McCormack v Transport Accident Commission
[2020] VCC 527
•5 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02891
| ALANNA ELIZABETH McCORMACK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2020 | |
DATE OF JUDGMENT: | 5 May 2020 | |
CASE MAY BE CITED AS: | McCormack v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 527 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – soft tissue injury to spine – development of pain disorder – whether physical or psychological – if physical, whether consequences of injury “very considerable” – if psychological, whether consequences of disorder “severe”
Legislation Cited: Transport Accident Act 1986, s93
Judgment:Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Dr A Newman | Shine Lawyers |
| For the Defendant | Mr P D Elliott QC with Ms A Bannon | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 7 February 2011, Ms McCormack was injured when the vehicle in which she was travelling was struck from behind. She suffered a soft-tissue injury to her spine. She was taken to hospital but discharged home that day.
2 Ms McCormack received modest treatment at the outset, and developed pain throughout many areas of her body, including her upper and lower spine, referred pain to the left shoulder, arm and into both hands, right leg pain and a range of psychological symptoms. Radiological investigations[1] were relatively normal, showing some age-related degeneration, but little to support structural damage such as to give rise to her claims of widespread pain.
[1]Plaintiff’s Court Book 21-32
3 Ms McCormack was working about 30 hours a week in a family business and doing part-time childcare work. She was partway through a Bachelor of Arts degree at Latrobe University. She had aspirations to run a Pilates studio.
4 Ms McCormack’s treatment to date has included medication, physiotherapy and osteopathy. She complains of ongoing pain and restriction throughout her spine, and that a range of domestic, recreational and social activities are significantly affected.
5 She has returned to work in another family business, working about 15 hours a week, but claims to be significantly restricted in the work activities in which she is involved, and works mostly from home. She is socially isolated. She claims her aspiration to work as a Pilates teacher is lost.
6 This is a serious injury application. The body function said to be lost or impaired is the spine. The application is thus brought under s(a) of the definition of “serious injury” contained in s93 of the Transport Accident Act 1986 (“the Act”). Alternatively, it is claimed Ms McCormack has suffered a severe long-term mental disorder in the nature of a Pain Disorder within the definition contained in ss(c) of s93.
7 The issues in the application are:
· What is the nature and extent of the injury suffered by Ms McCormack in the transport accident, and is the injury a physically-based one, or has Ms McCormack developed a psychological disorder?
· If a physical injury, do the consequences of that injury meet the “very considerable” test when regard is had to other cases in the range of possible impairments?
· If a psychological disorder, do the consequences meet the “severe” test when regard is had to other cases in the range of possible mental disorders?
Physical or psychological injury?
8 Following the accident, Ms McCormack complained of pain to many areas of her body. She was discharged from the John Fawkner Hospital with some medication. She undertook some physiotherapy and took pain-relieving medication. Within days, she went to see her then general practitioner. She undertook osteopathic treatment and “Kieser training” physiotherapy.
9 Ms McCormack had always been interested in Pilates and had qualifications in that area to teach. She undertook some Pilates but said that her neck and back became too sore.
10 From that time through to the present, and despite ongoing conservative treatment, including osteopathy, physiotherapy, home exercises and various medication, she has continued to suffer ongoing pain in her neck, radiating into her left shoulder and arm. She says she has pain and weakness in both hands. She also has pain in the lower spine which radiates to the right leg. This affects her right buttocks and into the foot also. She says she is never without pain.
11 In addition, she suffers headaches, panic attacks and is largely housebound.
12 A number of reports of her treating general practitioner, Dr Anne Small, were tendered. Those reports mark clinical findings and treatment since March 2013. Dr Small notes pain in the neck, left shoulder and shoulder blade area, arms, wrists and hands, chest, upper and middle back, lower back, right hip, knees, ankle and feet. She prescribed various analgesics and muscle relaxants, and referred Ms McCormack for physiotherapy, osteopathy, massage, hydrotherapy and acupuncture.
13 Dr Small thought that Ms McCormack’s domestic, leisure and recreational activities were all affected, as was her ability to maintain interpersonal relationships. She said Ms McCormack’s employment prospects were significantly reduced. She obtained a copy of the report of Dr Peter Blombery, consultant physician in pain management, of October 2019, and agreed with his diagnosis of a Pain Disorder with sensitised pain pathways. As a result, she prescribed Lyrica.
14 It is evident from Dr Small’s various reports, she considers Ms McCormack has suffered physical injury to various parts of her body.
15 Mr Elliott, counsel for the defendant, was critical of that doctor’s assessment and opinion as he said she had become an advocate for the plaintiff’s cause. Throughout Dr Small’s various reports, she is critical of the Transport Accident Commission and its “pursuit” of Ms McCormack. She suggested the TAC grant a serious injury certificate, and pay her legal and medical bills.[2] She said Ms McCormack had been “harassed” by the TAC.[3] Dr Small said that the nine-year legal battle had caused serious deterioration in Ms McCormack’s psychological and physical state. She said if Ms McCormack was to succeed in this proceeding, her anxiety would diminish.[4]
[2]Plaintiff’s Court Book 46
[3]Plaintiff’s Court Book 49
[4]Plaintiff’s Court Book 51
16 I accept Mr Elliot’s criticism of the reports of Dr Small. While her reports do chart the doctor’s examination and treatment of the plaintiff over a considerable period, she has, nonetheless, become an advocate for the cause. Consequently, I do not find the opinions and conclusions, of great assistance.
17 In August 2017, Ms McCormack was referred to Dr Tanya Yuen, neurosurgeon. That practitioner noted pain to various areas of the body. Examination revealed a good range of movement and the MRI scan did not demonstrate any neural compression. She thought, in the transport accident, Ms McCormack had suffered a musculoskeletal sprain to her lower back and neck. There was no indication for surgery.
18 Mr Kenneth Brearley, general surgeon, examined Ms McCormack in May 2015. At that time, he obtained a history of pain to the right side of the lower back and to the upper part of the back. Symptoms worsened with standing, sitting and walking for long periods. He diagnosed a soft-tissue injury to the cervical spine, although that had significantly improved, he said. He also diagnosed soft-tissue injury to the lumbar spine, aggravating pre-existing degenerative disease. He thought there would be improvement in the long term with resolution of her back symptoms. He said there would be some impairment to her recreational and social activities and a restriction in her work capacity.
19 Dr David Weissman, psychiatrist, examined Ms McCormack in April 2016. He thought she had developed a mild to moderate Mixed Reactive Depressive and Anxiety Syndrome secondary to her physical injuries. He also thought she was suffering a Chronic Adjustment Disorder with Anxious and Depressed Mood of mild to moderate intensity. He said she would be capable of full-time study or suitable paid employment. He noted moderate social withdrawal.
20 Dr Peter Blombery, pain specialist, examined Ms McCormack and reported in October 2019. He is an acknowledged expert in pain syndromes, their causes and treatment. He obtained a history of ongoing extensive pain from the time of the transport accident. He noted radiation of pain from the spine across both shoulder girdles, down the left leg and right sacroiliac joint and buttock. He said there was no sensory disturbance over the arms nor legs. He said:
“Ms McCormack now has features of pain and sensitivity through her back from the neck and through the thoracic spine, as well as a little on the right side of the low back. It is my opinion that that is caused by the development of a pain syndrome in the affected area, where there is sensitisation of pain nerve pathways. That is superimposed on previously asymptomatic degenerative changes in the spine which have been rendered symptomatic by the accident.
…
It is my opinion that that is what is causing Ms McCormack’s ongoing pain. She has already attended a pain management clinic with only a minor change. She has had no exposure to any antineuropathic agents or agents such as duloxetine, and it is my opinion that she may benefit from trial of either pregabalin or gabapentin and also duloxetine to see whether that results in any reduction in her level of pain. …
In regard to prognosis, it is now more than eight years since the injury and Ms McCormack’s symptoms are essentially stable. It is unlikely that there is going to be any significant change in her level of disability in the foreseeable future.”[5]
[5]Plaintiff’s Court Book 89
21 Dr Blombery thought Ms McCormack’s prognosis to be poor and that the syndrome would significantly affect her future work capacity and employment prospects.
22 Dr David Elder, occupational physician, examined Ms McCormack in 2018 and 2019. On each occasion, he was able to detect almost normal movement of the upper and lower spine. He thought Ms McCormack was suffering from a mild Chronic Pain Syndrome. He thought she had no incapacity for work that she was then performing, on a full-time basis, or her involvement with a proposed online pet sales business, or in visual merchandising. He suggested a program of regular exercise and did not think she would benefit from Valium nor Lyrica.
23 Professor Peter Doherty, psychiatrist, examined Ms McCormack in December 2019. He noted extensive pain symptoms to various parts of her body, a reduction in areas of activity and features of traumatisation, although not severe. He diagnosed a Somatic Symptom Disorder with predominant pain persisting, associated with physical symptoms. It is evident from Professor Doherty’s report that he considers the diagnosis a psychological rather than a physical one. He also thought there was an Adjustment Disorder, attributable to the transport accident. He said the disorder significantly interfered with her domestic and leisure activities, and noted she had become isolated.
24 Dr Tony Kostos, rheumatologist, reported in September 2014. He noted poor sleep, widespread pain and restriction in a range of domestic and other activities. On examination, neck movements were markedly restricted. Shoulder and lower back movements were also restricted. He said Ms McCormack’s presentation was a cause for considerable concern. He thought she was suffering from a Chronic Pain Syndrome with widespread tenderness. He said there were discrepancies and inconsistencies on physical examination. He said there were psychosocial factors predominating her presentation. His opinion, clearly, is Ms McCormack’s problems were psychologically based. He suggested an intensive pain management and rehabilitation program.
25 The first matter to determine is whether Ms McCormack’s complaints, in particular widespread pain and restriction in a range of activities, has a psychological or physical base. There is no practitioner suggesting she is malingering nor exaggerating her symptoms.
26 I have concluded that Ms McCormack has a physical injury in the nature of a Pain Disorder.
27 It is clear that her widespread pain, particularly in the neck and back, and radiating into other limbs, cannot be supported by the radiological investigations alone. There is no compression of exiting nerve roots, or any other neurological signs to suggest any disc disruption. That was the opinion of a treating neurosurgeon, Dr Yuen. Most practitioners have described Ms McCormack as suffering some form of Pain Disorder, some saying it is physically based, and others, psychologically based. Having considered the opinions, I accept the opinion of Dr Blombery, who has particular expertise in the area, that Ms McCormack has, as a result of the transport accident, suffered a significant Pain Disorder with the development of sensitisation of pain nerve pathways. It is clear from his opinion that this is an organic disorder, and he suggests a range of medications, although given the disorder had persisted over many years, he thought the prognosis poor.
28 Mr Brearley’s opinion is now somewhat dated, as is that of Dr Kostos. While the opinion of Dr Yuen should be respected, as she is a treater, she was examining Ms McCormack for the purpose of assessing neurosurgery, rather than the development of a pain syndrome. I prefer the opinion of Dr Blomberry to that of Dr Elder, who also diagnosed a Pain Disorder, although of sufficiently less severity.
Do the consequences of physical injury meet the “very considerable” test?
29 Any determination of the consequences of an injury involves an assessment of all the evidence but importantly, an assessment of the credibility of the plaintiff. I found Ms McCormack to be a straightforward, honest and responsive witness, giving a fair account of the consequences of her injury, and making concessions where appropriate.
30 At the outset, Mr Elliott put to her there were some inconsistencies in the payments or wages she was receiving from her father’s company while employed there in the years before the transport accident, as compared to the subsequent years; however, I did not find these matters of any significance and do not accept they affect the credibility of the plaintiff.
31 Further, Ms McCormack had some prior issues with pain and treatment in respect of her spine, and some psychological issues, but, again, in my assessment, these were relatively minor.
32 I accept Ms McCormack’s evidence that she, from the time of the transport accident through to the present time, has suffered pain in her neck and lower spine, together with referred pain into her right leg, arms and into her hands. I accept that she has been prescribed a range of pain-relieving and anti-inflammatory medication, although has had some reactions to this. I accept that she currently takes Valium, Lyrica and other pain-relieving medication. I accept that she is rarely pain free and the pain can be aggravated by prolonged sitting or standing and more demanding domestic and recreational activities.
33 I accept her evidence that she is not able to exercise as she previously did and the loss, particularly of her interest in Pilates, has been a significant consequence to her. I accept that she attempted to establish a Pilates studio with the assistance of her family, and even although she was able to undertake the instruction for a period, she was unable to continue because of the pain and restriction in her spine.
34 I accept her sleep has been affected, that she has been unable to return to her enjoyment of horse riding, although I note it had been some years before the transport accident that she had ridden.
35 I accept that she is only able to work about fifteen hours per week in her brother’s business and this is largely undertaking sedentary, administrative duties. I accept that she has become somewhat socially isolated, and her engagement with friends and family is restricted.
36 As Mr Elliott points out, she has been able to undertake some significant rehabilitative steps, including finishing her Arts degree, and being offered a place within the faculty for further study, undertake a course in merchandising and at least apply for a number of jobs, and is able to work part time earning a wage not dissimilar to that which she earned before the accident. She also attempted to set up an online business for the sale of pet products.
37 However, I accept that because of the pain and restriction in her spine, she would otherwise have been in more demanding, fulfilling and remunerative employment, either in the family business or operating a Pilates studio, had she not suffered the injuries and the development of the Pain Syndrome.
38 Ms McCormack is a relatively young woman, and at only thirty-seven years of age, has suffered very significant imposition into her recreational, social and domestic life.
39 While some practitioners are of the opinion there are reasonable prospects for improvement, I prefer the opinion of Dr Blombery that given the many years that have now passed since the transport accident, the prospect of any real relief from her symptoms is poor.
40 All in all, I am satisfied that the consequences of the physical injury from which she suffered meet the “very considerable” test.
41 In those circumstances, I will grant leave to bring common law proceedings.
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