Mastoras v Transport Accident Commission
[2014] VCC 1994
•10 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06178
| ELPIDA MASTORAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 August 2014 | |
DATE OF JUDGMENT: | 10 October 2014 | |
CASE MAY BE CITED AS: | Mastoras v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 28 November 2014] | [2014] VCC 1994 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – impairment of the right and left shoulder, bilateral shoulder impairment
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68; Raimondo v Hoi Yeung Pty Ltd (t/a Oceanic Food) [2005] VCC 1400; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Wright v Mount Edisar Pty Ltd [2006] VCC 410; Wright v Toyota Motor Corporation Ltd [2008] VCC 710; De Luca v Pinkney & Transport Accident Commission [2007] VCC 1307
Judgment: Applications dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes with Ms J Frederico | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Ruskin QC with Ms P R Riddell | Solicitor for the Transport Accident Commission |
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 (“the transport accident”) which occurred on 28 March 1997 (“the said date”).
2 Counsel for the defendant indicated in his closing address that the plaintiff’s application for an extension of time pursuant to s23A of the Limitation of Actions Act 1958 would not be opposed.[1]
[1]Transcript (“T”) 67
3 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.”
4
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
5 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right and left shoulders and bilateral shoulder impairment.
6 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
7 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[2]
[2](2000) 1 VR 79
8 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 that “significant” or “marked”? – see Humphries & Anor v Poljak.[3]
[3][1992] 2 VR 129 at 140-1
9 The plaintiff swore three affidavits. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
10 The plaintiff is presently aged sixty-eight, having been born in Greece in 1946. She migrated to Australia in 1964 and married in 1966.
11 The plaintiff worked in various factories and in about 1977, she sustained an injury to her back at work (“the 1977 injury”). She could remember hurting her left hip at that time and she must have also injured her lower back.[4]
[4]T21
12 Thereafter, the plaintiff developed a depressive illness because of her back injury. Her severe depression required psychiatric treatment, including hospitalisation, where she underwent shock treatment carried out by Dr Wahr. The plaintiff saw him quite a number of times and then stopped seeing him for good.[5] Her psychiatric condition was further exacerbated in 1981 when she lost her sister to cancer.
[5]T28
13 The plaintiff did not return to work after the 1977 injury.
14 In 1985, the plaintiff was involved in a transport accident in which she sustained soft tissue injuries to her neck, back and shoulders (“the 1985 accident”). She believed she made a full recovery from her whiplash injuries, although from time to time she had some low back pain.[6]
[6]T22
15 The plaintiff saw Dr Ong as she had a stiff neck and backache. She had acupuncture treatment. She had very severe headaches on and off and she was very anxious and depressed and worried after the 1985 accident.
16 The plaintiff agreed she thought her 1985 accident injuries were serious injuries in the beginning. She was in pain. The plaintiff told Dr Malios about it and he said not to take it seriously, “they are not serious injuries, look after yourself and do not get depressed like before”. She agreed with Dr Malios it was not worth it for her to have all those problems with her nerves again over the accident. She was very frightened.[7]
[7]T57
17 The plaintiff agreed that she was told in 2002 by her solicitor that that was as far as he could go with her case.[8] Mr Zaparas looked after her after the 1985 accident. He made her very upset because he did not listen. She complained about him in 2003.[9]
[8]T57
[9]T58
18 After the 1985 accident, and for many years, the plaintiff saw her family doctor, Dr John Malios, almost fortnightly.
19 The plaintiff saw Mr Flaim in 1987 complaining of pain in her back, neck and headaches. She was then very depressed.
20 In August 1987, the plaintiff saw Mr Billett. She complained to him of constant pain in her neck and down her middle and low back. She was still very depressed. She was trying acupuncture and Chinese medicine.
21 When she saw Dr Kennedy in September 1988, the plaintiff complained of neck and back pain and stiffness. If he noted she had radiating pain into both shoulders and upper arms, that would be right, but she did not recall. She did not remember numbness and tingling in her hands and fingers. It was possibly true she could not sleep properly but she did not remember it being so serious. Perhaps she was having a problem with her husband then if that was noted. She did have headaches.[10]
[10]T25
22 At the end of 1988, the plaintiff saw Dr Kornan. The plaintiff felt it must be right if he wrote down that she had so much pain on the side of her back and multiple areas of her back. She agreed she had told a doctor she felt like she was going to end up in a wheelchair after that accident.[11]
[11]T26
23 The plaintiff would have told Dr Kornan she was yelling at the children and her husband, but disagreed she told him she had lost weight because she put on a lot of weight after the 1985 accident.
24 The plaintiff and her husband ran a family business which was destroyed by fire in 1988. Of course it was very distressing and worrying that the business had burnt down.[12]
[12]T27
25 The plaintiff did not think Mr Zaparas sent her back to Dr Wahr in 1988, but she could not remember. It was probably right that she was crying and at other times calm, as Dr Wahr noted.[13]
[13]T29
26 The plaintiff agreed three years after the 1985 accident, she was still complaining of pains in her back and had headaches. In 1989, she still had trouble with her neck and low back. She was too nervous to go back to work.
27 The plaintiff agreed in 1993, she got the Disability Pension from Centrelink for depression because of all the damage that had happened “to us”. She did not remember about her back at that time but she knew she was very upset because of the loss of the business.[14]
[14]T29
28 Prior to the said date, the plaintiff had other health issues requiring medical assistance, including a cervical spine problem with left arm symptoms for which she underwent a C6-7 fusion in July 1997 (“the neck surgery”). Those symptoms were present prior to the said date, but she believed they became worse thereafter.
29 The plaintiff agreed a month or two before the transport accident, she was still very depressed and upset. In May 1997, she was taking Panadol for her left arm pain. The pain was in the lower part of her left arm around the forearm and the wrist. She could recall seeing Dr Drago and having an MRI scan.[15]
[15]T31
30 The plaintiff did not realise she was then having pain in her neck. If Dr Drago had noted she had had two months of pain in the neck with pain going down into the left shoulder and left arm, she would have told him that. She must have told him about pain in the middle and left ring finger, having pain and pins and needles and that she had electric shocks and spasms going down the left arm. She thought however she was feeling a bit better, especially when she took tablets.[16]
[16]T32
31 The plaintiff agreed that when she saw Dr Kalfas a month before the transport accident, on 15 May 1997, she complained of pain in the neck and left arm gradually coming on over the two months, increasing in severity. He gave her Panadeine Forte, as had Dr Drago. She was also taking Xanax for depression, and another antidepressant.[17]
[17]T33
32 After the 1985 accident, the plaintiff continued to see Dr Malios and at times she saw Dr Lolatgis in the same clinic. She was seeing those doctors for her back pain and neck pain, and for her headaches, right up until the time of the transport accident.
33 The plaintiff had stopped painkillers in the period leading up to the transport accident. Her back had become much better. Her neck became painful about three or four months before the transport accident. The plaintiff did not see anyone for depression. Dr Malios used to give her Xanax and she did not need a psychiatrist in those years.[18]
[18]T54
34 In re-examination, the plaintiff confirmed before the transport accident, she did not have pain in her right shoulder. Before the neck surgery, she had pain in the forearm and left arm, left hand and pain in the wrist and her arm just dropped. Before those symptoms started, she did not have any pain in her left shoulder.[19]
[19]T60
35 The plaintiff was on the way to see Dr Drago when she had the subject accident.
36 On the said date, another vehicle failed to give way to the vehicle in which the plaintiff was travelling as a front-seat passenger, hitting her side of the car (“the transport accident”).
37 The plaintiff told Dr Lolatgis that she took most of the impact in the transport accident with her right hand. She could not remember exactly what happened at the precise moment, as she was dazed.[20]
[20]T33
38 The plaintiff agreed she saw Dr Kalfas after the transport accident. She reported the crash jarred her severely and it shook her up. She went forward and her knees hit the glove box and her arms and hands must have gone right into the front part of the car. The impact jarred her severely and her right arm had been outstretched.[21]
[21]T34
39 When the plaintiff saw Mr Simm in May 2011, if he had noted she put her right arm out to brace herself, she would have told him that and she would have told him of her right shoulder hurting.
40 Following the transport accident, the plaintiff felt pain around her shoulders and neck and over her knees. She was taken by ambulance to Monash Hospital and thereafter attended her general practitioner, Dr Kalfas.
41 The neck surgery in July 2007 relieved a lot of the plaintiff’s left arm symptoms, although she had neck and left shoulder pain which persisted but was not as bad as it was prior to the transport accident.
42 Following the transport accident, the plaintiff became more aware of right shoulder pain. She was referred to rheumatologist, Dr Harkness, whom she saw in October 1997 for both shoulders, as well her low back and left hip.
43 Dr Harkness arranged investigations of the plaintiff’s right shoulder which revealed a tear and he gave her injections into her shoulder. She was told an ultrasound revealed a full-thickness tear of the right supraspinatus.
44 Following neck surgery, the plaintiff had a flare up of psychiatric symptoms. She had come off Xanax, which she had been taking before the transport accident, and she had a psychotic episode which required her to be hospitalised.
45 The plaintiff was referred to Professor Littlejohn, rheumatologist, in August 1998 as she was still having a lot of pain and widespread symptoms. Later that year, she was referred to Dr Blombery, pain management specialist, who prescribed Baclofen and gave the plaintiff an infusion.
46 The plaintiff continued having neck problems with referred pain into her left shoulder and arm and right shoulder, as well as low back pain.
47 The plaintiff became increasingly depressed and anxious and she came under the care of psychologist, Ms Kobatsiari, whom she first saw for treatment in May 1998.
48 When she saw Mr Brownbill in 1999, the plaintiff agreed she had lots of trouble; pain in the left arm and shoulder numbness; pain in the right shoulder; pain in the neck; headaches and pain in the lower back. The plaintiff denied she had reduced neck movements because she was not really trying on examination.[22]
[22]T43
49 Between 2000 and 2009, the plaintiff continued to experience right shoulder pain and attended her general practitioners, Dr Kalfas and Dr Lolatgis. She was seen by psychiatrist, Dr Piperoglou, and also attended Dr Mouratides monthly.
50 It was suggested to the plaintiff she had a very great restriction of movement when she saw Mr Shannon in 2001 and full and normal movement when she was not being examined. The plaintiff thought maybe she was frightened when examined and she could not explain the inconsistent findings.[23]
[23]T42
51 The plaintiff agreed she told Dr Harkness in 2001 that she had low back pain that never stopped. Presently, “it is difficult not to have pain but there are times when sometimes the pains are not there”.[24]
[24]T47
52 The plaintiff accepted that when seen by Dr Harkness she was sighing and groaning, explaining that when you are in pain, “that is what you do”. There was a lot of worry; the accident was fresh and it had not been there for a long time and she was worried about her future, what she was going to face.[25]
[25]T47
53 The plaintiff used a stick after the 1997 neck surgery and also after the transport accident. She took her stick to a Transport Accident Commission (“TAC”) medical examination.[26] The plaintiff agreed she told Dr Blombery on examination in 2001 that she used a stick because she had problems with her balance.
[26]T52
54 The plaintiff agreed when she saw Dr Piperoglou in 2004, she was then complaining about feeling depressed, sometimes tearful and she had hot and cold feelings through her body. She was under stress. She had sleep disturbance and had chronic pain in her neck and left shoulder.[27]
[27]T35
55 The plaintiff started seeing her psychologist, Ms Mouratides, in 2007. They discussed the plaintiff’s problems with her former lawyer, Mr Zaparas. The plaintiff was very upset with him and she agreed she still obsesses about him.[28]
[28]T58
56 Ms Mouratides gave the plaintiff the names of two legal firms and she chose Maurice Blackburn. Her arm was then getting bad and her shoulder was getting worse.
57 The plaintiff agreed she saw Maurice Blackburn in about December 2009, perhaps two or three months after discussing this issue with Ms Mouratides, but she could not recall.[29]
[29]T59
58 During 2009, the plaintiff’s right shoulder symptoms worsened and she was referred to Mr Evans, an orthopaedic surgeon, who initially treated her with hydrodilatation. He later advised her to have surgery, which she underwent on 6 October 2009, which she understood was a right shoulder arthroscopy and rotator cuff repair (“the shoulder surgery”). Thereafter, the plaintiff had some improvement and she underwent physiotherapy.
59 As of July 2012, the plaintiff was continuing to see Dr Mouratides monthly, and also Dr Lolatgis. She was then taking Panadol Osteo, Seroquel, Mobic, Nexium, Imovane and Valdoxan, an antidepressant.
60 The plaintiff continued to suffer right shoulder pain radiating down her right arm into her hand. She had swelling of her right palm. The shoulder surgery had helped but she continued to have symptoms.
61 The plaintiff had difficulties performing cleaning at home and she received home help for three hours a week.
62 The plaintiff also continued to experience pain in her neck and down her left arm as well as in her back. She had an MRI scan of her left shoulder on 12 October 2011.
63 The plaintiff agreed that she told Dr Thomas in 2011 that she had pain over her whole body.[30] Her husband had just been diagnosed weeks before and she was feeling very, very bad. She had pain in her head and shoulders and she was taking antidepressants and things to help her sleep. She was very distressed. She had many, many areas of being tender over her body. She felt like “a nothing”, like she was “not there, like somebody else …”, she felt “zero, very bad”.[31]
[30]T47
[31]T48
64 The plaintiff could not recall her shoulders being examined on that occasion. If Dr Thomas noted her shoulder movements were mildly limited on the right, more so than the left, she would not quarrel with that description. He told her it would have been better if he had seen her at the start and he could not help her now because “things stayed on her body”.[32]
[32]T50
65 The plaintiff agreed when she saw Mr Simm in 2011 she was suffering constant pain in the back of her neck and down the shoulders and pain in both shoulders into the left hand and numbness to the fingers, headache, pain in the lower back present every day going down her buttocks and sometimes going down both legs. There was numbness in her legs and feet.
66 The plaintiff agreed when she saw Mr Simm she could move her head and neck very rapidly as she does exercises every day.[33] She agreed she could move her arms when she was talking because she is “not completely an invalid”. She could move her arms in and out, to the front and side, but it was painful. She could not move both arms and shoulders right out to the side because she had pain in the upper arms. She could move her right shoulder to the front of her, but not all the way up, and when she put her arm out it felt very heavy. She could not move to 90 degrees. She could not put her arms behind her back reaching up above her beltline.[34]
[33]T36
[34]T38
67 The plaintiff could get her arms to her buttocks but not further.[35] Some days she was better; other days she was worse. Increased movement on that examination was because she would then have been better. She always tries and does the very, very best she can on examination.[36]
[35]T39
[36]T40
68 In her further affidavit sworn in June 2014, the plaintiff deposed the situation with her right shoulder remains unchanged.
69 Further, the plaintiff was experiencing ongoing left shoulder pain and was referred for an x‑ray and ultrasound in October 2011, which she was told showed a full-thickness tear in the supraspinatus tendon.
70 The plaintiff was sent back to Mr Evans, whom she saw in November 2011, and he gave her a cortisone injection in the left shoulder. He gave her another injection in April 2012 because of ongoing pain.
71 As the left shoulder was not improving, Mr Evans recommended the best assistance would be a left rotator cuff repair but the defendant denied liability for that procedure.
72 The plaintiff had a further injection into her left shoulder in September 2012 as she was finding they were giving her some symptomatic relief. She continues to attend Mr Evans quarterly and is given left cortisone injections to alleviate her pain.
73 The plaintiff agreed she got on well with Mr Evans.[37]
[37]T46
74 The plaintiff agreed when she saw Mr Evans in November 2011 her right shoulder was giving her some occasional discomfort. She agreed she was very happy with the outcome of the surgery. Her arm had dropped completely down before that. That is why she had had the operation.[38]
[38]T44
75 The plaintiff agreed on three-monthly examinations in 2013 with Mr Evans that she told him that although she had mild discomfort, things had not changed with her shoulder. There was always pain. She was telling him she could not do things with her right hand.[39]
[39]T44
76 Around the time the plaintiff was seeing Mr Evans, her husband started to get sick and there were a lot of things happening and it was very sad for her. The plaintiff’s husband died in July 2013.
77 The plaintiff could not remember in 2013 which shoulder was giving her the most trouble. She had pain in both. She then again agreed she told Mr Evans she had mild discomfort. She found that she was “like a doll. She sits there and she cannot do so many things with her shoulders. She can’t do nothing.” Sometimes one shoulder is worse; sometimes the other is worse.[40]
[40]T46
78 The plaintiff deposed that to date, she has a burning sensation over her left shoulder and pain into her left shoulder and upper arm and sometimes into her hand, and numbness in her left and into her fingers. She has difficulty using her left shoulder to reach behind her back or to elevate her shoulder without pain.
79 The plaintiff continues to have right shoulder pain which is burning but not as bad as in her left shoulder. She has pain radiating into the right shoulder and upper arm to the elbow.
80 The plaintiff also continues to experience back pain which is present most days and aggravated by walking or standing too long. She also has that pain if bending over for extended periods. She finds activities that require her to bend, such as putting on shoes or stockings, difficult and painful.
81 The plaintiff’s present back pain is worse than before the transport accident. It is sometimes on the right side, sometimes on the left and sometimes in the centre, or sometimes on the side. So she could not actually say if the pain was now in the same place as before the transport accident.[41]
[41]T55
82 The plaintiff agreed she had pain in her legs and knees. She was very bad; as you could see her now, that is how she was day and night. She is okay because she did not want to start crying.
83 The plaintiff had burning in her arms and her elbow. She had burning in her low back, her face; her jaw went numb; she had a spasm in her throat – “What else can I tell, what else can I say”?[42]
[42]T60
84 The plaintiff agreed she told Dr Weissman when she saw him April 2014 she had severe headaches and she got dizzy. She had pain in her shoulders and neck; pain in her spine, lower back, buttocks, legs and feet, toes, arms, hands, groin; and that the pain was in her entire body.[43]
[43]T53
85 When it was suggested to her that when she saw Mr Simm in 2014, she could move her neck freely, the plaintiff explained there was still pain. She was frightened to move it quickly so she preferred to do it slowly.
86 In Court, the plaintiff demonstrated rotation to about 60 degrees on the right. If Mr Simm said she moved her neck further on that particular day, maybe she was feeling a bit better. The plaintiff allowed doctors to examine her even if it hurt.[44]
[44]T41
87 The plaintiff continues to have difficulties doing her housework because of her shoulder pain. The defendant pays for two hours of home help a week, as the plaintiff is unable to do a lot of the housework she used to, such as mopping floors, cleaning the bathroom and vacuuming.[45] She pays for someone to do the gardening as she is no longer able to do any of the gardening work she used to be able to do.
[45]By letter dated 7 January 2014, the defendant agreed to pay for three hours of domestic services per week from December to June 2014
88 The plaintiff relies on her children who live close by to do other things around the house that she is unable to do and which the home help does not cover. The plaintiff is able to cook but generally cooks small and easy meals.
89 The plaintiff’s husband died in July 2013, having been diagnosed with cancer in July 2011. During the last two months of his life, the plaintiff was not able to care for him at all and he remained in hospital and in respite. Although he wanted to come home, he did not want to burden her, given her shoulder problems. This situation upset the plaintiff greatly.
90 The plaintiff continues to grieve for her husband and while she is improving, there are days she is very depressed and remains grief stricken.
91 The plaintiff continues to take Panadol Osteo, six or more tablets a day; Seroquel; Imovane; Valdoxan; Nexium; Mobic, and Panadeine Forte, which she takes mainly at night because she finds its effects during the day are too much for her to cope with.
92 In the morning, the plaintiff takes blood pressure tablets and a little bit later takes Seroquel and Valdoxan for depression. She takes Panadeine Osteo in the day; and in the afternoon, Panadeine Forte, and at night, Panadeine Osteo and Mobic.
93 Sometimes the plaintiff gets up in the night because of pain in the shoulders and she cannot sleep. She then takes whatever medication she can find.[46]
[46]T20
94 The plaintiff continues to see her general practitioner once a month but when he is unavailable, she sees a local doctor, Dr Raymond. He is closer to the plaintiff’s home. Dr Raymond has given her steroid injections in both shoulders on three occasions.[47]
[47]T21
95 The plaintiff’s third affidavit sworn 30 July 2014 deals with a s23A application. As this defence was abandoned, I do not propose to deal with the matters raised therein.
Lay evidence
96 The plaintiff’s daughter, Georgina, swore an affidavit in March 2014 in which she described the differences between the plaintiff’s condition pre and post transport accident.
97 The plaintiff had some problems before the transport accident but was generally in good health. She had had neck problems and also depression due to financial problems and the loss of the business, but these issues did not stop her socialising and enjoying her life generally.
98 Prior to the transport accident, the plaintiff was fully independent with housework and gardening but there was an immediate change thereafter. Some days after the accident, she had trouble holding a coffee and complained of pain in her arms and shoulders.
99 Neck surgery did not improve the plaintiff’s condition.
100 The plaintiff was a mess following the transport accident and was irritable with the family and no longer happy-go-lucky.
101 The plaintiff began struggling with housework and did very little. She had difficulty cooking and Georgina took food over to her parents after she left home in 1998.
102 The plaintiff has had difficulty looking after Georgina’s children. That caused the plaintiff great stress and upset and involved her losing her sense of worth.
103 Georgina still helps with some housework, such as changing sheets and washing.
104 The neck injury did slow the plaintiff down. She was still largely independent and able to do all chores but after the transport accident, there was a sudden and significant deterioration. Thereafter, the plaintiff could not be as house proud as before. She was not able to look after her husband and that caused her great stress.
105 Georgina swore a further affidavit in July 2014 in which she deposed to the plaintiff’s psychological problems following her 1997 injury.
106 When growing up, the plaintiff was a loving and involved mother and her health problems did not disadvantage Georgina. She noticed a significant deterioration in the plaintiff’s ability to function as a mother and a housewife after the transport accident.
107 Helen Souras swore an affidavit on 9 May 2014. She and the plaintiff have been neighbours since 1986.
108 Prior to the transport accident, the plaintiff had an immaculate household and thereafter there was a sadder change in her.
109 Ms Souras was aware the plaintiff had some neck and left arm problems before the transport accident but they appeared to get much worse thereafter.
110 Visiting the plaintiff after the transport accident, Ms Souras had to help herself to a drink or coffee. The plaintiff was often lying on the couch, clearly tired, distressed and visibly in pain, as was not the case before the transport accident.
111 From time to time, the plaintiff appeared very limited in what she could do and the house was never as tidy or the garden as well kept as before. The advent of grandchildren caused further distress to the plaintiff as she could not lift or look after them and that clearly upset her.
112 The plaintiff’s son, Andrew, swore an affidavit on 15 March 2014.
113 Andrew moved out of home the year before the transport accident but lived near his parents. Before the accident, the plaintiff was generally fine and she was a happy person, a home handyman doing painting and repairs.
114 In the mid-1980s, the family lost their business and Andrew had to drop out of school to support the family.
115 Andrew could recall the plaintiff being the life of the party at a wedding in early 1997. He was then seeing her about once a week. He was aware of her neck problems but nothing was noticeable to him.
116 From the time of the transport accident, the plaintiff seemed to be a different person. She was pretty much an invalid, with her demeanour changing significantly. She appeared irritable and short tempered and looked sad or down most of the time.
117 Previously houseproud, the plaintiff tried to keep looking after things but she appeared to be in pain and was short tempered and down because of pain. The plaintiff had stopped handyman work.
118 The plaintiff’s socialising and going out decreased significantly after the transport accident. She struggled to help with her grandchildren although she wanted to and that clearly frustrated and distressed her.
119 During the last of his father’s illness, it was apparent that the plaintiff was very upset and distressed she could not help as much as she wanted. His father did not want to be a burden to the plaintiff, who realised that she was not able to care for him, which upset her and caused her to become angry, upset and distressed.
Investigations
120 X-rays of the plaintiff’s lumbosacral and cervical spine in February 1987 showed normal alignment. There was restriction of movement on flexion of the cervical spine and there was some narrowing at C5-6.
121 Dr Kalfas organised an investigation of the plaintiff’s right shoulder on 30 September 1997.
122 The right shoulder ultrasound showed a full-thickness tear of the anterior aspect of the supraspinatus tendon extending from its central to distal aspect. There was limited movement in all planes due to pain. No impingement was demonstrated through the limited range of movement. There was an effusion in the subdeltoid bursa.
123 An ultrasound of the left shoulder of 3 December 1997 revealed a partial left supraspinatus tear.
124 A CT scan of the lumbar spine organised by Dr Kalfas in March 1998 showed no abnormality or evidence of recent bony injury.
125 Mr Evans organised an MRI scan of the right shoulder in July 2009. It was reported there was a full-thickness supraspinatus tendon tear, subacromial spurring, effusion in the subacromial-subdeltoid bursa and scarring in the rotator cuff interval.
126 A hydrodilatation of the right shoulder was performed on 26 August 2009.
Treaters
127 The plaintiff first saw Dr John Malios in 1973.
128 Dr Malios reported in April 1988 that the plaintiff was involved in the 1985 accident. He noted she then presented with symptoms of a chronic low back strain and also symptoms consistent with a fibrositis syndrome involving her upper back and neck. He thought it quite conceivable that the 1985 accident did result in an aggravation of her back problem.
129 Dr Malios thought there was no evidence of any significant injury and as more than three years have passed since the 1985 accident, one would expect there to have been resolution of any soft tissue injuries.
130 Dr Malios noted the plaintiff suffered from other significant health problems and this, together with her psychological state, does contribute to her overall incapacity.
131 Dr Malios organised x-rays of the plaintiff’s spine in 1988.
132 Dr Piperoglou, treating psychiatrist, saw the plaintiff initially on 7 February 1989 for assessment and management of her nervous disorder brought on after the 1985 accident. He saw the plaintiff six times that year.
133 Dr Lolatgis, general practitioner, reported in December 1998 that the plaintiff attended on 20 April 1997 complaining of severe pain affecting her left arm emanating from the neck radiating down the left arm consistent with a nerve root impingement of C7.
134 The plaintiff was referred to a neurologist who ordered an MRI scan which showed a large paracentral and foraminal disc extrusion at C6-7 and she was then sent to a neurosurgeon.
135 On 21 June 1997, the plaintiff had a transport accident, the force of which made her take most of the momentum with the right hand. Following the transport accident, she began to suffer from severe right shoulder pain and her left arm pain was also aggravated.
136 Spinal surgery was undertaken in July 1997, following which the plaintiff was left with left arm pain and a moderate restriction of left shoulder movement to a lesser degree than before the surgery. The right shoulder continued to be the same and an ultrasound of September 1997 showed the significant finding of a supraspinatus tear.
137 When he last saw the plaintiff in December 1997, Dr Lolatgis thought the plaintiff’s right shoulder injury was most likely to be a direct result of the transport accident and that she may require further surgery. He noted her left arm pain and C7 radiculopathy was probably aggravated by the incident which occurred before the surgery. He thought, post-surgery, it was difficult to apportion accurately what amount of residual pain and movement and restriction of the left shoulder joint was either due to the normal surgical course of events or trauma in the transport accident. He thought the plaintiff’s injuries had stabilised.
138 The plaintiff began to see Dr Lolatgis again in May 2009. She presented complaining of worsening right shoulder pain that became particularly worse in the last three months.
139 The plaintiff was referred to Mr Evans and sent for an MRI scan and underwent hydrodilatation that helped with her range of movement but her pain continued. Surgery to the right shoulder had been considered. An MRI scan of July 2009 showed a full-thickness tear of the large component to the supraspinatus tendon.
140 Dr Lolatgis diagnosed right supraspinatus muscle tear and rotator cuff syndrome, aggravation of C7 radiculopathy and left rotator cuff syndrome.
141 On examination in October 1999, the plaintiff complained of persistent pain in both shoulders and neck and she was distressed at the outcome of her medical condition and ongoing medico‑legal battle. She was seen on a number of other occasions throughout 1999.
142 In his most recent report dated 4 January 2014, Dr Lolatgis noted that the plaintiff underwent right shoulder surgery in January 2010 and on review four months later by her treating surgeon, it was noted she had made some recovery but not a complete resolution.
143 Dr Lolatgis advised that the plaintiff continues to have pain and functional impairment of the right shoulder.
144 On 11 October 2011, the plaintiff complained of left shoulder pain and an x‑ray and ultrasound showed a full-thickness tear in the anterior third of the supraspinatus tendon. Dr Lolatgis noted the left shoulder had been painful ever since the transport accident but it was not as bad as the right. It was now symptomatic as the plaintiff had to do more at home with her husband having died.
145 The plaintiff was referred to Mr Evans on 10 November 2011 and was given a cortisone injection to the left shoulder and a further one the following month, with a small amount of relief. There was a further injection of cortisone in April 2012.
146 Because of the plaintiff’s lack of progress, Mr Evans had suggested she have a left rotator cuff repair. At that time, funding had not been forthcoming.
147 Dr Lolatgis noted the plaintiff continues to see Mr Evans quarterly for left subacromial cortisone injections to help alleviate some of her pain. Further, due to exacerbation of her middle and lower back pain, the plaintiff had also been referred to back specialist, Mr Speck.
148 The plaintiff continues to have analgesia and anti-inflammatory medication for her bilateral shoulder pain.
149 Dr Lolatgis advised that he thought the left rotator cuff tear was most likely a combination of trauma in the impact of the accident combined with increased stress and pressure placed on the left arm in terms of increased daily activities because of the dysfunction of the right arm. He agreed with Mr Evans that it was unreasonable the defendant had denied funding for the left shoulder surgery.
150 The plaintiff first saw Dr Kalfas in May 1997 with a history of neck and left arm pain for the previous two months. He noted the old work related history, the referral to Mr Pullar and his suggestion of surgery.
151 The plaintiff was next seen on 25 September 1997 when she sought his advice regarding persistent symptoms arising from the 1997 transport accident. He noted the impact had jarred her severely and particularly her right arm, which had been outstretched at the time to protect herself.
152 The plaintiff felt her pre-existing neck and left arm pain had been aggravated by the transport accident and she had also been left with a painful stiff right shoulder.
153 Investigations of the right shoulder demonstrated a full-thickness tear and the plaintiff was referred to rheumatologist, Dr Harkness, who found her to be suffering from bilateral shoulder pathology and proceeded to inject both shoulders with cortisone as well as referring the plaintiff for hydrotherapy.
154 When next seen in December 1997, the plaintiff informed Dr Kalfas she had been referred to Mr Bell, orthopaedic surgeon, and there had been a further ultrasound.
155 On examination, the plaintiff seemed tense and irritable and complained again of low back pain as well as left hip pain and she was preoccupied by her multiple pain complaints and complained of considerable difficulty functioning in a domestic capacity.
156 The plaintiff was referred to an occupational physician, Dr Malios, who shared Dr Kalfas’ opinion that the transport accident had aggravated the plaintiff’s neck problems, and confirmed she was indeed anxious and depressed.
157 An MRI scan of the lumbar spine in March 1998 failed to reveal further pathology.
158 Dr Kalfas then thought the 1997 car accident was 50 per cent responsible for the plaintiff’s neck condition. He noted that the accident was quite violent and caused tendino-ligamentous damage to both shoulders, particularly the right, aggravated pre-existing mild lumbar arthritis and pre-existing lower cervical disc problems with neurological involvement, and which also caused a post-traumatic anxiety depressive neurosis upon a basis of psychological ill health. He then thought, as did Dr Malios, that the prognosis was poor and the plaintiff risked becoming severely depressed again.
159 In 1998, Dr Kalfas referred the plaintiff to a psychologist.
160 Dr Kalfas noted the plaintiff’s persistent widespread pain affecting her neck, right shoulder and arm, as well low back, thighs and knee. She was referred to rheumatologist, Dr Littlejohn, who confirmed findings of dermatographia and thought the plaintiff had fibromyalgia.
161 Dr Kalfas referred the plaintiff to pain syndrome specialist, Dr Blombery, in December 1998. He confirmed ongoing depressive appearance, trapezius spasm with shoulder stiffness, reduced handgrip strength and reduced left triceps strength. He arranged a trial of treatment with phentolamine infusion.
162 Dr Kalfas believed the neck surgery would have gone ahead regardless of the transport accident and it was likely it aggravated her neck condition by up to about 50 per cent.
163 In his view, the transport accident also caused tendino-ligamentous damage to both shoulders, especially the right, and aggravated pre-existing lumbar arthritis as well as a pre-existing psychological dysfunction, the plaintiff then having already been on Xanax for chronic tension when he first saw her in May 1997.
164 Mr Pullar, neurosurgeon, saw the plaintiff on referral from Dr Drago in June 1997. He noted the plaintiff had had trouble with her neck for many years but three months earlier had suddenly developed quite severe pain.
165 On examination, the plaintiff was quite distressed and tearful. The MRI scan confirmed the presence of a posterolateral C6-7 disc prolapse which would be compressing the left C7 nerve root.
166 Mr Pullar advised the plaintiff that surgery was an option and proposed she undergo an anterior cervical discectomy and fusion at C6-7. That procedure was undertaken on 30 July 1997, after which Mr Pullar reported all went. He noted the plaintiff had immediate relief of a left C7 radicular arm pain but her recovery was complicated by an acute psychosis precipitated by the withdrawal of her Xanax.
167 Although there appeared to be a lot of non-organic features to her pain, Mr Pullar thought the plaintiff’s left upper limb pain was consistent with nerve root compression as defined on the MRI scan. He noted a lot of the plaintiff’s other complaints regarding her back pain, leg pain and right shoulder pain were unrelated to her cervical disc injury and prolapse.
168 Mr Pullar advised that, in his view, the transport accident did cause an aggravation of the plaintiff’s cervical disc prolapse pain and warranted earlier than planned surgery. He noted the plaintiff’s poor outcome from the neck surgery seemed more related to the fact she had sustained bilateral shoulder injuries as Dr Harkness had documented.
169 Dr Harkness saw the plaintiff on referral from Dr Kalfas in October 1997.
170 The plaintiff told him in the 1997 accident she had sore knees where she hit the glove box but they had recovered and she was left with pain in the right shoulder and neck. She then had the neck surgery that she said really had not helped and that her upper limbs were both still sore and there was numbness in all her fingers.
171 Dr Harkness noted this had to be interpreted in light of a very theatrical presentation, with the plaintiff giving every appearance of exaggerating grossly and behaving like an invalid, far more than he believed she really was, making an assessment of her true underlying state much more difficult. He did note, however, there was a full-thickness tear and he believed the plaintiff had bilateral bursitis. He injected each bursa with some steroids. There were further injections later that year.
172 Dr Harkness was by no means convinced that the shoulder problems were from the transport accident, although it could have aggravated them. He suspected the plaintiff had degeneration in her rotator cuffs and that these problems would have arisen anyway, although the transport accident could certainly have had an aggravating effect.
173 Dr Harkness considered Mr Pullar should be approached for his assessment about the transport accident contribution. He believed, without that accident, the plaintiff would not have been as bad and might not have needed surgery.
174 Dr Harkness thought the presence of minor spurring on the lateral margin of the acromion with associated sclerosis of the rotator cuff insertion on the right shoulder x-ray suggested they were long established changes ant-dating the transport accident.
175 Dr Geoffrey Littlejohn, rheumatologist, examined the plaintiff at the request of Dr Kalfas in 1998.
176 The plaintiff then complained of widespread aching and pain, muscular stiffness, fatigue and she was severely depressed by her problems.
177 Dr Littlejohn thought the plaintiff had a low pain threshold throughout the body consistent with fibromyalgia syndrome.
178 Dr Littlejohn considered the plaintiff had clinical features of a pain sensitisation state, ie fibromyalgia. He thought psychological factors were the main cause of the majority of her distress and he noted that was all happening on the background of a past history of work-related back injury and depression, both of which resulted in significant disability such that the plaintiff was on a Disability Support Pension.
179 Dr Littlejohn thought the fibromyalgia was best attended by early resolution of the medico‑legal issue that had arisen in the whole scenario and also with the continued psychiatric input by Dr Piperoglou.
180 In Dr Littlejohn’s view, the fibromyalgia was driven by central stress and emotional factors and if they could be resolved, he doubted the plaintiff would have significant disabling pain from her neck, shoulder and back mechanical sources.
181 Mr Antonie examined the plaintiff in June 1998.
182 Mr Antonie noted after the 1997 transport accident, pain, weakness and stiffness developed in both shoulders, with that on the right demonstrating a supraspinatus full-thickness tear with a partial similar tear on the left. In his view, in the absence of any prior shoulder examinations or history of the contrary, it seemed those symptoms resulted from the transport accident, if not by frank injury in each case, at least by aggravation and possible tearing, particularly on the right side, albeit possibly vulnerable through aged-related degenerative capsular weakness, rendering the shoulders prone to super added injury.
183 In general, Mr Antonie noted the plaintiff’s movements and reactions were better when not aware of being formally examined.
184 Mr Antonie thought the plaintiff’s complaints were consistent with the transport accident insofar as there was an aggravation of pain in the neck and left arm. In his view, if not exclusively, at least a component of aggravation in the shoulders from the accident was applicable. He noted the plaintiff’s longstanding severe anxiety and depressive state appeared to have an adverse influence on her better managing painful physical responses, both pre-existing and subsequent to the transport accident.
185 Dr Drago reported to the TAC in August 1999, having seen the plaintiff a month earlier.
186 Dr Drago repeated opinions previously given in other reports. He thought it was unlikely the plaintiff would ever return to her pre-accident level of functioning, noting she had significant functional overlay in addition to associated depressive illness. In his view, given the entrenched nature of her symptoms, her pre-existing psychological state and her present symptoms, the plaintiff would probably never work again.
187 Ms Kobatsiari, psychologist, reported in July 1999 that she thought the plaintiff was suffering from a Post-Traumatic Stress Disorder with associated symptoms of phobia and depression as a result of the transport accident.
188 Dr Piperoglou saw the plaintiff again after the transport accident, first seeing her in April 1998. She told Dr Piperoglou that she had suffered a fractured right collarbone, torn muscles in her right arm and suffered a worsening in her pre-existing neck pain.
189 Dr Piperoglou thought the plaintiff presented with anxiety and depressive symptoms following that accident. When he first saw her in 1998, he put her on an anti-depressant which did not help.
190 The plaintiff was seen by Dr Piperoglou four times in 1998; three times in 1999; seven times in 2000; nine times in 2001; six times in 2002, and two occasions in 2004. He thought the plaintiff had a terrible prognosis given the chronicity of her symptoms and the associated chronic pain. He considered her condition would probably stabilise and recommended he see her every three months.
191 As of July 2006, the plaintiff was being seen at six-weekly intervals for supportive psychotherapy, counselling and prescription of psychotropic medication. Dr Piperoglou thought she was likely to have a poor prognosis with regard to her chronic pain and psychological symptoms.
192 The plaintiff was last seen in October 2007.
193 Dr Mouratides first saw the plaintiff in November 2007 at the request of Dr Lolatgis and continued to see her regularly since.
194 From the outset, the plaintiff had presented with a history of cervical pain, headaches, bilateral shoulder pain, lower back pain, car phobia, agoraphobia, Post-Traumatic Stress reaction – major depressive illness.
195 Dr Mouratides diagnosed post-traumatic reaction, major depressive illness and agoraphobia.
196 The plaintiff continued to complain of pain and grieving for her loss of function. Dr Mouratides noted that seventeen years after the transport accident, the plaintiff continued to live a very restricted life. She was unable to do her housework properly and unable to garden or enjoy any recreational pursuits or go shopping alone.
197 Ms Mouratides thought the plaintiff’s prognosis was poor in view of the lack of response to treatment, chronicity of symptoms, somatization of depression and vicious cycles set up – pain – depression.
198 Mr Evans first saw the plaintiff in June 2009 on referral from Dr Lolatgis. The plaintiff told him she had bilateral shoulder pain, worse on the right than the left, from a car accident.
199 Mr Evans thought the plaintiff had a rotator cuff tendon tear in her right shoulder but he did not think that was the entire issue. He noted she had pain and poor function in the right upper limb consistent with longstanding disuse and chronic pain. He arranged for an MRI scan and that stage, thought surgery on her shoulder in her current condition was likely to make her worse, rather than better, and that she would need pain management.
200 Mr Evans noted the MRI scan confirmed a full-thickness supraspinatus tear in what looked like a pretty degenerate tendon. He arranged a hydrodilatation injection which helped the plaintiff’s movement but she still had a lot of pain. Given that, he thought surgery was the best way to go. The plaintiff underwent arthroscopic right shoulder subacromial decompression and rotator cuff repair on 25 January 2010.
201 By May 2010, the plaintiff’s active range of motion was largely restored but she still had some pain. Mr Evans thought those symptoms were due to the longstanding nature of the tendon tear and ongoing weakness and he encouraged her to continue with the strengthening program. He thought the prognosis for the right shoulder was fair and he did not anticipate she would require further medical treatment.
202 The plaintiff returned to Mr Evans on 11 November 2011 about her left shoulder. He noted, as previously documented, the plaintiff had been experiencing pain in the left shoulder ever since the transport accident, although it had not been as bad as the right; however, the right had recovered well from the operation and now the left was more symptomatic.
203 Mr Evans noted investigations revealed a full-thickness tear of the left supraspinatus tendon. He thought the plaintiff’s symptoms were consistent with a degenerative tear of the rotator cuff, causing subacromial impingement and bursitis. Given the success of the right shoulder surgery, he thought the left would be beneficial. He noted the plaintiff was then looking after her husband at home and was keen to avoid surgery at that time.
204 A series of injections followed, which provided little relief and as the plaintiff was keen to undergo surgery, a request was sought of the defendant in June 2012, which was rejected. The plaintiff therefore had a further injection in September 2012.
205 Mr Evans diagnosed the symptoms as a chronic rotator cuff tear. He noted, apart from the fact the plaintiff had complained of left shoulder pain ever since the transport accident, it was impossible to say what contribution the accident may or may not have had to the condition. He thought she would benefit with the surgery.
206 Mr Evans has reviewed the plaintiff on a three-monthly basis, seeing her in December 2012, March, June, September and December 2013.
207 On each occasion, the plaintiff’s left shoulder had been stable. Although she got some mild discomfort in the right shoulder, things had not changed. The left was more symptomatic, with pain during the day and night.
208 Mr Evans re-injected the left subacromial space with cortisone and local anaesthetic each time and the plaintiff got about two months’ reasonable relief from that procedure.
209 Mr Evans thought the plaintiff’s left shoulder condition had remained stable over the last two years with partial and temporary relief from the injection but she continued to be troubled by significant shoulder pain and poor functioning. He diagnosed bilateral rotator cuff tendon tears.
210 Dr Blombery first saw the plaintiff on referral from Dr Kalfas in December 1998 with a question of Reflex Sympathetic Dystrophy (“RSD”).
211 Dr Blombery noted a few months prior to the transport accident, the plaintiff had developed pain in the neck and left arm, as well as numbness of the left, middle and index finger and reduced handgrip power.
212 Further, after the transport accident, the plaintiff noted increasing pain in both shoulders and arms. After the neck surgery, there was some improvement in the left arm symptoms but the plaintiff had ongoing neck pain as well as in the right arm. Dr Blombery thought the pain in the right arm and shoulder appeared to have developed mainly in relation to the transport accident.
213 Dr Blombery noted tears of both shoulders shown on ultrasound.
214 When first seen, the plaintiff complained to Dr Blombery of ongoing pain in both arms and shoulders and a weakness in her left. She also complained of a lot of headaches and neck spasms. The plaintiff was limited in what she could do at home because of ongoing pain from her neck and both arms and shoulders.
215 On examination, there was a lot of trapezius muscle spasm bilaterally and limited adduction. There was reduction of handgrip bilaterally.
216 After a trial of Baclofen, Dr Blombery saw the plaintiff in February 1999 but he noted it was hard to see if there had been any response and he organised an infusion which took place in April 1999 and resulted in only a minor improvement.
217 In July 1999, the plaintiff was complaining of increasing shoulder pain. Infusions were organised in September 1999 but they resulted in no change in the plaintiff’s pain levels.
218 When last seen in November 1999, Dr Blombery did not think there was much further he could offer and it was likely the majority of the plaintiff’s pain was sympathetically independent, essentially in the nature of a Chronic Pain Syndrome and there was also a very significant component of secondary depression present. He thought she had ongoing features of a Pain Syndrome affecting both shoulders and arms.
219 In Dr Blombery’s view, the pain was multifactorial and caused in the left arm by the cervical nerve root compression, unrelated to the transport accident. However, he thought the majority of the right arm pain appeared to have occurred as a consequence of that accident, including the possible tear. He thought the prognosis for recovery was then poor.
Medico-legal evidence
220 Dr Thomas Malios examined the plaintiff for medico‑legal purposes in January 1999.
221 Dr Malios thought the plaintiff suffered a soft tissue injury to her neck in the 1997 transport accident, further aggravating a C6-7 disc protrusion. She presented with clinical evidence of a right rotator cuff tendonitis, confirmed on ultrasound; clinical evidence of a left rotator cuff tendonitis suggestive of a similar tear, and she developed a significant psychiatric reaction to her injuries with symptoms of anxiety and depression requiring ongoing treatment from a consultant psychiatrist.
222 Dr Malios thought the plaintiff’s right and left shoulder injuries were related to the transport accident.
223 Mr Myers, consultant general surgeon, examined the plaintiff in June 2001.
224 The plaintiff then complained of neck pain and problems with her left hand from about April 1997 and progressive development of pain in both shoulders and upper arms which was constant. She also developed pain in the low back after the transport accident.
225 On examination, the plaintiff was very volatile and voluble and frequently started crying during the interview. She groaned and moaned with any attempts at movements at sites. Mr Myers could not detect any neurological abnormality.
226 There was an appreciable restriction in range of movement of both shoulders and the cervical and lumbar spine, such movements apparently associated with pain.
227 Mr Myers thought that there had been an aggravation of pre-existing degenerative intervertebral disc disease in the cervical and lumbar spine but also degenerative disease in both shoulders. He thought the transport accident had aggravated all those problems. He considered half the ongoing disability in relation to the spine was due to the transport accident, while all the disability relating to both shoulders was a result thereof.
228 Mr Myers thought there was a very considerable element of psychiatric disturbance and noted there was a pre-existing tendency towards such a problem which had undoubtedly been aggravated by the effects of the transport accident.
229 Mr Myers considered the prognosis for all of the physical and psychiatric disturbances must be poor, with likely future progression of all the plaintiff’s problems, much of which could be attributed to the transport accident aggravation.
230 Mr Myers thought it quite likely the plaintiff would require consideration of surgical treatment for the bilateral rotator cuff syndrome, either a hydrodilatation or attempted surgery. He did not think spinal surgery would be likely.
231 Dr Weissman, psychiatrist, initially examined the plaintiff in 2011 and re-examined her in 2014.
232 In relation to the transport accident, Dr Weissman considered the least significant diagnosis was of a mild Post-Traumatic Stress Disorder (“PTSD”) associated with symptoms and features of traumatisation. He considered the two most significant diagnoses related to a severe Chronic Pain Disorder associated with psychological factors and a general medical condition and a Severe Major Depressive Disorder.
233 Dr Weissman thought the plaintiff’s Chronic Major Depressive Disorder was contributed to by her husband’s death, 40 per cent; combination of pre-existing factors, 30 per cent; and the transport accident in the secondary reactive or consequential manner, the balance.
234 Dr Weissman thought the transport accident contributed roughly 50 per cent of the plaintiff’s Chronic Pain Disorder and a host of pre-existing and unrelated factors contributed to the other half.
235 The plaintiff first saw Mr Simm, orthopaedic surgeon, in May 2011.
236 The plaintiff then complained of constant pain, with pain in the back of her neck, radiating to the upper spine between the shoulder blades and some localisation of pain to the left shoulder blade. Pain radiated from the neck over the shoulders.
237 The plaintiff had persistent right shoulder pain but it had improved since the shoulder surgery. The pain radiated down the right arm to the right hand with some swelling of the right palm and red blotches on the palm. There had been some improvement in movement since the surgery.
238 Pain radiated from the left shoulder down to the hand. The plaintiff had numbness involving all fingers of the left hand but particularly the little finger. She had severe headaches which she associated with neck pain and she had pain in the lower back present every day.
239 On examination, the plaintiff was emotionally labile and occasionally tearful. She was animated. She moved her head and neck rapidly without evidence of restriction or pain and gesticulated freely with both arms, but not above shoulder height. She moved carefully and cautiously on formal examination with a slow hesitant gait.
240 There was no wasting of the right shoulder and formal examination of movement was associated with cautious and slow movements. There were similar findings on the left shoulder and the plaintiff moved her lower back in an extremely cautious way.
241 Mr Simm noted the plaintiff currently presented with restriction of left shoulder movement but with no clinical signs of rotator cuff dysfunction or impingement. He attributed the apparent restriction of left shoulder movement to inhibition of movement secondary to chronic referred symptoms from the neck.
242 Mr Simm thought the contemporaneous material did not indicate that there was a discrete left shoulder injury in the accident. There was, in his view, a soft tissue injury to the right shoulder, noting the plaintiff had braced herself; the findings on ultrasound; and persistent symptoms from the time of the transport accident to the point of surgery.
243 Mr Simm thought the current clinical signs in relation to the right shoulder were non-specific. He noted the plaintiff did not have the clinical signs of subacromial impingement or rotator cuff dysfunction and there appeared to be some inhibition of forward elevation and abduction from chronic pain, rather than any residual identifiable physical pathology. He also thought there was a soft tissue injury to the back and left hip.
244 The plaintiff was re-examined in March 2014. She then tearfully told Mr Simm she suffered from constant and very severe pain.
245 On examination, there was constant severe pain around the shoulders, worse on the left with a burning pain over the front of the left, radiating into the upper arm to the elbow and some radiation to the left hand, with some numbness in the left hand in all digits. There was marked restriction of left shoulder movement.
246 The plaintiff had pain over the front of the right shoulder and a less severe burning pain. There was radiation to the elbow but no numbness or pain extending below the elbow. She complained of frequent severe headaches and pain in the lumbar region.
247 Again, the plaintiff was emotionally labile and tearful and appeared depressed.
248 The plaintiff confirmed her neck had not been a problem.
249 On examination, there was no wasting of the right shoulder and there was marked restriction of movement with some inconsistencies. Similarly, there was marked restriction of the left shoulder with complaint of pain. There was a positive impingement sign. Thoracolumbar movements were cautious and there was quite marked restriction of movement.
250 Mr Simm noted the plaintiff’s left shoulder had been problematic since the transport accident with painful restriction of movement.
251 Clinical findings that day were of rotator cuff impingement of the left shoulder, and the ultrasound in 2011 confirmed a degenerative tear of the left supraspinatus. Mr Simm noted there had been a severe pain response to this pathology and withdrawal of use of the left upper limb from physical activities.
252 Mr Simm though there was a soft tissue injury to the right shoulder, noting the mechanism of the transport accident and subsequent tear.
253 On examination, it was evident the plaintiff had a severe chronic adverse pain response in association with the surgically treated rotator cuff pathology. There was marked restriction of movement. The range was significantly less than when last examined; however, there were no specific clinical signs of residual subacromial impingement or rotator cuff dysfunction.
254 Mr Simm noted the ongoing right shoulder pain had led to withdrawal of use of the right upper limb from daily activity.
255 There was also soft tissue injury to the knees, chest and lower back and left hip.
256 Mr Simm thought the plaintiff’s emotional disturbance and chronic widespread musculoskeletal pain, which was substantially aggravated by the transport accident, would prevent any form of gainful employment and she was struggling to manage independent living.
257 Mr Simm noted there were a number of non-organic clinical signs present and there were features of a Chronic Pain Syndrome. He thought the plaintiff required domestic assistance. He considered the prognosis post surgery for the shoulder had been improved.
The Defendant’s medical evidence – the Plaintiff’s treaters
258 Dr Ong saw the plaintiff on 12 January 1985, a day after the accident. She was then complaining of stiff neck and lumbar backaches.
259 Dr Ong reported in January 1986 that the plaintiff, to date, still complained of pain in her neck and also back and also severe headaches off and on. She was also a very anxious woman, thereby not helping the whole situation.
260 In his last report of August 1989, Dr Ong advised that the plaintiff appeared to suffer as a result of the 1985 accident, musculoligamentous strain of the neck and lower back, stress, which was the most prominent factor at that time. He noted she appeared to be too nervous to return to work.
261 Dr Drago, neurologist, first saw the plaintiff on 31 May 1997 on referral from Dr Kalfas.
262 The plaintiff’s presenting complaint was a two-month history of pain in the neck with radiation to the left shoulder and down the arm. The middle and left ring finger were involved with pain and paresthesia.
263 Dr Drago made a clinical diagnosis of a left C7 radiculopathy and an MRI scan demonstrated a large left central and foraminal disc extrusion at the C6-7 level causing moderate left lateral indentation of the cord and compression of the exiting left C7 nerve root.
264 Dr Drago noted the plaintiff had a transport accident on the way to his rooms on 21 June 1997.
265 Following that accident, although there was an increase in the amount of neck and left arm pain, Dr Drago was convinced there was no additional acute damage to the spinal cord or nerve roots as a result of that accident. In view of the increase in the plaintiff’s neck, left arm and MRI scan finding, Dr Drago made an urgent referral to Mr Pullar, neurosurgeon, whose post-accident examination was identical to Dr Drago’s pre-accident examination.
266 The plaintiff underwent an anterior cervical discectomy and fusion on 30 July 1997 which, according to Mr Pullar, resulted in immediate relief of C7 radicular arm pain.
267 The plaintiff was next referred to Dr Drago in May 1999 by Dr Kalfas.
268 The plaintiff’s major problems then were severe neck and bilateral shoulder pain, particularly shoulder tenderness. She had numbness in all the fingers of the left hand. Dr Drago then found no objective physical signs other than those attributable to her existing C7 radiculopathy.
269 Dr Drago then thought a significant degree of the plaintiff’s problems related to the musculoligamentous injury she sustained in the transport accident.
270 Dr Drago considered that accident aggravated the plaintiff’s degree of neck pain and left arm symptoms and caused her to have additional symptoms in her right arm. He found no change in her physical signs when he examined her acutely after the transport accident.
271 Dr Drago noted there was some improvement in physical signs in the May 1999 accident. He could only suggest the plaintiff’s remaining symptoms were due to cervical musculoligamentous strain.
272 Following neck surgery, resolution of the plaintiff’s radicular symptoms did occur and what was left was pain due to a soft tissue neck flexion extension injury. Dr Drago could not find any organic explanation for the plaintiff’s perennial symptoms.
Medico-legal evidence – the 1985 accident
273 Dr Peter Mangos, general surgeon, examined the plaintiff in January 1987 in relation to the 1985 accident. He concluded she was suffering from chronic musculoligamentous strains following that accident in her neck and lumbar spine. He noted her overall problems were not helped by her general nervous state.
274 Mr Michael Flaim, surgeon, examined the plaintiff in 1987. She then complained of recurrent back pain, headaches, general symptoms of tiredness and lethargy and quite significant depression.
275 Mr Flaim thought, as a consequence of the 1985 accident, the plaintiff sustained moderately severe soft tissue injuries affecting her neck and lumbar spine. In the normal course of events, he would have expected considerable improvement and he was quite surprised she still required home help. He felt the explanation for the persistence of her symptoms was twofold: namely, the severity of the original injury and the occurrence of significant depression complicating the picture. He thought that the plaintiff’s symptoms were presently as severe as they were because of her psychological reaction to her injuries.
276 Mr Billett, orthopaedic surgeon, examined the plaintiff in August 1987.
277 Mr Billett thought the plaintiff was displaying signs of exaggeration, with complaints of tenderness over a very vast area in the absence of any evidence of any intervertebral disc prolapse or nerve root irritation.
278 Mr Billett gained the impression that the plaintiff was exaggerating her condition. He thought there was very little support for her given history and extensive area of tenderness. He did not think she was depressed and felt there was gross exaggeration on her part. Mr Billett could not accept her given her history of almost complete inactivity at home for two and a half years.
279 The plaintiff was examined by Mr Kennedy in August 1988.
280 The plaintiff then described the following:
·neck and mid to low back pain and stiffness;
·radiating pain into the shoulders and upper arms;
·numbness and tingling down the upper extremities to the hands and fingers;
·neck and mid to low back pain, aggravated by bending and stooping in one position for any length of time and also worse in the cold weather and changes in the weather as well as repetitive upper limb activities;
·very uncomfortable in bed causing significant sleep disturbances;
·restrictions in domestic duties such as vacuuming, cleaning and washing which aggravates the pain in her neck and mid to low back;
·very nervous, anxious, irritable and depressed since the accident;
·problems with interpersonal relationships with her husband and also problems with her family due to her irritable moods when the pain is severe; and
·occipital headaches, worse on the right side, occurring almost daily.
281 Mr Kennedy thought the plaintiff had sustained a musculoligamentous injury to the thoracolumbar spine with irritation to capsular and ligamentous structures supporting lower thoracic and upper lumbar intervertebral disc and lower thoracic posterior facet joints, worse on the right. He noted she had also developed emotional and psychological problems following the accident, which had significantly affected her rehabilitation and he would therefore recommend she undergo a psychiatric assessment.
282 Dr Paul Kornan, psychiatrist, examined the plaintiff in December 1988.
283 The plaintiff described multiple areas of pain and that she feels she will be in a wheelchair.
284 Dr Kornan noted the plaintiff had a grossly hysterical manner on examination. He gained the impression that she had genuine major hysterical type problems.
285 In summary, Dr Kornan thought the plaintiff presented with a grossly hysterical reaction and had some anxiety and depression. He considered the 1985 accident caused that presentation but there had been other stress factors since that time.
286 Dr Wahr, psychiatrist, examined the plaintiff in December 1988. He thought 15 per cent of her condition was an ongoing problem as a result of the 1985 accident; 60 per cent was due to the old work injury in 1977.
Treaters – transport accident
287 Dr Andrew Harkness, rheumatologist, wrote to Dr Kalfas in July 2001, having seen the plaintiff. The plaintiff complained of unremitting low back pain as her central symptom. He noted, as the story went on unchecked, one found the plaintiff was really describing pain in every part of all four limbs and her trunk. In his view, it appeared she was describing a Regional Pain Syndrome, but she was really talking about generalised fibromyalgia.
288 All of this story was told with bizarre descriptions of pain-like knives, explosions and others, told with considerable anxiety and fixation upon the pernicious effects of her accident.
289 Dr Harkness noted the plaintiff behaved like a severe invalid and showed evidence of much more incapacity than many patients with severe medical conditions such as rheumatoid arthritis of which she showed no signs. He noted that the plaintiff was wearing a corset and crept about between the history and examinations, taking off her clothes with copious sighing and wincing to excess.
290 Dr Harkness thought the most useful thing for the plaintiff to do would be resume regular water exercise. He thought the original effects of the injury were now almost totally obscured by this psychosomatic overlay which today was the prominent feature.
291 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff in July 2011, on referral from Dr Lolatgis.
292 Dr Thomas described the plaintiff’s presentation as chaotic, catastrophic, full of anguish and impossible to put together.
293 The plaintiff reported whole body pain and sensitivity throughout her spine. She described pain in her shoulders, her head and interscapular region. In fact, there was no aspect of her that was not painful.
294 On the pain inventory, the plaintiff scored almost maximally for all areas of disability.
295 The plaintiff was a distressed woman on examination and she was almost wailing. She had well preserved movements of the neck and low back. She had multiple areas of tenderness.
296 The plaintiff’s shoulder movements were mildly limited on the right, moreso than the left, but both mildly limited with pain at end range. Neurological examination was normal.
297 Dr Thomas thought the plaintiff was suffering from a Chronic Pain Syndrome. He was not convinced there was anything that was really likely to lead to any subjective improvement in her condition, whether it be her pain or her disability.
298 Dr Thomas advised Dr Lolatgis that he was sorry he could not do anything to assist. He thought rehabilitation would not add to the argument one way or the other and probably just lead to a non acceptance on the basis of the plaintiff’s overall complaints and lack of appreciable goals.
Medico-legal evidence – the transport accident
299 Mr Brownbill, consultant neurosurgeon, examined the plaintiff on 17 February 1999.
300 Mr Brownbill did not believe the plaintiff was demonstrating maximum effort on examination and there was at first a variable giving way weakness of all muscle groups of both arms but, with coercion, power was full and equal in all groups, long and short. Testing for sensation showed it to be reduced in all parts of the left forearm and hand.
301 Mr Brownbill thought examination showed a demeanour and response indicating depression and a non-organic overlay, which had contributed to the apparent degree of cervical spine movement restrictions.
302 Mr Brownbill thought there had been a possible aggravation of the intervertebral disc prolapse by forces sustained in the transport accident.
303 On probability, Mr Brownbill considered the plaintiff suffered shoulder injury in the transport accident with the supraspinatus tear. He was not able to apportion exactly the contribution to her ongoing symptoms of neck and arm pain or any organic part arising in relation to the neck and nerve root irritation and by the psychological overlay.
304 Mr Brownbill did not think the defendant should be liable for any costs incurred with regard to the plaintiff’s described neck symptoms, although he thought her forearm and hand injury could have occurred in relation to the pre-existing disc prolapse.
305 Mr Brownbill reviewed the plaintiff in January 2001 for the purposes of an AMA assessment.
306 On that examination, there was slight restriction of cervical and thoracolumbar spinal movement and there was no objective neurological abnormality.
307 Mr Brownbill then thought the plaintiff’s ongoing symptoms were regarded as representing, in major part, the non-organic reaction evidenced by her demeanour but on probability, with some underlying neck and back pain as result of the longstanding degenerative changes. He could not state with certainty the contribution to such organically-based pain by forces sustained in the transport accident.
308 Mr Shannon, orthopaedic surgeon, examined the plaintiff in June 1999.
309 The plaintiff told him she did not have any problem with her shoulders prior to the transport accident.
310 The plaintiff told him she was not aware of an injury to the left shoulder at the time of the transport accident and that she thought she pushed against the dashboard with both arms.
311 Examination of the right shoulder indicated moderate restriction of flexion and abduction and minor restrictions of other movements and there was possibly some rotator cuff impingement.
312 Mr Shannon did not examine the left shoulder but noted the plaintiff had bilateral rotator cuff degeneration and tear, which he thought were almost certainly degenerative in nature and probably pre-existed the accident. However, he noted it appeared the plaintiff’s right shoulder became symptomatic following the transport accident and it was consistent that the accident resulted in aggravation of the underlying condition.
313 Mr Shannon re-examined the plaintiff in March 2001.
314 On examination, there was a moderate restriction of movement in the right shoulder and virtually free range in the left when distracted.
315 Mr Shannon noted the plaintiff clearly had rotator cuff degeneration in both shoulders and a problem with her left shoulder prior to the transport accident. The history he obtained was the right shoulder became symptomatic after that accident and he thought it possible that that condition was influenced by that accident in the form of an aggravation of underlying degenerative change in the rotator cuff tendons.
316 At that stage, Mr Shannon thought there was some potential for surgery to improve the function of the right shoulder.
317 Dr Fraser, rheumatologist, examined the plaintiff in September 2013.
318 On that occasion, the plaintiff moved slowly using a walking stick. Abduction and flexion of both shoulders were restricted to about 60 degrees but movements otherwise were normal, although the plaintiff complained of pain at extremes of range.
319 Dr Fraser had available a number of investigations of the right shoulder, all of which showed a full-thickness supraspinatus tear.
320 Dr Fraser did not consider there was any ongoing musculoskeletal injury as a result of the transport accident. He thought any putative soft tissue strains had long since ceased.
321 Dr Fraser noted that since the transport accident, the plaintiff had complained of widespread skeletal pain involving her neck, shoulders and low back. He thought her symptoms were out of proportion to the radiological findings including a degenerative right rotator cuff tear and fairly minor lumbar spondylosis.
322 Dr Fraser thought the degenerative changes were consistent with the plaintiff’s age and constitutional factors and he did not consider there was any aggravation as a result of the transport accident. He noted the marked overreaction on physical examination left no doubt the plaintiff was exaggerating her symptoms and signs.
323 In Dr Fraser’s view, the plaintiff’s current presentation was largely due to non-organic factors and he noted previous medical examiners had reached a similar conclusion.
324 Dr Fraser thought the prognosis in this situation was poor and it was unlikely there would be any improvement in the foreseeable future and certainly not whilst litigation was pending.
325 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in May 2014.
326 On examination, there was tenderness of both shoulder girdles and reduction of shoulder movement.
327 Mr Dooley thought the plaintiff suffered a soft tissue injury to the cervical spine and a possible soft tissue injury to the right shoulder girdle in the transport accident.
328 Mr Dooley noted the plaintiff stated she had had ongoing shoulder pain since the transport accident. He noted the ambulance notes and accident and emergency notes did not record any specific comments about “? shoulder pain”.
329 Mr Dooley thought the x‑ray of the right shoulder taken in September 1997 showed signs of established rotator cuff degeneration. In association with that, there will have been degenerative tearing of the supraspinatus tendon and, in his view, it was evident that had evolved naturally over a period of time when radiological investigations taken in 2009 were looked at.
330 Mr Dooley accepted there was a possibility that the plaintiff could have aggravated underlying degeneration and degenerative tearing of the rotator cuff in the transport accident. Following the 2010 shoulder surgery, there was no change in pain but perhaps some improvement in range of movement. He noted the plaintiff’s treaters’ comments of improvement following the surgery.
331 Mr Dooley thought the plaintiff had naturally occurring degenerative rotator cuff disease of the left shoulder. The tear noted on radiological investigation was a consequence of that degeneration and he did not believe there was a connection between the transport accident and that condition.
332 In Mr Dooley’s view, the large majority of the plaintiff’s current presentation related to a psychological condition. He noted the plaintiff’s long past history in relation to depression and anxiety and also grieving for her husband, who died nine months earlier.
333 Whilst Mr Dooley accepted that from a scientific point of view, it was certainly reasonable to consider carrying out subacromial decompression and rotator cuff repair on the left shoulder, the plaintiff’s current emotional state and inconsistent signs on clinical examination would mean the chances of her obtaining a satisfactory result at present would be minimal. He believed it reasonable to state there is more chance of the plaintiff’s shoulder becoming stiff with surgery than without surgery.
334 Mr Dooley did not believe the mechanism of the transport accident would be consistent with sustaining traumatic tears of the rotator cuff tendons but there might have been an aggravation of the underlying degenerative condition. It would also be equally possible symptoms developed in time related to the natural evolution of the underlying condition and also having a symptomatic disc prolapse at C6-7 on the left. He thought the plaintiff would have had difficulty using her upper left limb at the time and she would have been more reliant on the right.
335 As far as Mr Dooley could tell, there was no evidence of the plaintiff complaining of specific left shoulder pain after the transport accident and no specific investigations of the left shoulder and he believed that the development of symptoms in that area in time related to the natural evolution underlying degenerative rotator cuff disease.
336 Mr Dooley remained of the view that the plaintiff’s ongoing pain and described disability were disproportionate to her organic condition and one could not explain the clinical findings in relation to examination of the shoulders on the basis of organic injury alone. Therefore, the reason for the disproportionate pain was the plaintiff’s psychological condition which dominated her clinical presentation and, in Mr Dooley’s view, at present treating ongoing pain as if it was organically based would only lead to a poor outcome.
337 Mr Dooley did not believe that proposed left shoulder surgery would hold predictability in terms of improving pain and function.
338 Based on the plaintiff’s presentation, Mr Dooley thought it difficult to estimate a prognosis. In regard to the organic injury sustained in the transport accident, he would expect the plaintiff to note some ongoing intermittent pain.
Overview
Credit
339 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[48]
“… 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.”
[48](2010) 31 VR 1 at paragraph [12]
340 In this case, it was not suggested the plaintiff was not telling the truth.[49]
[49]T77
341 I accept that she largely gave her viva voce evidence absent any florid displays that were shown to medico‑legal examiners. However, I do not accept that her evidence about pain in all parts of her body, against her interest, makes her evidence in relation to her shoulder pain more credible, as her counsel submitted.[50]
[50]T110
Right shoulder
342 I accept that the plaintiff took the impact of the transport accident with her right hand as she described.
343 It is not in dispute that the plaintiff’s right shoulder was injured in the transport accident and that she suffered an organic injury.[51] The consensus of medical opinion is that she suffered from a rotator cuff tear and or bursitis of the right shoulder.
[51]T67
344 Initially treatment involved investigations and cortisone injections undertaken by Dr Harkness in 1999. There was a further bout of treatment with a hydrodilatation in 2009, followed by arthroscopic surgery and rotator cuff repair undertaken by Mr Evans in October 2009 and later physiotherapy.[52]
[52]T105
345 Whilst it was conceded the plaintiff’s right shoulder condition was originally organically based, counsel for the defendant submitted the condition has now been overwhelmed by functional factors, so what is left organically is not “serious”.[53]
[53]T68
346 There was no application pursuant to ss(c) in the alternative in relation to a Chronic Pain Syndrome. The application was brought pursuant to clause (a) only.[54]
[54]T69
Left shoulder – causation
347 The defendant did not accept that the plaintiff suffered injury to her left shoulder in the transport accident. Liability for rotator cuff surgery had therefore been denied. Further, it was submitted if a causal connection was found, any present left shoulder impairment lacked an organic basis that could be described as “serious”.[55]
[55]T92
348 Whether the plaintiff’s left shoulder is degenerative and rendered symptomatic or there is actually a tear in the transport accident, there is contemporaneous report of pain and treatment for both shoulders thereafter.[56]
[56]T96
349 Although the plaintiff had left upper limb problems with radicular symptoms relating to her neck prior to the transport accident, thereafter investigations were arranged of the left shoulder by way of ultrasound in December 1997 which showed a partial or partial thickness tear of the supraspinatus.[57]
[57]T95
350 The plaintiff complained to Dr Lolatgis of problems with both shoulders following the transport accident. Whilst that doctor may have different explanations for the plaintiff’s ongoing left shoulder problems, including accident trauma and the normal surgical course of events, he has recorded left shoulder complaints after the transport accident and not before.
351 The complaint of bilateral shoulder pain caused the plaintiff to be sent to Dr Harkness in 1997. He thought shoulder problems could have been aggravated in the transport accident. He diagnosed bilateral bursitis and treated both shoulders with the injection of steroids and recommended hydrotherapy to improve their function.
352 Mr Pullar noted ongoing problems with the left shoulder following neck surgery seemed more related to the fact the plaintiff had sustained bilateral shoulder injuries, as Dr Harkness had documented.[58]
[58]T99
353 Dr Kalfas, who treated the plaintiff from 1997, thought the transport accident caused tendino-ligamentous damage to both shoulders.
354 Dr Drago, neurologist, who was treating the plaintiff for her neck at the time of the transport accident, thought the transport accident aggravated the plaintiff’s left arm symptoms.
355 The plaintiff’s TAC impairment claim related to both shoulders, and examinations were on this basis in the late 1990s.[59]
[59]T97
356 Mr Antonie, who saw the plaintiff in 1998, accepted she injured both shoulders in the transport accident. When Mr Brownbill saw her in 1999, he had only been provided with the right shoulder ultrasound and did not comment on any left shoulder injury.
357 Dr Blombery’s view is somewhat unclear, having found the cause of the plaintiff’s pain is multifactorial and caused in the left arm by the cervical nerve root compression, unrelated to the transport accident.
358 Mr Evans sought funding from the defendant for left shoulder surgery although he thought it was not possible to say what contribution the transport accident may or may not have had.[60]
[60]T88
359 Dr Thomas Malios, in 1999, thought the plaintiff’s right and left shoulder injuries were related to the transport accident. When Mr Shannon examined the plaintiff in June that year, she told him she was not aware of an injury to the left shoulder at the time of the transport accident and that she thought she pushed against the dashboard with both arms.
360 Although he did not explain the basis of his opinion, Mr Myers considered the disability relating to the left shoulder was a result of the transport accident.
361 Mr Simm did not really comment to any extent about causation but he noted the contemporaneous material did not indicate that there was a discrete left shoulder injury in the accident.
362 Of more recent times, examiners, Mr Dooley and Dr Fraser, who did not link the plaintiff’s left shoulder complaint with the transport accident, were not given any details of the early investigation or treatment relating to the plaintiff’s left shoulder complaints.
363 I am satisfied that the plaintiff injured her left shoulder in the transport accident given her contemporaneous complaints of left shoulder pain and the treatment in relation thereto in the early days after the transport accident, the histories given by her to medico‑legal examiners in the context of the impairment assessment and the views of most examiners that the plaintiff’s shoulder condition is related to the transport accident.
Not an aggravation case
364 Clearly, after the 1977 injury, the plaintiff suffered disabling back pain and her condition was complicated by a significant psychiatric response, requiring hospitalisation and ongoing psychiatric care.
365 The plaintiff was then involved in the 1985 accident in which she suffered whiplash injuries. Thereafter, she had ongoing problems with her lower back.
366 The plaintiff’s symptoms and restrictions following the 1985 accident were noted by a number of examiners in the late 1980s to whom I have referred in detail.
367 However, there was some improvement in the plaintiff’s condition leading up to the time of the transport accident. It was accepted that whilst she had a lot of issues in the late 1980s, there was some improvement in the plaintiff’s condition in the 1990s.[61]
[61]T72
368 The plaintiff was not taking painkillers for quite some time prior to the transport accident, save for Panadol for left forearm pain for a couple of months. She had not been seeking any regular psychiatric help but was getting Xanax from her general practitioner.[62]
[62]T73
369 Whilst the plaintiff was out of the workforce because of a psychiatric injury and complaining from time to time of back pain and neck and left forearm pain in later days, she could still do her housework and had a pretty normal life. She last required home help in the late 1980s[63]
[63]T103
370 There was nothing to suggest that she was put on a Disability Support Pension for physical matters in 1993.[64]
[64]T93
371 Whilst it was conceded the plaintiff was not horribly physically disabled the day before the transport accident, it was submitted on the defendant’s behalf that the plaintiff’s presentation at various times post her 1977 and 1985 injuries was very similar to her presentation after the transport accident.
372 The plaintiff’s history was put more globally in terms of her non-organic response to her transport accident injuries rather than her pre-injury condition as such.[65] It was submitted by counsel for the defendant that there has been a continuing flavour to the plaintiff’s presentation from as early as her examination by Dr Littlejohn in August 1998 when he diagnosed fibromyalgia.
[65]T73
373 It was submitted the plaintiff had been in a Chronic Pain Syndrome for some time.[66] In 1999, Dr Harkness described a situation which has not really changed, with the plaintiff presenting in a very theatrical manner and not being able to move her shoulders.[67] Also, Mr Brownbill found the plaintiff to be quite functional at that time.[68]
[66]T78
[67]T78
[68]T83
374 In these circumstances, it was not submitted on the defendant’s behalf that this was not an aggravation case.[69] There was no suggestion of problems with the plaintiff’s shoulders prior to the accident, although there was some left arm involvement in the plaintiff’s cervical condition which came on some three to four months before the transport accident.
[69]T73
Non-organic
375 The real argument on the defendant’s behalf was that there needed to be dissection of the organically and non-organically based consequences of the plaintiff’s shoulder injury as at the date of the hearing.[70]
[70]T74
376 Counsel for the defendant submitted the functional component of the plaintiff’s condition was reflected in the way the application was originally put. What was claimed in the Particulars of Injury was both upper limbs, neck and back and a severe behavioural disturbance. The application had been cut down forensically to both upper limbs but it was submitted that it was a “package of catastrophe”, as Dr Thomas described in 2011, which it was submitted accurately describes the real picture in this case.[71]
[71]T71
377 Counsel for the plaintiff submitted that the plaintiff’s fluctuating psychiatric condition means that she has a poor coping mechanism psychiatrically for dealing with pain. It was submitted there was an organic injury that had driven the consequences that the plaintiff presently complained of.[72]
[72]T94
378 Whilst medico‑legal examiners might have found it difficult to get beyond the presentation of chronic, and sometimes florid pain description, it was submitted treating doctors and specialists in particular had been able to do so. Therefore, this was not a chronic pain situation where there is no explanation underlying for the complaints of pain.[73] It was submitted the plaintiff’s restriction, weakness and pain was in response to pathology, not absent some pathology.[74]
[73]T94
[74]T107
379 It was submitted the plaintiff has had real and significant pathology that contributed both to the neck pain in mid 1997 and the shoulder pain which came on after the transport accident, and persisted until a final explanation was given by Mr Evans a decade later.
380 It was submitted, relatively speaking, the right shoulder is the more significant of the two shoulder injuries. Whilst the plaintiff might have given different accounts,[75] still her evidence was the right was worse than her left. She is right hand dominant and that shoulder has been operated on and the left has not, although surgery has been recommended and it has been treated by three-monthly cortisone injections.[76]
[75]Her most recent affidavit describes more significant burning pain in the left shoulder
[76]T101
381 When considering an application pursuant to s93 of the Act, as Winneke P stated in Richards v Wylie,[77] the serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[78]
[77]Supra
[78](2000) 1 VR 79
382 In my view, the preponderance of medical evidence in this case supports the proposition that following a physical injury to the right shoulder in the transport accident, by the time of the hearing, the plaintiff’s pain has become psychogenic in its basis and thus any impairment is not now organic and the injury is not one that can be properly categorised as falling within paragraph (a).[79]
[79]See West v Pac-Rim Printing Pty Ltd [2003] VSCA 68 at paragraph [27]
383 The plaintiff’s presentation goes far beyond the expected emotional consequences of any physical injury which I am entitled to take into account, as Winneke P set out in Richards v Wylie.[80]
[80]T92
384 Medical examiners who have seen the plaintiff for both sides in this case have highlighted the non-organic basis of her presentation.
385 On examination in 2001, Mr Myers noted the plaintiff was very volatile, voluble, crying and groaning and moaning. He considered there was a very considerable element of psychiatric disturbance and noted there was a pre-existing tendency towards such a problem.[81]
[81]T81
386 When Mr Brownbill saw the plaintiff in 2001, he thought her ongoing symptoms were regarded as representing, in major part, the non-organic reaction evidenced by her demeanour but with, on probability, some underlying neck and back pain as result of the longstanding degenerative changes. He could not state with certainty the contribution to such organically-based pain by forces sustained in the transport accident.
387 In 2011, Dr Thomas diagnosed a Chronic Pain Syndrome, having noted the plaintiff was distressed and almost wailing on examination and she complained of whole body pain. He described her presentation as chaotic, catastrophic, full of anguish and impossible to put together.
388 On examination in 2011 and 2014, Mr Simm noted the plaintiff was emotionally labile and tearful. There were some inconsistencies as to the level of movement of her neck on the first examination and of the right shoulder on re-examination.[82] He thought there had been a severe pain response to the left shoulder pathology with withdrawal of use of the left upper limb.[83]
[82]T110
[83]T82
389 Mr Simm noted there were a number of non-organic clinical signs present and there were features of a Chronic Pain Syndrome.
390 In Dr Fraser’s view, the plaintiff’s current presentation was largely due to non-organic factors and he noted previous medical examiners had reached a similar conclusion.
391 Mr Dooley thought a large majority of the current presentation was the psychological condition. The reason for disproportionate pain was the psychological condition.[84]
[84]T84
392 Taking into account all the evidence, I am not satisfied that any consequences of which the plaintiff presently complains relating to her right shoulder are organically based.
393 Counsel for the defendant also submitted any organic consequences of the plaintiff’s right shoulder are not “serious”, based on Mr Evans recent examinations and the nature of the plaintiff’s complaints to him at that time.
394 The plaintiff agreed she told Mr Evans that she now has mild discomfort following the surgery and things had not changed, although the left shoulder was more symptomatic. He thought the right shoulder had recovered well from the surgery.[85]
[85]T76
395 Counsel for the plaintiff relied on Mr Evans earlier findings in 2009, pre surgery, of wasting and poor function consistent with disuse. He noted ongoing problems on examination post surgery in 2010 and 2012.[86] It was submitted there is nothing in Mr Evans’ subsequent reports suggesting he examined the right shoulder and he really seems to be focussed on the left.
[86]T106
396 However, in my view, Mr Evans focussed on the left shoulder of recent times, because the plaintiff did not tell him of any continuing significant problems with her right shoulder. As the plaintiff agreed, she got on well with Mr Evans and was able to discuss her condition with him.
397 In 2011, Mr Simm noted the plaintiff did not have the clinical signs of right subacromial impingement or rotator cuff dysfunction and there appeared to be some inhibition of forward elevation and abduction from chronic pain, rather than any residual identifiable physical pathology.
398 In his most recent report, Mr Simm noted there had been some improvement after the shoulder surgery. However, when examined, it was evident the plaintiff had a severe chronic adverse pain response associated with surgically treated rotator cuff pathology.
399 I accept any organically-based problems with the right shoulder have largely resolved.
400 The lay evidence supportive of the plaintiff’s level of disability, which I accept, is global in nature, cannot be reconciled with the important evidence of the treating surgeon and, in any event, the plaintiff had no quarrel with what Mr Evans had recorded as to her minor level of discomfort in her right shoulder.[87]
[87]T77
401 Accordingly, I am not satisfied the plaintiff has an organically-based long-term impairment of the right shoulder.
The left shoulder
402 The plaintiff has also been diagnosed as suffering a rotator cuff tear and bursitis in her left shoulder. Soon after the transport accident, investigations were arranged and the plaintiff underwent injections in her left shoulder.
403 In more recent times, from about 2011, the plaintiff has complained to treaters, such as Mr Evans, of increasing left shoulder problems. She underwent cortisone injections in November 2011 and April 2012, and Mr Evans recommended rotator cuff repair, liability for which was denied by the defendant. The plaintiff has continued to receive cortisone injections on a three-monthly basis since September 2012, principally from Mr Evans and also, more recently, from a local doctor, Dr Raymond.
404 Mr Simm, however, on examination in 2014, thought there had been an adverse pain response to the left shoulder pathology and there were findings which suggested substantial functional overlay.
405 Whilst the plaintiff has ongoing problems with her left shoulder which require treatment, I am not satisfied the consequences of that condition alone are “serious”.
406 The left is not the plaintiff’s dominant arm.
407 As counsel for the plaintiff conceded, it was difficult to deal with the plaintiff’s experience of shoulder pain and the descriptions of pain as she complains of pain elsewhere.[88] However, it was submitted the fact that someone complains of shoulder pain and then pain elsewhere in their body, does not negate the experience of shoulder pain.[89]
[88]T109
[89]T108
408 Examiners such as Dr Thomas were told by the plaintiff of widespread pain extending to all parts of her body – a situation confirmed by the plaintiff as burning pains throughout.[90] The plaintiff has also complained of severe headaches and high blood pressure.[91]
[90]T60
[91]T90, see T60
409 Whilst there are complaints particularly related to the plaintiff’s upper limbs, like not being able to lift her grandchildren, I am not satisfied the consequences of any left shoulder impairment are “serious”.
410 The plaintiff’s ability to do housework and similar activities would also be affected by her back pain, which she says has increased since the accident [92] and also problems in the other parts of her body she has consistently described. It is not surprising, with her multitude of complaints, that the plaintiff cannot do housework or gardening and she has to lie down and she is tired.
[92]T105
411 The lay witnesses in this case are global in their description of the plaintiff’s limitations and they do not isolate left shoulder problems as being responsible for the plaintiff’s condition.[93]
[93]T91
412 Whilst Dr Lolatgis considers the plaintiff has a permanent impairment and is not fit for any work, the doctor does not explain what is the condition responsible for this situation, diagnosing shoulder problems and also neck and lower back pain. He talks about pain but does not really specify what is producing it.[94]
[94]T85
413 Accordingly, I am not satisfied the plaintiff has a serious injury in relation to her left shoulder.
Bilateral impairment
414The plaintiff’s application was also put on the basis of bilateral shoulder impairment. This course was opposed by counsel for the defendant,[95] who argued such a course was rejected by the Court of Appeal in Lu v Mediterranean Shoes Pty Ltd & Ors.[96]
[95]T70
[96]1 VR 511
415 A number of Judges in the County Court have accepted, where a worker has sustained injury using both hands in manual work, this represents the loss of use of a single body function: Judge Lawson in Raimondo v Hoi Yeung Pty Ltd (trading as Oceanic Food),[97] Judge Misso in Guiliano v Red Robin Pty Ltd & Anor,[98] Judge Anderson in Wright v Mount Edisar Pty Ltd,[99] and Judge K Bourke in Wright v Toyota Motor Corporation Ltd.[100]
[97][2005] VCC 1400
[98][2008] VCC 1805
[99][2006] VCC 410
[100][2008] VCC 10
416 There is also authority of this Court to the contrary: Judge O’Neill in De Luca v Pinkney & Transport Accident Commission.[101]
[101][2007] VCC 1307
417 Counsel for the plaintiff submitted that the cases in support of this proposition were not confined to manual work consequences. It was submitted, whilst there was no case law to this effect, it did not matter whether it was a transport accident or an industrial accident; it was a matter of looking at bi-manual functions.[102]
[102]T100
418 It is unnecessary to decide this issue in the present case, as in my view, even if both shoulder impairments were combined, any bilateral impairment would not satisfy the “serious injury” criteria as the right shoulder impairment is not organically based for the reasons I have detailed and the left shoulder impairment alone is not “serious”.
419 Accordingly, the applications relating to the left and right shoulder and bilateral impairment are dismissed.
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