Micinthe v Transport Accident Commission
[2022] VCC 1474
•3 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised |
Case No. CI-20-04909
| CHANTAL MICINTHE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2022 | |
DATE OF JUDGMENT: | 3 October 2022 | |
CASE MAY BE CITED AS: | Micinthe v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1474 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application - Motor vehicle accident – Low speed collision at roundabout – Lumbar spine injury – Cervical Spondylosis -- Chronic Adjustment Disorder – Somatic Symptom Disorder – Pre-existing degenerative changes in lumbar spine – Whether pre-existing degenerative changes can be separated from aggravation following the accident
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Fox v Percy (2002) 214 CLR 118
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr B Hill | Henry Carus & Associates |
| For the Defendant | Mr R Middleton KC with Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
1Chantal Micinthe claims to have suffered a serious injury by reason of a motor vehicle accident on 20 November 2017. She claims that she has suffered an aggravation of degenerative changes in her lumbar spine, which have led to impairment consequences that can be considered more than significant or marked. The Defendant raises three arguments as to why her claim should not succeed. In order, these are:
(a) First, that her current condition is predominantly psychiatric in nature and cannot succeed under section 93(17), paragraph (a) of the definition of serious injury in the Transport Accident Act 1986 (Vic);
(b) Second, that Ms Micinthe’s claimed physical injury is an aggravation injury and cannot be adequately separated from the pre‑existing injuries to her lumbar spine and those impairment consequences; and
(c) Third, the consequences of the claimed aggravation injury, even if they can be isolated, do not result in impairment consequences which rise to the level necessary to be considered more than significant or marked.[1]
[1]Petkovski v Galletti [1994] 1 VR 436
2For the reasons which follow, I reject each of the Defendant’s arguments and I find for Ms Micinthe.
Relevant facts
3Ms Micinthe was born in Mauritius in 1955. She came to Australia with her husband in 1987. She performed home duties work, and otherwise worked in quality control and production work until she was made redundant in 2015.
4Focussing on the relevant past medical history. In 2008, she had neck and upper limb pain, and was investigated with a cervical CT scan which showed the possibility of mild bulges at the C6/7 level.[2] In 2010 she complained of similar symptoms and a CT scan was performed again, showing perhaps a small protrusion at that level.[3]
[2] Defendant’s Court Book (“DCB”) 61
[3]DCB 63
5In September 2012, similar problems recurred and she was once again sent for CT scanning.[4]
[4]DCB 210
6In July 2013, her treating doctor referred her to a neurosurgeon, Dr Patrick Lo, for increasing neck and left arm pain.[5] An MRI scan showed a tear at the C6/7 disc level.[6] She had a CT scan of her lumbar spine in November 2013, on a history of worsening low back pain. It showed a mild narrowing at the L4/5 level.[7] The notes and treatment history in respect of the low back then fall silent through 2014 and 2015. It is relevant to note that in this period, she was made redundant from her job in October 2015.[8] There is no suggestion that she left work due to any physical problem. At the time she was made redundant, she was working full time, normal hours in a quality control position.
[5]DCB 7
[6] DCB 71
[7]Plaintiff’s Court Book (“PCB”) 70
[8]PCB 313
7Thereafter she remained at home but also assisted her son with the care of her two grandchildren who were aged about 8 and 11. The Affidavit of her son notes that she did a large amount of cooking, cleaning and household work to assist with the care of the two grandchildren. In addition, she did most of the pickups and drop offs for school.
8Things remained that way through the first half of 2016. However, in about August 2016, she began presenting to her treating doctor with lower back pain and was referred for a CT scan, which showed a potential bulge at the L3/4 level and further difficulties at the L5/S1 level. She was referred by her treating doctor for physiotherapy to Ms Julie Huang.[9] She commenced having sessions with Ms Huang shortly thereafter. A physiotherapy assessment performed by Ms Huang in November 2016 showed a full range of motion with nil neurological signs in the lower limbs.[10] Significantly Ms Huang noted at that stage, there was immense improvement and she was discharged from care.[11] Thereafter there are no notes in respect of low back difficulties through the remainder of 2016 and until the motor vehicle accident of 20 November 2017.
[9]PCB 32
[10] Ibid
[11] Ibid
9The motor vehicle accident itself occurred when Ms Micinthe was travelling east on Central Avenue in Laverton. As she went through a roundabout, at a speed she estimates of about 50 kilometres per hour, her vehicle was struck on the back passenger panel, on the left side. She describes her vehicle as being spun around, then driving off the road and colliding with a fence near a McDonald’s restaurant. By all accounts, it was a low-speed collision; air bags did not deploy. An ambulance was not called and police did not attend the scene. The car was ultimately written off; however, this appears to be more of an insurance assessment rather than due to any catastrophic damage to the vehicle.
10At around this time, she was also receiving treatment for left shoulder adhesive capsulitis from Mr Simon Holland. He diagnosed her with adhesive capsulitis[12] and thought that her problems stemmed from the neck.[13] He referred her for physiotherapy which she commenced in late November 2017. At this stage she had reported the motor vehicle accident to her treating doctor, but did not complain immediately of low back problems. It was only towards the end of 2017 that she began to complain of lower lumbar problems.[14] She had a CT scan which showed a mild L4/5 bulge. Her treating doctor sent her for an MRI scan which revealed nerve root compression at the L5/S1 and L4/5 levels.[15] She was referred off for physiotherapy treatment with Mr Fazal Rahman.[16] Unfortunately by the end of May 2018, Mr Rahman had noted no signs of recovery.[17] She was then referred to see Dr Symon McCallum, a pain specialist for chronic lower back pain.
[12] DCB 9
[13]DCB 8; See DCB 90 where Mr Holland performed a hydrodilatation on 24 November 2017
[14]DCB 238
[15]PCB 76
[16]PCB 34
[17] PCB 35
11She saw Dr McCallum in about September 2018 and described to him low back pain with a burning and stabbing quality, which occasionally reached 9/10.[18] She gave a history of struggling with her household tasks, problems walking and she was noted to be taking Tramadol. Dr McCallum considered that she had an L5/S1 right disc extrusion and L4/5 left disc extrusion, with mild compression of the L5 nerve root.[19] In late 2018 she moved in with her son because she was struggling to cope with household duties.[20] Her son’s evidence was that she was largely unable to cook, her ability to clean was significantly reduced and he often would find her sleeping on the couch in the early hours of the morning, which was unusual.
[18] PCB 38
[19] PCB 39
[20]PCB 26
12On 28 March 2018, Ms Micinthe had another hydrodilatation of her left shoulder performed by Mr Holland.[21] Dr McCallum performed branch blocks at the L4/5 levels on 8 February 2019[22] and then again on 25 March 2019.[23] He reported that she had had a good response to the nerve blocks which tended to indicate that there was an organic source for the pain.[24] She had surgery on the left shoulder on 8 March 2019. She then came under the care of Dr Greg Etherington, a spinal surgeon, in April 2019. Along with Dr McCallum, he would see her regularly over the following years.
[21]Dr Holland performed hydrodilation of the left shoulder on 24 November 2017; DCB 90, 28 March 2018; 96 and 23 July 2018; DCB 100
[22] PCB 187
[23] DCB 10
[24]Ibid
13In May 2019, she had a radio frequency neurotomy performed by Dr McCallum. He continued to treat her throughout 2019. During his treatment, he noted that she would have flareups of lower back pain,[25] and that her pain affected her sleep. He arranged for MRI scanning in May 2020, which showed an L5/S1 protrusion which had increased in size since 2018 and was now compressing the descending S1 nerve root.[26] In August 2020 she was referred to Mr Girish Nair, a neurosurgeon. He considered the radiology showed that there was a disc prolapse at the L5/S1 level with a fragment causing narrowing to S1.[27] He did not consider surgery would assist.[28]
[25]PCB 46
[26] PCB 88
[27] PCB 52
[28] ibid
14In September 2020, Dr McCallum performed further injections at the S1 level. Ms Micinthe once again had a good result, having a decrease in pain for some four weeks.[29] However, he noted that she was struggling with her low back pain and walking was difficult. Radiology from December 2020 showed that the disc protrusion at L5/S1 had decreased in size and there was no evidence of compression at the left S1 site of the nerve root.
[29]PCB 56
15In early 2021, Ms Micinthe began a pain program that went for three months. In evidence, she said that she was assisted by the pain program which she attended two times per week over a three-month period. When she saw Dr McCallum in September 2021, he noted that she had minimal low back pain, her leg pain was moderate and that she was able to do household tasks such as cooking.[30] Ms Micinthe’s evidence was, however, that since that time, her low back pain and leg pain had returned to the extent that she was now much the same as she was prior to the pain program. The most recent MRI study from March 2022 showed that there was a stable L5/S1 protrusion contacting the left nerve root.[31]
[30]PSCB 10; See Dr McCallum report dated 6 October 2021 report.
[31] PCB 96
Assessment
16Ms Micinthe was the only witness called to give evidence. She gave evidence in a softly spoken but very clear way. She responded to questions put by counsel as best as she could. She often made admissions against interest which stand to her credit. An example of this, is that she conceded that the pain management program had assisted her. I formed the view that she did not try to embellish her evidence in any way, but gave evidence in a very straightforward, helpful, and honest way. It explains why the Defendant did not seek to attack her credit.
17Of course, this is but one component of the assessment of her evidence. The High Court in Fox v Percy[32] made clear that it is the overall evidence that must be considered and the consistency of the whole of the evidence together which must be assessed.
[32] (2002) 214 CLR 118
18Dealing with the Defendant’s first argument, namely that at present, Ms Micinthe has a somatic form disorder which is predominantly psychiatrically based. Ms Micinthe conceded that if the Court found in the Defendant’s favour on this argument, then she would be out of Court. The Defendant’s argument relies on the report of Mr Gary Speck. The Defendant points first to the fact that the motor vehicle accident itself was of little moment. It involved very low-grade forces such that the air bag did not deploy, no ambulance or police were called and Ms Micinthe did not go to hospital. Further, Ms Micinthe did not even consider she had low back pain in her first presentation to her treating doctor. From there, the Defendant argued that her condition was minor in the sense that it was only a slight addition to her pre‑existing spinal problems. They then argued that all of the invasive treatment that she had by way of injection or neurotomy had not produced improvement, thereby indicating that her condition was not in fact organically based. Ultimately the Defendant relied on the report of Mr Speck which concluded that whilst a soft tissue injury had occurred at the time of the motor vehicle accident, the injury had resolved a long time ago leaving only the somatic form disorder. I reject this argument.
19First, the motor vehicle accident itself in my opinion could not be described as minor. Ms Micinthe’s vehicle was struck in an unexpected manner, swung around and ultimately struck and partially pushed over a fence; it came to an abrupt, sudden halt. There was no doubt sudden jolting, straining forces involved. The effect of those forces must be assessed by reference to the medical evidence on the point, not a lay assessment the Defendant seeks the Court to make. Second, the invasive procedures embarked upon by Dr McCallum have in fact assisted Ms Micinthe’s symptoms. It is true that this assistance has only been for a short number of weeks before there has been a reversion to the norm. This, however, does indicate that there has been some benefit from treatment, thereby indicating an organic basis for the problem. Third, and allied to the first point, is that the vast majority of the medical opinion suggests that there has been not only a soft tissue injury but an aggravation of underlying degenerative change caused by the motor vehicle accident. Implicit in this is that the motor vehicle accident itself was of a sufficient force to cause such an aggravation. The orthopaedic evidence of Dr Anthony Menz implicitly accepts that there is an ongoing physical component of her injury caused by the motor vehicle accident.[33] Dr Craig Mills is of the same opinion.[34] Importantly, Mr David Slattery considers that the soft tissue injury caused in the motor vehicle accident has now resolved,[35] but there has been an aggravation of pre‑existing degenerative changes.[36] His opinion is important because he has considered Mr Speck’s opinion and all the other materials before him, and has comes to a view which in part accepts what Mr Speck has stated in respect of the soft tissue injury. I find his opinion is balanced and considered. I accept it. Dr McCallum, the pain specialist who has treated her over several years and performed most of the invasive procedures, is of the view that there is a clear organic basis for her pain. I consider this powerful evidence from a treating doctor. Dr David Weissman, the psychiatrist, considers that her condition is both physically and psychiatrically based. The overwhelming weight of the evidence is against the Defendant’s position and that of Mr Speck. I accept that body of evidence and reject Mr Speck’s opinion.
[33] PCB 202
[34] PCB 144
[35] PCB 195
[36] PCB 183
20Turning then to whether that injury can be separated from the pre‑existing condition. I first find that the injury caused in the motor vehicle accident on 20 November 2017 is an aggravation of underlying degenerative changes in the lumbar spine and a soft tissue injury that has resolved.
21I find that the aggravation injury can be separated and isolated from the past degenerative changes in the lumbar spine, in the Petkovski v Galletti[37] sense for the following reasons. First, the radiology shows distinct bulges and compression after the motor vehicle accident in contrast to the earlier scans.
[37] [1994] 1 VR 436
22Second, the treatment attendances by volume show that prior to the accident, she had very few attendances. In 2016, there was some four attendances in the first and middle part of the year. Then, she came under the care of the physiotherapist, Ms Huang. She had an excellent result from that treatment over some eight sessions. This was a short period of treatment but led Ms Huang recording that there were almost no ongoing problems and no ongoing pain. This is significant. I find that it indicates that Ms Micinthe had been able to well control any problems with her back and, when looked at overall, it can be seen that her back problems, for example, from 2008 onwards were all of reasonably minor self-limiting episodes of lower back pain. It did not impede her working or her activities of daily living. She was on no course of extended physiotherapy or treatment. She did not receive ongoing courses of prescription medication nor was she a candidate for surgery. While she did have a referral to Mr Patrick Lo, no surgery was offered by him nor an ongoing course of treatment or even referral for procedures such as branch blocks, neurotomy or cortisone injection. Then, after the treatment by Ms Huang, she had one year with no reported back problems at all, and then the motor vehicle accident occurred. As is set out above in the chronology, it can be seen that after the motor vehicle accident, her treatment regime changes entirely. She has many more attendances at her treating general practitioner in respect of her back, for example 4 such attendances after the accident in 2017, 19 such attendances in 2018, 12 attendances 2019 and 16 attendances in 2020. In addition, she was referred not only to a spinal specialists but also to a pain specialists. She underwent invasive treatments such as branch blocks, diagnostic for organic problem, and neurotomy. She was placed on strong pain medication such as Norspan patches, but could not take them because of a skin reaction. I find this is a very substantial change in her treatment frequency and regime. I find this very clearly delineates the aggravation injury from the pre‑existing condition that she suffered.
23In addition, her recording of pain symptoms is also significantly different for the periods before the motor vehicle accident and afterwards. The Defendant points out that as of October 2021, Dr McCallum had a history that her pain was much better and her mobility had improved. In evidence, Ms Micinthe said that she had now reverted to the situation before the pain management course. I accept her evidence and consider that in fact, this demonstrates the fact that her condition is one which does wax and wane, but in the main is debilitating and painful for her. As she indicated to Dr McCallum, the pain is of a stabbing and burning quality and can often get to 9/10. She deals with this pain by the taking of medication being Panadeine Forte and Voltaren.
24A further reason why her condition can be delineated from before the motor vehicle accident is the effect it has had on her. I accept her evidence about the limitations on her activities around the house, such as cooking, gardening and cleaning. This is supported by the evidence of her friend and son.
25For the above reasons I find that the aggravation of her pre‑existing degenerative changes in the lumbar spine are clearly distinguishable from the situation she faced before the motor vehicle accident.
26Turning to the third question, which is whether or not the aggravated lumbar spine condition has impairment consequences which are more than significant or marked. For the reasons briefly set out above, I find that they are. She has had numerous invasive procedures which have provided only temporary relief. She is otherwise the subject of constant pain, which occasionally flares to a level of 9/10. She requires ongoing medication. She has been under the care of both Mr Etherington and Dr McCallum for several years. She has done a pain management course which had only a temporary effect. It is now some five years after the accident and her condition has continued on. I find that it will not change for the foreseeable future.
27Having accepted her evidence and that of her friend and son as to the consequences, I find that Ms Micinthe has suffered from impairment consequences which can be considered more than significant or marked. I therefore find for Ms Micinthe and I will grant her a serious injury certificate.
28I will order that the Defendant pays Ms Micinthe’s costs. I will certify counsel for fee on brief in the following amounts:
(a)I certify for two counsel with Senior Counsel being at $6,000 and Junior Counsel at 50 per cent.
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