.
123 Ms Wong diagnosed an adjustment disorder with mixed anxiety and depression and chronic pain. She considered the plaintiff would benefit from treatment, twelve hours individual mental health and six hours in a group scenario.
124 Ms Wong reported in September 2012, after the plaintiff had attended fifteen sessions of counselling ceasing in April 2012.
125 Ms Wong reported that upon assessment, the plaintiff presented as easily distressed, vulnerable and feeling hopeless and she manifested helpless behaviours during initial sessions. She described severe discomfort from her spine down her lower back.
126 Observation noted that the plaintiff was very enmeshed and preoccupied with her pain and complained that she became depressed when thinking about her inability to do things. She constantly looked in the mirror, fearing that other cars would hit her from the back. Ms Wong noted the plaintiff appeared to be emotionally reactive when talking about the accident.
127 Ms Wong advised that the plaintiff appeared to have problems trusting the process of counselling and that there were problems encountered in building up rapport.
128 At the end of treatment, Ms Wong thought the plaintiff did not have a current capacity to work as her depression and behaviour showed poor coping style. Whilst the plaintiff said that psychological treatment was appropriate, observation noted the plaintiff’s motivation to continue counselling was not consistent. There was a tendency for the plaintiff to rationalise her behaviours when she was generally confronted about her attitude to counselling. That observation and evaluative feedback was not necessarily negative, as there were sessions that indicated the plaintiff had been making significant efforts.
129 Ms Wong thought the plaintiff’s behaviour manifestations did indicate the accident had caused problems, depression, anxiety and confidence in her life. As the plaintiff’s psychological condition had not stabilised, Ms Wong recommended her prognosis be reviewed in the future, suggesting a number of treatment options but noted the plaintiff may be at risk of non compliance and it was important to address issues of commitment to counselling and therapy.
Medico Legal
130 Mr Kenneth Myers examined the plaintiff in January 2011 and re-examined her on 12 June 2012.
131 On re-examination, the plaintiff said there had been not much change. She had pain down the whole of the left side of her body from ear to leg, with the worst problem being constant low back pain. She also had stiffness and pain in her left shoulder and constant numbness in all fingers of the left hand and numbness of the left leg.
132 There were minimal restrictions of either shoulder, and what restrictions there were appeared to be due to neck pain. There appeared to be approximately twenty five per cent restriction in the range of movement of the low back and fifty per cent restriction in the range of movement of the neck. There was unrestricted straight leg raising and equal and active reflexes in the lower limbs. Limited examination revealed no apparent neurological abnormality in relation to the upper extremities.
133 Mr Myers confirmed he thought the plaintiff suffered aggravation of pre-existing degenerative intervertebral disc disease in the cervical lumbar spine. He believed she had no capacity for work at that time, nor that there was any capacity for long term employment. He thought there would be a gradual deterioration in the condition of her neck and low back and that ongoing medical treatment would be conservative with physiotherapy and analgesics as required.
134 Mr Myers concluded the plaintiff’s condition had stabilised and was unlikely to improve significantly even with ongoing conservative treatment.
135 Dr Chris Grant, psychiatrist, examined the plaintiff in November 2011.
136 The plaintiff told him that before the accident, she was in good health and working and self employed. She told Dr Grant that she remained in pain of fluctuating intensity in the neck and down her back and sometimes felt as though her head was swelling because of pain. She worried something was seriously wrong with her even though the doctors had reassured her there was no serious injury.
137 The plaintiff reported feeling very low and unhappy because of her ongoing pain and restricted activities.
138 The plaintiff gave no account of any previous psychiatric conditions. She gave an animated history with some angry tears but a fair range of affect. There was no psycho motor slowing or agitation or abnormal involuntary movements. Thought tempo, form and possession were normal and content was vague when asked about the details of her pain symptoms. There was a notable lack of engagement in any active rehabilitation or self management. Thought content was focussed almost exclusively on her pain experience. Intellect and cognition were intact.
139 Dr Grant thought the plaintiff appeared to have a chronic pain disorder and there was a secondary adjustment disorder with mixed emotional features. He noted that the current treatment with antidepressant/pain modulator Amitriptyline 50 milligrams was a modest dose and could be easily increased. He noted that whilst the plaintiff had appropriate pain management intervention that did not seem to have improved her functional state.
140 Otherwise, Dr Grant considered a brief psychological intervention of eight to ten sessions over six months with a specific focus on increasing her activity and self initiated rehabilitation would be appropriate combined with a higher dose of the medication. However, overall he was pessimistic about the chances that future treatment would make a dramatic impact on the plaintiff’s functional outcome. He noted she was socially isolated and that was probably contributing to some of her ongoing emotional distress. He thought encouragement to participate in social or community activity would be appropriate, particularly if it involved activity or mild exercise. He thought the plaintiff appeared to have no current work capacity.
141 Dr David Weissman, psychiatrist, initially examined the plaintiff in April 2011 and re-examined her in July 2012.
142 On re examination, Dr Weissman concluded overall the plaintiff was suffering from moderately severe mixed accident related psychiatric, psychological, emotional and behavioural symptoms, signs, features and disturbance. He thought there had been a moderately severe decline and deterioration in the quality of life, loss of enjoyment and loss of pleasure.
143 Dr Weissman thought the plaintiff should continue to see her general practitioner, Dr Wang, for supportive therapy. He noted the plaintiff did not benefit from seeing the psychologist and he did not think she would benefit from seeing Ms Wong again or any other psychologist, but noted that said nothing about the nature, severity and extent of the plaintiff’s accident related psychological and emotional symptoms.
144 Dr Weissman noted the plaintiff seemed to benefit from taking Endep at night. If tolerated, that dose should be increased to at least one hundred milligrams and even one hundred and fifty milligrams if possible. Otherwise he thought the plaintiff may benefit from switching to something like Mirtazapine at night to help her depression and sleep disturbance.
145 Dr Weissman also thought the plaintiff may benefit from re-referral to a pain management rehabilitation program to see if anything else could be done. Having said that, it seemed to him the plaintiff was now a very poor candidate for rehabilitation and was unlikely to improve from now on.
146 Dr Weissman repeated his earlier comment that on the basis of her psychological, psychiatric, emotional and behavioural symptoms, her reported subjective cognitive dysfunction, her marked irritability and stress, her feelings of uselessness and her reduced socialisation, as well as her apparent (significant) pain focus and preoccupation, her advancing age, her time out of the workforce since the accident, her limited transferrable skills outside sewing and cleaning, and the language barrier, it would seem to him that the plaintiff was totality incapacitated to perform pre injury duties, suitable duties or alternate duties for the foreseeable future.
147 Dr Weissman confirmed his earlier view that in the scheme of things, relatively speaking, the accident did not seem to have been that severe. It seemed the plaintiff had sustained and developed mild primary or direct post traumatic stress and anxiety symptoms and features of traumatisation directly due to the accident circumstances. In his view, the plaintiff’s symptoms and features did not quite satisfy the diagnostic criteria for full blown PTSD.
148 Dr Weissman thought the plaintiff was also suffering from moderate mixed reactive depressive and anxiety symptoms, signs and features with significant pain focus, pain preoccupation and elevated health concerns as a consequence of or secondary to her accident related pain, injuries and disabilities.
149 It seemed to Dr Weissman the plaintiff had also sustained and developed a chronic adjustment disorder with depressed and anxious mood of moderate intensity or severity, as well as a chronic pain disorder associated with psychological factors and her general medical condition.
150 Having been provided with notes of the plaintiff’s pre-accident psychiatric condition extracted from Dr Won’s clinical file which contained a history of attendances for family related stress in 2003 and 2004, Dr Weissman reiterated his diagnosis of mild post traumatic stress and anxiety symptoms and traumatisation features, chronic adjustment disorder with depressed and anxious mood of moderate intensity or severity and a chronic pain disorder associated with psychological factors and her general medical condition.
151 He thought overall it seemed the plaintiff’s prognosis was uncertain and guarded and likely to be poor, unfavourable, negative and bleak.
152 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in July 2012.
153 The plaintiff complained to him of symptoms in the neck, low back and reflux. He also noted she had problems with anxiety and depression, which required separate assessment, and development of chronic pain syndrome.
154 Examination of the cervical spine revealed an anterior scar on the right side of the neck. There was diffuse tenderness but no muscle spasm. Extension, flexion, rotation to the left and lateral right and left rotation were to thirty degrees and right rotation to forty degrees.
155 Examination of the lumbosacral spine revealed no scars and no deformity. There was no diffuse tenderness or hypersensitivity. Extension was to ten degrees, flexion right rotation and right lateral flexion to fifteen degrees and left lateral rotation to twenty degrees. Straight leg raising caused low back pain on both sides at fifty degrees. There was no neurological deficit.
156 Mr Miller thought the plaintiff had suffered a musculoligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine, most marked at C5-6 and C6-7, and he thought it possible she had a disc prolapse at C6-7.
157 Mr Miller noted the plaintiff had ongoing symptoms and a poor response to conservative treatment and he thought it unlikely she would be assisted by surgery and believed the prognosis for that was only poor.
158 Mr Miller considered the plaintiff suffered a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease of that area. He noted she had current symptoms of reflux. Further, she had suffered an adverse mental state reaction and it was likely she had developed a chronic pain syndrome which complicated the assessment and management of her condition which, in his view, would require separate assessment.
159 Mr Miller thought the plaintiff would require ongoing conservative treatment with an emphasis on pain management. He considered capacity for work was a difficult issue as the plaintiff reported severe ongoing symptoms. She would have difficulty resuming pre injury duties. He thought it likely she would have long term restriction including no repetitive bending, lifting of more weights than five kilograms and a requirement to shift her posture regularly. Given an understanding of her work experience and limited language skills a return to work in his view seemed problematic.
160 Mr Miller thought the plaintiff’s injuries had stabilised. He considered that she would have difficulty with pre-injury work and difficulty with physical work and she would only be suitable for sedentary light work. If the plaintiff were to return to pre-injury duties, he estimated she could work a maximum of an hour a day.
161 Mr Miller thought the plaintiff had suffered an adverse mental reaction and it was likely that she has developed features of chronic pain syndrome which complicated the assessment and management of her condition. To the extent he was able, Mr Miller based his report on the organic component of the disease and acknowledged the difficulties making that distinction. He estimated half her symptoms were due to psychological overlay and half due to organic disease, acknowledging the difficulties making that assessment.
Investigations
162 Dr Won organised an ultrasound of the plaintiff’s neck on 12 November 2002.
163 It was reported scans confirmed the presence of a hypo echoic mass in the upper right neck lying between the submandibular and parotid gland. It was noted whilst this might represent an enlarged lymph node, the appearance was not entirely specific.
164 Dr Won organised an x‑ray of the cervical, thoracic, lumbosacral spine and coccyx on 23 September 2004.
165 It was reported cervical alignment appeared normal. There were degenerative changes with narrowing of the C5-6 disc space with adjacent osteophytes. The other cervical vertebrae and disc spaces and introverted foramina appeared normal.
166 The thoracic and lumbar alignment appeared normal. There were degenerative changes with osteophytes at the T9-10 and L3-4 levels. The other thoracic lumbar vertebrae and disc spaces appeared normal. The sacroccocygeal region and both hips and sacroiliac joints also appeared normal.
167 Dr Won organised a CT scan of the plaintiff’s lumbosacral spine on 14 September 2005. It was reported canal dimensions appeared adequate. Generalised disc bulges did appear present at both L3-4 and L4-5 levels. Intervertebral joints appeared to be clear of any marked arthropathy.
168 There was an investigation of the bone density of both hands organised by Dr Wang on 15 December 2008.
169 Dr Wang organised a CT scan of the plaintiff’s cervical spine on 28 January 2009.
170 It was reported there was no evidence of any significant post traumatic injury in the cervical spine. The only feature of note was the evidence of degenerative cervical spondylosis at C5-6 level, which almost certainly predated the recent trauma.
171 A CT scan was organised of the plaintiff’s lumbar spine on 29 January 2009. It was reported narrowing of disc spaces was seen at the upper levels from T12 to L1, to L3 to L4 inclusive. At T12 to L1 and L1 to L2, there was no significant posterior disc bulge or protrusion and no canal or foraminal stenosis.
172 At L3-4, L4-5 and L5-S1, there was minor diffuse posterior disc bulging but no canal or foraminal stenosis. There was no evidence of compromise of theca descending and exiting nerve roots respectively. Facet joints maintained throughout. There was no fracture or other bone abnormality identified in the bone windows and shallow levo scoliosis was noted.
173 Dr Wang organised a CT scan of the thoracic spine on 4 February 2009. It was reported the scan was essentially normal with no evidence to suggest recent traumatic injury involving the bony structures. There was also a normal arch of the aortic arch and descending thoracic aorta.
174 Mr Khan organised x‑rays of the lumbar and cervical spine on 1 April 2009. It was reported there was moderate degenerative change involving the L3-4 disc with anterior and lateral osteophyte formation. The lumbar spine was normally aligned. The height of the vertebral body was well preserved and no pars defect was demonstrated.
175 There were moderate degenerative changes involving the C5-6 disc and to a lesser extent the C6-7 disc. Alignment was normal. The bony neural exit foramina remained capacious at all levels.
176 Mr Khan organised an MRI scan of the plaintiff’s spine at multi levels on 22 May 2009. It was reported generally that vertebral alignment was preserved and no fractures were identified. Other than degenerative end plate marrow changes at C5-6, marrow signal was normal throughout.
177 There was a minor scoliosis of the lumbar region concave to the right centred at L3. Alignment was otherwise preserved. There were no fractures or pars defects identified. Marrow signal was normal. The distal cord and conus demonstrated normal signal and morphology and the conus terminated posterior to the L1 vertebral body.
178 It was concluded there was mild foraminal narrowing at C6-7 on the left secondary to disc osteophyte complex. There was mild lumbar disc disease as described without definite neural compromise.
179 There was a further MRI scan of multi levels undertaken at the request of Dr Punchiewa on 9 August 2011. It was reported thereafter there was no significant change when compared to the study of 22 May 2009.
180 There was an MRI scan of the plaintiff’s head requested by the neurologist the same date, which showed no acute intracranial pathology.
181 Dr Wang organised a CT scan of the cervical spine on 21 June 2012.
182 It was reported there were signs of degeneration at C5-6 level with small bilateral osteophyte formation, slightly more prominent in the left side, resulting in slight narrowing of the left side neural foramen with possible pressure on the left side exiting C6 nerve root.
TAC claim
183 In a letter from the defendant to the plaintiff dated 18 October 2011, the plaintiff was advised that the defendant would pay for twelve hours of individual psychological treatment between 1 October 2011 and 30 March 2012.
The Defendant’s Medical Evidence
184 On initial examination on 3 August 2011, Ms Wong psychologist noted the plaintiff seemed confused about her pain and medical condition and she was having difficulty trusting the process and she was distressed when asked to clarify what counselling meant.
185 Ms Wong noted the plaintiff was emotionally reactive and observed to be poor at listening at the same time, instructing Ms Wong how to go about the process of assessment. At times, the plaintiff was inappropriate and told Ms Wong she had to stand up frequently and passed remarks about her chairs. Observation of the plaintiff’s behaviour indicated she was very over emotional in her expression of her problems. There was a tendency to negative thinking and justifications of behaviour and difficulties experienced.
186 In terms of psychological symptoms there was complaint of depression associated with pain, insomnia and irritability, and concentration difficulty.
187 Ms Wong noted, whilst the plaintiff complained of severe impact of pain from the accident, her description of symptoms was hard to gauge as her behaviour demonstrated dramatic telling and trying to tell Ms Wong she was affected by the accident. Ms Wong noted the plaintiff had not described symptoms clearly, rather than rationalising her behaviours. Ms Wong thought there was no clear PTSD at that stage.
188 The plaintiff complained of severe discomfort from her spine down her lower back area with severe aggravating pain from the left upper part of the shoulder to severe pain, feelings of numbness and she described slightest touch indicated she experienced severe pain such that that caused her severe distress.
189 The plaintiff advised she required a pain specialist. She complained throughout the initial assessment she had not been able to consult a specialist and had asked her general practitioner, and this had not happened.
190 Ms Wong noted a tendency to negative thinking, life stresses caused heightened distress and influenced catastrophising situations and reactions.
191 Ms Wong thought the plaintiff had a fair understanding of her injury and persistent pain. For example, she did not know how to control negative thoughts. She tended to allow exaggerations and catastrophising of pain reactions.
192 On the second session on 26 October 2011, the plaintiff presented preoccupied with her pain. Ms Wong noted the plaintiff tended to get treated to notice she was in pain and she needed encouragement to focus on change.
193 By session three it was noted the plaintiff was not able to trust the counselling process. She asked Ms Wong not to write information and provided information about confidentiality. The plaintiff also explained to Ms Wong she could refer her to another psychologist if she did not think she could match her needs.
194 At session four it was noted the plaintiff presented reluctant to work on her activities schedule and she was very dramatic and negative about recommendations to act on behavioural intervention. It was noted the plaintiff manifested childlike behaviours, indicating that she was dependent and not willing to take responsibility for her own actions.
195 It was noted at session five the plaintiff was melodramatic about her problems. She emphasised TAC followed her and investigated her and she explained she was not lying. Observation of her behaviour, Ms Wong noted, indicated she was putting in a lot of effort to convince her she was suffering. The plaintiff was emphasising she suffered numbness on her left hand and leg and there were observed somatisation behaviours.
196 At the next session on 19 October 2011, the plaintiff complained about her son not helping with housework and became teary. Ms Wong noted during the session she observed the plaintiff was manipulative when she was trying to help her schedule activities to overcome her depression and inactivity. She listened later and worked through the activities schedule and said she would try and commit to the plan.
197 It was noted in the seventh session on 13 March 2012, the plaintiff was slightly positive and talked about her need to be positive and independent.
198 On the tenth session on 17 April 2012, Ms Wong noted the plaintiff was negative about working on an activity schedule given to her in a committed way and was encouraged to adopt a positive approach to counselling, otherwise there was no point in continuing. It was gently explained to the plaintiff about Ms Wong’s observations of behaviours such as the way she coped and adjusted and was maladaptive in her response to her pain and depression as well as daily stresses that triggered her relatively poor and dysfunctional response, that was not helpful to her in the long term. After acknowledging to Ms Wong that she accepted the feedback, the plaintiff then justified her behaviours by saying that she was in severe pain and no one had helped her before.
199 Clinical notes from Southern Cross Medical Centre set out the following entries-
8 November 2002 - lump on the neck;
7 March 2003 – lower back aches, mainly with prolonged standing and resting. No radiation to the legs or pins and needles;
24 April 2003 - felt dizzy and had palpitations. These had mainly resolved by 19 June 2003;
11 August 2003 - verbal fights at home with her mother and also losing her temper with her son - referred for counselling to Cranbourne Community Health;
27, 29 October and 6 November 2003 - stress due to her son’s behaviour and having problems obtaining counselling for some weeks;
5 December 2003 -had not started on antidepressants and was teary;
8 December 2003 - denied thoughts of self harm. Appointment with Dr Lim in relation to son’s behavioural problems;
29 December 2003 and 23 June 2004 - Long consult about problems with her son;
July 2004- coping well with her son;
22 September 2004 -slipped on a floor and had back pain and mild tenderness in the mid lower cervical spine. Voltaren was prescribed and x‑rays of the spine organised;
September 2005 - intermittent low back pain. Brufen prescribed and a CT scan lumbar spine organised;
March 30 2006- stressed with family problems;
17 May 2007 -vacuuming at work, felt pain in the lower lumbar region radiating to the upper back. Prescription written for Panadeine Forte;
200 There were numerous references to the plaintiff’s asthma treatment and respiratory problems throughout these notes.
Medico Legal
201 The defendant arranged for the plaintiff to be examined by Dr Baynes, occupational physician, in December 2009. On this occasion, the interpreter did not attend.
202 The plaintiff told Dr Baynes that she was unable to stand for any length of time, but could not give exact figures. She could only sit for a short time and only walk short distances. The plaintiff told Dr Baynes about having to sleep on the dining room table because her sleep was poor.
203 On the first examination, the plaintiff walked slowly with a slight limp. There were restrictions of cervical movement with a greater level of restriction during the interview part of the examination. There was also restricted thoracolumbar spine movement, limited by pain in the spine and neck. The plaintiff was unable to walk on her toes or heels and unable to squat. Straight leg raising was to twenty degrees on the left and right legs, with the plaintiff having extreme comfort lying down.
204 There was superficial tenderness on palpation to the cervical, thoracic and lumbar spines, as well as the paravertebral muscles, and there was superficial tenderness over the left and right shoulder girdle muscles. The plaintiff was able to sit however, with her legs extended to ninety degrees without apparent discomfort.
205 Dr Baynes thought the plaintiff was suffering from a Chronic Pain Syndrome associated with a soft tissue injury to the neck and back, with pre existing degenerative change affecting the lower cervical disc levels and the lumbar spine. He thought there was no objective evidence of radiculopathy on examination. There was evidence of abnormal illness behaviour and positive Waddell’s signs.
206 Dr Baynes noted, with the extensive abnormal illness behaviour, it was difficult to determine a real capacity for employment. He thought the injury was restricting the plaintiff from returning to work, including the pain associated with her neck and back, and limited postural tolerances. He did not believe she had any capacity for pre injury duties, but he thought she could return to work on reduced hours with modified duties with a five kilogram limit and below height lifting or shoulder lifting level, and not working with constrained postures. He thought she could do forty per cent of her pre-injury duties sitting and standing. He noted the plaintiff had been referred to the VRC and after the completion of that program, would benefit from a graduated return to lighter work.
207 Dr Baynes re-examined the plaintiff in February 2012, when she advised there had been no real improvement since the last interview.
208 The plaintiff advised she had back pain most of the time and reported stiffness in her back and pain in her neck as bad as the back. She had occasional left leg weakness and pain, and bulging in the left shoulder girdles. She said she could stand and sit for five to ten minutes and often sits on one buttock only.
209 On examination, there was a fifty per cent restriction of movement of the cervical spine, with pain in the neck radiating down the spine. There was restricted left shoulder and lumbar spine movement.
210 The plaintiff was unable to walk on her toes or heels and unable to squat. Bilateral straight leg raising was to fifty degrees. Neurological examination was normal. The plaintiff was able to sit on the couch with her legs extended to ninety degrees without apparent discomfort. There was superficial tenderness throughout the spine and paravertebral muscles. Axial compression was strongly positive.
211 Dr Baynes confirmed his earlier diagnosis and that there was no objective evidence of radiculopathy on clinical examination. Further, there was evidence of abnormal illness behaviour with positive Waddell’s signs.
212 Dr Baynes believed the plaintiff sustained a soft tissue injury which was originally associated with the accident, but he believed the physical injury had now ceased and the ongoing symptoms related to psychosocial factors and perceptions of pain.
213 Whilst the plaintiff presented with significant restrictions of activities of daily living, ongoing pain and limited postures, clinical examination did not reveal any objective pathology.
214 From a purely physical point of view, Dr Baynes believed the plaintiff had a capacity for pre injury duties as a cleaner but that was being prevented by her perception. From a psychosocial and pain perception view, he did not think she would be able to return to work, particularly on her presentation to him.
215 Dr Baynes noted the vocational assessment report in November 2010 identified a number of suitable vocations. He thought, from a physical point of view, the plaintiff would be able to undertake those; however, he suspected, from a psychological perspective, she was unfit for work. He thought it difficult to determine what further the defendant could do in terms of rehabilitation.
216 Associate Professor Mendelson, psychiatrist, examined the plaintiff on 12 April 2012.
217 The plaintiff told Professor Mendelson that her usual activities were watching television and maybe doing some cooking or reading. She also watered plants. She said that she did chores, such as cooking, shopping and cleaning, because no one else helped her. The plaintiff advised that all she knew was her back was in pain all the time.
218 The plaintiff was then taking one Endep at night, as well as two Lyrica at night. She told Professor Mendelson she had been tearful, but that had improved with medication.
219 Professor Mendelson was also provided with clinical notes of the plaintiff’s treatment in 2002, 2003 and 2004, when she was prescribed antidepressant medication for problems with her son, and associated depression. Further, the plaintiff had intermittent longstanding palpations noted in May 2007.
220 When Professor Mendelson examined the plaintiff, she did not describe or acknowledge any specific current emotional symptoms or manifestations of mood disturbance. In his opinion, there was no indication she had any diagnosable mental disorder due to the accident; there was no indication of loss of work capacity due to any psychiatric illness or psychiatric impairment.
221 Professor Mendelson thought the plaintiff’s overall prognosis was that of her physical condition. He considered at present she did not have symptoms of a diagnosable mental disorder, such as a clinically significant depressive illness or any specific type of anxiety. He thought there was no contraindication psychiatrically to the plaintiff working, and that she required firm and unequivocal explanation and reassurance to the effect there was no objective evidence of any organic injury due to the accident and she was able to go back to work.
Overview
222 This application was first brought pursuant to clause (a) of the serious injury definition in relation to lumbar spine.
223 Whilst it is accepted the plaintiff initially suffered a soft tissue injury to her spine in the accident, as conceded by her counsel, psychiatric factors have totally overwhelmed her presentation and her present condition is more appropriately dealt with pursuant to clause (c) as a psychiatric impairment.
224 Save for Professor Mendelson who thought the plaintiff did not have a diagnosable psychiatric condition; there is psychiatric and medical support for the diagnosis of a chronic pain syndrome from Dr Thomas, Mr Miller, Dr Baynes and Dr Weissman.
225 I accept that there is a casual link between the initial physical injury and the later psychiatric pain syndrome- see Ashley J in Veljanovska supra.
226 The issue for determination is whether the consequences of that syndrome meet the test of severe.
227 This is not a case where there is a pre existing psychiatric history of great note.
228 Whilst the plaintiff attended her general practitioner for depression and underwent counselling for family related matters prior to the accident and was prescribed anti depressant medication on occasion, I am satisfied that at the time of the accident, she was functioning reasonable well. The issues with her son were reasonably under control and the plaintiff was gradually building up her cleaning business.
Credit
229 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
230 The plaintiff gave her evidence in a dramatic tearful fashion with the assistance of an interpreter. At times, the plaintiff required breaks when she became particularly upset.
231 Although there was no film showing the plaintiff displaying a level of activity inconsistent with her evidence and her counsel described the plaintiff’s presentation in court as being very unwell, she has not consistently presented in this manner to medical examiners.
232 The plaintiff’s affidavits and viva voce evidence were full of quite extraordinary complaints of very widespread pain and diffuse tenderness, an inability to sleep on other than a dining table, an inability to carry a normal handbag or wallet, a severe response to even the lightest of touch and pain described as unbearable when sitting.
233 The plaintiff’s counsel in fact conceded that the picture painted by the plaintiff was extreme and exaggerated but submitted this presentation showed the severity of her psychiatric condition.
234 Counsel for the defendant submitted that such elements of extremism, embellishment and catastrophising were somewhat conscious and not the product of a psychogenic pain disorder.
235 When considering the plaintiff’s evidence, it is also relevant to take into account a number of occasions on which the plaintiff did not disclose her previous history of back pain of which she had clear recall in the witness box. She denied such a history in her TAC claim form and also on examination with Mr Miller and Mr Myers. She also told Professor Mendelson of no psychological problems before the accident despite attendances in 2003 and 2004 on her general practitioner for such issues and the prescription of Zoloft at one stage.
236 Taking into account the plaintiff’s inconsistent presentation to doctors, further detail of which is noted below, the level of embellishment and exaggeration in her evidence and the non disclosure of her previous history to doctors, I have difficulty accepting the plaintiff’s evidence as to her level of psychiatrically based disability.
Consequences
237 The onus is on the plaintiff to establish that the psychiatrically based consequences of her impairment meet the higher test of severe.
238 In my view, this is a particularly difficult task for the plaintiff in this application.
239 The plaintiff’s case is that because of her accident related psychiatric condition she has been overwhelmed by her pain. Her life has become dysfunctional. She has been unable to return to work and her ability to interact with others has been compromised. Various activities described above give her considerable difficulty because of her widespread and severe pain and she is only able to do bits and pieces around the house.
240 As noted earlier, the plaintiff’s demeanour, inconsistent presentation, embellishment and exaggeration make it very difficult to make an assessment of her evidence as to her level of disability and the basis thereof.
241 Further, the available medical evidence is not of particular assistance in this regard.
242 As there was no cross examination of medical witnesses, I must rely solely on the available reports without the benefit of any explanation.
243 Dr Wang’s recent report of August 2012 is sketchy and provides no current diagnosis or any mention of a chronic pain syndrome. He did note however in October 2010 that he believed the plaintiff’s pain was genuine.
244 Treater Dr Punchiewa thought the plaintiff’s symptoms were predominantly related to musculoskeletal aetiology and Dr Thomas felt there was some form of non specific pain syndrome.
245 Medico legal opinion falls into a number of categories.
246 Mr Myers found an organic explanation for the plaintiff’s complaints and made no comment whatsoever about the presence of a chronic pain syndrome or the appropriateness of that diagnosis.
247 Mr Miller thought there was a possibility of a C5-6 prolapse and that it was likely the plaintiff had developed a chronic pain syndrome.
248 Dr Baynes found no organic basis for the plaintiff’s complaints and diagnosed a chronic pain syndrome.
249 Dr Grant thought the plaintiff appeared to have a chronic pain disorder with a secondary adjustment disorder with mixed emotional features
250 Dr Weissman thought the fact the plaintiff’s reported pain symptoms were disproportionate to the actual degree of identifiable organic pathology suggested she had also developed a chronic pain syndrome with psychological factors and a general medical condition as well as adjustment disorder and depressive and anxiety syndrome. Otherwise, he gave no explanation as to how the plaintiff’s complaints fitted within the diagnosis of a chronic pain syndrome.
251 The plaintiff seems to have presented to Dr Weissman in a totally different manner to her more dramatic and excessive presentation on numerous attendances with Ms Wong and whilst giving evidence.
252 Dr Weissman was only provided with Ms Wong’s proposed treatment plan and did not have the notes of the counselling sessions. He made no comment on Ms Wong’s views expressed in the treatment plan.
253 The plaintiff’s presentation to Professor Mendelson was much calmer and more controlled than when she saw Dr Weissman. As Professor Mendelson reported, the plaintiff did not describe or acknowledge any specific current emotional symptoms or manifestation of mood disturbance. She reported having been tearful following the accident but that had improved with medication. In those circumstances, Professor Mendelson thought there was no indication of any diagnosable mental disorder.
254 Professor Mendelson was provided with Ms Wong’s clinical notes. He specifically referred to the attendances with Ms Wong on 3 August and 9 November 2011.
255 Unlike these medical examiners who saw the plaintiff on one or two occasions, Ms Wong saw the plaintiff in a treatment context on fifteen occasions over seven months from August 2011 to April 2012.
256 Whilst she is not a medical practitioner, Ms Wong is in a strong position to make an assessment of the plaintiff’s mental condition given the frequency and nature of the plaintiff’s attendances with her.
257 Ms Wong expressed a number of concerns as to the plaintiff’s behaviour during the period of counselling.
258 On initial assessment, the plaintiff was instructing Ms Wong how to go about the process of assessment. On the third visit the plaintiff advised Ms Wong she could send her somewhere else if she did not think she could match the plaintiff’s needs.
259 At a later visit, Ms Wong thought the plaintiff was putting a lot of effort into convincing her that she was suffering. Ms Wong noted the plaintiff was manipulative when Ms Wong was trying to schedule activities to overcome the plaintiff’s inactivity and depression.
260 Further Ms Wong noted the plaintiff had a tendency to be reactive in her tendencies to ensure she was treated and believed in her way of looking at things.
261 In these circumstances, I accept that there was a positive attempt by the plaintiff to influence Ms Wong to be supportive of her claim and that the plaintiff was attempting to contrive by dramatic telling and rationalising her behaviour a catastrophic situation that did not exist.
262 Whilst Ms Wong thought the plaintiff was catastrophising, she did not consider the plaintiff to be suffering from a chronic pain syndrome. She diagnosed depression and anxiety associated with chronic pain.
263 Further, Ms Wong and other practitioners have commented upon the plaintiff overgeneralising and being unable to put time lines on particular activities, rather than identifying any particular problem’s nature or duration.
264 The plaintiff described constant back pain to Dr Mendelson but was unable to describe its quality. She told Dr Baynes she was unable to stand for any length of time but could not give exact figures. She told Dr Weissman she frequently had dreams but could not tell him how often.
265 On assessment by the VRC in January 2010, the plaintiff was reported to have launched into a monologue about the impact of her pain before allowing an introduction or explanation of the process. It was noted it was difficult to obtain a clear precise indication of the frequency, severity or duration of her symptoms.
266 I am not satisfied on the balance of probabilities that the plaintiff’s high level of complaints is psychiatrically based. There is no medical evidence that the plaintiff’s catastrophic descriptions fit into any particular psychiatric diagnosis.
267 Further, given the variability and at times extreme nature of her complaints, I am of the view that there is some consciousness involved on the plaintiff’s part to maximise the seriousness of her condition as Ms Wong described.
268 To date, the plaintiff has not undergone significant treatment for her pain syndrome.
269 The plaintiff’s general practitioner has not seen fit to refer her for psychiatric treatment – nor did psychiatrists Dr Grant or Dr Weissman who both diagnosed a chronic pain syndrome.
270 The plaintiff was only referred to counselling at a relatively late stage with her general practitioner noting in late 2010 that there was reluctance on the plaintiff’s part to such engage in such treatment.
271 No further arrangements have been made or funding sought for additional psychological treatment after Ms Wong’s sessions were completed in April this year, although Dr Wang noted briefly in his report of August 2012 that further counselling was required and Ms Wong made a more detailed suggestion in this regard.
272 I found Dr Weissman’s views as to future treatment somewhat difficult to understand. Whilst he suggested an increase in the plaintiff’s dosage of Endep, he did not suggest psychiatric monitoring or treatment or the need for any further psychological counselling, noting the plaintiff thought she did not benefit from the treatment with Ms Wong. He did not explain his following comment that this view said nothing about the nature, severity and extent of the plaintiff’s accident related psychological and emotional symptoms.
273 The plaintiff has been prescribed a low dosage of 50mg of Endep which she continues to take at night. The dosage has not been increased nor has the plaintiff been prescribed Cymbalta as Dr Punchihewa suggested in 2011.
274 I am not satisfied the plaintiff requires any significant ongoing treatment into the future.
275 Further, Dr Weissman provides no real explanation for his conclusion that the plaintiff is totally unfit for work. Nor is there any basis set out in his report for his view that the plaintiff’s prognosis is uncertain and guarded and likely to be poor, unfavourable, negative and bleak.
276 The plaintiff acknowledged some improvement after the completion of the VRC program in terms of her level of activity domestically and socially. Further, Ms Wong noted the plaintiff was coping quite well with pacing her housework but was not able to acknowledge that to herself due to her grief and distress related to the accident. At other times during Ms Wong’s treatment program, the plaintiff was noted to be working well and slightly positive about her future.
277 In such circumstances and where there is the suggestion of the need for further psychological counselling which may be of assistance, I am not satisfied the plaintiff’s condition is long term.
278 Taking into account all the evidence in this somewhat difficult case, I am not satisfied that the plaintiff’s chronic pain syndrome is a severe and long term psychiatric impairment pursuant to clause (c).
279 Accordingly, the plaintiff’s application is dismissed.
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