Merrington v Transport Accident Commission
[2021] VCC 828
•30 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04024
| KAYLA KATHLEEN MERRINGTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 June 2021 | |
DATE OF JUDGMENT: | 30 June 2021 | |
CASE MAY BE CITED AS: | Merrington v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 828 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injuries to the neck, mid back and lower back with associated headaches – secondary psychiatric injury – significant prior neck, lower back, headache and psychiatric problems – failure to initially disclose the significant prior problems – failure to provide adequate medical reports describing the nature and degree of the prior problems – reliance on significant portions of clinical notes of the prior problems – failure to provide some medical assessors with the relevant clinical notes of the prior problems – usefulness of some of the medical opinions – aggregation of the physical consequences of the spinal injury and the secondary psychiatric consequences – failure to disentangle – doubt regarding whether the plaintiff suffered organic injuries of any consequence
Legislation Cited: Transport Accident Act 1986 (Vic), s9
Cases Cited: Woolworths Limited v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr C Farinaccio | Shine Lawyers |
| For the Defendant | Mr P D Elliott QC with Ms A Bannon | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1On 4 September 2015, the plaintiff’s stationary car was hit from behind by another car. The resultant impact pushed the plaintiff’s car into the car in front of her. The negligent driver sped off from the scene of the transport accident.
2The plaintiff alleges that she suffered multiple injuries resulting from the transport accident, and principally, injuries to her left shoulder, neck, thoracic spine and lumbar spine, and a secondary psychiatric condition. The plaintiff submitted that the consequences of the injury to her left shoulder, her spine (incorporating her neck, thoracic spine and lumbar spine) and the secondary psychiatric condition, constitute serious injuries.
3Mr V Morfuni QC appeared with Mr C Farinaccio of counsel for the plaintiff. Mr P Elliott QC appeared with Ms A Bannon of counsel for the defendant.
The issues
4In order to understand the issues with any clarity it is necessary, at this stage, to provide a short executive summary of the relevant facts.
5The evidence disclosed that the plaintiff suffered a number of prior medical conditions. They included her neck, lower back, a headache/migraine condition and a psychiatric condition.
6The defendant submitted that the plaintiff did not disclose anything about her prior medical conditions in her first two affidavits. She only did so in her third affidavit, and after her solicitors obtained copies of subpoenaed clinical records. Those clinical records disclosed the plaintiff’s prior medical conditions.
7The defendant submitted that the plaintiff’s failure was deliberate, or perhaps reckless, and however and why it occurred, it impacts upon her application in the following ways – firstly, upon her creditworthiness and reliability; secondly, some of the treating medical practitioners and medico-legal assessors did not know anything about her prior medical conditions and therefore, that impacts upon the reliability of their opinions; and, thirdly, whether the claimed injuries to her spine and the secondary psychiatric reaction are in fact an aggravation of pre-existing medical conditions or are a persistence of her prior medical conditions.
8The defendant next submitted that even if all of the injuries to the plaintiff’s left shoulder and spine are “new”, the medical evidence potentially points to the impairment being a combination of consequences of the injuries, together with consequences of a secondary psychiatric reaction requiring disentangling.
9The defendant lastly submitted that if I was left to determine whether the consequences of the impairment of the function of the plaintiff’s left shoulder and spine, and from the secondary psychiatric reaction were serious, that I could not be so satisfied.
10The unfortunate starting point in determining the issues in this application is to slavishly trace through a large volume of clinical records to demonstrate what prior medical conditions the plaintiff was suffering from to provide the background to some of the opinions expressed by medical practitioners upon whom the plaintiff and the defendant relied.
11At least, the plaintiff is to be commended for having prepared a chronology which both parties relied upon as being an accurate account of the relevant parts of the clinical records. The parties agreed that it was not only accurate, but it was a basis upon which I could proceed in summarising those clinical records.[1]
[1]The chronology proved to be inaccurate. A further version was prepared by the plaintiff which I substituted for the first chronology which I insisted the parties tender as exhibit B
The clinical records
12In the plaintiff’s first affidavit sworn 16 May 2018, she disclosed that prior to the occurrence of the transport accident, she suffered from plantar fasciitis, for which she was prescribed Endone and OxyNorm. She also disclosed that she delivered of a stillborn child in 2006 which she described as being the main cause of a depressive condition which she subsequently developed. She was prescribed antidepressant medication at various times, and also Valium to treat anxiety. This was as much as she disclosed of any prior medical conditions.[2]
[2]Plaintiff's Court Book (“PCB”) 12-13
13The plaintiff swore a second affidavit on 1 April 2020 in which she made no mention of any other prior medical conditions. It was in her third affidavit, sworn 31 May 2021, that she referred to a number of matters which became highly relevant:
· A prior transport accident which occurred in January 2011. The onset of headache, neck and shoulder pain resulting from that transport accident for which she was referred to have a CT scan of her brain and an x-ray of her neck and shoulder.[3]
· Treatment by medical practitioners at Modern Medical at Caroline Springs (“Modern Medical”) between May 2006 and August 2014 for “backpain”.[4]
· Treatment by medical practitioners at Modern Medical and by a physiotherapist for neck pain between August 2009 and May 2012.[5]
· Treatment by medical practitioners at Modern Medical between August 2009 and July 2015 for headaches, also described as migraine.[6]
· Treatment by medical practitioners at Modern Medical between August 2003 and December 2013 for anxiety and depression.[7]
[3]PCB 28.
[4]PCB 29-30. It was difficult to determine whether the authors of clinical notes were individual medical practitioners or were medical practitioners working at a clinic known as Modern Medical. It is for that reason that I have referred to Modern Medical where I am certain that clinic is the source of the entry in the clinical notes, or to the individual doctor where I am uncertain
[5]PCB 30
[6]PCB 30-31
[7]PCB 31-32
14In addition to these disclosures, the plaintiff exhibited the relevant clinical records which she was provided from which she refreshed her memory.
15The plaintiff said that she then remembered the transport accident which occurred in January 2011, some of the treatment she obtained and the resolution of the injuries which she essentially describes as being transient.
16The plaintiff said that she had no specific recall of complaining of back pain except during pregnancies and in 2006, 2010 and 2013, which persisted into 2014. She recalled being prescribed Panadeine Forte during her pregnancy in 2013, and after delivering of her child in 2013, she used Nurofen or Panadeine Forte in 2014.
17The plaintiff said that she had no specific recall of having neck pain in 2009 or having physiotherapy treatment in 2009 or 2012. She appears to have no specific recall of any treatment. She relied upon the clinical records to conclude that whatever neck pain she had, must have resolved.
18The plaintiff said that she had no specific recall of complaining of headache or migraine, presumably to medical practitioners, but recalled having headaches and migraines for which she was prescribed Tramadol, Phenergan and Panadeine Forte, and that she otherwise used Nurofen as well.
19The plaintiff repeated that she had referred to suffering from anxiety and depression in her first affidavit. She described the anxiety and depression from which she now suffers as being “more severe” when compared with what it was like prior to the occurrence of the transport accident.
20I will now trace through the relevant clinical records, but I propose to provide only the briefest summary of the content of them because of the considerable number of clinical records that the parties referred to:
· 16 May 2006 – Modern Medical – pain in the left side of the lower back radiating down into the left leg.[8]
[8]PCB 130
· 8 June 2006 – Modern Medical – lower back pain over 25 weeks.[9]
[9]PCB 131
· 6 August 2009 – Modern Medical – daily headaches for months – worse over the last few weeks – using Panadeine every day – headaches appeared to be muscular in origin. Prescribed amitriptyline hydrochloride (an antidepressant also used in the treatment of pain).[10]
[10]PCB 53
· 25 August 2009 – Modern Medical – GP Management Plan dated 25 August 2009 – the relevant problems were noted to be chronic headaches and neck pain.[11]
[11]PCB 48
· 12 February 2010 – Modern Medical – severe headaches due to wisdom teeth.[12]
[12]PCB 131
· 17 February 2010 – Modern Medical – diagnosis that plaintiff’s neck and headache seem to be cervicogenic. Prescribed Celebrex (nonsteroidal anti–inflammatory).[13]
[13]PCB 49
· 21 September 2010 – Dr Cong Nguyen, general practitioner – panic attacks worsening over the preceding two weeks.[14]
[14]PCB 131
· 8 December 2010 – a clinical note from a “medical deputising service” – a note of backpain.[15]
[15]PCB 131
· 21 January 2011 – Dr Mehrzad Enterzami, general practitioner – note of the transport accident which occurred in January 2011 – noted that the plaintiff was experiencing headache and neck soreness. She was referred to have a CT scan of her brain, and an x-ray of her neck and right shoulder. She was prescribed Panadeine Forte.[16]
[16]PCB 132
· 3 February 2011 – Dr Roger Pope, general practitioner – chronic headaches associated with vomiting.[17]
[17]PCB 132
· 19 April 2012 – a medical assessment and referral by Dr David Frost, general practitioner – note that the major problem was neck, headache and back pain over the preceding six years with constant pain which was worsening and interfering with standing, walking and sleep.[18]
[18]PCB 50
· 4 May 2012 – Ms Young Jeon, physiotherapist – note that the plaintiff had not had any trouble with her neck.[19]
[19]PCB 51
· 11 July 2013 – Dr Rokon Ahmmad, general practitioner – note that the plaintiff was 22 weeks’ pregnant. She had experienced pain in the preceding two days, with pain radiating into the right leg with no neurological signs.[20]
[20]PCB 40
· 4 September 2013 – Dr Faiza Khan, general practitioner – note that plaintiff was using “panadeine” [Panadeine Forte?] for back pain.[21]
[21]PCB 41
· 17 March 2014 – Modern Medical – note that the plaintiff sprained her back and was using a lot of Nurofen Plus for pain relief.[22]
[22]PCB 42
· 19 April 2012 – Modern Medical GP Management Plan – note of acute low back pain and depression. Prescription of Citalopram.[23]
[23]DCB 90-94
· 16 August 2012 – Modern Medical GP Management Plan – note of acute low back pain and depression. Prescription of Citalopram.[24]
[24]DCB 95-97
· 4 June 2014 – Modern Medical – note that the plaintiff continued to suffer mid back and lower back pain since she went into labour. She was using Mersyndol for pain relief. A care plan was to be prepared, referring her to a physiotherapist, and a note was made that she had not seen a psychologist as yet. She was prescribed Diazepam.[25]
· 4 June 2014 – Modern Medical GP Management Plan – note of acute low back pain and depression. Prescribed Diazepam, Lexapro and Valium.[26]
· 1 August 2014 – Modern Medical – note of suffering upper back pain over the preceding nine months. Prescribed Endone. Waiting for physiotherapy.[27]
· 7 August 2014 – Modern Medical – note of back pain flaring up despite using Endone, lower back pain radiating into both legs and the use of Tramadol causing nausea. Prescribed Panadeine Forte, Targin (an opioid analgesic) and Valium.[28]
· 3 October 2014 – Modern Medical – note of migraines. Prescription for Valium. Prescription for Targin ceased.[29]
· 10 October 2014 – Modern Medical GP Management Plan – note of acute low back pain, depression and heel pain. Prescribed Cipramil, Endep, Endone, OxyNorm, Panadeine Forte and Valium.[30]
· 10 October 2014 – Modern Medical, Dr Nicolaai – note of ongoing foot pain [bilateral?] suggestive of a spur/plantar fasciitis. Preparation of a care plan, referral to a specialist clinic, referral for x-rays and ultrasound, and prescription of Endep, Endone and Panadeine Forte.[31]
· 12 December 2014 – Modern Medical GP Management Plan – note of acute low back pain, depression and heel pain. Prescribed Cipramil, Endone, OxyNorm, Panadeine Forte and Valium.[32]
· 6 January 2015 – GP locum service – note of history of migraine, and question whether related to the plaintiff’s menstrual cycle. Advised to use Panadol and Nurofen. Endep ceased.[33]
· 8 July 2015 – after hours home doctor service – note of sudden onset of headache similar to migraine. Treated with Tramadol, Panadol and Ibuprofen.[34]
[25]PCB 43
[26]DCB 99-101
[27]PCB 44
[28]PCB 45
[29]PCB 58
[30]DCB 102-104
[31]Exhibit 2
[32]DCB 105-106
[33]PCB 133
[34]PCB 61-62
21The defendant tendered the Patient Health Summary of Modern Medical which discloses a summary of the plaintiff’s current medications, active past history, inactive past history, immunisations, and prescriptions of medication. The active past history refers to acute pain in the lower back from 16 May 2006, and depression from 29 July 2010. The prescription of medication commences at 12 August 2003 and contains references to medication prescribed relevant to the plaintiff’s prior medical conditions, and for the medical conditions which she alleges resulted from the occurrence of the transport accident.[35]
[35]DCB 108-139
22The defendant emphasised that the plaintiff obtained medical treatment for some, and perhaps all, of her prior medical conditions up to a short time prior to the occurrence of the transport accident. In particular, it referred to the prescription of Endone and Valium by Dr Nikolaai on 3 September 2015, which is the day immediately prior to the date of the occurrence of the transport accident.[36]
[36]DCB 131
Late disclosure of the clinical records
23The issue created by the late disclosure of the clinical notes by the plaintiff is that it renders most of the medical evidence of little value. For example the only medical practitioners who were provided with the whole of the clinical notes are Mr Aliashkevich and Mr Owen, orthopaedic surgeon.
24I will now summarise the plaintiff’s evidence of the treatment that she obtained subsequent to the occurrence of the transport accident.
The Plaintiff’s treatment
25It is most unfortunate that the plaintiff did not obtain a conventionally structured medical report from one of the general practitioners who treated her at Modern Medical. The plaintiff preferred to rely upon the clinical notes of that clinic which do not provide a particularly reliable picture of the plaintiff’s treatment as a medical report would tend to do.[37]
[37]The clinical notes that I am about to refer to when not reproduced in the Court Books. The plaintiff preferred to rely on the summary of those clinical notes as summarised by Mr Aliashkevich
26The plaintiff first saw Dr Khan on 7 September 2015. She informed him of the occurrence of the transport accident. After examining the plaintiff, he considered that she had suffered mechanical back pain and a whiplash injury to her neck. He noted that she had been prescribed Endone by Dr Nikolaai. He referred her to have a plain x-ray of her neck. He advised her to increase her use of OxyNorm to four tablets per day, and he prescribed her Endone and Panadeine Forte for further pain relief.[38]
[38]PCB 134
27The plaintiff next saw Dr Nikolaai on 25 September 2015. She informed him of the occurrence of the transport accident. It was on that occasion that she first complained of having suffered an injury to her left shoulder, and she also complained of back pain. He restarted her on Citalopram, ceased all of her medication and prescribed her Cipramil, OxyNorm, Valium and Endone.[39]
[39]PCB 134-135
28The plaintiff underwent an ultrasound of her left shoulder on 2 November 2015. The radiologist reported that there were appearances of bursitis, an intrasubstance tear and partial-thickness tears of the supraspinatus tendon.[40] A further ultrasound was performed on 9 June 2016. On this occasion, the radiologist reported that there was a possibility of bursitis, and no complete tear, presumably of the supraspinatus tendon.[41]
[40]PCB 91
[41]PCB 93
29The plaintiff was next seen by a general practitioner who made a home visit. She complained of aching or pain in her left shoulder. She had taken in the vicinity of 15 to 20 Nurofen that day. She was given advice, which I am unable to determine whether it related to her significant use of that medication or the problems she was having with her left shoulder. The advice was to seek immediate medical attention.[42]
[42]PCB 135
30The plaintiff was next seen by Dr Nikolaai on 10 February 2016. She complained that her left shoulder problem was worsening, and that she was also experiencing neck pain with associated numbness. She was referred to have an ultrasound and x-rays, and was prescribed OxyNorm, Panadeine Forte and Valium.[43]
[43]PCB 135
31The plaintiff was next seen by Dr Nikolaai on 23 February 2016. It would appear that she experienced a troubling breakup with her partner which involved the police. Associated with that event was a complaint by her of difficulty with sleep, panic attacks and paranoia.[44]
[44]PCB 135
32The plaintiff was next seen by Dr Nikolaai on 11 May 2016. She complained of headaches, nausea, blurred vision, back pain and neck pain, but the principal reason for her visit appears to have been for migraine. She was placed on a trial of Imigran.[45]
[45]PCB 135
33The plaintiff was next seen by Dr Nikolaai on 31 May 2016. She reported that her headaches were better. The problems she was having with her partner were creating stress for her. She also reported experiencing pins and needles in her limbs. She was referred to have a CT scan, which was performed on 31 May 2016. The radiologist reported that the CT scan of her cervical spine demonstrated a central disc bulge at C3-4, causing mild canal stenosis in the presence of osteophytes encroaching the right C3-4 foramina. The radiologist reported that the CT scan of her lumbar spine returned a normal study.[46] Dr Nikolaai reviewed the plaintiff on 3 June 2016, presumably to discuss the CT scans, but the clinical notes do not disclose any opinion expressed by him relevant to the plaintiff’s complaints and what is demonstrated on the CT scans.[47]
[46]PCB 92
[47]PCB 135
34At the consultation on 3 June 2016, Dr Nikolaai referred the plaintiff to have an ultrasound of her left shoulder, which was performed on 9 June 2016. The radiologist recorded the clinical indication for the ultrasound as being possible bursitis. He reported that there was no complete tear with separation, abduction was restricted due to pain, and the bursa was not thickened.[48]
[48]PCB 93
35The plaintiff was next seen by Dr Nikolaai on 14 June 2016. He referred her to have physiotherapy, and he prescribed her Endep, Endone, Imigran, Mirtazapine, OxyNorm, Panadeine Forte and Valium.[49]
[49]PCB 135-136
36The plaintiff was next seen by Dr Nikolaai on 29 July 2016, when she informed him that she suffered severe back pain to the extent that she called an ambulance. She informed him that Panadeine Forte was not helping. She was then prescribed Celebrex, and there was discussion about the plaintiff seeing a physiotherapist. The next visit, on 12 August 2016, appears to be related to whether the prescription of medication had been provided.[50]
[50]PCB 136
37The plaintiff was next seen by Dr Nikolaai on 8 September 2016. She complained of depression and anxiety due to issues with her partner. The next visit, on 14 September 2016, appears to be related to that issue. On that occasion, she informed Dr Nikolaai that tramadol disagreed with her, and she was then prescribed Endone.[51]
[51]PCB 136
38Dr Nikolaai provided the plaintiff with a medical certificate dated 5 October 2016 in which he described the injuries which he believed the plaintiff suffered as a result of the occurrence the transport accident as injuries to her shoulders, neck and back. She was prescribed Panadeine Forte and Nurofen Plus for her shoulder and back injuries.[52]
[52]PCB 136
39On 11 October 2016, a general practitioner made a home visit because the plaintiff was suffered migraines over the preceding week. She was prescribed Panadeine Forte.[53]
[53]PCB 136
40The plaintiff moved to Chelsea, after which she saw medical practitioners at the Chelsea Heights Medical Centre. Dr Gelareh Totonchi, general practitioner, provided a report dated 9 March 2017. He recounted the history which he obtained from a file presumably transferred from Modern Medical. He considered that the plaintiff would benefit from seeing a neurosurgeon and a pain specialist. He noted that there had been some success in reducing the dose of strong painkillers which the plaintiff had been prescribed in the recent past.
41Dr Totonchi referred the plaintiff to have a CT scan of her thoracolumbar spine. It was performed on 28 March 2017.[54] The radiologist described a number of findings in the thoracic and lumbar spine, but insufficient to describe the appearances as constituting anything of particular significance in either the thoracic or lumbar spine.[55]
[54]PCB 129
[55]PCB 94-95
42Dr Balwinder Singh, general practitioner (also a general practitioner at the Chelsea Heights Medical Centre), referred the plaintiff to Peninsula Health for treatment for chronic neck pain, lower back pain and headaches. She saw Dr Vivien Li, neurologist, on 12 December 2017.[56] She provided a report bearing the same date. The plaintiff told Dr Li that she was experiencing neck and back pain which Dr Li considered to be a whiplash injury. She described the pain in her neck and back as being constant, sharp and located in the middle of her back, with occasional radiation of pain into her legs bilaterally. She also described occasional paraesthesia in the whole of her left arm. The balance of her report contains a reference to the symptoms experienced by the plaintiff, the plaintiff’s use of medication, and something of the plaintiff’s history of depression and anxiety in her teens. Dr Li considered that the plaintiff was experiencing significant functional impairment without any objective neurological deficits. She noted that she was using excessive opioid medication which may have been contributing to a mood disorder. She provided her with a prescription for Gabapentin, and advised her to engage in gentle regular physical activity, physiotherapy and psychological treatment.
[56]PCB 118-119
43The plaintiff returned to Peninsula Health on 17 April 2018 and saw Dr Michael McVeigh, Neurology Senior Registrar. He provided a report bearing the same date.[57] It would appear that Dr McVeigh understood the opinion earlier expressed by Dr Li. He noted that the prescription of Gabapentin did little to ameliorate the plaintiff’s chronic headaches, however, an increase in the dosage gave her significant improvement and reduced the frequency of her headaches. Dr McVeigh then made a number of observations which are of importance, because of the opinions expressed by other medical assessors. He considered that there was little benefit which could be provided by further neurology input. He considered that the plaintiff was suffering from “chronic pain with a significant psychological component”. He advised the plaintiff that her use of Panadeine Forte could result in medication overuse, headache and in the setting of chronic pain, its use was likely to provoke medication side effects and dependency rather than any long-term reduction in her pain levels. He referred her to the Frankston Hospital Chronic Pain Unit for a multidisciplinary assessment. He considered that the first step was to reduce her opiate analgesic intake which he felt would be difficult without the input of a chronic pain specialist.
[57]PCB 116-117
44Mr Scott Bednarz, physiotherapist, treated the plaintiff by six sessions of physiotherapy between 18 November and 9 December 2017. He provided a report dated 5 April 2017.[58] As far as I can deduce, he was the only physiotherapist to treat the plaintiff, despite references in the clinical notes to proposed referral for her to have physiotherapy treatment. He treated the plaintiff for an injury to her neck, with associated headaches, and an injury to her left shoulder.
[58]PCB 102-103
45Mr Bednarz considered that as at 9 December 2017, the plaintiff’s “condition” had not stabilised. I assume by his use of the word “condition”, that it was intended to incorporate all of the medical conditions for which he treated the plaintiff. He considered that she required further physiotherapy, aimed at self-management. He also considered that her condition was restricting her ability to concentrate, stand, sit, sleep and lift heavy objects, and that she was experiencing pain when driving her car, reading and working, although, the plaintiff was not working at the time of the occurrence of the transport accident nor at any time subsequently, and certainly not at around the time when he treated her. Additionally, he considered that she would experience pain when engaging in recreational activities and when engaged in domestic activities and personal care.
46It is not clear to me why the plaintiff ceased seeing Dr Totonchi and Mr Bednarz, but she then came under the care of Dr Saul Solomon, general practitioner. She first saw him on 19 February 2018. He provided a number of rather brief reports dated 2 July 2019,[59] 7 May 2020,[60] 27 May 2021[61] and 31 May 2021.[62] He had the clinical notes of the plaintiff’s previous general practitioner. It is not clear which general practitioner he was referring to, however, that is perhaps not so relevant. He understood that the plaintiff had suffered injury as a result of a transport accident and was complaining of injuries to her neck, back and left shoulder. At first he diagnosed a chronic pain problem affecting the plaintiff’s mid back, and later included her lower back as also being a chronic pain problem. He made no reference to the plaintiff’s neck, and although he made a reference to the plaintiff’s left shoulder, it did not figure at all in his consideration of the plaintiff’s injury complex.
[59]PCB 120-121
[60]PCB 122-123
[61]PCB 124-125
[62]PCB 128
47Dr Solomon referred the plaintiff to Dr Robert Gassin, musculoskeletal and interventional pain management specialist. The plaintiff first saw him on 13 August 2018. He provided a number of reports dated 5 February 2020,[63] 9 May 2020,[64] 6 January 2021[65] and 26 May 2021. She told him that her main problems were neck pain with associated headaches, constant lower back pain, constant mid back pain and constant left shoulder pain. His last report appears to summarise the whole of the treatment he provided the plaintiff.
[63]PCB 104-108
[64]PCB 109
[65]PCB 110
48Dr Gassin referred the plaintiff to have an MRI scan of her cervical spine, which was performed on 21 August 2018.[66] He later referred her to have an MRI scan of her thoracic and lumbosacral spine, which was performed on 4 July 2019.[67] He initially prescribed her amitriptyline, and referred her to a physiotherapist to undergo a back rehabilitation program, and also to a psychologist for pain management. He noted that her use of amitriptyline improved her headaches somewhat. He advised the plaintiff to undergo invasive treatment. Initially, he performed bilateral T10-11 and T11-12 facet joint diagnostic blocks on 24 October 2019,[68] and subsequently he performed a radiofrequency neurotomy applied to the same areas of her thoracic spine which was performed on 17 November 2020.[69]
[66]PCB 97
[67]PCB 98-99
[68]PCB 100
[69]PCB 101
49After examining the plaintiff and performing the invasive treatment, Dr Gassin considered that the plaintiff suffered a whiplash injury, most likely involving the left C6 nerve, which he believed accounted for her left upper limb symptoms. She did not complain to him of any neck problems after returning into his care in 2019 nor did she complain of any left shoulder problems, and indeed, he did not assess her left shoulder. He considered that the improvement resulting from the radiofrequency neurotomy would last between six to eighteen months before the pain was likely to recur. He considered that the plaintiff’s lower back pain would persist, although, he considered that diagnostic blocks and radiofrequency neurotomy might be an option for treatment to provide her with medium-term relief.
50Dr Gassin considered that the injuries suffered by the plaintiff were stable on the occasion when he last reviewed her. He considered that the injuries that she suffered would moderately restrict her in relation to social, domestic, recreational and employment activities. He did not consider that she required referral to any other specialists. It would appear that after the plaintiff ceased seeing Dr Gassin, she continued to be treated by Dr Solomon. In his last report, he referred to providing her with repeat prescriptions for Panadeine Forte, adding that he was trying to wean her off it.
The medical evidence so far
51I am acutely aware of the caution sounded when a judge is expected to summarise, analyse and then contextualise clinical notes.[70] However, the serious difficulty with which I am faced with here is that in the absence of a medical report from any of the doctors who treated the plaintiff at Modern Medical, I am left in the dark as to whether the plaintiff’s relevant prior medical conditions are of any particular seriousness, and how they are to be weighed into account.
[70] Woolworths Limited v Warfe [2013] VSCA at paragraph [112] and Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraphs [105]-[106]
52The plaintiff was cross-examined at some length on the content of some of the clinical notes for the purpose of demonstrating not only that she had the same or similar medical conditions as she now claims constitute impairments of function said to be serious, but also as a matter of her creditworthiness and reliability.
53The plaintiff provided two reasons why she did not set out any of her relevant prior medical history in her first two affidavits, and did not inform a number of the medical assessors of that relevant prior medical history. The first was her unfortunate indulgence in illicit drugs. She described having a drug addiction which has resulted in her having “a very bad memory”. A general practitioner referred the plaintiff to an organisation known as DasWest which appears to be part of the Western Hospital. The clinical note is dated 11 October 2005. In it the general practitioner referred to the plaintiff indulging in Ice, ecstasy and speed since suffering a miscarriage in July 2005. It also refers to the quantity of the illicit drugs the plaintiff was using as being a bag of Ice once to twice a day, half an ecstasy tablet once or twice a week, and inhaling or smoking one gram of speed a day.[71]
[71]PCB 130
54Additionally, she described her problems with memory as her having a “short memory; I cannot remember a lot of things”.[72] That seems to be the main reason for the absence of any reference to the prior medical history in her first two affidavits and in the histories obtained by a number of medical assessors. The plaintiff also described her failure to disclose the prior medical history as it having “slipped my mind” until she was shown the clinical notes on which she spent some time commenting on them in her third affidavit.[73] She denied that her memory improved after she ceased using illicit drugs. She said that she did not think her memory had improved, and that she thought that she may have “done some sort of damage”, presumably to her memory function. She has not consulted any medical practitioner for treatment for any loss of memory problem.[74]
[72]Transcript 21
[73]Transcript 21, 26-27
[74]Transcript 50
55Under further cross-examination, the plaintiff was taken to histories recorded by Mr David Brownbill, neurosurgeon; Dr Gassin, pain specialist, and Mr Owen, orthopaedic surgeon, where the content of their reports discloses that they raised the subject of whether the plaintiff had any relevant prior medical conditions. On each occasion, they recorded that she informed them that she did not have any such relevant medical history, and in each case, she did not disclose any of the prior medical conditions.[75]
[75]Mr Brownbill at PCB 167 and Transcript 26; Dr Gassin at PCB 105 and Transcript 27-28, except for a history of prior occasional migraine, and Mr Owen at DCB 6 and Transcript 28-29
56The defendant challenged the plaintiff’s evidence that the relevant prior medical history slipped her mind or was due to an impaired memory resulting from the illicit drug use. It submitted that there is nothing in the opinions of examining psychiatrists to point to the plaintiff having any impairment of memory.
57The defendant submitted that if the plaintiff had any serious impaired memory functioning, then she would have said so in her affidavits, and she would have given that history to the examining psychiatrists who are the specialists to whom such a history should have been given for the purpose of them commenting on whether she had any impaired memory functioning or not. It submitted that the evidence of the psychiatrists is to the contrary.
58Dr Nathan Serry, psychiatrist, examined the plaintiff on 22 June 2017. He provided a report bearing the same date.[76] She told him, in effect, that she had no prior medical history apart from a tonsillectomy, and grief and depression due to the stillbirth of a child for which she was prescribed antidepressants. His mental state examination of her did not disclose that she had any cognitive or mentation difficulties of any significance.[77]
[76]PCB 196-204
[77]PCB 200
59Dr Justin Lewis, psychiatrist, examined the plaintiff on 20 April 2021. He provided a report dated 25 April 2021.[78] He obtained a history that the plaintiff had suffered intermittent depressive episodes, had been treated with antidepressant medication, and had engaged in heavy drinking and abused methamphetamines after the stillbirth of her child. His mental state examination of her did not disclose that she had any cognitive or mentation difficulties of any significance.
[78]PCB 177-187
60Dr Gregor Schutz, psychiatrist, examined the plaintiff on 24 February 2020. He provided a report dated 28 February 2020.[79] He obtained a history that the plaintiff “went off the rails” as a result of the stillbirth of her child, used cannabis recreationally, binge drank on weekends, but denied any other history of illicit drug use. He made specific reference to her cognition when he undertook a mental state examination. While he did not formally test her cognition, he considered that it “was grossly intact” and otherwise she had reasonable insight and judgement.[80]
[79]DCB 29-38
[80]DCB 32
61In essence, the defendant submitted that the volume of complaints of physical problems in the plaintiff’s medical history prior to the occurrence of the transport accident makes it difficult to accept that she could not remember much of it. Additionally, it submitted that it is difficult to accept that she was left with any impairment of her cognition or mentation when there is little or nothing in any of the relevant medical evidence to support that, and therefore, what I am left with is the plaintiff failing to disclose a very relevant prior medical history.
62I am disquieted by the plaintiff’s failure to disclose what I consider to be a very relevant prior medical history. The sheer volume of plaintiff’s complaints of being troubled by neck pain, back pain, headaches and depression make it difficult to accept that she did not, or could not, remember any of that until reminded, especially because of the significant adverse effects those medical conditions had on the plaintiff’s overall health since 2006. It is even more difficult to accept her evidence for two further reasons – firstly, because she was in receipt of a prescription for Endone and Valium by Dr Nikolaai on 3 September 2015 which is the day immediately before the occurrence of the transport accident, pointing to her having a fairly consistent level of treatment up until that point; and, secondly, because she has apparently not had any difficulty remembering medical treatment, and other matters of importance to her application since the occurrence of the transport accident, despite her evidence that her memory is so badly affected.
The medico-legal assessments – physical injuries
63Mr Aliashkevich and Mr Owen were the only medical practitioners who were provided with sufficient of the plaintiff’s prior medical history to ultimately comment on whether that prior medical history is of any significance or not.
64Mr Aliashkevich examined the plaintiff on 8 April 2021. He provided a report bearing the same date.[81] He expended an extraordinary effort in summarising the plaintiff’s prior medical history, her subsequent medical history following the occurrence of the transport accident, and reports of treating and medico-legal medical assessors. After examining the plaintiff and considering the radiology and the plaintiff’s prior medical history, he provided an extensive and elaborate diagnosis – chronic mid and lower back pain; chronic neck pain; chronic left shoulder pain; chronic headache; Chronic Pain Syndrome; Chronic Protracted Whiplash Associated Disorder; central sensitisation; suspected Myofascial Pain Syndrome/fibromyalgia, and Chronic Adjustment Disorder with Anxious and Depressed Mood. He also considered that the transport accident materially contributed to an aggravation of Chronic Protracted Whiplash Associated Disorder, cervicogenic headache, degenerative spinal condition and Scheuermann’s disease. He described the degree of the aggravation as “to a degree greater than minimal”.
[81]PCB 131-166, and a subsequent report dated 12 May 2021 which is very short and relevant to the issue the plaintiff's injuries have stabilised
65Further, and additionally, Mr Aliashkevich appears to have brought together a range of factors in expressing the following opinion:
“Although I’m not a qualified pain specialist or rheumatologist, based on the character of your client’s symptoms with widespread pain distribution and presence of muscular trigger points on examination, I had an impression that the injuries started a cascade of chronic pain syndrome, typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome. In my opinion, your client is experiencing pain amplification/distortion from the development of central sensitisation on a background of maladaptive nociceptive response, which is outside my expertise. There is also a possibility of her experiencing opioid-induced hyper and overuse headache in the setting of chronic pain, which would lie in the domain of her pain specialist.”
66Mr Aliashkevich did not explain whether his reference to Chronic Pain Syndrome, Myofascial Pain Syndrome, central sensitisation and maladaptive nociceptive response are organically based or not. It should not be left to me to try to guess at what he intended to convey, but at a general level, it is my experience that those expressions are often used by medical practitioners specialising in the treatment of pain as representing the combined contribution by a physical injury and a psychiatric response. I think that is what he intended to convey, because in the next paragraph, he referred to the opinion of Dr McVeigh, quoting it with approval. Dr McVeigh said, among other things, that the plaintiff was suffering from chronic pain with a significant psychological component, and he then commented on her use of opiate analgesia and its place in causing the plaintiff medication side effects.
67Mr Aliashkevich recommended that the plaintiff have further treatment of an extraordinarily extensive nature involving referral to numerous specialists, including a rheumatologist, to treat her “myofascial pain/fibromyalgia syndrome” and a psychologist or psychiatrist, and reduction of her intake of opioid analgesia. He considered that her prognosis was very guarded, and in that respect, again, he referred, among other things, to her opioid analgesia usage, depression and central sensitisation, presumably as contributors to that guarded prognosis. He considered that she would be restricted in social, domestic, recreational and occupational activities, particularly in relation to lifting, standing, running and bending.
68Mr Owen examined the plaintiff on 7 March 2019. He provided a report bearing the same date.[82] He re-examined the plaintiff on 30 January 2020. He then provided a report bearing the same date.[83] He provided a supplementary report dated 29 April 2020.[84] At the time when he first examined the plaintiff, he was provided with the clinical records of Modern Medical. It is not clear whether he read those clinical records, which is something I will refer to later. After examining the plaintiff, he considered that she had suffered an acceleration/deceleration injury, resulting in a soft tissue injury to her cervical and lumbar spine. He considered that there was evidence that the plaintiff suffered a soft tissue injury to her rotator cuff of her left shoulder; however, he referred to that evidence as being very weak, and discounted bursitis and impingement as being a consequence of the transport accident, but more the result of a degenerative process. He then referred to the inconsistencies in her presentation, describing it is accompanied by “illness behaviour signs”. He added that he did not think that “anything serious happened in this accident in an organic sense” and from that point of view, her prognosis should be good.
[82]DCB 4-12
[83]DCB 13-22
[84]DCB 23-28
69When Mr Owen next examined the plaintiff, he described her overall condition relevant to her cervical and thoracolumbar spine as being a “chronic pain problem” with decreased function in her left shoulder “from an unspecified cause”. He again referred to illness behaviour which he related to “inexplicable changes in her left upper extremity with weakness and altered sensation”.
70In Mr Owen’s last report, his attention was drawn to clinical notes which referred to the plaintiff’s prior medical history. He then reviewed his previous reports, and also the clinical notes, and essentially repeated his previous opinion that the plaintiff had a chronic pain problem relevant to her cervical and thoracolumbar spine. He reiterated his opinion that the plaintiff “exhibited quite significant illness behaviour”, noting that there was little, if any, objective evidence that she suffered any major injury to her neck, back or left shoulder. In the context of his understanding that the plaintiff had suffered previous problems with her neck and back, he then made the following observation:
“This probably reinforces my opinion that the claimant’s impairment is essentially psychosocial and that her reporting to me on two occasions and to Dr Gassin of no previous problems puts in doubt her credibility in reporting her symptoms and for her medical attendance to take them at face value.”
71In answer to a specific question relevant to the plaintiff’s pre-existing medical conditions, he observed:
“It reinforces my opinion that I do not think that she sustained any significant organic problem to her spine in the motor vehicle accident. I think it is reasonable to accept that the deceleration injury would have caused some symptoms in her neck and back and these have led to her developing her current chronic psychosocial problems.
I do not think that her current disability is related to the transport accident in any organic manner. The problems that she is having now are obviously a continuum of problems that she has had going back to the recorded time in 2006.”
72I will now deal with the opinions of Mr Brownbill, neurosurgeon, and Associate Professor Love, orthopaedic surgeon, rather more summarily. They were not provided with the plaintiff’s prior medical history. I consider that to be of critical importance. In the absence of understanding relevant aspects of the plaintiff’s prior medical history, they were placed in a position where they could not consider whether the injuries to the plaintiff’s neck and back were a continuation of her prior neck and back problems, an aggravation of those prior injuries or new injuries.
73I think that becomes a patently clear in the opinion of Mr Brownbill. He examined the plaintiff on 8 March 2018. He provided a report bearing the same date.[85] He prefaced his opinion relevant to the plaintiff’s neck and back pain on the basis of there being no previous evidence of neck or back injury or pain. He considered that the occurrence of the transport accident resulted in the plaintiff suffering soft tissue injuries to her neck with likely C3-4 intervertebral disc damage giving rise to neck pain and referral to cervicogenic headaches. He considered that the plaintiff’s back pain resulted from either referral from the neck injury to the plaintiff’s midthoracic area or an aggravation of pre-existing asymptomatic degenerative changes at T8-9.
[85]PCB 168-176
74Professor Love examined the plaintiff on 4 July 2017. He provided a report dated 10 July 2017,[86] and two supplementary reports dated 19 September 2017[87] and 13 December 2017.[88] The plaintiff left Professor Love with the impression that she had not previously experienced any neck or lower back problems. He considered that she had suffered an acceleration/deceleration injury to her neck and midback, and a partial thickness tear and bursitis of her left shoulder. He considered the position of surgery, both with respect to the plaintiff’s neck and left shoulder, considering that she might need surgery to her left shoulder, but was unlikely to require it for her neck.
[86]PCB 188-191
[87]PCB 192
[88]PCB 193
The medico-legal assessments – psychiatric injury
75I repeat that neither Dr Serry, Dr Schutze nor Dr Lewis were provided with the evidence I have reviewed relevant to the plaintiff’s prior medical conditions. The fact that the plaintiff had a long history of depression, and the prescription of significant volumes of medication to treat that condition, must be of real significance in determining whether the psychiatric condition which the plaintiff says resulted from the occurrence of the transport accident was a continuation of a prior psychiatric condition, an aggravation of it or a new injury.
76Dr Serry considered that the plaintiff had suffered a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation consistent with Post-Traumatic Stress Disorder. He did not say much about the extent to which it resulted in any incapacity with respect to social, domestic and recreational pursuits and vocational opportunities. Dr Lewis arrived at a similar diagnosis of a Chronic Adjustment Disorder with mood and traumatisation features. He did not exclude a differential diagnosis of Post-Traumatic Stress Disorder and a Depressive Disorder. Similarly, he did not say much about the extent to which it resulted in any incapacity with respect to social, domestic and recreational pursuits and vocational opportunities. Dr Schutze arrived at a similar diagnosis of a Chronic Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation. He considered that there was a contribution to her psychiatric condition by her family circumstances, and in particular, the predicament of her children both suffering from ADHD. He considered that her employment capacity had been reduced by about 20 per cent from a purely psychiatric perspective. He did not say much about the extent to which it resulted in any incapacity with respect to social, domestic and recreational pursuits.
The Plaintiff’s evidence
77The plaintiff submitted that the evidence discloses that she suffered an injury to her neck, midback and lower back, all of which constitute a single body function. The defendant did not cavil with that submission. She also submitted that she had suffered an injury to her left shoulder. The plaintiff described the consequences of the impairment of function as follows:
· Constant pain in her neck which varies from a dull ache to strong pain.
· Moving or jolting her neck can lead to the onset of migraine.
· Constant pain in her lower back.
· Difficulty sitting, standing, walking, lifting, bending and twisting due to lower back pain are movements which will aggravate lower back pain.
· Pain in the left shoulder present most of the time with a sensation of pins and needles which comes and goes, affecting her left arm.
· Loss of strength in the left shoulder; difficulty moving above shoulder height which produces a painful and pulling sensation.
· Difficulty engaging in forceful pushing and pulling with the left arm.
· Pain in the left shoulder wakes her at night.
· Interference with a capacity to undertake domestic activities, needing help from her mother and sister. Particular activities which cause problems are heavier activities such as scrubbing, lawnmowing, vacuuming and mopping.
· The need to use an indoor clotheshorse rather than hanging out washing.
· The need to rearrange plates, glasses and cups to avoid having to reach up into cupboards.
· Interference with going to the gym and going on long walks with the dog. Driving can provoke pain in her neck, back and left shoulder.
· The anxiety and depression from which she now suffers is severe when compared to what it was like beforehand.
· She has panic attacks, as if someone is sitting on her chest. She avoids crowds. She lives like a hermit. She uses Zoloft and Valium to manage her psychiatric consequences.
· She has become short tempered.
A synthesis of the evidence
78The clinical notes demonstrate very clearly that the plaintiff was troubled with neck pain, back pain, and depression for a significant period of time prior to the occurrence of the transport accident, and was in receipt of prescriptions for what appear to me to be a very large volume of opiate analgesia.
79In the absence of a report from one of the general practitioners who treated her, it is simply not possible to determine the magnitude of the problems which the plaintiff was experiencing, except to say that my immediate impression is that the plaintiff was suffering chronic problems of the kind just referred to, and at times those problems appear to have been moderate to severe and incapacitating.
80The importance for the plaintiff in demonstrating whether she was suffering from any neck, back and depressive problems before the occurrence of the transport accident cannot be underestimated. At the very heart of any application for serious injury where there is a pre-existing medical condition, it is for the plaintiff to demonstrate that there was no pre-existing medical condition of any significance, or that it was aggravated or that it is a new injury.
81The issue is best exemplified in the opinion of Mr Brownbill, who prefaced his opinion very carefully, when addressing the nature of the injury suffered by the plaintiff, that his opinion was based on there being no previous neck or back pain. Similarly, Dr Serry, Dr Lewis and Dr Schutze were not provided with the clinical notes. Whilst I am not going to speculate what they might have made of the clinical notes, experience in these applications demonstrates that a significant pre-existing history of relevant medical conditions is highly relevant for a medical assessor to express an opinion on the extent to which a traumatic incident is responsible for an injury and its consequences.
82So far, I am not satisfied that the plaintiff has discharged the onus that she bears to adduce the evidence in an adequate way for the comparison to be made between the prior medical conditions and their consequences, and the injuries produced by the transport accident and their consequences, and more particularly, whether the consequences of the injuries she suffered as a result of the transport accident persisted in a similar way despite the occurrence of the transport accident, or whether they were aggravated to some degree or the injuries are new injuries.
83The plaintiff’s position becomes seriously muddied at the point when Dr McVeigh arrived at the conclusion that the plaintiff was suffering from chronic pain with a significant psychological component compounded by her use of Panadeine Forte. It is the very notion taken up by Mr Aliashkevich and Mr Owen. The aggregate of these opinions, and the medical terms used by each of them, leaves me in doubt whether they accept that there is some level of organic basis for the opinions they express. I suspect, but I do not know with any clarity, that they accept that there is an organic basis for their opinions, but the use of those expressions, as best I understand them, is that there is a combination of organic injuries and a psychiatric injury contributing to their diagnoses.
84The definition of “serious injury” in s93(17) makes it clear that there is to be a division between injuries with physical consequences and injuries with mental consequences. The enquiry that must be made under paragraph (a) of the definition of “serious injury” is whether the injury has produced impairment or loss of a body function, and whether the consequences of that impairment or loss are serious and long term. What the section also makes clear is where the impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, then that impairment must be considered under paragraph (c) of the definition of “serious injury”. Where the impairment of the body function is a product of both the organic and mental conditions, it will not be considered under paragraph (a) of the definition of “serious injury” unless it is predominantly the product of the organic condition.[89]
[89]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs [65]-[66]
85The opinions of Mr Aliashkevich and Mr Owen do not support a conclusion that the impairment of the function of the plaintiff’s neck, associated headaches, and lower back are predominantly the product of an organic condition, and therefore, the plaintiff bears the onus of undertaking appropriate disentangling, which she has not bothered to undertake in any measure at all. In the absence of undertaking the disentangling successfully, the plaintiff has failed to discharge the onus that she bears.
86I will now deal with the impairment of the function of the plaintiff’s left shoulder. I accept the plaintiff’s submission that she did not have any history of left shoulder problems prior to the occurrence of the transport accident. The injury appears to have occurred at the time of the occurrence of the transport accident. However, the evidence of the nature and extent of the impairment of the function of her left shoulder suggests that it is rather mild. Mr Brownbill referred to the assessment of the plaintiff’s shoulders lying within the province of orthopaedic surgery, and I assume that because Mr Aliashkevich is also a neurosurgeon, that I should prefer the opinions of the orthopaedic surgeons to any opinion he has expressed relevant to the plaintiff’s left shoulder.
87Professor Love offered a rather general opinion, expressed some four years ago. Mr Owen’s opinion is very recent, and an opinion which I prefer, given the level of consideration he has given to an assessment of all of the plaintiff’s orthopaedic injuries, including her left shoulder. He expressed some doubt about the plaintiff’s left shoulder injury having an organic basis, and, of course, he observed that there was significant illness behaviour which was part of the way in which the plaintiff presented when examined by him.
88The analysis I have undertaken makes it very clear to me that this is not a case of the simplicity submitted by the plaintiff that I should accept that the injuries to her neck, and related headaches, and back are new injuries, and that all of the consequences contended for by her are linked to those injuries and the impairment of function resulting from those injuries. Similarly, I apply the same reasoning to the plaintiff’s submission that I should treat her psychiatric injury in the same way.
89It is for these reasons, and based upon an analysis of all of the evidence, that I am not satisfied that the impairment of function of the plaintiff’s spine, associated headaches, and left shoulder are serious nor that mental disturbance or disorder is severe.
90The plaintiff’s Originating Motion must be dismissed.
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