Morris v Transport Accident Commission

[2014] VCC 158

wes

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-10-01443

JOSEPHINE MORRIS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 January and 7 February 2014
DATE OF JUDGMENT:	27 February 2014 (Revised)
CASE MAY BE CITED AS:	Morris v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 158

REASONS FOR JUDGMENT

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Subject:TRANSPORT ACCIDENT

Catchwords:                Damages – transport accident – serious injury – impairment of the lumbar spine

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100

Judgment:                   Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Baume	Mitchell Whitelaw Pty Ltd
For the Defendant	Mr D Myers with Mr P Gates	Solicitor for the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 9 August 2004 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3        The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.

4        The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine. 

5        The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6        The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7        In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at 140-1

8        The plaintiff swore three affidavits and relied upon an affidavit sworn by her partner, Shane McOrmond, on 11 August 2013 and work colleague, Zvi Civins, sworn on 28 January 2014.  Mr McOrmond and medico legal examiners, Mr Fogarty, Dr Firestone and Professor Davis, were required for cross-examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence 

9        The plaintiff is presently aged thirty four, having been born in May 1979. 

10       After leaving school at the age of sixteen, she worked mainly in call centre work.  On 12 July 1999, the plaintiff commenced permanent full time employment with Intergraph Public Safety (“D24”) as a telephonist. 

11       The plaintiff has been involved in three transport accidents; the first on 13 March 2000 (“the first accident”); the second on 16 August 2001 (“the second accident”); and the third on 9 August 2004 (“the subject accident”).

12       Prior to the accidents, the plaintiff suffered from polycystic ovarian syndrome (“the syndrome”).

13       The plaintiff described the three accidents in her first affidavit.

14       In the first accident, the plaintiff’s vehicle was hit from behind while stationary.  She sustained broken teeth, whiplash injury to her neck and a back strain.  She was taken by ambulance to the Dandenong Valley Private Hospital.

15       The plaintiff was later treated by her general practitioner, Dr Johnstone, chiropractor, Dr Farlecas and physiotherapist, Luke Surkitt. 

16       The plaintiff was off work for a few weeks but gradually improved to the point where she was able to resume her normal duties at D24. 

17       The second accident occurred in similar circumstances to the first.  The plaintiff suffered a flare up of her neck and back injuries and she was taken by ambulance to Box Hill Hospital.  She was later treated again by Dr Johnstone, Dr Farlecas and Mr Surkitt.  She was off work for two weeks following the second accident and resumed full time duties with D24.

18       Prior to the subject accident, the plaintiff had largely recovered from the injuries sustained in the first and second accidents.  She was working without difficulty and was also staying healthy and managing her weight by engaging in regular exercise such as walking.

19       The plaintiff left her job at D24 in May 2004 as she had had several miscarriages due to the syndrome and she needed time off work to recover.  She and her partner had also moved to Beaconsfield and she was finding travel to Melbourne too onerous.  However, it was the plaintiff’s intention to apply for the Victoria Police Force.

20       The subject accident happened when the plaintiff’s vehicle was hit from behind while stationery.  She suffered injuries to her neck and back and, to a lesser extent, her right shoulder.

21       The plaintiff was taken by ambulance to the Echuca Hospital where she stayed overnight.  Since then she has been under the care of general practitioners, Dr Kabourakis and Dr Pinto; chiropractor, Dr Maree, and psychologist, Mr Winfred. 

22       As of her February 2010 affidavit, the plaintiff was taking painkillers and antidepressant medication.  Her condition was seriously incapacitating, and if anything, worsening.

23       The plaintiff had constant neck and mid back pain which varied from moderate to severe which was only partly and temporarily relieved by medication and exacerbated by sudden or unguarded movements, changes in the weather or retained posture.  Associated with that pain was also frequent and severe migraines.  The mid back pain sometimes came on for no particular reason.  That pain was sometimes so intense it could cause her to drop to the floor.  Associated with back pain, the plaintiff also had right-sided sciatica affecting her leg down to her foot.

24       The plaintiff’s right shoulder injury had largely recovered and no longer troubled her.

25       The plaintiff had gained a large amount of weight since the subject accident, having gone from a size 10 to a 14 or 16.  This weight increase had caused the syndrome to get out of control.  She did not believe she would ever be able to have a family.

26       The plaintiff had problems sleeping because of neck and back pain.  She had also become very depressed and anxious as a result of the seemingly permanent nature of her disabilities and her inability to function or start a family.  Her back pain also meant she and her partner were rarely intimate.

27       The plaintiff did not have guests, as she could not maintain the house and was too embarrassed to let anyone visit, including family.

28       The plaintiff had been on and off antidepressant medication since the subject accident and saw a psychiatrist regularly.  She had seriously considered suicide several times. 

29       When the plaintiff’s physical pains were at their worst, she had to rely on a walking stick or a wheelchair. 

30       The plaintiff was not in work or seeking work at the time of the subject accident.  She had tried to do a couple of part time or temporary jobs since then but had not been able to cope with travel and the aggravation of her spinal and right leg pains.  She still harboured an ambition to join the police force but did not believe she would ever be able to do so. 

31       The plaintiff had not been able to engage in martial arts or other sporting or social activities since the subject accident.  She had been unable to drive other than very short distances.  Driving aggravated her spine and leg pains and she had to rely on her partner and others to drive her around.  She suffered stress and panic attacks in the car, both driving and as a passenger.

32       The plaintiff slept very poorly and she was very restricted in the performance of domestic duties.  Her back pain was often so bad she was confined to a wheelchair.  She was simply not the happy, healthy, active person she was prior to the subject accident.

33       Prior to the subject accident, the plaintiff worked with Alectus Personnel (“Alectus”) in 1998.  She worked for Complex Security Management (“Complex”) in September 2000.  She ceased work with D24 as a result of the accident, having last worked in that job in the financial year ending June 2004.

34       The plaintiff attempted to return to work with Mack Towing No 3 Transport Pty Ltd (“Mack Towing”) as a receptionist in 2007 but was unable to cope due to pain, and the side effects of the medication made it hard for her to concentrate.

35       As of the June 2012 affidavit, the plaintiff was working about three hours a week as a volunteer at the Holocaust Centre in Elsternwick.  She continued under Dr Kabourakis’ care and he prescribed medication for physical and psychiatric injuries which cost her about $150 per month.  She used a wheelchair once a week if she went out in crowds and used a walking stick at other times. 

36       The plaintiff’s level of medication had increased due to the subject accident.  She and her partner paid for it all as the defendant ceased funding.

37       The plaintiff was then regularly using morphine patches which cost about $15 each.  She bought $10 Endone packets weekly and took Zoloft, costing about $30 per week.  She used Mersyndol, day strength, and Pantethine Plus for pain and OxyContin when needed.  The plaintiff also took medication unrelated to her accident injuries. 

38       The plaintiff confirmed her back injury restricted her ability to exercise and made it difficult to conceive and she wanted to have children in the future but was unsure if she could do so because of her back injury.

39       The plaintiff had been unable to return to work and continued to be supported by her partner.  She had not been retrained nor had further rehabilitation in the previous two or three years.  She could drive limited distances and at times hardly ever used public transport.

40       The plaintiff found it very difficult to do housework, such as cleaning, vacuuming and mopping due to her injuries and she depended on her partner and friend, Leanne, to assist.  The plaintiff’s partner also suffered from stress and physical injuries which made it harder for both of them.

41       The plaintiff had been suffering stress and anxiety due to the subject accident and her injuries.  She and her partner had lost their house because they were unable to continue to meet repayments.  They were then faced with losing their current house.

42       The plaintiff cried a lot and suffered regular sleeplessness due to pain.  She had been given a disabled parking sticker due to her injuries.  Her partner was working long hours to support them financially and that put a great deal of stress on their relationship.

43       The plaintiff did not believe she could return to work as a receptionist.  She would have trouble getting to work by car or public transport and she believed she was limited in the work she could do. 

44       In her third affidavit sworn in January 2014, the plaintiff deposed that as a result of her inactivity and injuries, she has put on a lot of weight.  She used to be a size 10 but is now a 14.  She continues to suffer severe and chronic pain, especially in her lower back.

45       The plaintiff suffers sleeplessness, elevated blood pressure, anxiety and stress and leg pain.  She is restricted in walking and driving and uses a stick to walk on most occasions. 

46       The plaintiff sees her general practitioner, Dr Kabourakis, weekly.  She takes Cymbalta, 60 milligrams daily, blood pressure tablets, Yasmin, Panafen Plus, two Endone a day, Chemists Own strength pain-relief medication, Diabex due to elevated blood sugar levels, Nortriptyline and alternative Norspan and Durogesic patches every six weeks.  She is allergic to the preservative in Panadeine.  She also suffers from unrelated asthma. 

47       The plaintiff cannot do her aerobic exercises.

48       The plaintiff is very depressed and has worked out a plan to commit suicide if she cannot improve her medical conditions and her life.

49       The plaintiff presently volunteers about three hours a week at the Holocaust Centre.  In evidence-in-chief, she explained that she does not work there three hours straight.  She cannot cope with the pain levels and the exhaustion that comes on with her fibromyalgia.  With her volunteer hours and her phone sales work, the plaintiff literally sleeps all weekend.

50       The plaintiff pointed to her right lower back and down her leg to her foot as the site of her pain.[3]

[3]Transcript (T”) 15

51       For the last three weeks, the plaintiff has been selling products at home for Unity 4 for National Parks and Wildlife and has been doing so for three weeks.  She works about eighteen hours a week.  The job does not involve much physical activity.  She works for two or three hours and takes about two hours off, often to sleep.  She earns $21.50 per hour and is paid superannuation. 

52       The plaintiff has days when she cannot work due to her pain and fibromyalgia and has to take days off work at home and at the Holocaust Centre. 

53       The plaintiff is in too much pain to have sexual relations with her partner and is very depressed that they may not be able to have a family together as they had wished.  She also finds it hard and painful to pick up young children.

54       The plaintiff has had several miscarriages since 2004.  She has not had sex recently.[4]

[4]T21

55       The plaintiff is receiving some home assistance from Mormon volunteers several hours each day with cooking, cleaning, vacuuming and other domestic tasks.

56       The plaintiff is depressed and anxious about her future and what has happened to her because of her injuries, such as financial issues because of her reduced income.

57       The plaintiff was extensively cross-examined as to the condition of her back prior to the subject accident and subsequent to the first and second accidents.

58       After the first accident, there was definitely pain in the plaintiff’s lower back.  She admitted some leg pain but not down to her foot.[5] There was some referred pain into her right leg after the second accident but it was “nothing that did not calm down”.  She would have limped for a little while thereafter and then got better.  The pain was not consistent and debilitating like she has now.[6]

[5]T77

[6]T22

59       The plaintiff probably told physiotherapist, Luke Surkitt, in August 2001 that she had referred pain to the right buttock “but it was not something that lasted like this”.[7]  She could then walk for thirty minutes, which was much more than she can now do.  If she tries now, the pain is just agonising.  It can be so severe that her right leg drops into the ground.[8]

[7]T26

[8]T27

60       Leading up to the subject accident, the plaintiff agreed she had ongoing lower back pain into her right buttock but not as severe as thereafter.  She had a disabled parking permit in 2003 because she could not walk, stand for any length of time or carry goods.  Her current permit now lasts for four years and is not temporary as before.[9]

[9]T81

61       Prior to the subject accident, the plaintiff had depression and Post-Traumatic Stress Disorder (“PTSD”).  The depression was not bad enough for her to want to end it at the time.[10]  She was prescribed a low dosage of Zoloft not long before the subject accident.  She may have been seeing psychologist, David Winfield, at that time for counselling for family matters.

[10]T30

62       The plaintiff agreed that when she saw Dr Jager in March 2003, she was complaining she could not cope with anything anymore and it was an effort to get out of bed.  She explained she was seeing an osteopath at that time, who was treating her arm.

63       The plaintiff agreed that before the subject accident, she had problems with her weight when she miscarried but she would not call being a size 12 a problem.  She had problems with housework because of her arm.  To a certain extent, she was limited because of her back but “now the house is an absolute disaster”.  Back then she could at least maintain some basics.[11]

[11]T39

64       The plaintiff had to stop martial arts after the first accident and because of her work commitments.

65       The plaintiff was asked about a vocational assessment carried out by Work Solutions in May 2003.  She recalled aggravating her back walking up a hill to that appointment.  It was possible she then had right leg pain.  She agreed she then may have had a standing capacity of thirty minutes, but described that as “huge” and she could no longer do that now.[12] She would now have to take a rest and she uses a walking stick and wheelchair.

[12]T41

66       The plaintiff was receiving chiropractic treatment in 2003 prior to the subject accident.  She attended after a flare up “as opposed to every second of the day”.  She agreed she limped after flare ups.[13]

[13]T63

67       The plaintiff agreed she visited the chiropractor almost weekly before the subject accident.  She described her pain at that time as “absolute agony” and “killing her”.  The pain she was then experiencing was the most pain she had experienced.  Compared to now, “that seems like nothing.”[14]

[14]T71

68       The plaintiff agreed that between the first and second accidents “it was hard” and she took up to eight Panadeine Forte a day as she reported to Dr Barton.  She did not fully recover but she made strides.[15]

[15]T79

69       The plaintiff had chiropractic treatment after the first accident with Ms Maree in Berwick.  She did not mention a myofascial pain syndrome to the plaintiff in 2001.  The plaintiff quite possibly told the chiropractor in January 2003 that her back was “stuffed” but “again [she] had had no comparison to what [she] now has at that time”.[16] The plaintiff also told Dr Jager in June 2002 her back was “still stuffed”.[17]

[16]T69

[17]T79

70       The plaintiff attended Dr Curran at Stud Road, Dandenong for a flare up in June 2003 and Panadeine Forte and Voltaren were prescribed.  In March, June and August 2003, the plaintiff was prescribed Panadeine Forte for severe pain.  She could not recall a CT scan of her back being suggested in June that year.

71       The plaintiff thought she had been told of the diagnosis of fibromyalgia after the subject accident and she considered that condition had been caused by that accident.

72       When the plaintiff deposed to having largely recovered from the earlier accidents before the subject accident, she meant she was a lot more capable than she is now.  She had the occasional flare up, whereas now her pain is constant.  After the subject accident, she was in a lot more pain.  Before she could cope with Codalgin Forte “now that does not even touch it”.  Her back is much much worse, although her neck seems to have largely resolved.  The fibromyalgia is worse.

73       Over the last several years, any light touch to the plaintiff’s lower back causes pain.  Before the subject accident, it was not to the extreme it now is.[18]

[18]T62

74       The plaintiff was taken to various entries in her general practitioner’s notes leading up to the subject accident.  In June 2003, there was a note of constant pain right iliac and prescription of Panadeine.  The plaintiff explained that “that medication would not touch” her current pain.

75       There was a note of frequent migraines in August 2003.  The plaintiff was still taking Panadeine Forte for back pain in September 2003.  Her pain was not anywhere near as severe as it is now.

76       Work-related stress and a referral to a psychologist was noted in November 2003 and also a prescription of Cipramil.  It was being prescribed at the time of the subject accident.  The plaintiff had then returned to work after her arm problem and she was working 48 hours a week.[19]  However, the plaintiff later said she had cut down work because of miscarriages and she was trying to recover.[20]

[19]T49

[20]T51

77       The plaintiff could not recall discussing fibromyalgia with her doctor in June and July 2004 or a referral to Dr Rose for pain management about that time.

78       The plaintiff “imagined” if there was a significant worsening in her back after the subject accident, that would have been noted by her doctor.  She recalled reporting to her doctor her worsening situation.  She was in a mess, crying at the surgery, and various methods of treatment were tried.

79       When it was suggested to the plaintiff that in the months following the subject accident there was no reference to her accident injuries or mention of increased back pain until July 2005, the plaintiff explained she was given repeats of Panadeine Forte and she was also trying to get off that medication.  She would have been taking over-the-counter medication.

80       The plaintiff would probably have told her doctors her condition was worsening.

81       In cross examination, whist ultimately accepting that she had treatment and various attendances for low back pain prior to the subject accident, the plaintiff repeatedly mentioned that her back pain since the subject accident was far worse – “Back then it would sort of even out and then there would be a flare up and then it would even out and then there would be a flare up, whereas now it is just constant.”[21]

[21]

Lay evidence

82       The plaintiff’s partner, Shane McOrmond, swore an affidavit on 11 April 2013.  He was required for cross-examination.  He has been with the plaintiff for fourteen years.

83       Mr McOrmond believes the subject accident has significantly affected his relationship with the plaintiff.  It is difficult for them to be intimate due to her back pain.  They cannot socialise as much as before because of restrictions in driving, sitting and standing due to her back pain.  They have also not been able to have children and that has created a great stress on both of them.

84       Mr McOrmond has been working on average from 4.00am to 8.00pm about seven days a week for Adams Heavy Haulage as a driver.  He previously worked for Mack Towing.  The plaintiff tried to work for Mack Towing after the subject accident but was unable to cope and had to leave.

85       Mr McOrmond’s health has suffered due to his long work hours.  He has physical problems and has put on a great deal of weight over the last few years.  He has to work long hours because of the financial pressure resulting from the plaintiff’s inability to work.

86       The plaintiff has mood swings and occasionally suffers from panic attacks when driving.  She also suffers depression and anxiety which has worsened over the last few years.

87       The plaintiff used to help him with crowd control teaching work but she cannot do so anymore due to her injuries.

88       Mr McOrmond drives the plaintiff on longer trips.  He also assists her going to doctors and doing home and with domestic duties.  From time to time she is confined to bed for most of the day.  He has also seen her suffer regular back spasms.  He has witnessed her crying and unable to drive due to panic attacks as once happened on the freeway.

89       The plaintiff’s injuries have created a great strain on their relationship and she has been told that because of her medication, she cannot have children, and that causes great stress for both of them.

90       In cross-examination, Mr McOrmond confirmed that the subject accident significantly affected his relationship with the plaintiff.  He denied earlier accidents had had a similar affect.[22] 

[22]T142

91       Whilst conceding the plaintiff might have had some problems walking immediately after the earlier accidents, he was unaware of her having problems such as being stressed in a car.  He denied that her disability was dominating their relationship in 2001 or that they were fighting about that issue at that time.

92       In 2002, the plaintiff was sore and in pain due to the second accident but she was getting better.  She was able to walk their 50-kilogram dog up to the time of the subject accident, thus he denied she could not walk any more than thirty minutes or stand in one spot for ten minutes. 

93       Before the subject accident, it would not be a hundred per cent correct that the plaintiff had problems turning her head, hanging out the washing, reaching and driving.  She was able to walk over ramps. 

94       Before the subject accident, Mr McOrmond denied the plaintiff had stiffness of the cervical and lumbar spine in the morning for a couple of hours which worsened as the day progressed because she would not have been able to be employed as a casual security guard if that was right.[23] 

[23]T146

95       Mr McOrmond did not have any recollection of the plaintiff waking in pain in 2002 because he had usually passed out from fourteen hours’ work.  He never saw her taking six Panadeine a day at that time.  He could not really comment what she did throughout the day because he was not there. 

96       Mr McOrmond could not recall the plaintiff having a limp in 2002 but he could recall her seeing a counsellor, Mr Winfield.  The plaintiff had headaches, migraines and dizziness in 2002 but that was to do with sinusitis.  He could not recall her having broken sleep because he was “dead to the world”.  The plaintiff’s weight did not fluctuate that much before the subject accident. 

97       The plaintiff did a lot of things at home in 2002 and helped him with his training.  The plaintiff also cooked and they used to go out.  She would have had difficulty directly after an accident but then started getting better.[24]  He did not see any adverse effects around the house relating to the plaintiff’s injuries from the first or second accident.  The house was cleaned and maintained and food was being prepared. 

[24]T150

98       Mr McOrmond could recall the plaintiff seeing a chiropractor when she had flare ups but it was not every week or so.  She would have said at times she was in agony some days but would not use the words “absolute agony” before the subject accident. 

99       Mr McOrmond could not comment on the plaintiff’s ability to use public transport in March 2002.  He thought she got the disabled permit well and truly after 2004.[25]  He could not recall her having significant problems so she could not do housework in 2003.[26]  He agreed they were having financial difficulties in 2003.

[25]T152

[26]T153

100     Mr McOrmond could recall the plaintiff having frequent migraines before the subject accident.  He did not know when she was prescribed anti-depressants.  He did recall in 2004 that she had been diagnosed with fibromyalgia.

101     There were a lot of reasons why the plaintiff quit work at D24 with the miscarriages and the difficulty travelling to work.

102     Mr McOrmond could not deny that the accidents as a whole all had an impact.[27]

[27]T155

103     Before the subject accident, he and the plaintiff were very intimate on a regular basis and it has not been something that has occurred in the last couple of years.

104     Mr McOrmond is now working a minimum of 112 hours per week.  The plaintiff requires help with the shopping.  Sometimes she forgets to pay the bills.  They usually get takeaway or something pretty casual.[28]

[28]T158

105     In re-examination, Mr McOrmond said the difference since the subject accident is that the plaintiff now cannot do any housework at all, particularly twelve to eighteen months after the subject accident, and she has been getting worse and worse.[29]

[29]T160

106     Zvi Civins, a former director of the Holocaust Centre, swore an affidavit in January 2014.  He is a former director of the Holocaust Centre.

107     Mr Civins has known the plaintiff and worked closely with her for about two or three years.  He trained her as a guide at the Holocaust Centre.  He has noticed she is restricted in walking and she regularly uses a stick or cane for support.

108     The plaintiff seems to be in pain, even though she uses those supports.  He believes she finds it difficult to stand for long periods and she is on her feet at work for a considerable time.  The plaintiff has taken days off due to her pain and injury.  He has noticed, in her role taking students through the Centre, that it is an effort for her to be on her feet for longer periods of time.  She winces or seems in pain from her injuries at certain times.

109     The plaintiff has developed a close relationship with Holocaust survivors and their relatives which he believes is due to her emotional involvement with them.  She has a wonderful relationship with the survivors.  He knows the plaintiff uses patches to help with pain.

Employment details

110     The plaintiff did not lodge a taxation return between 2002 and 2008.

111     Payslips from 14 November 2003 to 2 April 2004 with D24 disclose income of nearly $20,000. 

Claim documentation

112     In her Transport Accident Commission Claim Form signed 8 August 2005, the plaintiff set out that before the subject accident, she suffered lower back and neck pain and also pain in her hip, knee and shoulder.  She received chiropractic treatment, took painkillers and anti inflammatories and had an ultrasound. 

113     In addition to her orthopaedic injuries, the plaintiff noted migraines and described her condition as fibromyalgia and her occupation as home duties.

Treaters

114     Luke Surkitt, physiotherapist, reported to the defendant in January 2002.  He described cervical and lumbar symptoms and a WorkCover injury relating solely to the plaintiff’s left elbow.

115     On assessment in August 2001, the plaintiff reported the following symptoms:  constant deep ache in the right cervical spine; intermittent right posterior migraines; constant deep strong ache in the right lower lumbar spine, radiating intermittently into the right buttock and proximal posterior thigh; intermittent left lumbar pain radiating in the left buttock; constant deep ache and intermittent burn in the left medial and posterior elbow with intermittent pins and needles radiating distally to the medial two fingers; intermittent cramp of the right calf and fatigue and intermittent ache of the left leg due to limp.

116     The plaintiff reported aggravation of back pain by walking and sitting for thirty minutes, standing statically for ten minutes, walking up and down ramps and on uneven ground, with significant difficulty walking up ramps; stiffness of the lumbar spine every morning with deterioration during the day; waking during the night due to lumbar pain.  The plaintiff was then taking an average of six Panadeine Forte tablets per day plus Panadeine.

117     On examination, the plaintiff walked with a moderate limp on her right leg.  She was hypersensitive on palpation of her lumbar spine with some restriction of movement.  There was more restricted straight leg raising on the left.  Testing of the sacroiliac joint revealed mildly positive signs. 

118     Mr Surkitt thought there was a significant non-organic component to the plaintiff’s presentation including positive distracted straight leg raising and sitting, widespread tenderness on palpation and overreaction.  She had a high level of perceived pain and disability.

119     Mr Surkitt thought the plaintiff appeared to be suffering from cervical dysfunction and the possibility of a lower lumbar disc injury.  He then thought she would require three weeks’ rehabilitation before she was able to consider a return to work. 

120     Dr Clive Kenna, consultant in musculoskeletal pain management, saw the plaintiff in April 2003.  She was not then working.

121     Dr Kenna noted that effectively as a result of the first and second accidents, the plaintiff sustained soft tissue injuries resulting in whiplash to the neck as well as a soft tissue injury to the lower back.  She complained of right-sided neck pain, cervicogenic headaches and lower back pain which was predominantly right sided.  Her main complaint related to the lumbar spine.  She stated that the first accident was by far the worst.  She was then having chiropractic treatment fortnightly and seeing a myotherapist. 

122     On observation, there was a slight limp but no soft tissue signs were present on examination and there was no muscle spasm on palpation. 

123     Dr Kenna thought clinical assessment now indicated the plaintiff’s condition had well and truly plateaued and she acknowledged she had obtained all maximum benefit with treatment.  On that basis, he believed ongoing provision of physical therapy services should cease and that the plaintiff was effectively capable of self managing her condition.  The pain diagram attached to his report indicated right-sided pain to the knee. 

124     Dr Kabourakis has been seeing the plaintiff regularly since January 2005 and she has been attending his clinic since July 2004.  He noted the main reasons for attendance are chronic back pain and psychosocial problems. 

125     Dr Kabourakis noted in September 2013, the plaintiff was having quite marked difficulties with control of her back, right leg and neck pain.  He believed the first accident was the worst injury-wise but the last, the subject accident, had been the worst in terms of psychology and aggravation of physical problems.

126     Over the years, Dr Kabourakis noted he had come to realise the plaintiff has a number of fairly distinct pain-related problems, the most debilitating arising around the right sacroiliac joint area, radiating down the right limb, usually stopping at the right knee and sometimes the foot, exacerbated by walking or weight bearing.

127     Despite investigations, no visible cause for the plaintiff’s pain has been found.  Dr Kabourakis noted her other low back pain was a more generalised non specific pain, characterised by any increased sensitivity to any stimuli, with multiple triggerpoints.  Interestingly, she also had sensitive trigger points in most of her back including shoulders and neck.  Her third chronic pain was situated around her shoulder and neck, characterised by headaches and pain. 

128     Dr Kabourakis also thought the plaintiff had other health problems including asthma, fibromyalgia, the syndrome and intermittent sinusitis.  The fibromyalgia was, in particular, of most concern, and that had been exacerbated by her injuries.

129     Dr Kabourakis had a tough time controlling the plaintiff’s problems with variable results from a TENS machine and painkillers.

130     It was realised over the years that the main contributor to the plaintiff’s migraines was stress.  Local anaesthetics to the right lower paraspinal muscles had been helpful in the short term.  CT guided steroid and anaesthetic injections in the right sacroiliac joint had also been helpful for a short time.

131     Dr Kabourakis noted over the years there had been some major flare ups of pain alongside major upheavals in the plaintiff’s life.  The combination of those had led to some marked changes in her physical capabilities and psychological wellbeing.  He noted pain limited her in every aspect of her life, with restrictions in housework, walking, sex life and mobility.  Also psychologically, there were multiple aspects that affected her.  The plaintiff tried to continue to work at D24, taking painkillers, but could not continue.  He noted the psychological impact of not being able to work had been rough also, with financial problems.

132     Dr Kabourakis felt the plaintiff was not able to work.  He was not sure if she would be able to hold down a meaningful job in the future without some major intervention.  He had referred her to a pain clinic and was awaiting an appointment. 

133     Dr Kabourakis has been maintaining the plaintiff’s current pain with a combination of treatments including narcotic pain relief, adjunctive pain therapy with Cymbalta and Nortriptyline, and the use of methods such as TENS and gentle home exercise.  The plaintiff’s mental state was an ongoing concern.  She was depressed due to chronic pain.  She used to work and feel useful and motivated but her daily unrelenting pain had put an end to this.  He hoped the pain management would help.

Investigations

134     Dr Kabourakis organised a CT scan of the plaintiff’s lumbar spine on 28 December 2005.  It was reported no significant abnormality was demonstrated.

135     Dr Stockman organised an MRI scan of the lumbar spine on 1 May 2006.  It was noted, apart from a posterior tear of the L5-S1 disc, the examination was satisfactory. 

Medico-legal evidence

136     Dr Alex Stockman, rheumatologist, first saw the plaintiff in March 2007 with review in May 2012. 

137     On the first examination, the plaintiff told him of the three accidents and that thereafter she had been complaining of rather widespread musculoskeletal symptoms.  She felt most of the pain arose following the first accident.  After the subject accident, she advised her neck and lumbar back pain had remained unchanged and she claimed there had been no improvement. 

138     The most severe pain had been in the right lower lumbar region/buttocks, which was constant and ranged between eight and ten out of ten.  Neck pain was present all the time and frequent migraines.  The plaintiff denied having any symptoms before the car accidents.

139     The plaintiff told Dr Stockman she found the D24 job extremely interesting and rewarding but could not continue working in 2004 because twelve-hour shift work was aggravating her symptoms.  Dr Stockman then thought the plaintiff had rather widespread pain and which would be consistent with the diagnosis of fibromyalgia.  However, she was particularly painful in the lower lumbar region/sacroiliac area, and that pain seemed to be radiating down her right leg.  He noted he required radiology to make a further diagnosis. 

140     Dr Stockman then thought the plaintiff had some capacity for work where she could change her posture regularly.  She could not stand for very long.  She could do part time clerical work.

141     On re-examination in 2012, the plaintiff said her condition had worsened.  She had constant pain in the mid and lower lumbar region and low in the sacrum, associated with almost constant right leg pain all the way to the foot.

142     Dr Stockman noted objectively and subjectively the plaintiff’s condition had not improved since last seen.  He thought some of her pain would be consistent with L5-S1 posterior annular disc tears seen on the May 2008 MRI scan.  However, he noted that did not explain the symptoms in the right leg or the rather diffuse tenderness in the back or even to gentle pressure. 

143     Dr Stockman thought the plaintiff could work at least on a part time basis, four hours a day or less and that she may benefit from a multidisciplinary rehabilitation program.

144     Dr Piperoglou, psychiatrist, first examined the plaintiff in May 2007.

145     Dr Piperoglou then concluded from a psychiatric point of view the plaintiff had residual symptoms of PTSD and an Adjustment Disorder – Chronic, with Anxiety, Irritability and Depressed Mood.  He thought she was likely to have a Chronic Pain Disorder associated with psychological factors.

146     On re-examination in August 2012, Dr Piperoglou made the same diagnosis.  He thought the plaintiff required a referral to a psychologist for cognitive behaviour therapy to assist her to cope better with her depression and chronic pain.  He thought she continued to have a poor prognosis from a psychiatric point of view. 

147     Mr Love, orthopaedic surgeon, examined the plaintiff in March 2013. 

148     The plaintiff told him that her present symptoms are similar to those which were present immediately after the subject accident, with constant low back pain and symptoms of neck pain of a lesser severity.  She also indicated she had some symptoms which he described as fibromyalgia and migraine.

149     There was extreme tenderness to light touch on examination of the lumbar spine.

150     Mr Love noted the MRI report which concluded there was a posterior tear of the L5-S1 disc without other significant abnormality.

151     Mr Love thought the three accidents had probably been cumulative in terms of symptom progression.  He noted the subject accident had produced the most severe of symptoms which were ongoing.  In his view, it was probable the pathology would never be able to be precisely defined but it was recognised that injuries which originated in such a manner will frequently have an absence of pathological diagnosis associated with them.

152     Mr Love thought, in view of the chronicity of the plaintiff’s symptoms, she had now developed a Chronic Pain Syndrome (“CPS”) and the only means for helping her would be pain management.  He considered that the plaintiff will not be able to work in the foreseeable future.  He thought the long term prognosis was unknown but in the short term, the prognosis for recovery was poor. 

153     Dr Le Leu, occupational physician, examined the plaintiff in March 2013. 

154     The plaintiff told him in the first two accidents she suffered injuries of the same type; namely, whiplash, broken teeth and possibly torn discs.  She did not recall having sciatica after the first two accidents.  She was a lot more mobile and in a lot less pain than is now the case. 

155     Prior to the subject accident, the plaintiff was able to manage her pain with Codalgin Forte but following it, she had had to use morphine and pain patches, such as Norspan and Durogesic.  She did not think she had recovered completely from the first two accidents at the time of the subject accident but believed she potentially could have if the subject accident had not occurred.  At least she had gone back to work and was managing things at home.  She was still able to manage work on twelve-hour shifts with D24.

156     The plaintiff reported that the subject accident worsened her back pain and she is now a “basket case,” with nothing in her life now.

157     The plaintiff told Dr Leu of continuous low back pain which was a nightmare.  Endone took the edge off it a little bit but the pain was still there.  She described at least she was not rolling around screaming in agony like she had done in the past. 

158     The plaintiff told Dr Leu that she last worked some time before the subject accident and she believed she seriously tried to return to work after it.  She had obtained jobs without any problems but the employer could not keep her, since her body let her down and she had not worked for any significant time over the last eight years.

159     On examination of the spine, the plaintiff was very tender over the L5-S1 end space.  There was a loss of normal lumbar lordosis and restricted lumbar spine movement.  There was 3 centimetres of wasting over the right thigh and one centimetre of wasting of the right calf.  The right ankle jerk was weaker compared to the left.  There was reduced straight leg raising on the right, power was decreased for right hip and knee flexion and right foot dorsiflexion and plantar flexion.

160     Dr Leu thought the plaintiff would benefit from physiotherapy and assessment at a pain clinic and by an orthopaedic surgeon.  He thought she had not had adequate treatment so far, largely because of lack of funds.  He considered the most likely prognosis was for ongoing symptoms of the type she was now having for the foreseeable future.

161     Dr Leu considered the plaintiff was not presently fit to work in any job because of her limited mobility and difficulty with sitting, standing and walking.  He thought a pain management specialist might assist.  He suggested she needed two hours home help per week.

The Defendant’s medical evidence

162     A printout from Box Hill Physio detailed almost weekly attendances from 22 January 2001 until December that year.

163     Notes from the Dovecare Medical Centre (“Dovecare”) from 10 July 2003, detailed treatment by Dr Cheryl Pinto, in relation to which the plaintiff was cross-examined. 

164     Zoloft was prescribed in June 2004 and Cipramil in April that year.  There was a note on 9 June 2004 “tender trigger points in back consistent with fibromyalgia”.

165     Despite mention in his report of seeing the plaintiff initially in January 2005, Dr Kabourakis first saw her at Dovecare in December 2003 for unrelated conditions in the period leading up to the subject accident. 

166     Although there were references to prescription of Panadeine Forte after the subject accident, the next specific reference to the subject accident injuries was a note of Dr Kabourakis on 2 July 2005, of “spinal pain with headaches, seen chiro and the neck and headaches settled”.

167     On 8 October 2005, Dr Kabourakis noted:

“Pain lower back right side buttock with shooting pains down the left thigh and up the spine.  Been there since MCA 2000.  Worse.  Had another one in 2001 and last one in August 2004.  Any movement or light touch to the buttock and lower back is painful.  Overlying Regional Pain Syndrome so prominent that any sensation was felt as pain.  Her life revolves around avoidance of pain in this area.  There is more than possible fibromyalgia.”

168     Notes from the Dandenong Surgery and Medical Acupuncture Clinic indicate the plaintiff attended on 16 June 2003.  She was limping and there had been a flare up of low back pain on the right side.

169     There were notes from the Stud Road Clinic in Dandenong of attendances with Dr Curran in February 2003 with a flare up of right low back pain and “tenderness +++” and Panadeine Forte and Voltaren prescribed.  On 12 March 2003, lots of stress with two motorcar accidents was noted.  Panadeine was prescribed for severe pain in March and June 2003 related to the car accident.  In June 2003, it was noted that the plaintiff may need a CT scan.  In August 2003, Panadeine Forte continued.

170     Dr Maree, chiropractor, saw the plaintiff in 2000 at Complete Chiropractic in Berwick.  The plaintiff also presented to that clinic after the second accident.  It was noted her symptoms were then consistent with those from the first accident.  The working diagnosis was of cervical and lumbopelvic joint dysfunction with an associated myofascial pain syndrome. 

171     On 21 January 2003, the plaintiff described her lower back as “stuffed” and she had started limping again.  Standing for long periods was excruciating and short periods were problematic.  A recent presentation in February 2003 with an acute exacerbation was noted.

172     Notes from that clinic indicate regular, almost weekly at times, chiropractic attendance from March 2001 for the following two years.

173     The plaintiff presented again in February 2003 with an acute exacerbation of low back pain.

174     When Luke Surkitt, physiotherapist, last saw the plaintiff in April 2002, he thought she had the capacity for working in a normal job for an hour before taking a ten minute break.  She could work four to six hours a day, three days a week, with a day off in between each day. 

175     Dr Michael, osteopath, reported to the defendant in November 2003.

176     On a visual analogue scale, the plaintiff rated her pain as four out of ten on a good day and seven out of ten on a bad day.  Dr Michael thought that the plaintiff’s lower back pain had impacted on her activities of daily living, and more importantly she did not have any coping mechanisms, maintenance or a self management program.  He proposed a twelve-week pain management program.

177     The plaintiff reported to Southern Health Emergency in May 2010 with low back pain secondary to multiple car accidents.

Medico-legal evidence

178     Dr Alan Jager, psychiatrist, first examined the plaintiff in December 2001. 

179     The plaintiff told him of the first and second accidents and her work related tennis elbow injury.  Dr Jager then did not think the plaintiff had sustained a psychiatric history in relation to her work. 

180     Dr Jager noted there was some inconsistency between the plaintiff’s stated discomfort relating to her lower back and how she performed during the interview where there was no evidence of discomfort observed and she sat comfortably. 

181     Dr Jager re-examined the plaintiff in June 2002, when she reported a “stuffed” left arm and her back being still “stuffed”.  She was seeing a chiropractor and a counsellor weekly.  She felt rotten about her weight gain, having gone from a size ten to upper twelve. 

182     On that examination, the plaintiff did not report symptoms characteristic of any mental disorder and did not present with evidence of one.  There was no ongoing incapacity for work resulting from or contributed to by any psychiatric injury.

183     Dr Jager re-examined the plaintiff in May 2003.  He then diagnosed an Adjustment Disorder consisting of a dysfunctional response to multiple stresses, with the most prominent being the recent miscarriage and subsequent medical problems, the loss of her partner’s job and the hospitalisation of two family friends.  These stresses occurred on a background of her ongoing TAC and WorkCover claims which themselves were insufficient to cause a mental disorder. 

184     Dr Jager thought, from a psychiatric point of view, the plaintiff had a capacity to return to pre-injury work.  He noted Dr Patrick’s comments regarding the plaintiff having a secondary Pain Syndrome.  Dr Jager noted if there is now no physical basis for the plaintiff’s pain, consideration would need to be given to defining her report of pain as a Chronic Pain Disorder with psychological factors.

185     Dr David Barton, consultant occupational physician, saw the plaintiff in August 2002 in relation to her work injury.  She was then typically taking a few Panadeine and Panadeine Forte each day, rarely none, and up to eight per day if her symptoms were severe. 

186     On clinical examination, there was no clear objective evidence of any particular problem.  Dr Barton noted the plaintiff had significant tenderness which seemed somewhat excessive and the generalised weakness in the left arm did not fit with any muscular or neurological problems.  He thought there were significant features of abnormal illness behaviour with the plaintiff’s condition being functionally rather than physically based.  He considered she had a strong illness belief which he thought was pertinent in regard to ongoing claimed difficulties.

187     Dr Kostos, rheumatologist, examined the plaintiff in October 2002 in relation to her arm problem.  She also then had ongoing neck and back problems. 

188     Dr Kostos noted the plaintiff’s pain response on examination.  Without a specific diagnosis, he was not in a position to say whether her condition was related to employment or not.  He thought there appeared to be some pain amplification state present, noting a concern with her claimed ongoing neck and back problems as a result of the two car accidents. 

189     Dr Patrick, rheumatologist, examined the plaintiff in March 2003 in relation to her left arm pain.  He noted she used a disabled permit for close car parking because of her inability to walk, stand for any length of time or carry goods.  He noted some of those limitations related more to her neck and lumbar spine problems. 

190     Dr Patrick considered a soft tissue injury was feasible from a rheumatological perspective.  He thought the nature of the plaintiff’s current condition was of myofascial pain problem.

191     Dr Firestone, psychiatrist, examined the plaintiff in August 2008.  She told him the subject accident occurred three months after she had ceased work because of pain.

192     The plaintiff took a break after about an hour of the interview, holding her low back.  She asked for water to take a pain killer and visibly limped to the waiting room. 

193     Dr Firestone thought the plaintiff suffered from a Pain Syndrome built upon a tear at L5-S1, and migraines since her first accident added to her woes.  He thought there was psychological overlay expressed too, very likely by the fibromyalgia.  He thought the plaintiff was becoming entrenched in the sickness role.  He considered the Pain Syndrome appeared to have developed following the first accident and was consistent with psychological overlay to a low back injury.

194     Dr Firestone re-examined the plaintiff in September 2012.  The plaintiff said her pain was worse than four years ago.

195     Dr Firestone noted a number of enclosures forwarded to him in which a Pain Syndrome was diagnosed, as he did four years ago.  He thought that Pain Syndrome was now more entrenched and the plaintiff appeared to be using a walking stick, which she was not using before. 

196     As previously, the plaintiff did not appear depressed nor was there a clear history for depression but adding, of course, she was taking antidepressant medication.  He thought it unfortunate the plaintiff had no psychiatrist supervising her course. 

197     Dr Firestone thought there was a CPS and psychological factors certainly played a part.  Whilst it was difficult to apportion responsibility, he expected the first transport accident was the most responsible, the second less and the third still less.  He was not certain that non transport accident related matters played any part in the plaintiff’s presentation. 

198     Dr Firestone noted the plaintiff volunteered that she is better when her mind is occupied and when she is volunteering at the Holocaust Centre.  So it seemed clear to him, psychological factors took pride of place.  He noted financial stress was aggravating the situation and no doubt underlying pain maintained it.  He thought the plaintiff displayed abnormal illness behaviour and suggested a referral to a psychiatrist for continuing support.

199     Dr Firestone could not say confidently on each examination the plaintiff did not have depression because she was taking antidepressants.  Zoloft may have marked a clinical depression.

200     The focus of Dr Firestone’s examinations was on an AMA assessment.  He took a history, noting that there were traumatic symptoms relating to the subject accident only.

201     Dr Firestone confirmed his diagnosis of a Pain Disorder and described abnormal illness behaviour with presenting features of illness on a psychological rather than physical basis.  There was some physical basis but the condition that counts is the resulting psychological condition.[30]

[30]T176

202     In re-examination, Dr Firestone confirmed he felt the plaintiff’s Pain Syndrome had become more entrenched.[31]

[31]T169

203     Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in September 2008.  On examination, the plaintiff walked with a limp.  The plaintiff told him she would have had problems with her right leg after the second accident

204     Mr Fogarty thought the injuries from the subject accident were soft tissue to the neck in the form of cervical hyperextension and soft tissue to the lower back, noting the MRI scan findings. 

205     The plaintiff complained of much worsening of the pain, particularly in the lower back following the subject accident.  Whilst the focus of Mr Fogarty’s examination was an AMA assessment, he did note there was a significant psychosomatic reaction for which the plaintiff appeared to require psychological counselling. 

206     Mr Fogarty re-examined the plaintiff in September 2012.  She then complained of constant pain in her low back and right leg with pain extending as far as her foot. 

207     On examination, there was a very limited active range of movement in the thoracolumbar spine.  There was no neurological deficit.  The plaintiff could, however, actually sit up straight on the examination couch with her legs extended.

208     Mr Fogarty then thought the plaintiff suffered from a perceived orthopaedic injury.  The only abnormal musculoskeletal objective finding had been the demonstration of an annular tear of the posterior aspect of the lumbosacral disc and he was unable to say whether that condition had occurred as a result of the first, second or subject accident. 

209     Mr Fogarty thought the lumbosacral condition was probably caused by the first, aggravated in the second and certainly aggravated in the subject accident, and that there were probably no non transport accident related matters.  He thought the plaintiff markedly overstated the aggravation in the subject accident. 

210     Mr Fogarty considered that the plaintiff suffered from a CPS and indeed that was present in 2002, as indicated in reports of competent medical practitioners who were-examining her around then.  He thought the CPS was being aggravated by psychological factors and non organic factors, but not the ongoing effects of any physical injury.  He agreed that she displayed abnormal illness behaviour. 

211     In cross-examination, Mr Fogarty confirmed it was possible that the changes at L5-S1 and a disc tear could have happened in one of the car accidents.

212     Mr Fogarty did not notice any wasting and did not measure the plaintiff’s lower limbs in this regard.

213     Mr Fogarty disagreed the amount of narcotics taken by the plaintiff could make her lumbar spine condition worse.

214     Mr Fogarty agreed that the plaintiff’s pain was of such a chronic level it would impair her capacity to work in any type of full time job.[32]  He thought the subject accident was the worst, given the plaintiff’s history.  He confirmed the diagnosis of a CPS because the plaintiff was complaining of pain for a much longer time than he would have expected from the time of any of her injuries for the physical force that applied in those accidents.

[32]T132

215     Mr Fogarty confirmed he did not believe the physical injuries that were sustained in the three accidents were sufficient to have caused sufficient symptomatology and signs that are present today.  He believed it likely the plaintiff would have suffered soft tissue injuries to her neck and low back.  She initially could have required some strong medication but it had not helped her situation to date. 

216     Mr Fogarty did not think the plaintiff was making it up but he did think she was perhaps naturally exaggerating what pain she had.[33]  He did not think a pain management program would really help.  He confirmed he thought her prospects of employment were low. 

[33]T134

217     In re-examination, Mr Fogarty confirmed that the plaintiff had a perceived orthopaedic injury and that she considered she had an injury that affected certain parts of her musculoskeletal system. 

218     Mr Fogarty confirmed he could not say when the annular tear occurred.  He thought there was indication the physical lack of ability to move the back was not a true one on the basis of his examination and he considered it likely there were significant psychological aspects in this case.  He thought there was no physical basis for adding to the CPS.  He agreed with Professor Davis’ finding of abnormal illness behaviour.

219     Dr Fraser, rheumatologist, examined the plaintiff in November 2012. 

220     On examination, the plaintiff walked with the aid of a stick and there was a limp favouring the right leg.  There was local tenderness to the lightest touch in the lumbar region.  Straight leg raising was to 20 degrees on the right and 45 on the left, but the plaintiff could sit upright on the couch without difficulty.  There was no neurological abnormality and there was marked over reaction on physical examination.

221     Dr Fraser did not consider there were any ongoing injuries of a physical nature as a result of any of the car accidents.  At most, the plaintiff may have sustained soft tissue strains but it was inconceivable that those had not long since resolved. 

222     There was marked overreaction and abnormal illness behaviour on physical examination and Dr Fraser thought the plaintiff was exaggerating her symptoms and that non organic factors were contributing to her current presentation.  He thought it was certainly not related to the ongoing effects of any of the accidents. 

223     Dr Fraser noted Dr Barton mentioned features of abnormal illness behaviour in 2002,  Dr Kostos noted an exaggerated pain response in October 2002, Dr Patrick diagnosed a myofascial pain problem in March 2003 and the involvement of psychological factors was mentioned by Dr Jager in 2003. 

224     Dr Fraser regarded the diagnosis of fibromyalgia as being synonymous with the previously mentioned pain amplification status and myofascial pain problems.  He also noted the general practitioner’s comments of some functional overlay in his clinical note of October 2011. 

225     Dr Fraser thought the plaintiff’s medicalisation was also compounding the situation.  Specifically, the narcotic treatment was inappropriate, as were injections of local anaesthetic and steroids, and those measures, together with prolonged chiropractic treatment had only served to reinforce the plaintiff’s sense of invalidism. 

226     Dr Fraser concluded the plaintiff’s ongoing symptoms were due to non organic factors with obvious overreaction on her part and possibly a Pain Disorder, be it diagnosed as fibromyalgia, CPS or a myofascial pain syndrome, none of which have been caused or aggravated by the subject accident.  He thought the prognosis was poor and there was unlikely to be any significant improvement. 

227     Professor Stephen Davis, neurologist, examined the plaintiff in July 2013.  She told him the subject accident was the big one.  She thought it flared up her low back pain and she had never been the same since, with severe low back pain and also generalised fibromyalgia.

228     Professor Davis noted, on examination, the plaintiff walked with a very slow and antalgic gait with marked stiffness of the right leg, holding a walking stick.  She told him her pain had been stirred up by walking up the ramp and that she had these problems despite being full of Endone.  She continually cried when discussing her pain. 

229     On the examination couch, the plaintiff virtually refused to flex her right leg because of the pain in her back but allowing for pain, there were no objective neurological abnormalities.  She had brisk reflexes which were symmetrical and within the normal range, flexor plantar responses.

230     Professor Davis thought the plaintiff may well have had soft tissue injuries to the low back in the course of the three accidents but the MRI scan has only shown an annular tear without canal compromise or nerve root encroachment.

231     Professor Davis thought the features were dominated by a CPS substantially, if not wholly, due to psychological factors.  He agreed that there were features of somatisation syndrome with abnormal illness behaviour and an obsession with the Pain Syndrome and significant depression.  He noted there were no objective neurological signs and the plaintiff had not suffered any serious injury to the lumbar spine. 

232     Professor Davis thought the severity of the plaintiff’s symptoms would be completely discordant with the radiological findings of an annular disc tear.  He concluded the CPS was dominated by psychiatric features and was likely associated with a poor prognosis.  He noted there was no evidence of objective radiculopathy or wasting of the lower limbs.

233     In cross-examination, Professor Davis confirmed he did not actually carry out any measurements.  He did not find them particularly useful in a neurological examination.  He looked for muscle bulk and any evidence of wasting, any organic neurological weakness, reflex or sensory change and he did not find any abnormalities in that regard.[34]

[34]T100

234     A neurologist’s skill is to evaluate bulk by looking at the muscle, palpating it and assessing muscle contraction rather than tape-measure measurements.  What he looks for with muscle wasting is radiculopathy.

235     Professor Davis was aware the plaintiff was on heavy doses of narcotics, noting she told him she was full of Endone at the time of the examination.  In his view, general heavy doses of narcotics will not affect a neurological core-examination in terms of signs and symptoms, as the signs are really quite objective.[35]  He could not find any evidence of radiculopathy. 

[35]T102

236     Professor Davis explained clinical wasting usually should be concordant with some organic weakness and depending on the level of the wasting, reflex abnormalities, none of which were present. 

237     Weakness that may have been found by Dr Leu could be organic or non-organic.  In a person with pain, it can reflect a reluctance to contract the muscle because it can worsen the pain.[36]  Professor Davis found tenderness a highly unreliable physical sign.

[36]T105

238     Professor Davis thought it was possible that an annular tear may well have been attributed to one or either of the accidents.[37]  It was possible a tear could cause chronic pain but the problem is that a tear may occur in a very high proportion of completely asymptomatic adults.

[37]T107

239     Professor Davis confirmed that he found no objective abnormalities, thus the severity of the plaintiff’s symptoms, in his view, would be completely discordant with the findings in this case.

240     Professor Davis thought long term narcotic use for non-malignant back pain – a long term degenerative problem – was one of the biggest problems facing the medical profession in Australia.  The use of narcotics over months or years was highly problematic in terms of addiction, in terms of decreasing efficacy for control of pain.

241     Professor Davis confirmed that neurologists are very experienced in discerning abnormal illness behaviour and somatization symptoms, so he would completely disagree with the hypothesis that chronic narcotic use in fact lowers pain threshold.  He agreed the plaintiff’s pain was very real.

242     Professor Davis did not deny there were also some physiological factors in the plaintiff’s presentation.  His impression of depression was from the clinical history.  He noted chronic pain is a very strong psychological or psychiatric component. 

243     Professor Davis would accept the plaintiff had degenerative disease which was relatively mild and was very common, even in young adults.  Further, there were no objective neurological signs.  He thought her response was rather disproportionate, which he agreed could in part be due to the chronic narcotic use.  He considered that there is more than a psychological overtone.[38] 

[38]T113

244     Professor Davis thought the plaintiff was someone with relatively mild radiology, no major narrowing, no major disc herniation, there was the tear admittedly, no definite nerve root compression and an extreme Pain Syndrome.  In his opinion, the discordance was related to psychiatric or psychological factors.[39] 

[39]T115

245     In terms of a CPS, there was pain of such a degree and of such an incapacitating degree as in this case, really out of proportion to the objective pathological features.[40] 

[40]T116

246     Professor Davis did not think CPS was a factitious type of syndrome.  Had he been asked his advice, he would have become involved in treatment earlier with short term medication and a physical approach with physiotherapy and reassurance.  He was cautious with pain management as some programs use narcotics way too early.

247     Professor Davis confirmed CPS was dominated by psychiatric features.  He was aware of Dr Jager’s view that before the subject accident, there was no evidence of a Psychiatric Disorder.

248     In re-examination, Professor Davis essentially confirmed the views of Dr Fraser as to the diagnosis of CPS and a gross disproportion between the plaintiff’s symptoms, signs and objective pathology.  He did not think one could completely discount that the car accidents had triggered an initial Pain Syndrome, but there were other factors playing a very substantial role.[41] 

[41]T124

249     Dr Snyman, occupational and environmental physician, examined the plaintiff in December 2013.

250     The plaintiff told him that her most important difficulty was lower back pain and shooting pains into her right leg so severe as to drop her.  Secondly, she mentioned fibromyalgia. 

251     On examination, lumbar flexion could only be done with the tips of the fingers reaching lower thighs.  Lower extremity examination demonstrated 2 centimetres less diameter on the right than the left; 52 centimetres versus 50 respectively, at about 14 centimetres above the joint line, and the right calf showed a slightly smaller diameter as compared to the normal left side, 38 versus 37 centimetres.

252     Dr Snyman seemed to attribute the plaintiff’s ongoing problems to a psychiatric issue, stating that to blame the current situation on physical injuries alone does not appear to be helpful any more.

Vocational evidence

253     Work Solutions provided an occupational rehabilitation services progress report in February 2002. 

254     Jeremy Kean, physiotherapist, reported in March 2002 as to the plaintiff’s return to work plan at that time, involving continued liaison with Mr Surkitt, physiotherapist.  As of April 2002, the plaintiff was not working, the barriers to work being her left elbow injury and neck and back injury.

255     Work Solutions completed a vocational assessment in May 2003 suggesting a number of suitable jobs.  In addition to the focus on the left arm, the plaintiff noted she was then having pain down her right leg less frequently.  She could sit on a good day for quite a while.  She had a 30 minute standing tolerance; 10 to 15 minutes was better and she could walk on a flat surface for 20 minutes to half an hour. 

256     The plaintiff advised she used to be involved in martial arts, dancing and piano playing, none of which she was able to perform with her current injury.

Overview

257     There is no dispute the plaintiff suffered injury to her lumbar spine in the subject accident. It has been diagnosed essentially as a soft tissue injury. In more recent times, a number of examiners have diagnosed a CPS.

258     The plaintiff’s claim was accepted and medical expenses paid.

259     The application in the present case was brought on the basis of a physical impairment pursuant to subparagraph (a) alone, not a CPS pursuant to subparagraph (c) of the type allowed by Ashley JA in per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[42]

[42][2005] VSCA 227

260     There are two main issues for determination when considering this present application. The preliminary inquiry is whether the plaintiff’s spinal condition is organically based and if so, whether the consequences of any such organic impairment are “serious”.

Legal Principles

261     In Richards v Wylie,[43] Winneke P observed that when (as here) the plaintiff is relying upon paragraph (a) of the definition of “serious injury”, the following must occur:

“The inquiry which the judge must make under para (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long –term’:  see Humphries v Poljak at 138 and 140, per Crockett and Southwell JJ.  The ‘division’ to which their Honours referred emphasises the nature of the injury which a judge is called upon to make under para (a) and to caution judges against succumbing to the temptation of equating ‘impairment of body function’ with ‘injury’ … Thus, the judge, when in making the inquiry, must be careful – particularly in cases where mental disturbances or disorders have supervened – not to lose sight of the focus which the definition in para (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of mental disturbance or disorder to govern, or even intrude into, a finding or ‘impairment or loss of a body function’.”

[43]Supra

262     This proposition was followed by the Court of Appeal in West v Pac-Rim Printing Pty Ltd.[44]

[44][2003] VSCA 68

263     In that case, at the very early stage of the development of the plaintiff’s pain there was a relevant relationship between it and the physical injury, a disc protrusion, and it was only later that the pain became wholly or substantially psychogenic in its basis.  In those circumstances, the application failed.

264     Thus, the focus must be on the physical basis for an impairment, and if the impairment found is to a significant degree the product of mental disturbance or disorder (eg CPS), then it cannot be taken into account under paragraph (a) of the definition of “serious injury”.

265     Dealing first with the medical evidence in this regard.

The Plaintiff’s submissions

266     Counsel for the plaintiff submitted the organic basis of the plaintiff’s impairment was noted by a number of medico-legal examiners and supported by clinical findings.

267     Dr Le Leu identified wasting of the right thigh and calf with weakening of the right ankle jerk, as well as radiculopathy.  Dr Snyman also reported wasting in the form of atrophy. Whilst Professor Davis did not find wasting, he did not specifically measure for it.[45]

[45]T101

268     Reliance was also placed on the finding of an annular tear at L5-S1 on MRI – a finding which Dr Stockman thought was consistent with the plaintiff’s low back pain and pain in the right buttock.

269     Professor Davis acknowledged during cross-examination that he could not exclude the possibility that the annular tear of L5-S1 did occur as a result of the subject accident and that such a tear can cause chronic pain.[46]

[46]T1207

270     Mr Love, whilst acknowledging that as yet there was ill-defined pathology within the lumbar spine producing the majority of the plaintiff’s symptoms, noted “it is recognised that such injuries which originated in such a manner will frequently have an absence of a precise pathological diagnosis associated with them”.[47]

[47]PCB 75.  Performed on 1 May 2008 with a finding of posterior annular disc tear at LS-S1

271     Mr Fogarty accepted the plaintiff suffered soft tissue injuries in the subject accident.

272     Professor Davis did not believe that the plaintiff was feigning the pain and that he could not deny that some physiological factors were associated with her pain.[48]

[48]T111; T117

273     Counsel for the plaintiff also submitted the need for, and prescription of, strong narcotic medication suggested the plaintiff’s pain had an organic basis. Reliance was placed on the views of Professor Davis and Mr Fogarty, who opined that a physiological response in terms of pain is going to be much more significant for someone who has had long-term narcotic medications.[49]

[49]T109

The Defendant’s submissions

274     Counsel for the defendant provided a helpful chronology which is appended to these reasons as Appendix “A”.

275     Whilst occupational physicians, Dr Leu and Dr Snyman, found wasting or atrophy, other more experienced practitioners, including neurosurgeons, orthopaedic surgeons and rheumatologists did not make similar findings.[50]

[50]Professor Davis at DCB 209.4; Mr Fogarty at DCB 203

276     As Professor Davis explained in cross-examination, there is a lot of tape measurement error and neurological training is preferable to evaluate bulk by looking at the muscle, by palpation of the muscle and assessing muscle contraction.[51]

[51]T104

277     Further, Professor Davis explained that the cause of any muscle wasting is problematic and that there were many causes apart from radiculopathy.  Disuse could also produce a little bit of muscle wasting or a predominant use of one limb rather than another.[52] 

[52]Professor Davis at T105

278     Whilst there is a possibility the plaintiff suffered the annular tear at L4-5 in the subject accident, no practitioner, especially those who gave viva voce evidence, could relate the findings in the 2008 MRI scan.  The date of the onset of the tear is unclear, as there were no investigations taken before the subject accident or after either the first or second accidents.

279     Professor Davis was cross-examined at the hearing and confirmed that the plaintiff’s syndrome is dominated by psychiatric features.[53] He also agreed with Dr Fraser that there was a marked overreaction on examination and a gross disproportion between the symptoms and signs and the objective pathology.[54]  He also agreed with Dr Fraser that the ongoing symptoms –

[53]T119

[54]T123

“… are largely hugely magnified by non-organic factors”.[55]

[55]T134

“There was marked over reaction (abnormal illness behaviour) on physical examination and in my view she is exaggerating her symptoms and signs and I believe that non-organic factors are contributing to her current presentation.”[56]

[56]Dr Fraser at DCB 207

Dr Snyman:

“I note the comments by Dr Fraser as discussed under his headings of Examination, Investigations and Opinion reflect accurately, exactly my examination and opinion.  Having given this case quite a bit of thought over the past 24 hours, I am unable to add any material or comments which would not be in support of Dr Fraser’s comments.”[57]

[57]Dr Snyman, the plaintiff’s medico-legal expert, at DCB 209.8

and Mr Fogarty:

“I do consider that this plaintiff suffers from a form of CPS and indeed I think this was present in 2002 as indicated in competent medical practitioners examining her about that time.  I think the CPS is being aggravated by some psychological factors and non-organic factors but not the ongoing effects of any physical injury.  I do consider that the plaintiff displays abnormal illness behaviour.”[58]

[58]Mr Fogarty at DCB 204

280     Mr Fogarty was cross-examined at the hearing and confirmed that the plaintiff suffered from a CPS.[59]  He further opined that there were significant psychological aspects in this case.[60]

“There is a CPS and psychological factors certainly play a part…So it seems clear that psychological factors take pride of place.”[61]

[59]T123

[60]T139

[61]Dr Firestone at DCB 198

281     Dr Firestone was cross-examined at the hearing and confirmed that plaintiff was suffering from abnormal illness behaviour which “refers to presenting features of illness for – on a psychological rather than a physical basis”.[62]

[62]T175

282     I accept that the overwhelming thrust of the medical evidence is that the plaintiff’s impairment is not now organic and cannot be properly characterised as one falling within paragraph (a).  The plaintiff’s presentation is dominated by a CPS substantially due to psychological factors.[63]

[63]Professor Davis at DCB 209.4

283     Whilst it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test,[64] the Court’s consideration is limited to the expected emotional consequences of such a condition. A CPS is a psychiatric condition that is more appropriately dealt with pursuant to subparagraph (c).

[64]Richards v Wylie (supra) per Winneke P

284     Accordingly, the application must fail.

285     As the parties made detailed submissions in relation to the aggravation issue, I will make a finding in that regard although not required to do so.

286     Where a case involves aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the subject accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the subject accident. 

287     The aggravation of the pre-existing injury must, itself, amount to a “serious long term impairment or loss of body function”.[65]

[65]Humphries v Poljak (supra); Mobilio v Balliotis (supra); Petkovski v Galletti (supra)

288     The Court must consider evidence relevant to any pre-existing condition of the plaintiff to see whether any additional impairment resulting from the subject accident is “serious”. 

289     In Petkovski v Galletti,[66] the Full Court accepted the proposition that:

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment.  If that additional impairment was not serious so it was said, then leave must be refused…it is clear that the submission of the respondent ought not to have been rejected by the judge.”

[66] [1994] 1 VR 436

Credit

290     The plaintiff’s evidence as to her back condition before and after the subject accident is relevant to this issue and the accident-related consequences of any present organically-based impairment.

291     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[67](2010) 31 VR 1 at paragraph [12]

292     I found the plaintiff to be an intelligent, somewhat intense witness who, whenever given the opportunity, both in court and often when medically examined, stressed the seriousness of her injuries relating to the subject accident, downplaying the effects of her earlier accident injuries.

293     Having considered the extensive material relating to her condition prior to the subject accident, I have difficulty accepting the plaintiff’s evidence of her post-accident condition in the absence of any contemporaneous reports by her or corroboration from other sources of any significant worsening in her condition after the subject accident.

294     The plaintiff’s evidence was shown in a number of respects to be unreliable.  She initially denied that the fibromyalgia, which was one of her major complaints,[68] was diagnosed prior to the subject accident.[69]  She in fact noted fibromyalgia as a pre-existing condition when she completed her Claim Form in relation to the subject accident.[70] Another example was the plaintiff’s refusal to accept that the extent of the chiropractic treatment between Jan 2001 and March 2003 was “intense” when she was shown to have been attending almost weekly at times.[71]

[68]T15

[69]T42, L27-29

[70]PCB 25

[71]T71

295     Further, I am mindful of what was said by the Court of Appeal in Dordev Cowan[72] in relation to the plaintiff’s credit in this type of case.  As Chernov JA said[73], a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[72][2006] VSCA 254

[73](Supra) at paragraph [14]

296     Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.  Those practitioners who have opined the subject accident was the most significant of the plaintiff’s three accidents have largely reached this view on the history given by her, playing down the impact of earlier accidents on her back condition.

297     Further, I accept the submission by counsel for the defendant that the evidence of the plaintiff’s partner, Mr McOrmond, which was intended to support her, in fact seriously undermined the plaintiff’s credibility when it came to her complaints of pain and incapacity prior to the subject accident, downplaying her pre-accident condition and highlighting the involvement of factors relating to the subject accident.

298     As counsel for the defendant pointed out, in cross-examination, Mr McOrmond disagreed with the plaintiff’s contemporaneous histories that:

·she had been stressed in a car[74]

·her pain was aggravated by walking for 30  minutes in 2002[75]

·she had difficulties standing on one spot[76]

·she had significant difficulty walking up ramps[77]

·she had a moderate limp in right leg[78]

·she had limited capacity to enjoy things in 2002[79]

·In October 2002 she had difficulties with all activities.[80]

[74]T143

[75]T145

[76]T146

[77]T146

[78]T148

[79]T149

[80]T150

299     Importantly, Mr McOrmond was under the impression that the plaintiff got her disabled parking permit well and truly after the subject accident, but, he was aware that she needed this permit “because she was having difficulty in walking.  She was having difficulty standing.  She couldn’t carry anything of a great weight b/c she was having trouble”.[81] Indeed, the evidence indicated that she had a disabled parking permit in March 2003.[82] 

[81]T152

[82]DCB 148

300     In these circumstances, Mr McOrmond’s memory of the plaintiff’s disabilities prior to the subject accident is clearly unreliable.  He displayed unwillingness in both his affidavit and viva voce evidence to concede the plaintiff had significant spinal problems before the subject accident, totally focusing on any consequences relating to the subject accident.

301     Whilst there was no surveillance film or comments by medical examiners that the plaintiff was deliberating embellishing or exaggerating her symptoms, the general thrust of that medical evidence was that the plaintiff’s symptoms were out of proportion to the relatively minor physical findings. As Professor Davis described, there was a complete discord in this regard.

302     Detailed submissions were made by both counsel as to the plaintiff’s condition before and after the subject accident.

The Plaintiff’s submissions

303     Counsel for the plaintiff submitted that medico-legal reports of the plaintiff’s condition before the subject accident suggested that her previous back injuries had largely subsided and that she was able to return to work. It was submitted the plaintiff was employed and working very long hours until May 2004 and her pain prior to the subject accident was less severe than thereafter.

304     In support of this submission reliance was placed on –

·        Dr Kenna’s examination of the plaintiff on behalf of the defendant in April 2003 where he concluded her condition had plateaued and that she was now quite active and no longer required provision of ongoing physical therapy.

·        The plaintiff’s self report in November 2003 to Dr Michael that her pain was 4 out of 10 on a good day and 7 out of 10 on a bad day before the subject accident, whereas her current pain level is 8 out of 10 and on a bad day of 10 out of 10.

·        Dr Jager, psychiatrist’s, view in May 2003 that the plaintiff had a capacity to return to pre-injury or alternative duties.

·        Mr McOrmond confirming in re-examination that whilst the plaintiff had some difficulties with activities of daily living, housework and socialisation prior to the subject accident, this became much worse twelve to eighteen months thereafter and this situation continues to this date.[83]

[83]T158-159

The Defendant’s submissions

305     Counsel for the defendant relied on histories given by the plaintiff on numerous attendances before the subject accident where she complained of lower back and right leg pain in support of the submission that she clearly suffered from pre-existing lumbar spine pain radiating into her right buttock and leg and sacroiliac joint pain.

306     The plaintiff had been diagnosed with illness behaviour, psychiatric problems and myofascial pain prior to the subject transport accident – Dr Barton’s diagnosis of abnormal illness behaviour in August 2002; Dr Kostos’ description of an exaggerated pain response in October 2002; Dr Patrick’s diagnosis of a myofascial pain problem in March 2003; Dr Jager’s diagnosis of an Adjustment Disorder in May 2003 and mention of fibromyalgia in Dovecare records in April and June 2004.

307     In summary, counsel for the defendant submitted the plaintiff suffered from the following consequences prior to the subject accident:

·Not in employment[84]

[84]PCB 26

·Ongoing lower back pain radiating into buttock and down leg

·Mobility issues[85]

[85]DCB 122, 125

·Psychological problems[86]

[86]DCB 132, 149 and 158

·Weight gain[87]

·Limited in household duties and chores[88]

·Not able to participate in martial arts, dancing and play piano[89]

·Required a disabled parking permit[90]

·Financial problems[91]

·On medication for back pain[92]

·Taking antidepressants[93]

·Diagnosed with fibromyalgia[94]

·Limping[95]

·Extensive chiropractic treatment for back pain between January 2001 and March 2003.[96]

[87]DCB 134

[88]DCB 138, 143

[89]DCB 220

[90]DCB 148

[91]DCB 6, 158

[92]DCB 4, 105, 124, 157

[93]DCB 7

[94]DCB 7, PCB 25

[95]DCB 46, 114, 125, 146

[96]DCB 114 to 119

The Plaintiff – Subject accident consequences

308     Counsel for the plaintiff submitted there has been a worsening in the plaintiff’s condition noted by treaters and medico-legal examiners after the subject accident. That worsening was reflected in the gradual increase in analgesics and anti-inflammatory prescriptions over a nine-year period. The plaintiff’s pain has increased to a level which, although attenuated by significant regular intakes of strong analgesics, has had a significant impact on her quality of life and ability to function.[97]

[97]PCB 42

309     Reliance was placed on the plaintiff’s general practitioner’s view that she needed to take daily pain relief, including narcotic medication, to help her cope day to day.[98]

[98]PCB 42

310     It was submitted on the plaintiff’s behalf that despite the defendant’s contention that the plaintiff did not complain to her doctor of accident related problems from late 2004 to early 2005, and the lack of medication prescribed, Panadeine Forte was prescribed on the initial post accident visit on 16 August 2004. That medication was ceased in November 2004 because of the plaintiff’s allergic reaction. That month however, Dr Pinto prescribed Codalgin Forte instead on a monthly basis until May 2005. In addition, Voltaren was prescribed in July 2005.

311     The plaintiff’s low back pain had worsened by December 2005 with TENS treatment not assisting her deeper pain.  Tramal was added to the medication regime, as well as Voltaren.  By February 2006, Tramal, Slow Release, was added and prescribed, in conjunction with Tramal.  Codalgin Forte ceased on 4 February 2006 and in June 2006, Celebrex, 200, was also added. In November 2006, Epilim was added to the plaintiff’s regime to assist with sleep.

312     In May 2007, Dr Kabourakis trialed Prexige, which was ceased later that year as it was ineffective. In February 2008, Endone was commenced, and Norspan patches were added in June 2008 as the plaintiff’s pain was noted to be worsening.[99]

[99]DCB 86-93 outlines the extensive medication regime for the plaintiff between 26 July 2003 to 6 July 2012

313     Counsel for the plaintiff relied upon the comments of Dodds Streeton JA that the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence”.[100]

[100]Kelso v Tatiara Meats (2007) 17 VR 592 at paragraph 199

314     In addition to an increasing need for medication for pain relief, it was submitted, as a result of the subject accident, the plaintiff’s employment prospects have become severely curtailed.

315     Reliance was placed on the views of a number of medical examiners in this regard.

316     Dr Snyman considered the plaintiff is not employable at this time but could do some limited work from home.  

317     Dr Leu thought she was not fit for work.[101]

[101]PCB 85-87

318     Dr Kabourakis indicated she has no capacity for work.

319     Dr Piperoglou considered that the plaintiff has a poor rehabilitation prospect due to limited work history, job skills and lack of tertiary education.[102]

[102]PCB 55

320     Professor Love thought she would not be able to work in the foreseeable future.

321     It was submitted the plaintiff was somewhat of a stoic and that she was motivated to return to work as evidenced by her voluntary work at the Holocaust Centre and her recently commencing phone selling work from home. However, even on that limited basis the plaintiff had difficulty attending work and carrying out her duties as Mr Civins from the Holocaust Centre confirmed.

322     Counsel for the plaintiff referred to recent Court of Appeal authorities setting out the relevant considerations in serious injury applications.

323     The Court must take into consideration how the plaintiff’s pain interferes with the ordinary activities of her life such as its effect on her sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, as well as social activities, sexual activities and enjoyment of life.[103]

[103]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [16]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100

324     It was submitted as a result of the subject accident, the plaintiff now experiences severe limitations in her activities of daily living such as driving, housework, shopping, sitting as well as walking up ramps and stairs, squatting/kneeling. She requires a stick for walking and has limited walking capacity of about 15 minutes.[104] At times she requires a wheelchair.

[104]PCB 83-84

325     The plaintiff has trouble sleeping. She is unable to have a fulfilling sexual relationship with her partner and she has suffered significant weight gain. 

326     The plaintiff, prior to the accidents, engaged in a number of activities including martial art, ice skating and ballroom dancing.[105]

[105]PCB 48

The Defendant – consequences post 2004

327     It was submitted that the plaintiff could not establish a worsening in her condition after the subject accident that could be described as “serious” reported by her to her treating general practitioner.

328     After the visit on 16 August 2004, there were a further eleven visits until 2 July 2005, when there was no mention by the plaintiff of any problems relating to the subject accident or any change in her pre accident symptoms. 

329     On 11 October 2004, the plaintiff had not been on Panadeine Forte.  On 9 November 2004, Panadeine Forte was ceased.  On 26 April 2005, there was a note of the plaintiff being tired with a history of fibromyalgia and sinusitis but no mention of any motor vehicle accident.  There were further visits in May and June 2005 without any mention of pain related to the subject accident.  The first mention of spinal pain with headaches was on 2 July 2005, nearly twelve months after the subject accident. 

330     There appears to be no contemporaneous objective evidence supporting the plaintiff’s contention that everything got suddenly worse after the August 2004 accident. 

331     As for the plaintiff’s contention that she was placed on stronger analgesia immediately after the subject accident, the evidence is that she was actually taken off all prescription analgesia in the period immediately following the accident.

332     There is no other contemporaneous material to support the plaintiff’s contention that the August 2004 accident seriously aggravated any organic condition that pre-existed that accident.

333     Further, the plaintiff’s complaints prior to the subject accident did not differ significantly from those thereafter with ongoing lower back pain radiating into buttock and down the leg, mobility issues; psychological problems; weight gain; limited in household duties and chores; not being able to participate in martial arts; dancing and play piano; requiring a disabled parking permit; financial problems; on medication for back pain (ongoing Panadeine Forte as at July 2004); taking antidepressants; diagnosed with fibromyalgia and having problems limping.

334     Prior to the subject accident, the plaintiff agreed at times she had described her back as “stuffed” and being in “absolute agony”.

335     Further, the plaintiff was not in employment prior to the subject accident, last having worked with D24 in about April 2004 when she ceased work to try to cope with issues relating to her miscarriages.  The hours she was working at that time are unclear from her evidence.  Further, prior to finally ceasing work, the plaintiff’s ability to work full time normal duties was significantly restricted by her tennis elbow injury.

336     Whilst there may have been a change and apparent increase in the painkilling medication prescribed from 2005, I accept that for nearly a year after the subject accident, the plaintiff did not complain to her general practitioner, nor was she referred to any specialists as a result of any reported worsening of her back condition following the subject accident.

337     There has been no adequate explanation, on an organic basis, as to why the plaintiff requires her present level of medication.  There has been no specialist referral since the subject accident.

338     Medical practitioners who attribute the majority of the plaintiff’s present complaints to the subject accident have been given a history in these terms by the plaintiff without any knowledge of the nature of the plaintiff’s back condition and her related problems prior to the subject accident.  Clearly, the plaintiff did not cease work with D24 for any reason associated with the subject accident, although some examiners had this impression.

339     In all the circumstances, I am not satisfied that any aggravation of the plaintiff’s back condition in the subject accident meets the test of seriousness, having found the plaintiff prior to that accident was not the happy, healthy and active person she described in her affidavit.

340     Accordingly, the application is also dismissed on this basis.

- - -

Appendix “A”

Defendant’s summary of the Plaintiff’s medical treatment pre subject accident

DATE	EVENT	REF
12.7.99	Commenced employment as telephonist with Communications Victoria (D24)	PCB 7
13.3.00	First MVA ·     Broken teeth, whiplash, back strain ·     Ambos to Dandenong Valley Private ·     Treaters: Dr Johnston GP, Dr Farlecas chiro, and Mr Surkitt physio ·     Off work few weeks	PCB 8
Nov/Dec 00	WorkCover claim for injury to L forearm/elbow ·     RSI	DCB 122
16.8.01	Second MVA Flare up of neck and back injuries ·     Ambos to Box Hill Hospital ·     Treaters: Dr Johnston GP, Dr Farlecas chiro, and Mr Surkitt physio ·     Off work two weeks	PCB 8
7.9.01	Complete Chiropractic Report ·     Presented on 5/9/01 complaining of low back and neck pain ·     Current condition is a exacerbation of her previous injuries ·     Working diagnosis of acute cervical and lumbopelvic joint dysfunction with an associated Myofascial pain syndrome.	DCB 109
28.12.01	Examined by Dr Jager, Psychiatrist re Workers’ Comp ·     Works as police call taker (Intergraph) ·     Last worked 16/12/01 ·     Interests include reading, playing music and doing arty things ·     Walking up and down ramps to get on trains limits her use of public transport ·     Feels “stressed out” when stationary in her car ·     Seen counsellors at various times for advice and guidance	DCB 120
16.1.02	Report Spinal Management Clinic ·     MVA 13/3/00 suffered cervical whiplash, immediate LBP referring into her R buttock, chipping tooth and also developing migraines since date of injury ·     Required 2-3 weeks off work ·     Not worked since Dec 2001 ·     Symptoms: constant deep ache R cervical, intermittent migraines, constant deep strong ache in R lumbar radiating intermittently into R buttock and proximal posterior thigh, intermittent L lumbar pain into L buttock, intermittent cramp of R calf, fatigue and intermittent ache of L leg due to limp ·     Lumbar pain aggravated by walking 30 mins, standing static position 10 mins, walking up and down steps/ramps/uneven ground, bending and rising from seated position. ·     Cervical aggravated by rotation particularly to R, hanging washing, reaching, driving over uneven surfaces ·     Significant difficulty walking up ramps ·     Each morning reports stiffness of cervical and lumbar spine for 1-2 hours and her symptoms tend to deteriorate as day progresses ·     Waking once night due to lumbar pain ·     On average 6 Panadeine/Pan. Forte a day ·     Currently performing minimal exercise except intermittent walking ·     O/E: moderate limp R leg, Reduced Cx and Lx ROM, neuro testing normal, SLR 20° on R & 55° on L, testing sacro-iliac mildly +ve signs ·     Scores from testing indicate a high level of perceived pain and disability	DCB 124
22.1.02	Physio Treatment Plan ·     Constant R cervical and lumbar pain ·     Sit 30 mins, stand 10 mins, walk 30 mins max ·     Moderate limp and reduced ROM lumbar spine	PCB 46
10.3.02	Chiro notes ·     Jarring car accident on weekend 3/7 ago hurt LB	DCB 116
17.4.02	Letter Luke Surkitt, Physio, to TAC ·     Primarily treating for LBP which is her primary functional problem	DCB 131
24.6.02	Re-examined by Dr Jager ·     Last worked 16/12/01 ·     Started seeing a counsellor in February once a week ·     Able to drive only 20 mins ·     Gets sore neck if she hangs out washing and gets headache and dizzy ·     Broken sleep from pain which occurs often ·     Nightmares at least 3 times week about someone attacking her ·     Sees chiro and counsellor weekly ·     Takes Panadeine Forte intermittently ·     Feels rotten about her weight gain – gone from size 10 to upper limit size 12 ·     Has limited capacity to enjoy things but has been doing some cooking	DCB 132
28.8.02	Examined by Dr Barton ·     Not working – ceased work in March 2002 ·     Back not fully recovered before 2nd MVA and still not resolved ·     Describes ongoing back and neck problems ·     Does some simple meal preparation, washes a few dishes though not every day and has difficulty with activities like vacuuming and mopping ·     Significant features of abnormal illness behavior with P’s condition being functionally rather than physically based.	DCB 136
21.9.02	Chiropractic notes ·     Slight bingle yesterday	DCB 117
14.10.02	Examined by Dr Kostos ·     Not worked since March or April this year ·     Current treatment visits to chiro once week and Panadeine Forte for back, neck, arm migraines up to 2-3 per day ·     At home problems with all activities as result of combined neck, back and arm problems ·     Exaggerated pain response	DCB 142
21.1.03	Chiro notes ·     LB – “stuffed”, started limping again ·     P when weight bearing RHS ·     Standing long periods – excruciating ·     Short periods problematic ·     R glut & occasional sciatica ·     1-2 p.forte ·     Approx. 4 Panadeine ·     P attending on an approximately a weekly basis for ongoing treatment to back, neck, R sacroiliac – see pages D115 to 118 ·     Note use of language in describing pain e.g. ’absolute agony’ using codeine– D117 ·     Difficulty using public transport – D 116	DCB 114 -DCB 119
10.2.03	GP notes ·     Flare up of R LBP, right leg ·     O/E: tn+++ right SI jt area, rom – l/s sp-restricted+++ ·     Prescribed Panadeine Forte for severe pain	DCB 99
11.2.03	Chiropractor note ·     Acute exacerbation of R lower back pain with posterior thigh and calf radiations	DCB 145
12.3.03	Lots of stress with 2 mca/ rsi-wc and miscarriage >> men’s trouble/pill taking	DCB 102
12.3.03	Examined by Dr Patrick, Rheumatologist ·     Working P/T in office admin with Kelso Insurance – 20 hrs week ·     Been with this company since Nov 2002 ·     Required several weeks off b/c miscarriage ·     Off work prior to this b/ween Feb and Nov 2002 ·     Uses disabled permit for parking because of inability to walk, stand for any length of time or carry goods ­ ·     Some of these limitations relate more to her neck and lumbar spine problems related to her TAC claims. ·     Nature of worker’s current condition is of a Myofascial pain problem	DCB 146
22.3.03	GP notes ·     Panadeine Forte for severe pain	DCB 104
28.4.03	Examined by Dr Kenna ·     Currently not working ·     Her complaint is one of right sided neck pain, cervicogenic headaches and LBP predominantly R sided. ·     Main complaint relates to lumbar spine ·     First MVA by far the worst and second merely aggravated initial ·     Slight limp	DCB 150
12.5.03	Vocational Assessment by Work Solutions ·     Not worked since March/Feb 2003 ·     Nov 2000 gradual onset of L elbow pain – RSI ·     WISE placement in Nov 2002 at Kelso 20 hours per week – ceased soon after due to inability to work as a result of complications from miscarriage in March 2003 ·     Current symptoms re LB: ·     Pain/swelling in lower R side ·     Neck pain radiating into R shoulder ·     Migraines ·     Pain down R leg, less frequently ·     Used to be involved in martial arts, dancing and piano playing none of which she is able to perform with current injury	DCB 220
14.5.03	Re-examined by Dr Jager ·     Last attempt to return to work with the employer was Feb/March 2002 ·     Still has LBP ·     Sometimes migraines more likely when stressed ·     Feels tired all the time ·     Nov started work for insurance broker 20 hrs week ·     Can’t cope with anything any more, effort just to get out of bed ·     Medication includes Voltaren, Panadeine and Panadeine Forte ·     Back treated with tablets, fortnightly chiro and myotherapist ·     Had counselling last year about harassment ·     No counselling since moved but like to see someone b/c feels tired and burnt out ·     Adjustment disorder ·     If there is now no physical basis for pain then consideration would need to be given to defining her pain as Chronic Pain Disorder with psychological factors.	DCB 156
16.6.03	Dandenong Surgery Notes ·     Flare up of LBP on R side for 1 ½ week, not settled with Voltaren… ·     Also noted pain radiating down back of right thigh	DCB 98
16.6.03	GP notes ·     Request Panadol for back pain related to TAC ·     Panadeine Forte for severe pain ·     Suggest see Nip may need CT scan	DCB 105
4.8.03	Woke up with migraine	DCB 98
13.8.03	Dovecare medical records ·     Has been having frequent migraines	DCB 3
24.9.03	Dovecare medical records ·     Panadeine Forte - takes it for back pain	DCB 4
10.11.03	Dovecare medical records ·     Teary last 2 weeks…stressed with work…on waiting list to see psychologist…has seen work psychologist few times… ·     Works 12 hr shifts and 2 hrs car trip back & forth – is applying for transfer ·     Start Zoloft	DCB 4
10.11.03	Letter Dr Michael, Osteopath, to TAC ·     Still suffers LBP ·     Visual analogue scale 4/10 good day and 7/10 on bad day ·     LBP has impacted on her activities of daily living	DCB 160
18.11.03	Dovecare medical records ·     Currently doing casual work ·     Script Panadeine Forte	DCB 5
15.4.04	Dovecare medical records ·     Has been under lot stress…financial stress, feels teary ·     Script for Cipramil (antidepressant)	DCB 6
22.4.04	Dovecare medical records ·     Tender trigger points in back consistent with fibromyalgia ·     Given samples of Cipramil	DCB 7
May 04	Quits job with D24 communications	PCB 9
9.6.04	Dovecare medical records ·     Stopped Cipramil ·     Headaches are cervicogenic ·     FROM cervical spine ·     Tender trigger points in back consistent with fibromyalgia ·     Prescribed Zoloft ·     CT head requested – frequent headaches	DCB 7
1.7.04	Dovecare medical records ·     ? fibromyalgia since after car accidents… ·     Letter to Dr Rose pain m/ment	DCB 8
16.7.04	Dovecare medical records ·     L TMJ dysfunction ++	DCB 8
9.8.04	Third MVA