Mitrevska v TAC
[2012] VCC 193
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-04874
| DANIELA MITREVSKA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February and 1-2 March 2012 | |
DATE OF JUDGMENT: | 26 June 2012 | |
CASE MAY BE CITED AS: | Mitrevska v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 193 | |
REASONS FOR JUDGMENT
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Catchwords: s93 Transport Accident Act 1986 – application under paragraphs (a) and (c) of the definition of serious injury – injury to neck and right shoulder – whether right arm symptoms a consequence of organic injury to neck – whether any ongoing impairment of the neck/right shoulder predominantly due to psychological factors – whether the consequences of organic injury were serious – whether the consequences of non-organic injury were severe
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie SC with Mr C. O’Sullivan | Nowicki Carbone |
| For the Defendant | Mr J. Moore QC with Ms R. Boyce | Hall & Wilcox |
HER HONOUR:
The application
1 By originating motion filed on 22 October 2010, the plaintiff sought leave to bring proceedings for pain and suffering and loss of earning capacity damages in respect to injury suffered by her as a result of a transport accident on or about 2 December 2008. On this date, a vehicle driven by a third party collided with a bus shelter in which the plaintiff and her husband were seated ("the accident"). The plaintiff described what happened next as follows:
“11. As a result of the collision I was knocked forward off the bus seat and I fell forward on my knees landing on the front of the body with my arms out stretched and jerking my head. Once I had hit the ground I was showered in glass from the bus shelter which had been destroyed.
12. From the time of impact, until I was in hospitalised I do not believe I lost consciousness and I believe I was suffering from shock as was oblivious of the vehicle about to collide with the bus shelter.
13. The witness called the ambulance and police. I was sitting on the footpath close to the bus stop when the ambulance arrived. Ambulance officers asked where I was experiencing pain and assessed my injuries. I informed ambulance officers that I was experiencing pain in my right arm and neck. I had glass lodged in my right hand. My right shoulder and right arm were causing me pain (sic). “[1]
[1]Exhibit P1, 10.
2 The application is made pursuant to section 93 of the Transport Accident Act 1986 ("the Act"). Sub-section 93(6) prohibits me from giving leave unless I am satisfied that injury suffered in the accident is a “serious injury” which exists at the date of my determination of this application for leave.
3 In a Statement of Issues handed to the Court, the plaintiff alleged serious injury under paragraphs (a) and (c) of sub-section 93(17) of the Act.
4 Relevantly, sub-section 93(17) defines "serious injury" under paragraph (a) as: "serious long-term impairment or loss of a body function" and under paragraph (c) as: "severe long-term mental or severe long-term behavioural disturbance or disorder." For the purpose of these paragraphs, serious injury is determined by considering the consequences of an injury-related impairment or loss of body function or mental or behavioural disturbance or disorder.
5 Pursuant to sub-section 93(17)(a), the plaintiff alleged serious injury, namely:
· to the cervical spine, including soft tissue injury, muscular-ligamentous strain and/or aggravation of previously asymptomatic degenerative changes;
· to the right upper extremity, including soft tissue injury to the right shoulder and/or aggravation of previously asymptomatic degenerative changes in the right shoulder resulting in right subacromial bursal thickening with associated bursal impingement; and
· diffuse pain syndrome or myofascial pain syndrome affecting the right neck, shoulder and arm.
6 The plaintiff's senior counsel opened her case by informing the Court that the body function on which the plaintiff particularly relied was the cervical spine and the consequences of impairment of the cervical spine, which may include the right shoulder and arm symptoms. Alternatively, he said, the body function on which the plaintiff relied was the right shoulder with the right arm symptoms.
7 In his closing submissions this was reversed. Senior counsel emphasised that the body function involved was the right upper limb, predominantly the shoulder.[2] Based on the revealed pathology, the clinical findings (muscle wasting in the right shoulder girdle) and treatment by way of injection (from which the plaintiff said she had not benefited), he submitted that the injury to this body function was probably responsible for the consequences alleged and reflected a serious injury. Alternatively, so the submission went, the injury to the cervical spine was serious, although counsel effectively conceded that without MRI investigation confirming an underlying pathology, no strong medical support existed for the assertion that injury to this body function was a cause of consequences, such as the wasting found by some doctors in their clinical examinations.[3]
[2]Transcript (‘TN’) 228-231.
[3]TN 232.
8 Diffuse pain syndrome or myofascial pain syndrome affecting the plaintiff’s right neck, shoulder and arm, was first diagnosed and treated from May 2011 by consultant physician, Dr Blombery, on referral from the treating general practitioner Dr Sheriff.[4] If, as Dr Blombery opined, injury to either or both the cervical spine or right shoulder and arm has produced an organic disorder of pain nerve pathways,[5] in the course of his closing submissions, senior counsel for the plaintiff nevertheless acknowledged that this condition was likely a consequence of injury (such as a whiplash or soft tissue injury) to one or both body functions mentioned.[6]
[4]Exhibit P1, 73.
[5]Exhibit P1, 74.
[6]TN 239.
9 Pursuant to paragraph (c) the plaintiff alleged further serious injury, namely:
· post-traumatic stress disorder;
· chronic adjustment disorder with depressed mood and anxiety; and
· chronic pain disorder associated with psychological factors and a general medical condition.
10 Each of the abovementioned conditions were said to be severe in their consequences.
11 Under paragraph (a) the consequences relating to pain and suffering and pecuniary disadvantage of any injury to the plaintiff’s cervical spine, alternatively her right shoulder, must be both long-term and serious to the plaintiff, such that, when regard is had to these consequences the spinal injury, alternatively the shoulder injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than "significant" or "marked."[7]
[7]Humphries v Poljak [1992] 2 VR 129, 140.
12 Under paragraph (c) the consequences of mental or behavioural disturbance or disorder from which the plaintiff suffers must be both long-term and "severe." The latter word connotes something "of stronger force" than the word "serious."[8]
[8]Mobilio v Balliotis [1998] 3 VR 833, 834-5 and 846.
13 In his closing submissions, the plaintiff’s senior counsel reiterated that while the plaintiff relied on her separate leave applications, brought under paragraphs (a) and (c) in my view, he correctly acknowledged that the resolution of the plaintiff's claim was more readily achieved under paragraph (c). This was because, provided the plaintiff satisfied the Court that accident-related injury to her psyche was both long-term and severe, the plaintiff was not also required to prove the nature of the injuries and their consequences for separate body functions.[9]
[9]TN 211 - 212.
14 It was common ground that the plaintiff likely injured her neck and right shoulder as a result of the accident. However, the defendant provided the Court with a Statement of Issues in which it contended that:
· The histories given by the plaintiff regarding the consequences of both organic and non-organic injury were unreliable. In this regard the defendant relied on the absence of treatment for psychological or psychiatric symptoms prior to referral to psychologist, Mr Stojceski (who treated the plaintiff from 23 March 2010) and on, at times, equivocal responses provided by the plaintiff during cross-examination. An illustration of the latter problem arose after, in response to cross-examination, the plaintiff told the Court that her aches and pains had worsened.[10] However, subsequently, the plaintiff gave what appeared to be non-responsive and contradictory answers to a sequence of questions by senior counsel through which he sought to test the accuracy of matters recorded by her own medico-legal psychiatrist, Dr Weissman, on 8 February 2011. For instance, Dr Weissman stated that when he asked the plaintiff "whether, overall, her pain has improved, deteriorated, or roughly stayed the same since the accident" he was told that her pain (namely, her physical pain) was: "‘pretty much the same’ as when the accident occurred… ."[11] As to the accuracy of this account the plaintiff initially said: "Maybe it is, yes." Senior counsel then asked the plaintiff: "Well, you're the person with the pain. Can you help me please. When you say ‘maybe’ you say, ‘Look, yes, I think that's right?’ Or is it just maybe?” To this the plaintiff replied: "If that's what I've told him then that's what it is." Counsel next asked: "I'm asking about your memory though. Would your memory agree that your pain symptoms in your shoulder back in February 2011 were pretty much the same as they were shortly after the injury?" To this the plaintiff replied: "I don't know."[12] The impression I gained was that, rather than indicating an attempt to avoid the consequences of contradicting any of the matters reported by her medico-legal specialist, in this and many other similar exchanges, the plaintiff’s responses indicated a very literal understanding of the questions posed and were probably truthful where, as in this instance, she did not appear to have any specific recollection of the level of her pain symptoms in February 2011. This and her other responses nevertheless highlighted the difficulty he faced in establishing a reliable history.
[10]TN 35.
[11]Exhibit P1, 120.
[12]TN 45 - 46.
· The plaintiff had not maintained the separation between the body functions by showing that any impairment of the cervical spine includes the right shoulder and arm symptoms (and any disorder of pain nerve pathways affecting these), alternatively by showing that the right shoulder with the right arm symptoms as a consequence (and any disorder of pain nerve pathways affecting this body function) was the body function impaired. As my discussion of particularly the medico-legal evidence in due course confirms this complaint is probably well-founded.
· The plaintiff had not adequately identified whether any impaired functioning of her cervical spine, alternatively of her right shoulder, was predominantly due to organic or to mental consequences. The relationship between paragraphs (a) and (c) of the definition of serious injury has been explained by the Court of Appeal in Richards v Wylie[13] where it was found that the principal cause of the plaintiff’s symptoms was not physical impairment from whiplash injury, rather it was the plaintiff’s mental disturbance or disorder suffered as a result of a transport accident. The practical effect of this decision is that if the impairment of a body function (in this case the plaintiff’s cervical spine and/or right shoulder) is predominantly due to mental consequences and not organic impairment from injury suffered in the accident, the application in relation to the body function must be determined under paragraph (c) of the definition.[14] As my discussion of particularly the medico-legal evidence in due course reveals, as distinct from any primary diagnosis of post-traumatic stress disorder, in this application I formed the view that any ongoing impairment of the plaintiff’s neck and/or right shoulder was likely predominantly due to mental factors. If I am correct in this view, as Appeals Justice Chernov also explained in Richards v Wylie,[15] where the dominant cause of the plaintiff's condition consists of mental or psychological factors, any accompanying physical incapacity (in this case, the impairment of the plaintiff’s neck/shoulder) may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long-term.
· The consequences of any organic injury were not serious and the consequences of any injury to the plaintiff’s psyche were not severe.
The evidence
[13](2000) 1 VR 79.
[14]See also West v Pac-Rim Printing Pty Ltd [2003] VSCA 68, [26] - [27].
[15]Op Cit [28].
15 The plaintiff gave evidence with the assistance of a Macedonian interpreter. Her credit was not directly challenged. The plaintiff is not a sophisticated or highly educated woman. For instance, until this was explained to her, the plaintiff at first failed to comprehend the term “psychologist” when it was used by the defendant’s senior counsel to describe her treating psychologist, Mr Stojceski.[16]
[16]TN 50.
16 As is evident from the example discussed earlier, some of the difficulties I found in assessing the import of the plaintiff’s oral evidence arose from her literal approach to the questions asked and her tendency to accept without explanation the correctness of any statement or report (favourable or not to her case) attributed to her in the medical reports.
17 By and large, the plaintiff appeared to do her best to respond to questions asked. There were, however, instances where I considered the plaintiff’s evidence implausible. One instance related to the plaintiff’s affidavit (sworn in August 2011[17]) and oral evidence the substance of which contradicted her treating doctor’s evidence of ongoing complaint of pain and impairment following an unrelated injury to the plaintiff’s left shoulder in mid-2010.[18] Accepting as I have the truth of the doctor’s evidence in this regard, his clinical findings are at odds with the clinical findings of the orthopaedic specialists, for the defendant, Mr Dooley, and for the plaintiff, Mr Khan, who in August 2010 and July 2011 respectively found a full range of movement in the plaintiff’s left shoulder.[19] In these circumstances the plaintiff has either sought to minimise the contribution of the unrelated injury or, having deposed to the contrary, she has continued to present to her treating doctor with ongoing complaints and restrictions in respect to her left shoulder injury.
[17]Exhibit P1, 18 [5].
[18]TN 60-61 and 92-93.
[19]Exhibit D1, 6 and Exhibit P1, 102.
18 A further instance arose in the context of the plaintiff’s responses to further cross-examination[20] about whether, as reported in August 2010 by the defendant’s examining psychiatrist, Dr Hayman, the plaintiff had “denied any nightmares”[21]. The plaintiff accepted that she may have said this to the doctor and that, if she had, it was correct in August 2010.
[20]TN 75-78.
[21]Exhibit D1, 12.
19 However, in her subsequent responses, the plaintiff appeared to recall that her nightmares had ceased one or two months before this examination and, whilst she said she could not recall this, the plaintiff nonetheless thought that she had not experienced nightmares (evidence which incidentally accords with Dr Hayman’s understanding in November 2011 that there were no nightmares[22]). These responses were at odds with the plaintiff’s affidavit evidence in August 2011 and February 2012 in which she deposed that she “sometimes” experienced “bad dreams”[23], and with the description of her symptoms contained in the report of her treating psychologist made in September 2011 (“Disturbed sleep patterns with frequent nightmares”[24]) and in the report of Dr Weissman made in January 2012 (“She sometimes has bad dreams at night about the accident”[25]).
[22]Ibid, 16E.
[23]Exhibit P1, 22 [26] and 23a [10].
[24]Ibid, 83.
[25]Ibid, 130f.
20 All of these matters indicated to me that the histories given required scrutiny.
21 The plaintiff deposed to the accuracy of her three affidavits sworn on 23 March 2010, 9 August 2011 and 21 February 2012. The plaintiff was cross-examined at length, as were the treating general practitioner and the treating psychologist.
22 Pages 8 to 38, 51 to 67 a-e, 71 to 88, and 89 to 137, consisting of affidavit, radiological and medical materials taken from the Plaintiff's Court Book were tendered. The plaintiff also relied on and tendered an "Admissions as to Surveillance" document produced by the defendant. This document indicated that, during 6 periods of surveillance, other than sightings of the plaintiff on 21 and 23 February 2011 there had been no sightings on 9 February 2011 or on 3, 4 and 7 May 2011.[26] The inference I draw is that any film obtained, if shown at hearing, would not have assisted the defendant’s case.
[26]Exhibit P1.
23 The defendant also tendered medical and radiological reports extracted from its Court Book, pages 1 to 3, 4 to 9, 10 to 16, 16A-B and 16C-J.[27]
[27]Exhibit D1.
24 In August 2011 the plaintiff’s friend over some 17 years, Dusanka Trolevska, and the plaintiff's husband, Saso Mitrevski, both swore affidavits in support of her application. They were not required for cross-examination.
Background matters
25 The plaintiff is 35 years of age. She was born in Macedonia and educated to the equivalent of Year 8.
26 On a visit to Australia in or about 1993 the then 16-year-old plaintiff met and married her husband. According to the plaintiff, the Australian government did not recognise the marriage. Consequently, she went back to Macedonia and returned to Australia in 1995 at age 18. Currently, she has three dependent daughters aged 10, 11 and 16. Since 2001 the plaintiff has cared for her husband, a disability pensioner (she is in receipt of carer's benefits), following a workplace injury to his back and knee.[28]
[28]TN 31 to 32.
27 Prior to her first pregnancy, the plaintiff’s only employment in Australia was with a curtain company for about a year. At hearing, she confirmed that she had not returned to work following the birth of her children. The plaintiff was adamant that before the accident, despite her husband’s evident need for ongoing care (according to the plaintiff over the years his ability to help had improved a "little bit"[29]), once her children were independent (as for example "having all commenced secondary college"[30]) she had intended to return to work. Because of her limited English and education this, she said, would probably have involved factory or similar work.
[29]TN 32.
[30]Exhibit P1, 19.
28 The plaintiff nevertheless conceded during cross-examination that her disabled husband still required care from her and that her planned return to work depended on her husband's health being better "or sufficiently better".[31] In effect, the concession so made lessens the significance of any loss of opportunity to return to gainful employment, without eliminating this from consideration as a consequence of long-term organic and/or mental impairment.
[31]TN 65.
29 Prior to the accident it appears that, save for right arm weakness during her last pregnancy, some low back pain for which she obtained treatment in 2005, a couple of attendances at the Sunshine Hospital during 2007 for treatment of headaches and, in 2008, two hernia operations, the plaintiff's general health had been good.
30 In October 2010 the plaintiff and her family moved from a unit to a much larger home and from November 2010 her father, who had migrated from Macedonia, lived with the family. The plaintiff accepted that these changes had increased her domestic responsibilities, although she qualified the impact of this response by adding that her father also helped.[32]
[32]TN 25.
31 The evidence of the plaintiff's husband and her friend generally corroborated the plaintiff’s claim that her physical symptoms and psychological distress following the accident had robbed the plaintiff of her independence and transformed her life. Indeed, the impression I was left with was that prior to the accident the plaintiff had been a sociable and outgoing woman, a hard working mother and a homemaker who maintained her home to a very high standard, whilst also caring for her disabled husband. This is not to say that their evidence offered specific corroboration from particularly the husband, of various symptoms alleged by the plaintiff such as reports of bad dreams or flashbacks disturbing the plaintiff’s sleep before or since the plaintiff commenced receiving psychological treatment.
Treatment and early medico-legal assessment of the plaintiff’s physical injury
32 Following the accident, the plaintiff was taken by ambulance to the Sunshine Hospital. The report on 2 December 2008 from the hospital's Emergency Department to the plaintiff's general practitioner Dr Sheriff indicates that the plaintiff complained of pain in her thoracic and cervical spine.[33] Clinical examination revealed midline tenderness in the mid and lower cervical spine, without focal neurology. The results of x-rays of the plaintiff’s cervical spine were reportedly normal, the plaintiff was given painkilling medication and she was discharged into the care of her general practitioner.
[33]Exhibit P1, 51 to 52.
33 The plaintiff was first seen by Dr Sheriff on 3 December 2008. Between July 2009 and February 2012 Dr Sheriff submitted no less than six reports, to either the Transport Accident Commission ("the TAC") or the plaintiff's solicitors.[34]
[34]Exhibit P1, 54a to 67e.
34 According to the doctor, during her first presentation the plaintiff complained of neck and shoulder pain, bilateral arm pain and thoracic spine pain.[35] Initially, Dr Sheriff diagnosed soft tissue injuries and he prescribed strong analgesic medication, Tramal. Review on 10 December 2008 revealed "extensive spasm of the spine” with repeated severe headaches and neck pain, for the treatment of which the doctor prescribed Feldene Gel and Indocid capsules (according to Dr Sheriff, "… one of the most potent anti-inflammatories for management of pain"[36]) and suppositories.[37]
[35]TN 101.
[36]TN 105
[37]Exhibit P1, 66.
35 On 12 January 2009 the plaintiff again presented to her general practitioner, this time complaining of relentless pain in her neck and shoulder and headaches. She was referred for physiotherapy. It appears that Voltaren Gel (another anti-inflammatory application), Indocid and Losec were also prescribed, the latter to help the plaintiff, who reported gastric problems, tolerate the analgesic medication.[38] As Dr Sheriff said when giving oral evidence, he had been reluctant to prescribe new medications, even medication to aid sleep because the plaintiff had a history of allergies and intolerance to "quite a lot of medication"[39].
[38]TN 105.
[39]TN 116.
36 On 3 February 2009 ultrasound of the plaintiff’s right shoulder revealed right subacromial bursitis with associated bursal impingement.[40] On 23 February 2009, this was treated by an ultrasound guided steroid injection into the right shoulder, without apparent benefit.[41]
[40]Exhibit P1, 34.
[41]Exhibit P1, 35 to 36.
37 On 1 March 2009, there was an attendance at the Emergency Department of the Sunshine Hospital for treatment of unrelated abdominal pain.[42]
[42]Exhibit P1, 53.
38 During March 2009, the plaintiff returned to Dr Sheriff complaining of numbness in the middle two fingers of her right hand. He thought her symptoms were suggestive of carpal tunnel syndrome. However, the reportedly normal results for the plaintiff’s right limb following a Nerve Conduction and EMG study subsequently undertaken in September 2010 had, Dr Sheriff conceded, excluded carpal tunnel syndrome as a diagnosis.[43]
[43]TN 5, 10 and 108.
39 Within six months of the accident, on 28 May 2009, orthopaedic surgeon Mr Khan examined the plaintiff at the request of her solicitors. His very thorough first report was dated 15 September 2009.[44]
[44]Exhibit P1, 89-97.
40 As to the plaintiff's description of her symptoms and medication in May 2009 Mr Khan recorded that:
· The plaintiff’s sleep was occasionally disturbed by aching in her shoulders ("[s]he normally sleeps reasonably well"). This was one history on which the defendant relied, suggesting as it did that in May 2009 there was no history of sleep disturbance due to psychological factors.
· The plaintiff could sit and stand for short periods, she could manage to walk reasonably well and, despite pain in the right shoulder area and mid thoracic region of her spine, the plaintiff managed to cope with household duties in a limited way.
· The plaintiff "had minimal ache in top of the right shoulder blade and down to the medial border of the scapular, and along the upper and middle of the thoracic spine in the midline." In cross-examination the plaintiff agreed that this was a fair description of the sort of ache she was experiencing at the top of her right shoulder when seen by Mr Khan in 2009. However, in response to further cross-examination, among other things, the plaintiff explained that the ache had worsened and was, she said: "very, very painful." Sometimes, so the plaintiff said, tablets helped her cope with the pain and, whilst her domestic tasks now required assistance from the plaintiff's husband and three daughters, she agreed that she continued to perform these tasks, including most of the cooking.[45] I took this to mean that the plaintiff performed these duties, as Mr Khan had recorded, in a limited way.
· The plaintiff experienced a mild ache in the top of the right shoulder at rest. In cross-examination the plaintiff agreed with this description, adding that when resting her shoulder is less painful and, with the further proposition, that this information explained why, as reported,[46] she told Mr Khan that at home she did the cooking, vacuuming, putting washing in the machine and hanging clothes on the line and that she went to the supermarket and did limited work in her garden.[47]
· The plaintiff was taking Naprosyn 750 mg SR daily (medication Dr Sheriff said he had prescribed due to the plaintiff's poor responses to other medications[48]) and Panadol as required, but nothing to aid sleep.[49] As is apparent from the evidence of the plaintiff, apart from the range of pain killing and anti-inflammatory medications already described, it is unlikely that she sought or was prescribed medication that aided sleep until she commenced taking the anti-depressant medication, Endep, in about 2010 or 2011.[50]
[45]TN 48-49.
[46]Exhibit P1, 91.
[47]TN 43-44.
[48]TN 105.
[49]Exhibit P1, 91.
[50]TN 51-52.
41 As to Mr Khan's clinical findings, among other things he reported:[51]
[51]Exhibit P1, 92-93.
· A good range of movement in the plaintiff’s cervical spine and neck.
· Restrictions in the movement of the plaintiff’s neck and right shoulder.
· No paraesthesia in the plaintiff's hands and no evidence of muscular wasting or neurological signs in her hands. Whilst during cross-examination the plaintiff recalled telling Mr Khan that she had pain in four of her fingers, the plaintiff nevertheless subsequently accepted that she might have told him that she didn't have "any loss of feeling or sensation of pins and needles into either hand".[52] In all the circumstances I was not satisfied that the plaintiff's recollection of complaint of pain in her fingers was a reliable description of her symptoms at the time. In any event, I note that on re-examination in September 2011 Mr Khan reported and relied on similar findings.
· Tenderness in the midline of the plaintiff’s upper and middle thoracic spine and right shoulder blade area.
· Tenderness in the top of the right shoulder with pain along the top of the shoulder blade, going down to the outer aspect of the deltoid.
[52]TN 53.
42 Following an extensive examination, among other things, Mr Khan concluded that:
· As a result of the accident, the plaintiff had sustained injury to her neck, mid thoracic spine and right shoulder area and, no doubt based on her account, he added that the plaintiff had also suffered psychological injury and shock causing her considerable stress and anxiety. In other words, within months of the accident, it is likely that the plaintiff had also reported considerable psychological stress and anxiety such that, whilst this was not within his specialty, Mr Khan nevertheless felt that this aspect of the plaintiff’s presentation required treatment with referral to a psychiatrist. However, as we now know, the plaintiff’s psychological treatment was not commenced until March 2010.
· The plaintiff had sustained musculoskeletal ligamentous injury to her cervical and thoracolumbar spine and soft tissue injury to her right shoulder with post-traumatic tendonopathy and subacrominal bursitis, without impingement.
· The plaintiff's condition was not then stabilised.
· Further investigations, x-rays of the plaintiff’s thoracolumbar spine, CT scan of the thoracic spine and MRI of the plaintiff's right shoulder, were indicated. As far as I can tell these additional investigations were not undertaken.
· Due to the persistence of her symptoms, the plaintiff was at risk of developing chronic pain syndrome.
· The plaintiff’s prognosis was not favourable due to her risk of developing chronic pain syndrome following both the organic and non-organic aspects of her injuries.
· The plaintiff was unfit to perform any strenuous activities requiring excessive bending, twisting and turning of her thoracolumbar spine or lifting heavy weights. She was also unfit to perform activities which involve repetitive elevation of her right arm above chest level, pushing and pulling, and lifting heavy objects with her right arm.[53]
[53]Exhibit P1, 91-94A.
43 The first specialist referral was to rheumatologist, Dr Laska on 27 June 2009 at which time the plaintiff was still taking the anti-inflammatory analgesic, Naprosyn SR.
44 Dr Laska’s clinical examination revealed:
· An "arc of pain towards the top end of the range of movement (of the right shoulder)…" Through a sequence of responses given during cross-examination the plaintiff agreed that this statement accurately described the extent to which she could move her arm before experiencing pain and with the further propositions that her pain and symptoms had persisted at this level and that she had continued to perform her domestic activities at the level to which Mr Khan referred in his 2009 report "for some months or even years before" her condition worsened.[54] Her evidence in this regard fails to explain, what underlying pathology, if any, was responsible for the worsening of the plaintiff’s condition.
· Normal cervical spine movement "in each plane and rotation of movement and lumbosacral movement was probably normal… All reflexes in upper and lower limbs were normal and equal. There was, in a collapsing pattern, inadequate strength of muscular supports to body posture."[55] During cross-examination Dr Sheriff was invited to accept the proposition that the "collapsing pattern," so described, was indicative of a functional element. He strongly rejected this interpretation of the specialist's evidence, stating that the finding indicated to him that pain was probably causing muscle weakness.
[54]TN 45.
[55]Exhibit P1, 77-78.
45 Dr Laska concluded that the plaintiff’s dominant problem involved (without explaining what this was) "soft tissue rheumatism" and a degree of irritation of the subacrominal tissues, resulting in mild rotator cuff syndrome on the right side. He recommended continuation of the plaintiff’s medication and participation in a rehabilitation program.[56]
[56]Exhibit P1, 78.
46 By a letter dated 29 July 2009, Dr Sheriff informed the TAC that the plaintiff's neck, shoulder pain and headaches had not resolved and that, despite cortisone injections, the abduction and rotation of her right shoulder remained significantly restricted. Apart from continuing with self-managed exercises the doctor recommended the TAC fund membership of a gymnasium for swimming and exercise three times weekly.[57]
[57]Ibid, 63-64.
47 In September 2009 Dr Sheriff again prescribed Naprosyn and paracetamol for treatment of right shoulder and neck pain.[58] During this period the plaintiff also tried alternative therapies, such as acupuncture and "cup treatments" to her right shoulder. According to the plaintiff, these therapies only provided temporary relief from constant pain in her right shoulder with referred pain to her neck and right arm.[59]
[58]TN 105-106.
[59]Exhibit P1, 12 [20].
48 During October 2009 Dr Sheriff referred the plaintiff for CT scan of her cervical spine, ostensibly to investigate radicular pain in her right arm. The reported results obtained on 15 October 2009 indicated no "significant abnormalities.”[60]
[60]Ibid, 37.
49 On 29 October 2009, due to the plaintiff's lack of response to physiotherapy (her activities of daily living were, he said, quite badly affected), Dr Sheriff recommended participation in a pain management program and that the TAC provide home help.[61]
[61]Exhibit P1, 67.
50 Having been referred to Mr Stojevski, from March 2010 the plaintiff commenced psychological treatment.
51 On 29 April 2010 Dr Sheriff informed the TAC that the plaintiff was suffering from significant cervico brachial injuries following the accident. These injuries, he said, caused severe pain and restricted the plaintiff’s neck and right shoulder movements as well as her activities of daily living. Dr Sheriff noted further that:
· Notwithstanding her gastric problems the plaintiff continued to take Tramal for treatment of "severe aggravation of pain."
· The plaintiff suffered from "insomnia due to nocturnal symptoms."[62] Under cross-examination Dr Sheriff conceded that this statement was a reference to sleep disturbance caused by the plaintiff’s symptoms of pain and her inability to lie on her shoulders,[63] as he had not received a history that bad dreams or flashbacks were interfering with the plaintiff's sleep. Notably, each of Dr Sheriff's reports submitted in July 2010, June 2011 and February 2012 mention depression, without further explanation. This record and Dr Sheriff's oral evidence indicated to me that if, as he said this further history had not been obtained because he had not specifically asked his patient,[64] at some stage before 23 March 2010 his concern for the plaintiff’s mental state had nevertheless prompted the referral to the psychologist to whom the plaintiff initially reported psychological symptoms including flashbacks and intrusive imagery.
· The plaintiff attended for treatment monthly/fortnightly or when she was unable to cope with pain.
· His request that the TAC fund the plaintiff’s membership of a gymnasium for swimming and exercise.[65]
[62]TN 98.
[63]TN 98.
[64]Ibid.
[65]Exhibit P1, 54(a)-54(b).
52 In summary, through her responses during cross-examination the plaintiff confirmed that, other than some temporary relief from, for example, physiotherapy and alternative therapies, the various treatments prescribed by Dr Sheriff had not improved the condition of her right shoulder.[66]
[66]TN 49-50
53 Unfortunately, in about June 2010 the plaintiff suffered a fall in her backyard, dislocating her left shoulder. Initially, she was treated in hospital. Subsequently, the plaintiff underwent physiotherapy for treatment of both this injury and her neck and right shoulder symptoms. An ultrasound guided left shoulder steroid injection was also recommended.[67] However, I was unable to tell from the evidence before me whether this injection was administered.
[67]Exhibit P1, 57.
54 X-ray and ultrasound investigation ordered by Dr Sheriff in July 2010 revealed left supraspinatus tendinosis/tendonopathy without focal tear and left subdeltoid-subacromial bursitis with bursal impingement on abduction during dynamic scanning.
55 In July 2010, among other things, Dr Sheriff informed the plaintiff's solicitors that she appeared "mildly depressed and struggling to cope with her pain." His examination apparently revealed significant spasm of the nuchal muscles, painful modalities of neck movement and restricted abduction, rotation and abduction against resistance in her right shoulder, with similar findings in the plaintiff’s left shoulder.[68]
[68]Exhibit P1, 55-58.
56 According to Dr Sheriff, the plaintiff’s persistent complaint of pain affecting both the right and left shoulder (and as he added in re-examination, the evidence of muscle spasm and wasting of the right shoulder girdle, the latter a sign the doctor associated with disuse[69]) caused him to suspect cervical pathology. To investigate this, Dr Sheriff ordered a further CT scan of the plaintiff’s cervical spine. On 23 August 2010 the results obtained revealed "mild central canal stenosis at C5/6 and C6/7 levels."[70] However, the radiologist also suggested MRI examination, should there be any concern about cervical cord pathology.
[69]TN 109-110.
[70]Exhibit P1, 33.
57 Under cross-examination, Dr Sheriff accepted that the result of the CT scan investigation did not indicate cervical pathology that might explain the symptoms impairing the function the plaintiff's right upper limb and, whilst MRI investigation requested by him may or may not reveal some pathology, to date this additional investigation has not been undertaken.[71]
[71]TN 82-83 and 99-100.
58 In Dr Sheriff's view the plaintiff's primary organic injury was to her right shoulder (subacromial bursitis which had responded poorly to treatment) with likely musculoligamentous strain of her neck. He considered the plaintiff's psychological problems a response to chronic physical pain, the management of which, he said, was a particular problem.[72]
[72]TN 82-85.
59 Notably, in his final report to the plaintiff's solicitors dated 15 February 2012, among other things, Dr Sheriff recorded findings from the consultation preceding this report, which revealed restricted abduction of the plaintiff’s right shoulder to 60°, with difficulty in rotation and abduction against resistance. However, in cross-examination the doctor agreed that his findings in relation to the plaintiff’s left shoulder (abduction to 80° and pain on resisted abduction of the left shoulder) were similar[73] and that the symptoms from the plaintiff’s left shoulder were contributing to her reported cervical pain and insomnia.[74]
[73]Exhibit P1, 67b; TN 61.
[74]TN 92-93.
60 During re-examination, Dr Sheriff also stated that, whilst the condition of the plaintiff’s left shoulder was probably slightly better than her right shoulder, it had nonetheless progressively worsened both due to trauma to the left shoulder and to overuse, the latter because the plaintiff tried to protect the right shoulder ( "so now the left shoulder is starting to give her grief and that's when her insomnia became worse and then she started to suffer more nocturnal symptom."[75] ).
[75]TN 112.
61 To summarise then, in this doctor's opinion impairment of the plaintiff's neck and/or right shoulder was predominantly due to physical factors and ongoing accident-related impairment of her right shoulder contributed to the condition of her left shoulder.
62 However, as I have already noted Dr Sheriff's findings and evidence with regard to the plaintiff’s left shoulder were contradicted by her affidavit evidence where the plaintiff deposed that, following treatment, the injury to her left shoulder had resolved without ongoing symptoms[76] and by the plaintiff’s evidence during cross-examination when, having accepted the correctness of the doctor’s reported findings in respect to restricted movement in her right shoulder ("if that's what's written down, then it is correct"), the plaintiff nevertheless denied that she suffered ongoing pain or restriction of movement in her left arm.[77]
[76]Exhibit P1,18 [5].
[77]TN 60-61.
63 If nothing else the conflict in the evidence and in the clinical findings (namely the conflict between the clinical findings reported by the general practitioner with those reported by the orthopaedic specialists, Mr Dooley and Mr Khan) concerning the plaintiff’s left shoulder symptoms, helped persuade me that the medico-legal specialists who mentioned this were probably correct in their view that non-organic factors were affecting the plaintiff’s clinical presentation. I will discuss their reports shortly.
64 As we now know, Dr Sheriff referred the plaintiff to consultant physician Dr Blombery, for treatment of neck and arm pain. Dr Blombery first examined the plaintiff on 9 May 2011. His reports to the plaintiff's solicitors dated 5 September 2011 and 23 February 2012 together with correspondence directed to Dr Sheriff were tendered.[78]
[78]Exhibit P1, 71-76C.
65 In summary, when first seen by Dr Blombery, the plaintiff reported taking medications including the antidepressant, Endep (also used to treat sleeping problems), the anticonvulsant medication, Lyrica, and 8 Panadol Osteo daily. She complained that pain in the right shoulder girdle and neck was present all the time and, notwithstanding her use of Endep, the plaintiff reported sleep interrupted by severe pain after only 3 to 4 hours, severe headaches daily, pain radiating down her right arm to the fingers, and pins and needles in her fingers.
66 Based on this evidence and the plaintiff's account of her medication regime, [79] I formed the view that the plaintiff was probably taking the antidepressant and anticonvulsant medication described in Dr Blombery's report prior to May 2011, although the circumstances under which this medication was earlier prescribed were not explained or explored at hearing.
[79]TN 51.
67 Dr Blombery’s clinical examination revealed extreme tenderness over the right shoulder girdle generally, over the neck and down the plaintiff's right arm, particularly proximally, significant muscle spasm in the trapezius muscle and abduction of the right shoulder to 90° only. He initially diagnosed myofascial pain syndrome or whiplash type injury "where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. Such pain sensitisation is an organic disorder of pain nerve pathways."[80]
[80]Exhibit P1, 74.
68 Dr Blombery decided to trial muscle relaxant, Baclofen, to treat what he considered a significant component of muscle spasm. CT brain scans ordered by Dr Sheriff and conducted on 19 May 2011 returned an unremarkable result.[81]
[81]Exhibit P1, 38.
69 On 8 June 2011 the plaintiff reported significant improvement in pain and reduction in discomfort in the back of her head. When she returned for further review on 6 July 2011 the plaintiff again reported improvement. According to Dr Blombery, on this occasion he added Amantadine (medication to block NMDA receptors involved in wind-up pain) to the plaintiff's medications.
70 On 9 August 2011, following the plaintiff’s report that she was "a little better,"[82] the specialist increased the dose of Lyrica. However, on 20 September 2011 Dr Blombery noted that, whilst the plaintiff had stopped taking Lyrica due to its side effects, she reported that her pain, rated generally at 7/10 or 8 – 10/10 should she forget to take the Amantadine, Baclofen, Endep and Panadol medication to which I have already referred, had not changed.[83]
[82]Exhibit P1, 75.
[83]Exhibit P1, 72a.
71 In September 2011 Dr Blombery wrote to the TAC seeking funding for an intravenous lignocaine ketamine infusion, a procedure he hoped would break the plaintiff's pain cycle.
72 As we now know, funding was not forthcoming and in December 2011 rheumatologist Dr Fraser advised the TAC that, in his opinion, the plaintiff would not benefit from this treatment for myofascial pain syndrome, a diagnosis he noted was sometimes made when pain was due to psychological rather than physical factors.[84] Clearly, Dr Fraser who had previously examined the plaintiff at the request of the defendant on 21 March 2011, had already determined that any soft tissue injury, including the pathology affecting the right shoulder, subacromial bursitis, should have long since resolved and that the plaintiff’s symptoms were no longer mediated by any physical condition.[85]
[84]Exhibit D1, 16A.
[85]Exhibit D1, 2.
73 The plaintiff was reviewed by Dr Blombery on 9 November 2011 at which time she reported recent worsening of her neck and right shoulder pain. He decided to trial the antidepressant, Cymbalta. When Dr Blombery next reviewed the plaintiff on 19 December 2011 she apparently reported little response to Cymbalta and rated her pain, which was, she said, worse in the mornings, as 9/10. His final report on 23 February 2012, indicates that on further contact with the TAC to seek funding for the fusion treatment, Dr Blombery had been advised that an independent medical examination was due to take place in 2012.[86]
[86]Exhibit P1, 72b.
74 As at 23 February 2012, in Dr Blombery's opinion, the plaintiff demonstrated ongoing features of "a diffuse pain syndrome or myofascial pain syndrome affecting the right neck, shoulder and arm." This is a differential diagnosis. He noted "a slight response" to medication, although Dr Blombery understood that the plaintiff’s pain remained "quite severe." Whilst Dr Blombery considered the plaintiff's condition had stabilised and that she may benefit from the infusion treatment previously recommended, he also noted that with time the effect of this treatment diminished, so that more infusions would be required in the future. Dr Blombery also felt that the plaintiff may require multidisciplinary pain management.[87]
[87]Ibid.
75 As submitted by the defendant, Dr Blombery’s evidence offers an alternative diagnosis (sensitisation of the nerve pathways) as the cause of the reported pain and restriction affecting separate body functions, the plaintiff’s neck and right shoulder.[88]
The plaintiff’s account of the impact of ongoing impairment of her neck/right shoulder and her physical symptoms
[88]TN 185-190.
76 It is convenient to record the plaintiff’s evidence of the impact of her physical symptoms before considering the nature and extent of the injury to her mental state. Apart from her oral evidence, her account was initially set out in the plaintiff's first affidavit sworn on 23 March 2010 and mostly reiterated in her supplementary affidavits sworn on 9 August 2011 and 21 February 2012.
77 Without repeating the matters to which I have already referred, this evidence is summarised as follows:
· Pain, stiffness/restrictions and symptoms affecting her right shoulder, right arm and neck. In her two most recent affidavits the plaintiff described pain, stiffness and restriction of movement affecting both body functions. The pain radiated over her right shoulder and down her arm to her fingers. There was weakness in her right shoulder and hand (on occasions she has dropped items carried in her right hand), a tingling sensation which travels from the right arm to her fingers and shaking in her right hand when she makes a fist. There were frequent headaches and an inability to lift heavy items or use her right arm repetitively without causing pain.[89] The plaintiff was, she said, frequently woken by right arm and neck pain which caused lethargy the next day (according to her husband his wife had “not had proper night’s sleep since the accident. Her sleep is disturbed by pain and she wakes up several times during the night”[90]). Whatever, may have been reported about the level of her pain either to Mr Khan in July 2009 or to Dr Weissman in February 2011, through her responses to cross-examination the plaintiff stated that she always had pain which she found hard to tolerate, that her aches and pains had worsened, that her restrictions and limitations depended on what she tried to do[91] and that the level of her pain was variable: “I mean sometimes, you know I get quite severe pain and if I get a lot of pain in my shoulder then I get a lot of headaches as well and it’s unbearable.”[92] However, despite her husband’s evidence to the contrary, I was not satisfied that the evidence supported a finding that pain-related sleep disturbance was a significant factor at least for the period preceding Mr Khan’s examination in May 2009.
[89]Exhibit P1, 12-13, 17-18, 23a-23b.
[90]Exhibit P1, 31[19].
[91]TN 35.
[92]TN 46.
· Years of treatment. As my discussion of the evidence of the general practitioner and Dr Blombery reveals above, they continue to treat the plaintiff. Her treatment involves regular attendances on her general practitioner and more recently, on Dr Blombery and ongoing physiotherapy. The plaintiff now relies on a significant medication regime (as already described, some of which has caused side-effects) to manage her physical and mental conditions.[93] The plaintiff is, she said, on the Western Hospital's waiting list to enter a pain management clinic.[94]
[93]Exhibit P1, 23b [4] and [6].
[94]Ibid, 23b [5].
· Restrictions on the plaintiff’s ability to perform her role as a homemaker and a significant loss of independence. The evidence of the plaintiff's husband and her friend generally support the plaintiff's claim that prior to the accident she was a homemaker who kept her house to a very high standard and that, as the plaintiff said, she took responsibility for all of the domestic activities such as cleaning, cooking and gardening.[95] Indeed, as the plaintiff deposed she performed these activities without difficulty and with little "if at all" assistance from her disabled husband.[96] The plaintiff said that she now relied on her children and to some extent on her husband to complete household activities including cleaning, cooking and gardening. For instance, in her final affidavit the plaintiff said that her neck and shoulder condition prevented her from performing heavier household activities which involved repetitive use of the right arm, cleaning such as vacuuming, mopping, sweeping, scrubbing the bathroom, making beds, hanging out the washing on the clothesline, gardening or mowing lawns. However, due to her right shoulder and arm injury she required assistance with shopping ("if I have a lot of shopping to do, often require my children to assist me") and gardening (she is restricted to "light gardening only," although on occasion she directs her husband as to what needs to be done in the garden).[97] Through her responses to cross-examination the plaintiff generally confirmed that she continued to try and perform the range of household duties described by Mr Khan in his earliest report submitted in September 2009, including most of the cooking and vacuuming and that she went shopping, although she now required help completing these tasks. However, the plaintiff said that she suffered for her efforts.[98] For instance, in re-examination the plaintiff spoke of her frustration because her husband and children, who tried to help, could not cook the way she did and she described pain in her arm and numbness should she stir food for too long. She also described pain in her neck and headaches should she perform even light gardening, pain in her back when she started lifting up her arms to hang out washing which, to assist her, the plaintiff's husband brought out in a basket and placed on a plastic chair and pain in her shoulder travelling down her arm after carrying a few items whilst shopping.[99]
[95]Ibid, 25 [9] and [14] and 28 [6] and [8].
[96]Ibid, 19 [12].
[97]Exhibit P1, 15, 20 and 23b.
[98]TN 36-37, 41, 48-49, 58-60 and 64.
[99]TN 68-71.
· Reduced social life and activities and an inability to enjoy socialising. The plaintiff said that she no longer enjoyed socialising, she has a short temper and suffers from mood swings.[100] One example given was that prior to the accident the plaintiff loved cooking, she regularly cooked for visitors and she often made Macedonian pastry and sweets, an activity requiring mixing and kneading dough. However, as a result of her injuries she now avoids making these treats.[101] Again the evidence of the plaintiff’s husband and her friend generally corroborated the plaintiff’s account in this regard.[102] The plaintiff nevertheless agreed that she still went out, had family and friends visit and bought sweets to entertain them.[103]
[100]Exhibit P1, 14 [27].
[101]Exhibit P1, 19 [13] and 21 [16].
[102]Ibid, 28 [16] and 24 [7]-[9], [12]-[13] and [15].
[103]TN 56 and 63.
· Difficulties with personal hygiene. The plaintiff deposed that showering and dressing increased her pain levels. [104]
[104]Exhibit P1, 21 and 23b.
· Difficulties in her intimate relations with her husband. The plaintiff deposed, and this was confirmed by her husband's affidavit evidence, that her symptoms interfered with her sexual relations.[105]
· Her concern in not being able to maintain the level of care previously provided to her husband. As already noted the plaintiff and her husband said that due to his disabilities, he had been reliant on the plaintiff to perform domestic and gardening activities.[106] At hearing, among other things, the plaintiff indicated that, whilst she now requires assistance from her husband, due to his physical limitations she continued to care for her husband as well as organise his medication and medical appointments.[107]
· Her concern that she is no longer able to return to work. As already noted the plaintiff said that she had intended to contribute to the financial well-being of her family after her children commenced secondary school by returning to gainful employment, likely factory work.[108]
[105]Ibid, 23e [9] and 31 [19]
[106]Exhibit P1, 15 [32]and 19 [11] and 29 [10].
[107]TN 32-33, 57-58 and 65
[108]Exhibit P1, 16, 22 and 23c.
78 As is evident from the summary above, the plaintiff and her witnesses have not sought to indicate which impaired body function was responsible for the symptoms and restrictions of which the plaintiff complains.
Treatment of alleged injury to the plaintiff’s psyche following the accident
79 In addition to the symptoms affecting her neck and/or right shoulder in her three affidavits, among other things, the plaintiff said that she suffered from a constellation of psychological symptoms which required ongoing treatment and medication.[109] Her symptoms included:
[109]Exhibit P1, 8 [25], [27], [29] and [30], 17 [23] and [27] and 23a [10]
· Bad dreams and flashbacks of the accident which disturbed her sleep and caused exhaustion and poor concentration the next day.
· As already noted, an inability to enjoy herself socially, frustration and mood swings.
· Restlessness and fear at bus stops, avoidance of public transport (however, if no alternative was available, the plaintiff, who does not hold a driver's licence, used public transport) and bus shelters and anxiety as to where she sits or stands.
· Fear of traffic and for the safety of others particularly the safety of her children.
· Tearfulness, anxiety, distress, frustration and depression (the plaintiff said she cried a lot but not in front of the children).
· Thoughts of the accident every day.
80 In their affidavit evidence, the plaintiff's friend and her husband have not specifically addressed each of the matters set out above. They did, however generally corroborate the plaintiff's claim under paragraph (c) of the definition. For instance, Ms Trolevska stated:[110]
"Since Daniela was injured in the accident, I have observed that she is a different person. She does not look as happy as she did before. She still comes over to see my mother, though not as often as she did before. When I see her now, she seems much more quiet and reserved. She also appears anxious and preoccupied. She does not joke in life as much as before. She spent a lot of time sitting down now when she comes over, and she often has to leave after a short period of time."
[110]Ibid, 25 [12].
81 In addition to his evidence that the plaintiff "constantly" complained about her symptoms of pain and stiffness and discomfort in her right shoulder, her husband stated: [111]
"Since the accident, Daniela is depressed. She is very tearful and often cries at night when she goes to bed. Daniela does not have a driver's licence. Prior to the accident, she used to use the public transport. Now she avoids using public transport as she becomes restless, frightened and fearful. She relies on others to drive her to places. She uses public transport only if there are no other alternatives. When she is a passenger in a car, she is also very nervous."
[111]Ibid, 27 [8], [13] and [21].
82 As we now know, Dr Sherriff referred the plaintiff to psychologist, Mr Stocjevski for treatment.
83 The first of the eight consultations so far with Mr Stocjevski occurred on 23 March 2010. The psychologist submitted one report dated 7 September 2011[112] and he was cross-examined at length, specifically with regard to the content of his notes (these were not tendered), some of which were written in the Macedonian language.[113]
[112]Exhibit P1, 80.
[113]TN 119-143.
84 Mr Stojceski's oral evidence, particularly his explanation of the notes made (which he conceded were brief) and his recall of the matters addressed during consultations with the plaintiff helped to explain why the notes were not a verbatim account and how he formulated (and at hearing maintained the appropriateness of) his reported diagnoses, namely "Post-Traumatic Stress Disorder with Delayed Onset and Chronic Pain Disorder associated with both Psychological Factors and a General Medical Condition."[114]
[114]Exhibit P1, 83 and TN 123-125.
85 Mr Stojcevski gave a straightforward and credible account of the content of his handwritten notes and of the sessions conducted with the plaintiff in her native language. These sessions occurred, he said, irregularly due to the plaintiff's "pain, distress, reliance on buses and overall symptomatology."[115]
[115]Exhibit P1, 81.
86 Mr Stojcevski told the Court that the gains made in his treatment of the plaintiff had been "very very small."[116] He predicted that her treatment would take a very long time.
[116]TN 132.
87 Whilst there may be some overlap in the evidence given, it is convenient to deal first with the diagnosis of delayed onset Post Traumatic Stress Disorder. The circumstances relating to a likely delay in the onset and diagnosis of the symptoms reported require consideration.
88 Allowing for both Mr Stojecevski's report and oral evidence, notwithstanding the brevity of any notes made, I was satisfied that:
· During the hour over which the first consultation took place in March 2010, the psychologist probably obtained a history which included complaints involving flashbacks (with an indication of the severity of the plaintiff's reaction to flashbacks and intrusive imagery), ongoing pain, nervousness in open spaces which also involved being startled by unexpected car noises, fear at shopping centres, hypervigilance when the plaintiff walked in the street and marital conflict.[117] Based on the history received and the plaintiff's presentation, Dr Stojecevski initially diagnosed both post-traumatic stress disorder and chronic pain. As his responses during re-examination later revealed, the plaintiff’s presentation and complaints at subsequent consultations, the psychologist said, had reinforced his opinion that his patient was suffering from post-traumatic stress disorder.[118]
[117]TN 121-124,133 and 144.
[118]TN 149.
· As indicated by the psychologist, having to use buses exacerbated the plaintiff’s levels of hypervigilance. In his report and oral evidence, the psychologist also referred to increased hypervigilance around the plaintiff's children and her concern to know where they are at all times.[119]
· The plaintiff’s psychological condition had led to problems in her interpersonal relationships and conflict with other family members.[120] For instance, in his report the psychologist noted that the plaintiff reported arguing with her husband due to her lowered frustration tolerance and "partly due to her growing dependency on her husband. She weeps that she cannot complete the tasks that she once could. She was brought up to be clean and tidy but very impacted upon seeing her environment in disarray; made worse when a relative commented on her lack of tidiness.… Interpersonal issues have arisen with her eldest daughter putting pressure on her to complete certain tasks such as cleaning duties that Daniela herself cannot complete."[121]
· The plaintiff's endeavours to try and keep an extremely tidy house were, the psychologist said, indicative of compulsive behaviour. Moreover, the criticisms of her ability to maintain her domestic environment at a high standard, he believed, had led to feelings of ineffectiveness, of not being liked and of loss of self-esteem.[122]
[119]Exhibit P1, 82; TN 128,146 and 148-149.
[120]TN 128.
[121]Exhibit P1, 82; TN 147.
[122]TN 130-132 and 147.
89 The further diagnosis of chronic pain disorder was based on psychological factors and the plaintiff's general medical condition, the latter reflecting her ongoing physical problems. Using the Global Assessment of Functioning Scale, through which Mr Stojceski assessed the plaintiff’s psychological, social and occupational functioning, the plaintiff scored 60. This score, the psychologist said, was indicative of: "serious psychological symptoms being present. She has had some panic attacks, negative thoughts, restricted outlook in many aspects of life and flat affect."[123]
[123]Exhibit P1, 84.
90 Under cross-examination, the psychologist appeared to agree with the general proposition that psychological factors were making a significant contribution to the plaintiff’s chronic pain disorder.[124] He was also questioned about findings contained in the final report submitted by the defendant’s medico-legal expert, psychiatrist Dr Hayman.
[124]TN 135-137.
91 Dr Hayman assessed the plaintiff on 18 August 2010[125] and on 20 November 2011.[126] Unlike Dr Weissman, Dr Hayman did not have the opportunity to consider the matters to which the treating psychologist referred in his detailed report or, from my assessment of the material tendered, a detailed understanding of the plaintiff's treatment and medication regime. In any event, Dr Hayman:
[125]Exhibit D1, 10-16.
[126]Exhibit D1, 16C-16J.
· Determined that the main features of the plaintiff’s presentation were her ongoing experience of and preoccupation with pain.
· Diagnosed a chronic pain disorder associated with both psychological factors and a general medical condition ("It is a major focus for her and greatly affects her day to day functioning. The pains appear disproportionate to that expected from the nature of the injuries sustained and appear odd anatomically (sic)"[127]) and a chronic adjustment disorder with depressed and anxious mood, the latter diagnosis incorporating what this psychiatrist considered were mild phobic symptoms with regard to buses.
[127]Exhibit D1, 16G.
· Recommended that the plaintiff be treated at a multidisciplinary clinic.
· Concluded that the reported dosage of Endep indicated that it was likely being used for pain modulation rather than for its antidepressant effects.
· Determined that for the foreseeable future the plaintiff was psychiatrically unfit to work "by virtue of her pain issues."[128] Notably, the only other reporting psychiatrist, Dr Weissman, whose final report is discussed in more detail below, also considered the plaintiff totally incapacitated for employment "on purely psychiatric grounds alone…".[129]
[128]Exhibit D1, 16G-16I.
[129]Exhibit P1, 130M.
92 In short, when taken to various parts of Dr Hayman’s report, Mr Stojcevski:
· Agreed that the main feature of the plaintiff's presentation was her ongoing experience of and preoccupation with pain.[130]
[130]TN 138.
· Agreed that the chronic pain disorder greatly affected the plaintiff's day-to-day functioning.[131]
[131]TN 138.
· Declined to comment on the psychiatrist’s view that the plaintiff's pain appeared disproportionate to that expected from the nature of the injury sustained. The psychologist nevertheless made the salient point that people perceive pain at different levels.
· Said that he tended to agree with the psychiatrist’s statement that the plaintiff continued to have mild phobic symptoms with regard to buses.[132]
[132]TN 139.
· Accepted that if, as previously reported by the plaintiff to Dr Hayman, the plaintiff had been reluctant to enter a bus shelter, her later report in 2011 to the effect that she was now able to sit in bus shelters other than the one at the Deer Park Shopping Centre indicated improvement.[133]
[133]TN 139.
· Disagreed with the psychiatrist’s description of the plaintiff’s depressive symptoms as "low-grade." On the contrary, in re-examination the psychologist said that, based on the plaintiff’s clinical presentation and the results of his testing, the plaintiff's depressive symptoms were extremely severe.[134]
· Absent any measure of the plaintiff's ability to perform her chores and some of her activities, expressed his disagreement with the psychiatrist’s suggestion that the plaintiff was able to function at a day-to-day level.[135] In this regard I note that the affidavit evidence of the plaintiff's friend and of her husband indicate that compared with her level of pre-accident function, the plaintiff has suffered a significant loss of personal independence and functional capacity.
· Disagreed with the psychiatrist’s lesser diagnosis of a chronic adjustment disorder. Both in cross-examination and re-examination the psychologist challenged the adequacy of this single diagnosis and whether in all the circumstances it met the guidelines under the DSM IV.[136]
[134]TN 151.
[135]TN 140-141.
[136]TN 142 and 150-151.
93 In Mr Stojcevski's opinion, his patient was not malingering nor was she feigning her symptoms. Whilst not expressly stated by them, this view appears to accord with the evidence of the medico-legal specialists, Dr Hayman and Dr Weissman. Mr Stojcevski also considered the plaintiff psychologically unfit for work and in need of ongoing psychotherapeutic interventions in the form of supportive counselling, cognitive behavioural therapy and relaxation techniques and, in due course, further assessment of her future needs.[137]
The medico-legal evidence of physical impairment of the plaintiff’s cervical spine or right shoulder and the appropriate test – (a) or (c) of the definition
[137]Exhibit P1, 87.
94 Consultant in occupational medicine, Dr Davis, general surgeon, Mr Brearley and neurosurgeon, Mr Brownbill provided reports on behalf of the plaintiff, in addition to the two submitted by Mr Khan.
95 Orthopaedic surgeon, Mr Dooley submitted a report on behalf of the defendant, in addition to the report and the later letter submitted by Dr Fraser.
96 Based on medico-legal evidence relating to any accident-related physical injury I note as follows.
97 The opinions of Mr Khan, Dr Davis, Mr Brearley and of Dr Fraser (despite his conclusion that there was no physical cause for the ongoing complaint of pain and restriction), indicate that, as a result of the accident the plaintiff probably suffered soft tissue and/or musculoligamentous strain in the area of her cervical spine and right shoulder and had also developed right subacromial bursitis, without bursal impingement.[138]
[138]Exhibit P1, 97, 110 and 116 and Exhibit D1, 2.
98 The findings made by Mr Dooley and Mr Brownbill in respect to the plaintiff's cervical spine were similar.[139] However, whilst Mr Dooley did not exclude the possibility that the accident had also caused some aggravation of underlying degenerative disease in the cervical spine, in his opinion the plaintiff had not sustained a specific injury to her right shoulder. On this issue his opinion is at odds with the other medical evidence, and with the results of the earliest investigations and with the clinical evidence of muscle wasting and tenderness in the area of the shoulder girdle to which both Dr Sheriff and Mr Brearley ("slight wasting"[140]) refer. Neurosurgeon, Mr Brownbill, did not exclude injury to the shoulder he simply recommended that assessment of this be undertaken by an orthopaedic specialist.
[139]Exhibit D1, 7 and Exhibit P1, 134.
[140]Exhibit P1, 115.
99 Despite the emphasis on the role of non-organic factors affecting her presentation, most of the specialists found that, to varying degrees, the plaintiff's physical symptoms, whether attributable to ongoing impairment of her cervical spine and/or right shoulder, restricted the plaintiff’s capacity for employment. It follows from this that these symptoms probably also restrict the plaintiff's capacity to perform similar activities in a domestic or social setting.
100 For instance, following his final assessment in July 2011 Mr Khan concluded that the right hand dominant plaintiff suffered from “residual partial disability and is unable to perform any strenuous work requiring excessive bending, twisting and turning of the cervical spine or repetitive and strenuous use of the right hand. She cannot move right arm in repetitive elevation at or about chest level and is unable to push, pull or twist right arm at the shoulder, or lift any weights more than 1 kg with a right-hand."[141]
[141]Exhibit P1, 103.
101 In May 2010 Dr Davis cautioned against "work of a weighted or forceful nature as well as repetitive reaching, work above mid chest level, working in confined or awkward spaces and extended periods of travel."[142] In the future, should the plaintiff find appropriate work within her restrictions, Dr Davis considered her maximal work capacity to be 20 hours per week.
[142]Exhibit P1, 110.
102 In August 2010 in association with an impairment assessment, Mr Dooley advised the TAC that the plaintiff would have some difficulty with regular heavy physical work and a lot of work at and above head level.[143]
[143]Exhibit D1, 7.
103 In April 2011 Mr Brownbill, who thought the plaintiff may continue to suffer cervical spine pain in a fluctuating manner, also considered it prudent for the plaintiff to avoid heavy lifting, or forced cervical spine mobility. Otherwise, from a neurosurgical point of view, he saw no impediment to the plaintiff's future activities.[144] Importantly, if the cervical spine is considered in isolation, as submitted by the defendant, the opinion of the plaintiff’s neurosurgeon did not provide a sufficient basis for granting leave by reason of any physical impairment.
[144]Exhibit P1, 134.
104 Allowing for particularly Dr Sheriff's evidence and Mr Khan's most recent report, I think it clear that, to the extent that the plaintiff's symptoms are mediated by physical factors these are probably mainly referable to the pathology affecting her right shoulder.
105 However, it does not follow from the medical evidence discussed above that where these can be adequately identified, the consequences of physical impairment of the right shoulder are serious in the sense required by the definition contained in the Act or for that matter, organic injury is the principal cause of long-term impaired shoulder function.
106 In his final report submitted in September 2011, having opined that the plaintiff had developed a well entrenched chronic pain syndrome, Mr Khan later commented that the plaintiff’s physical symptoms were "considerably affected by non-organic pain."[145] The reports of other medico-legal specialists, Mr Brearley, Mr Dooley and Dr Fraser,[146] not to mention the psychiatric evidence, to a lesser or greater extent indicate that this comment is probably well-founded.
[145]Ibid, 104.
[146]Exhibit P1, Mr Brearley, 116 and Exhibit D1, Dr Fraser, 2 and Mr Dooley, 7.
107 The absence of underlying significant pathology to explain the complaints of worsening pain and restrictions, not to mention the plaintiff's limited response to treatment for a suspected pain sensitisation disorder, suggest that these are likely mediated by non-organic factors. Accordingly, based on all of the evidence, I formed the view that the dominant cause of any impaired neck/right shoulder function was probably non-organic. It follows from the finding made that I must determine the plaintiff's application in relation to any impaired neck/right shoulder function under paragraph (c) of the definition and be satisfied that any accident-related injury to her psyche is both long-term and severe in its consequences.
The medico-legal psychiatric evidence
108 I have already discussed the content of Dr Hayman’s reports and diagnoses.
109 Dr Weissman's assessment of the plaintiff in February 2011 has also been mentioned in passing. On review on 24 January 2012 Dr Weissman had available to him correspondence and reports from the treating general practitioner and specialists, the plaintiff’s physiotherapist and from Mr Brownbill.
110 The psychiatric history obtained by Dr Weissman in 2012 noted:[147]
[147]Exhibit P1, 130e-f.
· Bi-monthly visits to her psychologist during which they talked about the plaintiff's fear of buses.
· The recent use of antidepressant medication, Cymbalta.
· Reported sadness and crying at night.
· Frustration attributed to the plaintiff’s inability to do things.
· Sleep disturbance due to pain and discomfort and headaches, although the plaintiff also reported that she slept with the assistance of her medication including, Endep.
· Fluctuating appetite.
· Very low energy levels, tiredness and loss of motivation.
· Loss of confidence and fearfulness in vehicles.
· Loss of enjoyment and pleasure.
· A reduced sexual drive.
· Bad dreams sometimes at night about the accident and sometimes images of the accident as the plaintiff was about to fall asleep.
· Thoughts about the accident "pretty much every day" triggered by catching the bus, which the plaintiff did virtually every day.
· Avoidance of the bus shelter outside the Deer Park Shopping Centre by standing back from the shelter. From time to time this had caused the plaintiff to miss the bus.
· Fearfulness when waiting in other bus shelters.
111 Without repeating the matters to which I have already referred in his final report Dr Weissman concluded that as a result of the accident:[148]
[148]Exhibit P1, 130J.
· The plaintiff sustained and developed a chronic Post-Traumatic Stress Disorder which he characterised as being "at least mild to moderate".
· The plaintiff sustained and developed a chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity. This involved "moderate, mixed, reactive, depressive and anxiety symptoms, signs and features as a consequence of, or secondary to, her accident-related pain and injuries, disabilities and dysfunction, limitations and restrictions, changes in losses to her lifestyle and functioning, consequent to the transport accident. In particular the claimant is very frustrated and irritable with her pain and headaches. Furthermore she came across as being somewhat pain-focused and pain-preoccupied, with elevated health concerns."
· The plaintiff had probably developed symptoms and features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition. As Dr Weissman went on to explain he was "simply suggesting that there may be psychological, functional and 'non-organic' factors amplifying her perception, sensation and experience of pain."
· The plaintiff's psychiatric prognosis is currently only fair and somewhat uncertain and guarded.
112 Dr Weissman recommended ongoing fortnightly psychological treatment and, if she is able to tolerate this, that the plaintiff’s daily dosage of the antidepressant, Cymbalta be increased to 60 mg.[149]
[149]Exhibit P1, 130M.
113 Much was said during the hearing about when and to whom the plaintiff first reported experiencing bad dreams, nightmares or imagery of the accident. As already mentioned, in her affidavits the plaintiff referred to bad dreams and flashbacks.
114 In addition to her report to Dr Hayman in August 2010 that she was not experiencing nightmares, at various other stages during cross-examination the plaintiff was questioned about whether and, if so, when she had reported sleep disturbed by nightmares, flashbacks or memories of the accident.[150] In effect, without seeking to contradict the doctors' reports, through her responses more than once the plaintiff asserted that she saw "that picture", by which I took her to mean disturbing images and/or flashbacks relating to the accident.[151] Moreover, during re-examination the plaintiff reiterated that she currently experienced flashbacks just before she went to bed and that, depending on whether her day had involved catching buses or ruminations about the welfare of her children, she also experienced bad dreams “maybe” four or five times a week.[152]
[150]As for example at TN 38.
[151]Ibid and TN 66- 67.
[152]TN 68.
115 In his written report in September 2011, among other things, Mr Stojcevski recorded ongoing symptoms including “(d)isturbed sleep patterns with frequent nightmares”, “(r)ecurring flashbacks of the accident”[153] and “(r)ecurrent dreams of being struck, the possibility of her or her daughters dying and of people dear to her dying. These images are mainly experienced as very vivid dreams, images and thoughts and cause a great deal of distress, disrupting her sleep.”[154] The psychologist was not specifically questioned about when these dreams or nightmares were first reported to him, although as I have already said, through his oral evidence, Mr Stojceski stated that, on her first attendance for treatment in March 2010, the plaintiff had described flashbacks and intrusive imagery. Diagnostically, he treated the symptoms mentioned as indicating ongoing psychological trauma due to persistent re-experiencing of distressing images of the accident.
[153]Exhibit P1, 83.
[154]Ibid, 84.
116 When first examined by Dr Weissman in February 2011 the plaintiff told the psychiatrist that she still thought about the accident "pretty much every day. She also has flashback images and pictures in her mind of the accident", although allowing for her oral evidence the plaintiff probably also reported that there were no bad dreams about the accident.[155] However, as my earlier summary of the psychiatric history obtained by Dr Weissman shows, as recently as January 2012, the plaintiff reported symptoms which are also indicative of persistent re-experiencing of distressing images of the accident, namely, sometimes having bad dreams at night and seeing images of the accident just as the plaintiff is about to fall asleep.
[155]Ibid, 122.
117 When psychiatrist, Dr Hayman assessed the plaintiff in August 2010 he took a history in which, among other things, the plaintiff described intrusive thoughts of the accident which often occurred "when lying down before going off to sleep. She never has any nightmare. She said she often leaves a light on as she is fearful that something will happen again. She denied any flashbacks."[156] On re-examination of the plaintiff in November 2011 Dr Hayman noted that the plaintiff reported: "no re-experiencing phenomena were described i.e. no flashbacks nor nightmares. She does have some intrusive thoughts of the accident. She describes some insomnia. This relates on occasion to intrusive thoughts about the accident but on others relates to pain."[157]
[156]Exhibit D1, 12.
[157]Ibid, 16E.
118 I have already discussed my concerns about the contradictory evidence the plaintiff gave during further cross-examination and re-examination in respect to Dr Hayman's earliest report in which he said that she had denied any nightmares. Re-examination nevertheless indicated that by her account the plaintiff continued to experience the same intrusive thoughts “all the time” as previously described by her. These, she said, also contributed to her insomnia.[158]
[158]TN 79-80.
119 Whether or not the plaintiff's psychological distress (in the past or presently) involves bad dreams, nightmares, flashbacks or intrusive imagery, an overview of all of the evidence, satisfied me that a consistent theme had emerged from the histories reported to the specialists and from her responses to cross-examination, namely that the plaintiff is still traumatised by the circumstances of the accident and at the very least she probably currently experiences intrusive imagery, particularly when she closed her eyes before going to sleep.[159]
Findings
[159]TN 38 and 67-68.
120 Based on all of the evidence I make the following findings.
121 I was satisfied that, as a consequence of the accident the plaintiff probably continues to suffer from residual injury-related impairment of her right shoulder and/or cervical spine. This conclusion finds support in most of the orthopaedic and other specialist evidence. However, as I have already noted I was also satisfied that due to the role of non-organic factors the application in respect to the impaired functioning of particularly the plaintiff right's shoulder probably should be determined under paragraph (c) of the definition.
122 The treating psychologist and the two medico-legal psychiatrists have identified accident-related mental disturbances or disorders. They all predict that the plaintiff's mental state will incapacitate her for gainful employment over the long term.
123 By and large, depending on the range of symptoms described by the plaintiff and their assessment of the severity of these, three diagnosable conditions have been identified: post-traumatic stress disorder, a chronic pain disorder based on both psychological factors and the plaintiff's general medical condition, and a chronic adjustment disorder with depressed and anxious mood.
124 Each specialist has identified psychological factors which, together with the plaintiff’s general medical condition, probably constitute a chronic pain disorder. However, whilst the treating psychologist and Dr Weissman have additionally diagnosed post-traumatic stress disorder, Dr Hayman assessed the plaintiff’s symptoms relating to intrusive thoughts and fear of travel on buses as mild phobic symptoms and incorporated these under his further diagnosis of a Chronic Adjustment Disorder with depressed and anxious mood. Given the differences in the histories obtained this divergence in opinion is hardly remarkable.
125 Nonetheless in this case I think it reasonable to accept that, having established a therapeutic relationship over a period of nearly 2 years, the treating psychologist, Mr Stojceski, who communicated with the plaintiff in her native language, was well placed to assess the level of her psychological distress and he had gained a good understanding of the range and severity of the psychological factors impacting on his patient’s psyche as a result of the accident.
126 In these circumstances, I was satisfied that having particular regard to the psychologist’s evidence, generally supported by the evidence and diagnoses of Dr Weissman, the plaintiff was suffering from a constellation of psychological symptoms which at the very least probably meet the diagnostic criteria for post-traumatic stress disorder and having regard to all of the specialist evidence the plaintiff is also suffering from a chronic pain disorder.
127 Accordingly, allowing for my analysis of particularly the specialist evidence, I am affirmatively satisfied that the injury to the plaintiff psyche (in part measured by her accompanying physical incapacity) is serious because at the date of hearing it is fairly described as both severe in its consequences for this plaintiff and it is long-term because the impact, treatment and management of this injury will likely last for the foreseeable future. In reaching this conclusion and without repeating these in full I assessed the severity of the consequences of injury to the plaintiff’s life by reference to the evidence of:
· Chronic pain, likely driven by the plaintiff’s mental state, for which she requires daily medications and psychological treatment for the foreseeable future.
· The persistence of chronic pain despite treatments.
· Her ongoing psychological distress.
· Her loss of independence and the extent to which the plaintiff needed ongoing assistance with her daily activities.
· The extent to which chronic pain and the plaintiff’s psychological distress has and continues to disable the plaintiff across all spheres of her life. This includes consideration of the loss of the opportunity to return to gainful employment in the foreseeable future were her husband’s health to improve sufficiently for this to occur.
Orders
128 Accordingly, pursuant to section 93 of the Act leave is granted to the plaintiff under sub-section 93(17)(c) to bring proceedings for recovery of damages in respect to injury suffered in the transport accident on 2 December 2008.
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Certificate
I certify that these 40 pages are a true copy of the reasons for decision of Her Honour Judge Millane delivered on 26 June 2012.
Dated: 26 June 2012
Hannah Christensen
Acting Associate to Her Honour Judge Millane
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