Lovrenovich v Transport Accident Commission
[2025] VCC 4
•23 January 2025
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00514
| YELENA LOVRENOVICH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 11 and 12 November 2024 | |
DATE OF JUDGMENT: | 23 January 2025 | |
CASE MAY BE CITED AS: | Lovrenovich v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 4 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the lumbar spine – multiple transport accidents
Legislation Cited: Transport Accident Act 1986 (Vic), s 93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Woolworths Ltd v Warfe [2013] VSCA 22; Rowe v Transport Accident Commission [2017] VSCA 377; Lexa v Transport Accident Commission [2019] VSCA 123; Belgrave Heights Christian School v Moore [2020] VSCA 240
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr S A Smith KC with Ms K M Manning | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1The plaintiff, Ms Yelena Lovrenovich, is a 36-year-old project supervisor. On 26 May 2018, she injured her lumbar spine when her vehicle collided with the rear of a prime mover on the Western Ring Road, Keilor Park, and was subsequently rear ended by a truck (“the first transport accident”).
2Ms Lovrenovich has been involved in two subsequent transport accidents in which she further injured her lumbar spine: on 7 May 2019 (“the second transport accident”) and on 5 April 2020 (“the third transport accident”).
3Ms Lovrenovich seeks leave pursuant to s 93(17) of the Transport Accident Act 1986 (Vic) to bring a common law proceeding for damages for the injuries she suffered in the first transport accident. Her claim is that she has a “serious injury” of her lumbar spine.
4To obtain leave, Ms Lovrenovich must establish that the long-term impairment consequences of the lumbar spine injury sustained in the first transport accident are “more than ‘significant’ or ‘marked’”, and “at least ‘very considerable’”.[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129.
5The relevant legal principles are well-known and were not in dispute.
6The defendant, the Transport Accident Commission (“the TAC”), accepted that Ms Lovrenovich suffered an injury to her lumbar spine in the first transport accident. It contested the proceeding on the basis that Ms Lovrenovich was not a reliable witness, Ms Lovrenovich had not separated the impairment consequences referable to the first transport accident from those referable to the second and third transport accidents, and that the claimed impairment consequences attributable to the first transport accident did not satisfy the statutory threshold.
7The issues for determination are:
(a) Was Ms Lovrenovich a reliable witness?
(b) What is the injury to the lumbar spine caused by the first transport accident and what are the long-term impairment consequences?
(c) Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
8For the reasons that follow, I find that Ms Lovrenovich has not satisfied her onus to establish the current impairment consequences of the injury she suffered to her lumbar spine as a result of the first transport accident. Her application must therefore be dismissed.
Background
9The following matters of background were, I believe, uncontroversial. Where they were contested, these represent my findings save where otherwise indicated.
10Ms Lovrenovich completed secondary school and was awarded a Bachelor of Science by the University of Melbourne in 2009.
11Ms Lovrenovich first experienced lower back pain when she was rowing at secondary school.
12In 2010, there was an episode of lower back pain when Ms Lovrenovich was working as a sales assistant. She twisted whilst holding a relatively light cardboard box. She had a week off work.
13Ms Lovrenovich started working for Telstra as a technician in 2014.
14In mid-2017, in the course of her work for Telstra, Ms Lovrenovich had an episode of lower back pain with symptoms in her right leg. Ms Lovrenovich attended her chiropractor for treatment for that condition between August and December 2017. She also had physiotherapy in July and August 2017.
15On 26 May 2018, the first transport accident occurred on the Western Ring Road, Keilor Park. Ms Lovrenovich was driving in the outside lane at approximately 100 kilometres per hour when a prime mover in front of her braked unexpectedly. Ms Lovrenovich was unable to slow down sufficiently to avoid colliding with the rear of the prime mover. She was then rear-ended by a truck which had been travelling behind her. Her airbags did not deploy.
16The police and an ambulance attended the scene of the first transport accident. Ms Lovrenovich was checked over by the paramedics. She was then driven to Sunshine Police Station from where she was picked up by a friend and taken back to her parents’ home in Benalla.
17Ms Lovrenovich’s vehicle was “written off” by her insurer due to the damage it sustained in the first transport accident.
18The following day, Ms Lovrenovich attended the emergency department of the Wangaratta Hospital. She said that she complained of neck and back pain and seatbelt pattern bruising. No investigations were performed. A medical certificate was provided to her for two days off work.
19On 28 May 2018, Ms Lovrenovich lodged a TAC claim, which was accepted.
20On 29 May 2018, Ms Lovrenovich attended her general practitioner (“GP”), Dr Stephanie Chapple, at Benalla Church Street Surgery. She complained of lower back, left leg and neck pain due to the first transport accident. Dr Chapple ordered an x-ray of Ms Lovrenovich’s cervical spine. She attended Dr Chapple again on 4 June 2018 with the x-ray results.
21On 1 June 2018, Ms Lovrenovich attended her chiropractor, Dr Toby Fraser, at Benalla Chiropractic Centre. She complained of soreness “all over” as a result of the first transport accident. Ms Lovrenovich attended the chiropractor on four further occasions in June and July 2018.
22Ms Lovrenovich deposed that she saw a Bowen therapist after the first transport accident. There was no evidence of when she did so.
23Ms Lovrenovich was absent from work for a week or so after the first transport accident, and then resumed her full-time duties as a technician.
24Ms Lovrenovich did not attend her GP or chiropractor in the following three months.
25On 8 October 2018, Ms Lovrenovich attended her chiropractor. The clinical note relevantly recorded “really sore down the left leg 3D duration”. She attended her chiropractor again on 11 October 2018, and it was noted that her leg pain was a bit better.
26On 15 October 2018, Ms Lovrenovich first attended Shepparton Osteopathic Clinic. She complained of lower back and left leg symptoms from working on her car two weeks previously. She gave a history of her prior back issues and the first transport accident. She also complained of issues with her left shoulder which she reported had been present since the first transport accident.
27On 9 November 2018, Ms Lovrenovich attended Dr Peter Slot, GP, at Benalla Church Street Surgery. The clinical note relevantly recorded:
“hurt her back about 3 w ago whilst working on her car, bending over the bonnet for a prolonged period developed l posterior thigh / calf pain and parasthasia down her l outside of leg including 5th / 4th toes
Taking voltaren rapid 25 which has been helping
…
Exam, reduced flexion
Reflexes lower limbs, reduced l ankle reflex
plantars down, can stand on tip toes, no muscle weaknessslr causes sciatica at 80 degrees
for mri, as is going to Canberra on Sunday, may have it there or here when back
…
Imaging request … mri l-s spine. (? l5 s1 disc prolapse left sciatica, parasthasia).”[2]
(sic)
(emphasis added)
[2] Plaintiff’s Court Book (“PCB”) 91.
28Ms Lovrenovich did not have the requested MRI scan.
29In late 2018, Ms Lovrenovich went on a three-week holiday to Cambodia and Vietnam, which had been arranged and paid for prior to the first transport accident. The holiday included a 10 to 12-day cycling tour. During that holiday, Ms Lovrenovich had approximately two days where she did not cycle and travelled in the support vehicle due to lower back and leg pain.
30In about April 2019, Ms Lovrenovich applied to join Victoria Police. She knew the recruitment process would involve a fitness test including a beep test, a distance swim, and the performance of strength-based exercises.[3] Ms Lovrenovich appreciated that the role of a police member would require the ability to walk, run, drive, wear a heavy equipment belt, and apprehend persons, including being able to use force.
[3] Transcript (“T”) 10-11.
31In the second transport accident on 7 May 2019, Ms Lovrenovich was driving in the course of her work at approximately 100 kilometres an hour on a main road and missed an intersection. Her vehicle crossed the intersection, mounted an embankment, became airborne and then landed with a significant impact in an irrigation ditch full of water on the other side of the embankment. Ms Lovrenovich was taken by ambulance to the Cobram Hospital. No investigations were performed.
32Ms Lovrenovich experienced increased lower back and left leg pain as a result of the second transport accident. There was no evidence as to whether or not Ms Lovrenovich had time off work after this accident.
33In July 2019, Ms Lovrenovich had a six-week holiday in Canada and the United States. She attended a chiropractor whilst there for treatment for lower back and left leg pain.
34In August 2019, Ms Lovrenovich began attending Dr Ginger Hansen, osteopath, at the Shepparton Osteopathic Clinic, for treatment of her lower back and left leg symptoms.
35On 18 October 2019, Ms Lovrenovich consulted Dr Sanghamitra Dhar, GP, at the Princess Park Clinic, Shepparton, in relation to her application to join Victoria Police. She complained of left shoulder, lower back and left leg pain.
36On 7 November 2019, Ms Lovrenovich consulted Dr Vishnupriya Bashyam, GP, at the Princess Park Clinic, regarding lower back and left leg pain. He ordered an MRI of her lumbosacral spine, and an x-ray and ultrasound of her left hip.
37On 20 November 2019, an MRI scan of the lumbar spine was reported to reveal:
“Central disc protrusion at L5-S1 causing severe spinal canal stenosis with AP canal diameter reduced to 4mm and causing bilateral lateral recess stenosis impinging the bilateral traversing L5 nerve roots more severe on the left.
Central/left paracentral disc protrusion at L5-S1 encroaching into the left lateral recess and impinging on the left traversing S1 nerve root. The left exiting L5 Nerve root is not overly impinged.”[4]
[4]PCB 78
38In 2020, Ms Lovrenovich began an online degree in Cyber Security and Law at Deakin University. She remains enrolled, but has deferred.
39Ms Lovrenovich formally withdrew her application to Victoria Police in March 2020.
40In the third transport accident on 5 April 2020, Ms Lovrenovich was driving at approximately 80 kilometres an hour on a rural road at night. The road was wet. She came over the crest of a hill and was confronted by a fallen tree across the road. Her vehicle hit the tree and overturned. She briefly lost consciousness, and her airbags deployed. Ms Lovrenovich was able to get out of her vehicle and walked several kilometres before obtaining access to a phone. An ambulance attended, but Ms Lovrenovich was not taken to hospital.
41The following day, Ms Lovrenovich attended GP, Dr Bashyam, at Princess Park Clinic and complained of worsening back pain and bilateral hip pain. He ordered an MRI scan of her lumbar spine which was performed on 7 April 2020.
42On 7 April 2020, an MRI scan of the lumbar spine was reported to reveal:
“1.No MRI evidence of acute bony and ligament injury in the lumbar spine. No epidural haematoma. The distal cord and cauda equina are normal.
2.Previously identified L4-5 disc protrusion marginally reduced in size. Persistent bilateral descending L5 nerve root impingement is visualised at this level.
3.Previously detected left paracentral and foraminal disc protrusion at L5-S1 stable. Persistent descending left s1 nerve root impingement noted.”[5]
[5]PCB 80.
43On 20 April 2020, Ms Lovrenovich had a session of physiotherapy.
44On 29 April 2020, Ms Lovrenovich was given a CT-guided left S1 nerve root injection.
45Ms Lovrenovich was unable to work for about a week after the third transport accident and returned to work on modified duties for about three weeks.
46On 29 June 2020, Ms Lovrenovich consulted Mr Patrick Chan, neurosurgeon. He recommended she undergo a left L4-5 and left L5-S1 discectomy.
47In early 2021, Ms Lovrenovich signed up to complete an Ironman Half Triathlon in September that year, involving a 1.9-kilometre swim, a 90-kilometre bike ride and a 21-kilometre run.
48In June 2021, Ms Lovrenovich left her employment with Telstra. She deposed to leaving Telstra as she was not able to physically cope with her technician duties and the driving involved in her work because of her lower back pain. Over the following three months she worked at a service station.
49On 16 September 2021, Ms Lovrenovich underwent a left L4-5 and left L5-S1 microdiscectomy, performed by Mr Chan. This was funded under a claim associated with the second transport accident.[6]
[6]T6
50Between February and June 2022, Ms Lovrenovich worked for a Senator as an executive assistant. She then had various casual jobs for several months before resuming work with Telstra in October 2022 in an administrative role as a communications technician.
51Ms Lovrenovich currently lives in Maroochydore and works full time for Telstra as a project manager. She attends an osteopath and performs home exercises. She takes Voltaren and Nurofen for back pain, magnesium for leg cramping, and uses topical magnesium cream and Fisiocrem.
Was Ms Lovrenovich a reliable witness?
52Senior Counsel for the TAC submitted that Ms Lovrenovich was an unreliable witness who deliberately attempted to obfuscate at times. This submission was founded upon the contrast between the account given by Ms Lovrenovich in her affidavits and to medico-legal examiners as to her symptoms from time to time after each transport accident in contrast to the contemporaneous clinical records. Senior Counsel submitted Ms Lovrenovich deliberately obfuscated about the reasons for not having the MRI scan of her lumbar spine in November 2018.
53Senior Counsel for Ms Lovrenovich submitted that she was an honest witness and a well-motivated individual. Senior Counsel submitted that whilst “at times she presented as slightly histrionic or unable to answer questions”,[7] she did not evade questions.
[7] T68.
54As to the reliability of Ms Lovrenovich’s account of her symptoms from time to time since the first transport accident, Senior Counsel for Ms Lovrenovich submitted that the medico-legal doctors had access to the clinical records and submitted:
“… none of the three doctors seem at all troubled by the issue of causation. All of them are directly to the point and unequivocal that her back condition is caused by the first car accident.
…
The car, the subsequent accident, the only one attendance at the GP with the left leg symptoms, the previous clinical notes when there’s no left leg, but there is right leg. None of the doctors have said, ‘Oh, can’t be sure. You know, there’s so much going on here.’ They all nail it. There’s no medical evidence that says, ‘I can’t be satisfied whether her sciatica, disc prolapse surgery is caused by the first accident.” [8]
[8]T69.
55I found Ms Lovrenovich’s evidence about her back and leg symptoms after the first, second and third transport accidents unreliable for the following reasons:
(a) Ms Lovrenovich’s evidence that between the first and second transport accidents she had ongoing and continuing “incredibly uncomfortable” back pain, and “severe sciatic pain down my left leg, like burning, stabbing pain”[9] was inconsistent with:
(i)The lack of any recorded attendance upon her GP between 4 June 2018 and 9 November 2018;
(ii)The lack of any prescription pain or anti-inflammatory medication for her lower back or left leg pain between the first and second transport accidents;
(iii)The absence of complaints of back and leg pain in the records of attendance upon her chiropractor on 19 June 2018 and 4 July 2018 (both noting left shoulder soreness), and then no attendance upon the chiropractor for three months;
(iv)The clinical records of the chiropractor, osteopath and GP in October and November 2018, which recorded a recent injury to Ms Lovrenovich in which she developed lower back and left leg symptoms whilst working on her car;
(v)The ability to participate in eight to 10 days of her cycling holiday in Vietnam and Cambodia in late 2018;
[9]T24-T25.
(b) Ms Lovrenovich was not referred to any specialist for assessment of her lumbar spine condition after the first transport accident;
(c) Her application to join Victoria Police in April 2019 whilst cognisant of the fitness requirements for recruitment and the physical demands of the role.
56I bear steadily in mind that clinical records must be approached with caution.[10] However, taken together, the records of Ms Lovrenovich’s attendances upon her GP, osteopath and chiropractor in the period after the first transport accident and prior to the second transport accident, are inconsistent with her evidence of significant back and leg symptoms from the time of the first transport accident.
[10]Woolworths Ltd v Warfe [2013] VSCA 22, at paragraph [112].
57Ms Lovrenovich was unable to reliably recall her symptoms and treatment after each transport accident. She was unable to reliably recall the accounts that she had given to medical practitioners. This was understandable given the passage of time and the complicated history. Many of her responses were in the form of “I would’ve” said this, rather than a particular memory. I find that she has, subconsciously, inadvertently or otherwise, reconstructed the narrative. Examples of this reconstruction include:
(a) during cross-examination, Ms Lovrenovich was asked whether she took any prescription pain medication between May 2018 and May 2019. She was unable to recall. She recalled being prescribed Celebrex at one point in time but could not recall when that was;
(b) Ms Lovrenovich could not recall how much time she had off work after the first transport accident;
(c) Ms Lovrenovich’s evidence in cross-examination as to her level of participation in her cycling holiday in late 2018 was at odds with her affidavit. Ms Lovrenovich said that she “spent a good portion of … [the Cambodia] trip in the support vehicle”.[11] However, when reminded that in her affidavit she said she spent approximately two of the riding days of her trip in the support vehicle, she accepted that was correct;
(d) Ms Lovrenovich was asked about the account recorded by Professor D’Urso, neurosurgeon, of the second and third transport accidents each further aggravating her low back and left sciatica, without mention of those aggravations being temporary. Ms Lovrenovich said that she would have told Professor D’Urso that the aggravations were temporary. I am not persuaded that Ms Lovrenovich remembered what she did or did not say to Professor D’Urso;
(e) Ms Lovrenovich was asked about the account of her symptoms reported by Mr Grossbard, orthopaedic surgeon, in February 2023, including that Ms Lovrenovich experienced little ongoing low back pain. Ms Lovrenovich disputed what had been recorded, and identified what she would have said, but acknowledged that she could not remember;
(f) Ms Lovrenovich recalled wearing a knee brace at some point after the first transport accident but could not recall when;[12]
(g) Ms Lovrenovich said the aggravation of her back and leg symptoms after the second transport accident was temporary but she was unable to say how long the aggravation lasted. She believed the aggravation had definitely ceased by March 2020.
[11] T21.
[12]T14.
58Ms Lovrenovich ultimately conceded that the relevant events were some time ago and her memory might be faulty.[13]
[13]T41.
59I do not find that Ms Lovrenovich deliberately obfuscated about why she did not have the MRI scan requested by GP, Dr Slot, in November 2018; however, her evidence as to the reason was unconvincing. I accept her evidence that Dr Slot suggested she should see how she progressed. I accept that Ms Lovrenovich believed that she would have to pay $300 for the scan. Ms Lovrenovich earned $96,000 in that financial year and had an accepted TAC claim.[14] I do not accept that expense was a decisive factor. I find that the more likely explanation for her not having the scan was that she did not feel it was justified given the nature of her symptoms.
[14] T34.
60In early 2021, Ms Lovrenovich signed up to participate in an Ironman Half Triathlon in September 2021 (between the second and third transport accidents). I accept that Ms Lovrenovich believed that committing to an event would provide a training goal. However, I find it is unlikely that a person suffering the type of debilitating symptoms which Ms Lovrenovich said she was experiencing would consider participating in such a challenge.
61For the above reasons, I find that Ms Lovrenovich’s evidence is not reliable. I look to the contemporaneous histories and attributions, and the objective evidence to determine her symptoms and impairment consequences from time to time.
What is the injury to the lumbar spine caused by the first transport accident and what are the long-term impairment consequences?
62In her first affidavit, Ms Lovrenovich deposed that when she consulted her GP, Dr Chapple, after the first transport accident she had back and left leg pain as well as neck pain. She noted her attendances upon the chiropractor, osteopath and Bowen therapist.
63Ms Lovrenovich deposed that she temporarily aggravated her back in the second transport accident. She said, “my back soon settled and returned to how it was before this accident”.[15]
[15] PCB 13.
64Ms Lovrenovich deposed to the circumstances of the third transport accident but did not describe the injuries sustained in that accident, and did not specify the nature or duration of any increased back or left leg symptoms.
65Ms Lovrenovich deposed that she continued to suffer constant, fluctuating low back pain as at September 2023. She said, “I have never been completely free of back pain since the accident”.[16] I understood that to be a reference to the first transport accident.
[16] PCB 15.
66In her second affidavit, Ms Lovrenovich deposed that she applied to become a police officer in April 2019 as she was looking for a “more purposeful” role and was attracted to job security and career progression.[17] Ms Lovrenovich deposed that, looking back, she had been unrealistic about her prospects of completing the physical requirements of the application process.
[17] PCB 18.
67In her affidavits, Ms Lovrenovich outlined her current back and left leg symptoms, her treatment and her current impairment consequences.
68During cross-examination, Ms Lovrenovich said that her preference was to seek alternative therapies, but she would attend her GP if she needed to. She also said that she preferred not to take prescription medication.
69In her oral evidence, Ms Lovrenovich said that after the first transport accident, she would always seek additional assistance at work to perform heavy activities such as lifting a concrete pit lid.
70This is a convenient point to consider the medical material relevant to the issue of the nature of the injury and impairment consequences referable to the first transport accident.
71Ms Lovrenovich tendered various treater and medico-legal reports. The TAC did not tender any material.
Treating practitioners
Dr Vishnupriya Bashyam, GP, Princess Park Clinic
72Ms Lovrenovich tendered a short report from Dr Bashyam dated 4 February 2020 addressed “to whomsoever it may concern”. Dr Bashyam noted the history “according to Ms Lovrenovich”.[18] He reviewed her in November 2019, about six months after the second transport accident.
[18] PCB 23.
73Dr Bashyam noted that the history he was given was that after the first transport accident, Ms Lovrenovich had lower back pain which gradually worsened to the extent that it radiated down her left leg with reduced sensation. He noted that she consulted a chiropractor, osteopath and massage therapist regularly. Her condition improved but “her sensory disturbance never improved”.
74Dr Bashyam reported that he was told the second transport accident caused a flare up of back pain and left leg pain.
75Dr Bashyam noted that in November 2019, Ms Lovrenovich had lower back pain radiating down her left leg with some sensory disturbance on the lateral aspect of her left leg. He ordered the MRI scan in November 2019, and recommended specialist review and spinal injection.
76As at February 2020, Ms Lovrenovich was awaiting an appointment at the Austin Hospital.
Anthony Schneider, physiotherapist, North East Life
77Ms Lovrenovich tendered a report from Mr Schneider dated 21 April 2020.[19]
[19] PCB 40.
78Mr Schneider noted that Ms Lovrenovich consulted him on 20 April 2020 (after the third transport accident).
79He noted:
“Her history is somewhat complex, having had 3 MCAs over the past 2 years, with the most recent one in April 2020 exacerbating her lower limb symptoms significantly.”
80Mr Schneider recommended a neurosurgical assessment.
Mr Patrick Chan, neurosurgeon
81Ms Lovrenovich tendered three reports from Mr Chan, dated 29 June 2020, 16 September 2021 and 27 October 2021, together with his operation notes dated 16 September 2021.
82Mr Chan first consulted Ms Lovrenovich on 29 June 2020, about 10 weeks after the third transport accident.
83In his first report of the same date he said, “Ms Lovrenovich sustained left sciatica and mechanical back pain after her motor vehicle accident. This resulted in left leg pain with left leg numbness”.[20] It is not clear to which transport accident he was referring.
[20] PCB 41.
84In his report dated 16 September 2021, Mr Chan noted that intraoperatively there was a left L4-5 disc protrusion and left L5-S1 larger disc protrusion compressing on the traversing left L5 and left S1 nerve root.
85In his third report dated 27 October 2021, Mr Chan noted that Ms Lovrenovich was doing well but reported that in the prior week she had started to get paraesthesia in her left calf associated with twitches, which radiated to the outer edge of the left sole. Mr Chan opined the symptoms were likely “more inflammatory neuritis. Other differential diagnoses includes recurrent disc herniation”. Mr Chan suggested Ms Lovrenovich commence physiotherapy, prescribed a five-day course of prednisolone and recommended a further review “in a few weeks”.
86No further report was tendered from Mr Chan.
Ms Ginger Hansen, osteopath, Shepparton Osteopathic Clinic
87Ms Lovrenovich tendered two reports from Ms Hansen, one undated and one described as dated 27 May 2024.
88From its content, Ms Hansen’s first, undated report, was written after 20 November 2019 but before the third transport accident in April 2020. In that report, Ms Hansen noted that Ms Lovrenovich first attended the clinic on 15 October 2018,[21] and first consulted Ms Hansen on 19 August 2019.
[21]In her second report, Ms Hansen stated that after her initial attendance on 15 October 2018, Ms Lovrenovich was reviewed twice in the two weeks following that first appointment. Ms Hansen stated those appointments were on 22 and 31 August 2018, but I find she is mistaken, and those three attendances were all in October 2018. Mr Speck was provided with the clinical notes of Shepparton Osteopathic Clinic and noted that the subsequent attendances were on 22 and 31 October 2018: DCB 31.
89Ms Hansen noted that during her consultations with Ms Lovrenovich, her complaints were of low back pain, left hip pain, sensory changes in the left lower limb, and left shoulder pain. Ms Hansen suggested an opinion be sought from a spinal surgeon.
90Ms Hansen’s second report, described as dated 27 May 2024, specifically referred to attendances up to 2021. It is not clear from the report when Ms Hansen last saw Ms Lovrenovich.[22]
[22]Mr Speck referred to the records from this clinic in his report, and it is apparent that Ms Lovrenovich continued to consult with Ms Hansen in 2022, 2023 and 2024: DCB 31.
91When Ms Hansen first saw Ms Lovrenovich on 19 August 2019 (approximately three months after the second transport accident) she noted:
“… the altered sensations in the left lower limb were still present, and the left sciatic pain she had continued to experience had been recently aggravated after a flight to Canada and America. … She mentioned … she was applying for the Police Force and would have a physical assessment in mid October.
Due to the chronic nature of her presentation and the ongoing neurological signs and symptoms I requested … [Ms Lovrenovich] get imaging on her lumbar spine … .” [23]
[23] PCB 51.
92Ms Hansen initially treated Ms Lovrenovich fortnightly. Ms Lovrenovich reported a reduction in pain levels and –
“… she began getting some tingling in an area of her left foot where she’d had numbness for over 12 months.”[24]
[24]PCB 51.
93Ms Hansen noted that in 2020, Ms Lovrenovich –
“… took up Pilates and got back into cycling … [leading to] slow, steady progress in function, capacity, and a decrease in overall pain levels, though little to no change in extent of left lower limb neurological signs and symptoms.”[25]
[25] PCB 52.
94Ms Hansen referred to the happening of the third transport accident, and opined:
“Imaging at the time confirmed no lumbar fracture and no progression of lumbar findings compared to previous imaging. But significant loss of capacity (unable to walk more than 20min without significant pain) following the MVA. A new part of her presentation at this point is sided posterior superior iliac spine (PSIS) pain.”[26]
(sic)
[26] PCB 52.
95Ms Hansen noted that when seen in June 2020, Ms Lovrenovich was still unable to walk more than 25 minutes without increasing her pain. Ms Hansen treated her monthly until the end of the year “managing symptoms”.
96Ms Hansen noted that in early 2021, Ms Lovrenovich signed up to do a triathlon in September 2021 as a motivational goal, noting “she hasn’t had sciatic pain for some time”.[27]
[27]PCB 52.
97In April 2021, Ms Lovrenovich reported to Ms Hansen that she had a flare up following two appointments with a chiropractor, and prescriptions of Lyrica and Celebrex from her GP only dulled her pain. She was unable to walk more than 650 metres without sharp stabbing pain in her back, which was further aggravated by long drives and the heavy manual labour required in her work as a technician.
98Ms Hansen noted that Ms Lovrenovich’s presentation stabilised considerably following her microdiscectomy. She described the “current presentation”, but it is not clear from the report when this was referring to, as the most recent attendance was not identified.
99As to the diagnosis, Ms Hansen opined:
“I didn’t start seeing … [Ms Lovrenovich] until after her second MVA in 2019. Based on the clinical notes from previous clinicians, who no longer work at the clinic, I believe there were lumbar disc injuries present from the 2018 MVA.
…
Initial cause of lumbar disc injuries in 2018 with subsequent accidents and flare ups which worsened her condition.”[28]
[28]PCB 53.
Benalla Chiropractic Clinic
100Ms Lovrenovich tendered clinical notes from Benalla Chiropractic Clinic for the period 21 August 2017 to 8 April 2021 inclusive.
101Ms Lovrenovich attended on 21 August 2017 with lower back and right leg pain, right-sided neck pain and pins and needles in both hands. She attended for treatment for these conditions regularly until 18 December 2017. On that date, she reported her pain was at a “manageable level”.
102Ms Lovrenovich next attended on 1 June 2018 following the first transport accident. She reported she was “pretty sore all over”. There were further attendances on 6, 12 and 19 June 2018 and then on 4 July 2018. The latter two attendances referred to left shoulder problems.
103The next attendance was on 8 October 2018, reporting a “really sore” left leg of three days’ duration. The leg pain was reportedly “a bit better” on 11 October 2018.
104The next attendance was on 21 January 2019, with a reported “left glute” issue. Ms Lovrenovich attended regularly during February and March 2019, describing improvement.
105There was then a two-year gap in treatment until an attendance on 31 March 2021 and 8 April 2021.
Benalla Church Street surgery
106Ms Lovrenovich tendered clinical notes from Benalla Church Street Surgery for the period 21 August 2014 to 9 November 2018 inclusive.
107The attendances relevant to this application were on 29 May, 4 June and 9 November 2018 as outlined above.
Medico-legal reports
Mr Garry Grossbard, orthopaedic surgeon
108Ms Lovrenovich tendered three reports from Mr Grossbard dated 13 July 2021, 14 February 2023 and 5 June 2024. Mr Grossbard examined Ms Lovrenovich on each of those dates.
109Mr Grossbard was provided with a series of documents. Save for the radiological studies, these were not identified in his reports.
110In his first report, Mr Grossbard noted that Ms Lovrenovich told him that in the first transport accident she struck her knees under the dashboard, had mild knee pain and felt shaken. When she attended the Wangaratta Hospital, she said she had generalised aches and pains, pain in her neck and bruising over her right shoulder and abdomen. When she saw her GP, she complained of increasing lower back pain, pain in the left leg and a feeling of weakness around the left knee. Ms Lovrenovich told Mr Grossbard that despite attending her chiropractor, having acupuncture, massage and Bowen therapy, she did not improve, and, if anything, her left leg became weaker. She obtained a knee brace to support her knee at work. Mr Grossbard noted that after her cycling holiday there was a gradual improvement in her pain level.
111Mr Grossbard recorded that following the second transport accident:
“… there was increased low back pain on the left side associated with increased leg pain. She told me a doctor arranged an MRI scan which confirmed the presence of disc injuries in the lower back.
A referral was made to the neurosurgery department at The Austin Hospital, but this consultation did not eventuate.” [29]
[29]PCB 26.
112Mr Grossbard noted that Ms Lovrenovich reported that because of increased pain around March 2020, a further neurosurgical appointment was made at The Alfred hospital, but before this could occur, she was involved in the third transport accident.
113Mr Grossbard opined:
“This lady has a long history of intermittent low back pain, which until the motor vehicle incident of 26th May 2018 had consisted of pain in the lower back and on the right side. There was never a history of significant sciatica.
Since the motor vehicle incident of 26th May 2018, the pain appears to be mainly on the left side of the lower back with associated left-sided sciatica and weakness. There is evidence of significant disc protrusion. There is evidence of radiculopathy …
Whilst it is impossible to ascertain the length of time for which this lady has had her disc pathology, there is no doubt the incident of 2018 has resulted in an aggravation particularly at the lumbosacral level, with disc protrusion and nerve root impingement. This has undoubtedly been the cause of the leg weakness.
Currently this lady has shown evidence of recovery from her disc injury, in that she no longer has severe leg pain, and her back pain is manageable. I believe there will be intermittent exacerbations of pain, but the overall trajectory will probably be for her leg symptoms to recover. I do believe this lady will continue to have intermittent back pain and susceptibility to back pain with physical activity. To this end I would agree cessation of work as a telecommunications technician is appropriate. … .”[30]
[30] PCB 28.
114In his second report, Mr Grossbard noted that after the microdiscectomy in September 2021, Ms Lovrenovich reported that her leg pain had improved but “the numbness persisted”.
115Mr Grossbard opined that:
“I believe this lady has suffered a significant disc injury because of the motor accident of 26 May 2018. This has resulted in left sided sciatica and radiculopathy. This has been managed surgically with partial recovery. There is very little ongoing leg pain, but there is persistent left leg and calf cramping. There is also a persistence of the sensory loss in the S1 nerve root distribution and a persistent loss of ankle reflex. There is mild muscle wasting of the extensor digitorum brevis but no longer significant calf wasting.
…
I believe the motor vehicle incident of 8 April 2020 may have been a further aggravating factor in this lady’s symptoms but was not the primary cause of her history of sciatica. I consider most of the pathology and clinical presentation related to the motor accident of 26 May 2018.” [31]
[31] PCB 35
116In his third report, Mr Grossbard again offered the opinion that whilst the third transport accident may have been a further aggravating factor to Ms Lovrenovich’s injury, “most of the pathology probably arose following the motor accident of 26 May 2018”.[32]
[32]PCB 39
117Mr Grossbard did not discuss the role, if any, the second transport accident may have played in Ms Lovrenovich’s condition when expressing his opinions in his reports.
Professor Paul D’Urso, neurosurgeon
118Ms Lovrenovich tendered a report from Professor D’Urso dated 1 July 2024. Professor D’Urso examined Ms Lovrenovich on 27 June 2024.
119Ms Lovrenovich reported:
“… [S]he was unable to work for one week following the [first transport] accident and then she returned to her normal duties. … [Ms Lovrenovich] stated she was never quite the same following … [the first transport accident] and suffered a degree of persisting back and left sided sciatic symptoms.”[33]
[33]PCB 73
120Professor D’Urso noted that the second transport accident aggravated Ms Lovrenovich’s back pain and left-sided sciatica “but she was able to continue to work in a light duties capacity and did not require time away from work”.[34]
[34]PCB 73
121Professor D’Urso noted that the third transport accident:
“… further aggravated her back pain and left sided sciatica … [and she] was unable to work for one month.
… [Ms Lovrenovich] stated her symptoms persisted to the point that she underwent a microdiscectomy operation on 16th December 2021.”[35]
[35]PCB 73.
122Professor D’Urso noted that the lumbar MRI scan findings in November 2019, April 2020 and July 2021 were similar.
123Professor D’Urso opined that the first transport accident appeared to have precipitated the onset of back pain and left-sided sciatic symptoms, and likely contributed to the development of L4-5 and L5-S1 intervertebral disc prolapses causing subarticular nerve root compression:
“… [The first transport accident] is likely to have aggravated a pre-existing degenerative condition of the L4-5 and L5-S1 intervertebral discs and led to a worsening of prolapse and nerve root compression.”[36]
[36]PCB 75.
124Professor D’Urso noted that Ms Lovrenovich had improved following her surgery but still had a residual disability and incapacity.
125Professor D’Urso did not discuss or comment upon the injury or impairment, if any, which resulted from the second and/or third transport accidents in the section of his report in which he expressed his opinions.
Mr Gary Speck, orthopaedic surgeon
126Ms Lovrenovich tendered two reports from Mr Speck, dated 10 July 2024 and 16 September 2024. Mr Speck examined Ms Lovrenovich once, on 3 July 2024.
127Mr Speck was provided with comprehensive clinical records and background information, which he reviewed and commented upon.
128Mr Speck noted that Ms Lovrenovich relevantly reported that following the first transport accident:
“She said the pain extended from the left buttock into the calf and over a short period afterwards and the pain has continued.
The pain continued in the left low back area. She felt that her left knee was going to give way and used a knee brace which she self-prescribed. She said the symptoms in the left leg commenced within 2 months of the transport accident but the exact date she was not sure of. She said her left leg symptoms were regularly there.”[37]
[37]Defendant’s Court Book (“DCB”) 10.
129Ms Lovrenovich reportedly told Mr Speck that she believed she had about a month off work following the first transport accident, with adjustments upon her return to work. These included a lumbar support pillow and she “could call for assistance as she had previously been able to but with more likelihood of that occurring”.[38]
[38]DCB 15.
130Ms Lovrenovich reported that following the second transport accident, she had “inflammation” of her previous pains for about two months.[39] Following the third transport accident, her back symptoms increased temporarily.[40]
[39]DCB 11.
[40]DCB 11.
131Ms Lovrenovich reported she did not have the suggested scans in October 2018 as she could not afford to do so. She reported that she spent much of her cycling holiday in the support vehicle.[41]
[41]DCB 11.
132Mr Speck was provided with the reports of relevant radiology, and also viewed the imaging. He noted that the reported conclusion of the MRI scan of the lumbar spine dated 20 November 2019 did not accurately reflect the findings in the body of the report. The body of the report described changes at L4-5 producing the spinal stenosis, not at L5-S1. Mr Speck agreed that the MRI scan of 7 April 2020 revealed “little change in the L4/5 disc protrusion centrally and persisting change at the L5/S1 level of the left L5/S1 disc prolapse affecting the S1 nerve root”.[42] Mr Speck noted that the 8 July 2021 MRI scan revealed the size of the L5-S1 left-sided intervertebral disc prolapse remained constant, but the L4-5 disc prolapse size had diminished since the 2020 MRI scan.
[42]DCB 19.
133Mr Speck noted that the first recorded suggestion that an MRI scan of the lumbar spine be undertaken was on 9 November 2018, after the first transport accident, and after the “episode of working on the car and complaint of sensory alteration without confirmation of neurological deficit on examination”.
134Mr Speck reviewed the clinical records of the Shepparton Osteopathic Clinic. He noted the first attendance on 15 October 2018, where Ms Lovrenovich reportedly complained:
“2/52 ago working on car - leaning over bonnet (soldering). Back felt sore afterwards.
Lt side always worse.
…
Last week did lots of km’s for work - got very sore driving.
…
- put support belt on (helped)
Hurt back last year.
- ongoing intermittent issues.
Woke up on w/e (one week ago) and had burning pain down Lt leg. Had P&N feeling in foot and calf since.
Calf feels like it is in pre-cramp.
…
Intermittent back issues since 16yoa. Rowing.
MVA early 2018 - uncomfy afterwards. Lt shoulder problems since. Some Lx issues assoc.”[43]
(sic)
[43]DCB 30.
135Mr Speck’s review included the clinical notes of the Princess Park Clinic. On 18 October 2019, Ms Lovrenovich attended Dr Dhar “… for a ‘Victorian police recruitment’”. She reportedly told Dr Dhar that she had a car accident earlier in the year which –
“… worsened her left shoulder and left low back pain. She get [sic] osteopath services and the pain was stable till last weekend – when she went for some practice fitness test. Since then she has been complaining of worsened left shoulder pain … Mild tenderness on the left – paraspinal muscle at the S1 – S2 level. Mild restriction of extension. SLR restricted – left L/L. Mild tenderness on the let [sic] gluteal region.”[44]
[44]DCB 27.
136Mr Speck commented:
“Although the symptoms were mild as regards the back, findings would be consistent with possibility of back symptoms and sciatica due to the later identified L5/S1 intervertebral disc prolapse.”[45]
[45]DCB 27.
137Mr Speck noted a GP attendance on 7 November 2019. Mr Speck commented:
“The 2nd recorded suggestion of MRI scan of the lumbar spine is November 2019, after the 2nd motor vehicle accident and complaint of sensory alteration in the anal area without confirmation of neurological deficit on examination.”[46]
[46]DCB 28.
138Mr Speck’s diagnosis was as follows:
“… surgically treated lumbar disc prolapses at the L4/5 and L5/S1 on a background of constitutional disc desiccation.
She has a history of intermittent back symptoms from teenage years, an episode of right sciatica in 2017 and subsequently symptoms of left low back and leg symptoms fluctuating in severity which she times as beginning at the time or soon after the … [first transport] accident … There were episodic increases in symptoms recorded in the material provided in 2018 associated with working on her car and in 2019 with the … [second transport] accident … where her vehicle landed at speed in an irrigation channel. The ongoing symptoms subsequent to this led to imaging being undertaken and ultimately surgical treatment which was sought prior to the … [third] transport accident … .
On balance it is reasonable to attribute the onset of left sciatica and leg pain to the 1st transport accident … although the natural history of disc prolapse is of 90% of patients recovering spontaneously within 3 months her history is of ongoing fluctuating symptoms. The prior symptoms may reasonably be attributed to constitutional disc desiccation or simple myofascial or muscular back pain episodes.”[47]
[47]DCB 34.
139Mr Speck was asked, and answered, a series of questions, which were, relevantly:
“1. Your diagnosis of any orthop[a]edic injuries sustained:
a) as a result of the transport accident on 26 May 2018
Answer: On balance it is reasonable to attribute the onset of left sciatica and leg pain to lumbar disc prolapse which may have been solely at the L5/S1 or at the L4/5 and L5/S1 discs. Please see ‘Synopsis’ and ‘Diagnosis’ above for further discussion.
b) that are unrelated to the subject accident
Answer: The mental health issues should be assessed by an appropriate expert. The diagnosis, relationship to the subject transport accident and other factors, appropriate management and prognosis could be provided by them.
The presence of disc desiccation is likely to have preceded the onset of sciatica, but as discussed above the deterioration in function and onset of left leg pain was associated with the specific motor vehicle accident.
2. The prognosis for Ms Lovrenovich’s injuries sustained:
a) on 26 May 2018.
Answer: The L5/S1 and L4/5 lumbar disc prolapses surgically treated are stable. I do not expect her condition to change although her level of activity could be improved by the suggested treatments including a multidisciplinary pain management program and addressing any mental health issues identified which may produce avoidance behaviour.
b) that are unrelated to the subject accident
Answer: Nothing further.
3. Whether any further operative or other treatment is required for the injuries sustained:
a) on 26 May 2018.
Answer: No further surgical treatment is required. Her level of activity could be improved by the suggested treatments including a multidisciplinary pain management program and addressing any mental health issues identified which may produce avoidance behaviour.
b) that are unrelated to the subject accident
Answer: Nothing further.
4. Do the injuries sustained on 26 May 2018 interfere in any way with Ms Lovrenovich’s ability to work? If so, for what period of time would you expect her to be or have been incapacitated?
Answer: Please see the body of the report above. I expect the current level of activity to be sustained.”[48]
[48]DCB 34-35.
140Mr Speck was subsequently provided with the report of Mr Grossbard dated 5 June 2024 and the report of Professor D’Urso dated 1 July 2024. He was asked to review the reports and advise whether they caused him to change his opinion.
141Mr Speck noted he had not been provided with Mr Grossbard’s earlier two reports.
142Mr Speck commented that Professor D’Urso did not acknowledge any past history of back problems of a constitutional nature, and that Professor D’Urso noted that “she had her surgery as a result of deterioration after the second motor vehicle accident”.[49]
[49]DCB 43.
143Mr Speck said those reports did not alter the opinions he previously expressed.
Findings
144In Rowe v Transport Accident Commission,[50] the Court of Appeal stated:
“As s93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.
That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding.
…
Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.”
[emphasis in original]
[50][2017] VSCA 377, at paragraphs [82], [83] and [86].
145Similarly in Lexa v Transport Accident Commission,[51] the Court of Appeal rejected the notion that all that was required was that the transport accident be a contributing factor. The Court observed:
“For the reasons stated above, the fact that the judge accepted that the applicant was functioning ‘at a pretty good level’ at the time of the accident and that, since the accident, the applicant ‘had major problems with depression’ and that ‘he had had periods where he had been suicidal and where he had not had the capacity to make decisions’ does not compel a finding that the accident caused or was a cause of a severe psychological disorder or disturbance.
In our view, as the applicant’s allegation of error in proposed Ground 4 has been rejected, Ground 5 must also fail because the applicant does not, expressly or impliedly, contend that the judge’s decision was ‘plainly wrong’, or ‘wholly erroneous’ or ‘patently unsustainable’. As we have said, it was clearly open to the judge on the medical evidence to be unpersuaded that the applicant suffered, at the time of the hearing, from a severe psychological disturbance or disorder that resulted from an accident that occurred many years previously and in circumstances where a number of unrelated events capable of causing psychological harm had occurred in the intervening years.”
[51][2019] VSCA 123, at paragraphs [69]-[70].
146The above was restated by the Court of Appeal in Belgrave Heights Christian School v Moore[52] in which it was said:
“… neither the text nor context of s 93 of the TA Act (or the TA Act more broadly) permits an injured person to combine the effects of multiple transport accidents and to sue in respect of an injury said to have resulted from the totality of those transport accidents. While an injured person may seek leave to commence proceedings in respect of more than one transport accident, the injury resulting from each accident must be separately identified, in accordance with the principles first stated in Petkovski, and then a determination must be made, in respect of each injury, whether that injury is serious within the meaning of the TA Act.”
[52][2020] VSCA 240, at paragraph [50].
147Ms Lovrenovich cannot aggregate the impairment consequences of the three transport accidents. It is for Ms Lovrenovich to prove that the condition that results from the first transport accident is of itself enough in terms of impairment consequences to satisfy the statutory definition.
148The difficulty in this case is that Ms Lovrenovich was involved in three significant transport accidents in which she suffered aggravation injuries to her lumbar spine. The medical practitioners whose reports have been tendered have attached varying degrees of significance to those transport accidents.
149The position here is further complicated by the microdiscectomy in September 2021.
150Ms Lovrenovich’s account is that the first transport accident was the cause of her present problems, in that she suffered temporary aggravations of her lumbar spine condition in the second and third transport accidents. Her case was that the surgery, and her current impairment consequences, were thus properly attributable to the first transport accident.
151As I have said, I formed the view that Ms Lovrenovich’s account of her symptoms from time to time was not reliable. It is therefore necessary to examine, where possible, the more contemporaneous accounts to determine the course of Ms Lovrenovich’s lumbar spine condition from time to time.
152Senior Counsel for the TAC submitted that Ms Lovrenovich had not established that she suffered an ongoing lower back injury productive of impairment consequences as a result of the first transport accident. Further, that she had not established that the subsequent transport accidents caused only temporary aggravations of the lumbar spine condition.
153I find that Ms Lovrenovich suffered intermittent back pain prior to the first transport accident. The most recent episode had been in mid to late 2017 when she experienced lower back pain and right leg symptoms requiring regular chiropractic treatment.
154I find that Ms Lovrenovich suffered an aggravation injury to her lumbar spine in the first transport accident. She complained to her GP of lower back pain and left leg symptoms within a matter of days. She required a week off work. She then resumed her pre-injury duties.
155Ms Lovrenovich’s oral evidence was that after the first transport accident, she sought assistance with heavy manual handling such as lifting pit lids. Because of my findings about Ms Lovrenovich’s reliability, I am not satisfied, simply on her account, that the injury in the first transport accident was the reason Ms Lovrenovich adopted that course. On the evidence, it is just as, if not more, likely that Ms Lovrenovich needed assistance from the time of the aggravation injury in mid-2017 and ongoing.
156I find that Ms Lovrenovich’s lower back and left leg pain improved over a matter of weeks after the first transport accident. I make that finding because on the available evidence, Ms Lovrenovich did not return to her GP after 4 June 2018. She stopped seeing Dr Toby Fraser, chiropractor, on 4 July 2018. There was no evidence of any treatment for lower back or left leg pain between 4 July and 8 October 2018.
157I find that in early October 2018, Ms Lovrenovich experienced the onset of significant left leg and lower back pain when bending over the bonnet of her car for a prolonged period. At that time, Ms Lovrenovich returned to Dr Fraser. She complained of three days’ left leg pain.
158Ms Lovrenovich also attended the Shepparton Osteopathic Clinic on three occasions in 2018. On the first occasion, on 15 October 2018, Ms Lovrenovich complained of back pain after working on her car two weeks earlier.[53] Ms Lovrenovich reportedly complained of waking up with a burning pain down her left leg a week earlier. She had needed a week off work. Dr McEvoy recorded:
“Intermittent back issues since 16yoa. Rowing.
MVA early 2018 - uncomfy afterwards. Lt shoulder problems since. Some Lx issues assoc.”[54]
[53]DCB 30.
[54]DCB 30.
159The history of the onset of left leg and back pain from working on her car in October 2018, was also supported by the clinical record of Dr Slot on 9 November 2018. Dr Slot suspected there was an L5-S1 disc prolapse and left-sided sciatica, and requested an MRI scan. Dr Slot recommended Ms Lovrenovich continue taking Voltaren.
160There was no medical opinion tendered which suggested, attributed or explained a causal link between the episode of pain in October 2018 and the first transport accident.
161Ms Lovrenovich did not have the MRI scan requested by Dr Slot. I find that cost was not a decisive factor. Ms Lovrenovich did not feel her symptoms were of sufficient severity to justify the cost. I do so, because Ms Lovrenovich did not return to a GP until after the second transport accident. Further, she was able to participate in the majority of her cycling holiday in Cambodia and Vietnam in late 2018. Further, Ms Lovrenovich applied to Victoria Police in early 2019, knowing the fitness requirements for admission and the physicality of the job. It is improbable she would have done so if she had been experiencing any significant ongoing lower back and left leg pain.
162I find that Ms Lovrenovich’s attendances on Dr Fraser between 21 January 2019 and 29 April 2019 were for perceived weakness in her gluteus maximum muscle on the left, and likely her left shoulder condition, both of which continued to improve over that time.
163Ms Lovrenovich was not referred to any specialist for opinion regarding her lower back and left leg symptoms in the period between the first and second transport accident. She was not prescribed any medication. She continued to work full time as a technician.
164The attribution Ms Lovrenovich now makes of ongoing back and left leg symptoms following the first transport accident, which was only temporarily aggravated in the second and third transport accidents, is not supported by the contemporaneous evidence.
165The second transport accident involved significant forces. Ms Lovrenovich attended Cobram Hospital. She denied any pain and was not admitted.[55] No imaging was performed.
[55]DCB 26.
166Ms Lovrenovich was on a six-week trip to Canada and the United States between July and August 2019. She deposed to having difficulty with lower back, and left leg pain on the flights, and attending a chiropractor whilst away. I accept that evidence; however, no material was tendered from the relevant chiropractor.
167On 19 August 2019, Ms Lovrenovich began attending Dr Hansen, osteopath, for lower back and left leg pain and symptoms, and saw Dr Hansen regularly thereafter.
168Ms Lovrenovich attended Dr Dhar at Princess Park Clinic on 18 October 2019 in relation to “Victorian Police recruitment”. She reportedly complained of left shoulder and lower back pain, “worsened” in the second transport accident. Her symptoms were reported to have been stable until a practice fitness test the previous weekend, following which she had increased left shoulder, lower back, left leg and left gluteal pain.[56]
[56]DCB 27.
169Ms Lovrenovich attended Dr Bashyam on 7 November 2019, and an MRI scan was requested. The clinical indication noted on the MRI was “lower back pain with sensory disturbance on lateral aspect of the left leg and foot ? disc prolapse”.[57]
[57]PCB 78.
170That MRI scan was undertaken on 20 November 2019.
171In February 2020, Ms Lovrenovich again attended Princess Park Clinic complaining of “worse” back and left leg pain after the second transport accident. That attendance prompted the letter from Dr Bashyam noted above.
172Ms Lovrenovich continued seeing Dr Hansen, her osteopath, but it is not clear on the evidence, whether Ms Lovrenovich had physiotherapy, chiropractic or other care between February 2020 and the happening of the third transport accident.
173Following the third transport accident in April 2020, Ms Lovrenovich consulted, GP, Dr Bashyam, continued with osteopathy, had physiotherapy, and then first saw Mr Chan.
174The medico-legal practitioners each examined Ms Lovrenovich some years after the first transport accident.
175Mr Chan’s reports refer to one transport accident, and it is not clear which transport accident he was referring to. His reports do not assist me in identifying the injury sustained in the first transport accident or its current impairment consequences.
176Professor D’Urso did not mention Ms Lovrenovich’s prior episodes of lower back pain in his report. He did not identify what role the second and third transport accidents played in Ms Lovrenovich’s condition. Professor D’Urso noted that the imaging postdated the second transport accident. He did not identify the significance, if any, of there being similar findings in the imaging over time. Professor D’Urso did not set out his path of reasoning for his opinion as to the role of the first transport accident in Ms Lovrenovich’s condition. Professor D’Urso’s opinion is based on a history of persisting lower back and left leg symptoms which is contrary to my findings.
177Mr Grossbard first examined Ms Lovrenovich two months prior to her surgery in 2021. He was of the view that surgical intervention was not warranted. His report did not identify the documents he was provided with. In his first report, he provided an opinion about the injury and impairment resulting from the first transport accident without discussing the role, if any, of the second and/or third transport accidents. In his second report, he expressed an opinion as to the impact of the first and third transport accidents, without discussing his opinion as to the injury or impairment, if any, from the second transport accident. He took the same course in his third report. Mr Grossbard did not sufficiently set out his path of reasoning for his opinions as to the role played by the first and third transport accidents. Mr Grossbard appears to have based his opinion on a history of pain, left-sided weakness and sciatica since the first transport accident which is contrary to the facts as I find them to be.
178Mr Speck was provided with a considerable body of material in relation to Ms Lovrenovich’s treatment from time to time. He opined that, on balance, it was reasonable to attribute the onset of left sciatica and leg pain to lumbar disc prolapse as a result of the first transport accident. He noted that the natural history of a prolapse was for spontaneous recovery within three months.
179Mr Speck did not opine as to the significance, if any, of the incident which involved prolonged bending in October 2018.
180It is not clear what information Mr Speck accepted (or otherwise) as to Ms Lovrenovich’s symptoms and impairment from time to time after the first transport accident, after the second transport accident, and after the third transport accident. Mr Speck noted that Ms Lovrenovich gave a history of “ongoing fluctuating symptoms”. For the reasons articulated, I find Ms Lovrenovich’s evidence as to her symptoms unreliable.
181The most favourable reading for Ms Lovrenovich’s case of Mr Speck’s answer to Question 2a in his first report, is that Mr Speck was of the view that her surgery was for treatment of the injury and impairment sustained in the first transport accident. I have doubts as to whether Mr Speck was expressing that opinion, but if he was, I am unable to accept it as there is no identified path of reasoning.
182That deficiency is further highlighted by the fact that Mr Speck said he did not change his opinion as a result of reading Mr Grossbard’s third report, or Professor D’Urso’s report, despite noting that he understood Professor D’Urso said Ms Lovrenovich’s surgery was as a result of deterioration after second transport accident.
183I accept that Ms Lovrenovich experienced short-lived low back and left leg symptoms after the first transport accident. The contemporaneous evidence does not corroborate her account of continuing symptoms of significance from the time of the first transport accident. The contemporaneous evidence does not corroborate Ms Lovrenovich’s account that the aggravations of the lumbar spine injury in the second and third transport accidents were only short-lived.
184On the evidence, I am unable to be satisfied as to the nature and extent of low back and left leg symptoms Ms Lovrenovich experienced after the first transport accident and prior to the second transport accident and the extent to which those symptoms were attributable to the first transport accident.
185I am unable therefore to assess whether those symptoms currently would satisfy the statutory threshold.
186I am not satisfied that Ms Lovrenovich’s microdiscectomy was required for the injury and impairment caused by the first transport accident. On the evidence, it was more likely due to the second transport accident, a combination of the second and third transport accidents, or possibly all three transport accidents.
187Ms Lovrenovich has not discharged the onus she bears of establishing what her condition was after the first transport accident, and of establishing what impairment consequences are currently attributable to that event. I am therefore not able to assess whether the relevant impairment consequences satisfy the statutory threshold.
Conclusion
188I find that Ms Lovrenovich has not satisfied her onus to establish what impairment consequences are currently attributable to the first transport accident as distinct from the second and third transport accidents.
189Ms Lovrenovich’s application is therefore dismissed.
190I will hear the parties on the issue of costs.
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