Moskala v Transport Accident Commission
[2016] VCC 1755
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02635
| DOROTA ALA MOSKALA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 15 August 2016 | |
DATE OF JUDGMENT: | 4 November 2016 | |
CASE MAY BE CITED AS: | Moskala v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1755 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to low back and right hip – causation – pain and suffering and loss of earning capacity consequences of injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr P Bourke | Adviceline Injury Lawyers |
| For the Defendant | Mr P Elliott QC with Mr J Valiotis | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Dorota Moskala alleges that she suffered injury to her low back and right hip in a motor vehicle accident on 10 August 2011 (“the accident”). She seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.
2 Ms Moskala’s right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Ms Moskala must satisfy the Court that she has suffered a “serious injury”.[1]
[1] Section 93(6) of the Act
3 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as “… serious long term impairment or loss of a body function”.
4 In order that the Court may consider an injury to be “serious”:
(a) the consequences of the injury must be serious to the particular applicant;
(b) those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c) the question to be asked is – “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
5 I am not permitted to aggregate the symptoms or consequences of two or more injuries in order to determine whether the impairments or losses can be fairly described as “at least very considerable”.
6 Ms Moskala alleges that the consequences of each of those injuries satisfy that threshold test. The defendant denies that this is so. In relation to the alleged low back injury, the defendant denies that the consequences of it could reasonably be described as “at least very considerable”. In relation to the alleged right hip injury, the defendant does not dispute that Ms Moskala has an injury to her right hip. It does, however, dispute that the motor vehicle accident was a cause of it.
Background
7 Ms Moskala is aged forty-two. She was born in Poland and migrated to Australia in about 2002, aged about twenty-eight.
8 In Poland, she had completed high school and then completed a two-year Diploma in Beauty and later, obtained a qualification in Graphic Design.
9 On arrival in Australia, she completed a Diploma of Business and Marketing and later, worked as a laser therapist. Such work usually involved standing, bending and sitting for long periods of time while performing laser therapy to clients. She enjoyed that work.
10 Ms Moskala worked continuously from soon after her arrival in Australia until mid-2010, when she took twelve months’ maternity leave. Her daughter was born in early August 2010. At the time of the subject transport accident in August 2011, she had not returned to work, but was preparing to do so in the field of laser therapy.
11 Prior to the accident, she stated she was fit and healthy. I accept that she had had no symptoms relating to her low back or hips. She was able to care for her young daughter without problems. She was a keen attender at a gymnasium where she exercised. She had hobbies including cooking, baking, knitting, photography and painting.
The accident
12 The precise circumstances of the accident are not relevant to this application, save to say that I accept the evidence of Ms Moskala that, on 10 August 2011, a vehicle that she was driving was struck in the region of the driver’s side front door by another vehicle. She was wearing a seatbelt at that time. Following the accident, she was unable to open the driver’s door and had to exit the vehicle through the front passenger door.
13 Although the inability to open her driver’s door indicates some force was involved with the impact, her evidence was that there was no impact to her right hip or any part of the right side of her body and she did not notice any injuries at the time. This is consistent with what she told a number of doctors who have examined her.[3] Following the accident, she was able to drive her vehicle to her home.
[3]Dr Elder at Defendant’s Court Book (“DCB”) 2; Mr Robin at Plaintiff’s Court Book (“PCB”) 52; Mr Fraser at DCB 24-25
Post-accident
14 Ms Moskala sought no treatment or medical advice until 23 August 2011, some thirteen days after the accident. On that date, she attended at the Elsternwick Medical Centre, where she had attended as a patient for many years. Generally, she had seen Dr Jonathan Pinczower, a general practitioner, but if he was not available, she saw other practitioners at the clinic. On this occasion, she saw Dr Jaworowski. He did not give evidence at the hearing, but his clinical notes were tendered.[4] He examined her and referred her to a physiotherapist, Mr Andrew Metter, who she saw on a weekly basis until about January 2012.
[4] PCB 17a
15 Ms Moskala was prescribed Naprosyn, Prednisolone and later, Celebrex, Panadeine Forte, Nurofen and Endep. She developed pain in her left hip. In December 2011 (about three months after the accident), she received an injection of Kenacort to her left hip which improved symptoms for a few days.
16 By May 2012, Ms Moskala had developed painful symptoms in her right ankle which was diagnosed as tendinopathy. She was treated by a podiatrist by insertion of orthotics in her right shoe.
17 Ms Moskala became depressed and was prescribed Zoloft, an antidepressant.
18 In about March 2013, Ms Moskala was referred to Dr Steven de Graaff at Epworth Rehabilitation and took part in a pain management program.
19 In July 2014, Ms Moskala was referred to, and saw, a number of orthopaedic surgeons — Mr Max Esser, Dr Ikram Nizam, Mr John O’Donnell and Mr Parminder Singh. She had an MRI scan of her right hip and Mr Esser injected it with local anaesthetic and steroid.
20 Ms Moskala was advised to undergo a right hip arthroscopy but, to date, it has not been performed.
21 Ms Moskala continues to have treatment from a physiotherapist and osteopath.
22 Ms Moskala states that she has been unable to return to her pre-injury employment as a laser beauty therapist.
Histories provided by Ms Moskala
23 The defendant submits, and I accept, that Ms Moskala has provided inconsistent histories concerning her symptoms and when they developed. The defendant submits that these inconsistencies are of relevance, particularly to the issue as to the causation and significance of her right hip injury. For that reason, I set out a summary of those complaints made by her.
24 In her affidavit sworn in May 2013, Ms Moskala deposes that two or three days after the accident, she noticed the onset of pain in her right hip, right leg and low back.[5] In that affidavit, she further deposed that she had continued to experience ongoing pain, discomfort and numbness in her right hip, right leg and left hip.
[5] PCB 8
25 Dr Jaworowski’s notes of his attendance on Ms Moskala on 23 August 2011 read as follows:
“History:
On 10\8\2011 she had a MCA she was driving & another car skidded & slammed into her drivers door & she drove away She developed pains on lateral side of R hip that evening Still has the pains.
She has been applying heat
It was better after 2 dd but feels tingling in front of R thigh to R knee & R footExamination:
Pleasant pretty lady & young daughter
no tenderness of R hip moves well
tender RHS sacroiliac joint & back & pains on flexing backReason for contact:
Right Radiculopathy – Lumbar.
Motor car accident InjuryManagement:
physiotherapy.
Counselled+++ice no lifting.
has 1 year old daughter
counselled+++ re T.A.C.Actions:
Letter created – re. Letterhead Referral to MR ANDREW METTER.”(sic).
26 My interpretation of the relevant parts of those notes is that the history given by Ms Moskala to the doctor was that:
· She had developed pains on the lateral side of her right hip on the evening of the accident.
· She still had pain in the right hip, thirteen days later.
· She had pain over the right sacroiliac joint.
· The pain was better after two days, but she felt tingling in front of her right thigh to the right knee and foot.
· There was no tenderness over the right hip. There was a good range of movement of the hip.
27 Mr Metter, physiotherapist, saw her on the same date. There was no report tendered from him, although a copy of his clinical notes were tendered.[6] They are written in an abbreviated form but appear to refer to complaints and treatment of Ms Moskala’s “gluts” (which I assume is a reference to one or other of the gluteus muscles located in the buttocks), the “SI” region (which I assume is a reference to the sacroiliac region), with the right side worse than the left, and difficulty with sleep. There was no reference to any hip problem as such. His notes cover treatment of her on twenty-four occasions between 23 August 2011 and 3 January 2012.
[6] DCB 30-32
28 On 8 September 2011, Ms Moskala completed a TAC Claim Form. Paragraph 17 of that form was a request for her to list all her injuries from the transport accident. She wrote the following:
“(Hip pain) (Right), (Knee pain) (Right), (Foot pain) (Right) Spine, lower back, left hip pain, upper back pain.”[7]
[7] PCB 167
29 Dr Sexton, an osteopath, saw Ms Moskala on 12 January 2012 (six months after the accident). He reported that she was:
“… complaining of pain and stiffness in her left Lower lumbar region, which she stated was caused by a motor vehicle accident three months prior in which she was the driver and hit on the right side of her vehicle. … she suffered from pain and stiffness in the left lower lumbar spine with referred pain into the buttock and back of the leg.”[8]
(emphasis added).
[8] PCB 103
30 On 26 June 2014, she reported to Dr Sexton that she had general pain and stiffness in the lumbar region.
31 Ms Brodie Chislett, a podiatrist, examined Ms Moskala on 31 August 2012. She took a history of the accident three months earlier. (This would be a reference to an accident in about May 2012, which I assume is a mistake, as there was no reference to any other accident than the one which occurred on 10 August 2011). Since, she had been experiencing pain in her lower back and right medial ankle. She was given advice regarding appropriate footwear and orthotics.
32 Mr Brownbill, a neurosurgeon, examined Ms Moskala at the request of her solicitors in September 2012 and again in July 2015. On 19 September 2012, he recorded the history that about two to three days after the accident:
“… whilst sitting on the floor with her baby, she noted a sudden pain outside the right hip and the outer upper buttock and needed help to stand up.
The pains continued and increased and over one week she developed a limp.”[9]
(emphasis added).
[9] PCB 116
33 This is consistent with the history given to Dr Elder in February 2013.[10]
[10] DCB 2
34 When he saw her on 7 July 2015, Mr Brownbill recorded a history that:
“In June 2014 (Queen’s Birthday weekend) ‘I was doing nothing and sat on a sofa” (she demonstrated sitting on her right hip with her legs curled up into the couch to her left). As she attempted to stand she developed a sudden severe pain in ‘the right hip’. (She pointed to the iliac crest region just behind the mid section).
The pain continued for a month and then went away after she received an injection of Lignocaine with steroids into the right hip. ‘Pain went away instantly and started to come back again after two weeks’.”[11]
[11] PCB 120
35 Mr John McMahon, orthopaedic surgeon, examined Ms Moskala on 4 March 2013 on referral from Dr Pinczower. He took a history from her that her vehicle had been hit by another vehicle on the driver’s door and that:
“A few days following this event, she had quite severe right sided pain over her buttock and hip region. This progressively worsened and she eventually had quite severe right buttock pain which radiated to the posterior calf. Approximately three months later, the right sided pain improved however she developed pain over the left superior buttock and sacroiliac joint region. … .”[12]
(emphasis added).
[12] DCB 28
36 Dr Steven de Graaff, a pain management specialist at Epworth Rehabilitation, examined Ms Moskala on 22 March 2013. The history obtained by him from her was:
“… She was shaken up at the time [immediately after the accident] and generally achy, but no specific pain. However, 2-3 days later, she started developing severe low-back pain, more so on the right with radiation down to her lower limb. She was unable to return to work.
She initially complained of right-sided lower back pain and right lower limb numbness and paraesthesia. She had some physiotherapy and is currently having osteopathy, fortnightly. Her right lower limb paraesthesia and numbness have essentially resolved, but she continues to have left low back pain and has recently developed some left buttock and hip pain.”[13]
(emphasis added).
[13] PCB 22
37 Ms Barbara Lach, psychologist, saw Ms Moskala for fifteen clinical psychology sessions between February and August 2014. The history taken by her was that at the time of the accident, she did not notice any impact on her body; that a few weeks later, she developed significant complications in her right calf and foot, including pain and numbness; and that since the accident, she had been experiencing anxiety, irritability and low mood with marital problems.[14]
[14] PCB 95
38 Mr Garry Grossbard, orthopaedic surgeon, examined Ms Moskala at the request of her solicitors in May 2013, February 2014, and March 2015. He initially reported the history that two days after the accident:
“… Mrs Moskala was sitting on the floor when she noticed pain in the right iliac area. She had difficulty standing up. Over the next few days the pain increased to the point where she was not able to sleep or move around in bed. She sought the advice of her general practitioner who arranged physiotherapy. … .”[15]
[15] PCB 105
39 In her affidavit sworn on 13 May 2013 (nearly two years after the accident), Ms Moskala deposed that about two to three days after the accident:
“… I noticed the onset of pain in my right hip, right leg and lower back.” [16]
[16] PCB 7
40 She did depose as to the circumstances in which that pain developed, but that account is consistent with the incident on the floor with her daughter that she described in more detail to Mr Brownbill, Mr Grossbard, and Dr Elder.
41 Mr Max Esser, orthopaedic surgeon, examined Ms Moskala in July 2014 (shortly after the June long weekend) on referral from Dr Pinczower. He took a history from her that two days after the accident, she noted pain and discomfort in the right buttock and she could not bear weight on the right leg.[17]
[17] PCB 30
42 Mr Jit Balakumar, orthopaedic surgeon, examined Ms Moskala in early August 2014 on referral from Mr Esser. In his letter of referral dated 10 July 2014, Mr Esser stated that Ms Moskala had had pain and discomfort in her left hip with bilateral acetabular dysplasia which was worse radiologically on the left side and worse symptomatically on the right side, with “some right sided lumbar spine pathology”.[18]
[18] PCB 38
43 Mr Balakumar’s report reads:
“… At that time [that is, at the time of the accident] she was relatively asymptomatic, but the following day she localises to having right laterally based pain. She then started developing left sided pain which was quite severe. Following that period she then had a period of admission for pain management under Epworth Rehab and having had an intensive period of rehabilitation, physio and having had a cortisone injection performed by her local medical officer. She had improvement to the point where it was manageable.
Then again more recently her right hip became more symptomatic. Specifically through the thoracolumbar region, extending into the lateral aspect of her hip and really the nature of her pain was unknown until she had an intra-articular cortisone injection, which gave her complete relief of her lumbar pain.”[19]
(emphasis added).
[19] PCB 27
44 Dr Ikram Nizam, orthopaedic surgeon, examined Ms Moskala in August 2014 on referral from Dr Pinczower. The history taken by him was:
“… presenting with progressively worsening pain in her right hip and lateral aspect of her hip and lower back. She had a motorcycle (sic) accident almost 3 years ago which precipitated this although before this she was fine. The pain in her right hip and lateral aspect of her hip is getting worse although she has no radiculopathy symptoms associated with this. I believe she is being managed by the Epworth pain management team as well although she continues to have pain in her hip. … .”[20]
This 40 year old lady was in a car accident in August 2011 with injuries to her lower back, left sacroiliac region and right foot. She had pain down the right leg.”[21]
[20] PCB 62
[21]PCB 65
45 Mr Daniel Robin, orthopaedic surgeon, examined Ms Moskala in September 2014 on referral from Dr Pinczower. Mr Robin stated that two days after the accident:
“… she noticed some pain in her right lower back and had difficulty in standing straight. After a protracted course of investigations and treatment, she eventually underwent a pain management program at Epworth in December 2013, where things seemed to be going well for her. However in March this year [2014], she went on holidays and stopped doing her routine exercises, and then in June during the Queen’s Birthday long weekend she sat awkwardly on the sofa, with her right hip flexed, and experienced right flank pain. The following day she had difficulty in standing, dressing and sitting down on the toilet. She went to the Emergency Department at the Royal Melbourne Hospital where she was prescribed with Panadeine Forte for what sounded like lumbago. The next day she saw an osteopath who thought she had a disc prolapse and she went on to have an MRI scan which confirmed a tear in her lumbar spinal musculature apparently.”[22]
(emphasis added).
[22]PCB 52
46 In his consultation notes, Mr Robin records as follows:
“History: R) hip problem last 3 years.
MVA 3 years ago – minor impact. … other car skidded and hit driver[’]s door – no direct impact into door at the time by body. No pain at the time of accident. 2/7 later noticed pain – couldn’t stand up.
Now has pain in R) groin and thigh and also pinching in lower back on RIGHT.
Present after accident for 2/52 – saw GP – had physio 1x/week for 5/12. Not helpful.
Pain moved from R) hip to LEFT hip for next 2 years. – L) iliac crest pain – had MRI L) hip – NAD [no abnormality detected].
Dr Pinczower injected CSI into L) hip region at one stage – helped for a few days only. (was very active looking after 1 year old at the time).”[23]
(sic).
(emphasis added).
[23]PCB 61
47 Mr Andrew Wallis, another physiotherapist, examined Ms Moskala in September 2014. He reported:
“… She presented with a three-year history of pain following a car accident. Two days after her car accident she was sitting cross legged playing on the ground with her daughter and felt immense pain. Initially she noted right lumbar discomfort, which then later progressed to the left side and then returned to the right. …
Dorota reports that on the Queens’s Birthday weekend in 2014 she was sitting on the sofa in a flexed / abducted / extended potated (sic) position and on rising felt posterolateral right hip pain and 24 hours later she was unable to move, toilet or get dressed. She had to ambulate sideways leading with the right side and remain bent over. She also noted paraesthesia in the right calf, heel and groin intermittently. … .”[24]
(emphasis added).
[24] PCB 97
48 Mr John O’Donnell, orthopaedic surgeon, examined Ms Moskala in October 2014, on referral of Dr Pinczower. The history taken by him was that she had been involved in a motor vehicle accident and that –
“After this she had developed initially right hip pain and subsequently left hip pain also.”[25]
(emphasis added).
[25] PCB 47
49 Mr Parminder Singh examined Ms Moskala in January 2015 on referral from Mr Esser. The history recorded by Mr Singh was:
“… Dorota … reported [the] pain in her right groin and buttock region … had been present for approximately three years. Dorota reported she was involved in a road traffic accident as a driver in August 2011 and was hit by another vehicle with a side impact. Dorota reported she felt pain in the right hip two days later and she had a corticosteroid injection into right hip in May, which helped her symptoms temporarily. … Dorota continues to have pain in her hip.”[26]
[26] PCB 70
50 On 30 January 2015, Mr Singh wrote to the Transport Accident Commission requesting it to fund a right hip arthroscopy, soft-tissue repair and femoral osteotomy.[27]
[27] PCB 81
51 Mr Kevin Fraser, rheumatologist, examined Ms Moskala in April 2015 at the request of the defendant’s solicitors. He reported that about two days after the accident:
“…when she was sitting on the floor with her daughter she noticed right sided pain, indicating the region of the iliac crest and the outer aspect of the hip. It was so severe that her husband had to help her up from the floor. She said that she didn’t associate the pain with the accident and didn’t seek any medical advice until it became more severe over the next two weeks, causing her to limp, favouring the right leg. … .
… .
Then, around June 2014 she again noticed right sided pain, indicating the right flank above the iliac crest, extending down to the lateral aspect of the hip. This came on while she was sitting with her legs folded on a couch. It was so bad that she had to rest in bed that day, applying heat packs to the affected area. The following day she still had difficulty standing, bending or getting dressed and she said that there was swelling in the affected areas. She attended the Emergency Department at the Royal Melbourne Hospital ….”[28]
[28] DCB 24-25
52 Mr Michael Dooley, orthopaedic surgeon, examined Ms Moskala in June 2015 at the request of the defendant. He reported that two days after the accident:
“… she was playing on the floor with her daughter, when she felt pain in the right lower abdomen and groin. She asked her husband for assistance to get up from the floor. Ms Moskala said that this pain continued. She said that she began to limp. She said that her family were living on the second floor and that she struggled to get upstairs, etc. She saw her local doctor. …
…
Ms Moskala said that on the Queen’s Birthday holiday of 2014 she woke up, then got up and sat on her sofa. She said that while sitting she had her left leg over edge of the sofa for around ten minutes. Ms Moskala said that she then began to develop a pain in the right lower abdomen and groin region. She applied a hot water bottle to the area. She rested in bed for the day. She said that her pain was significant and that she had difficulty standing up and going to the toilet. She was taken to the Accident and Emergency Department at The Royal Melbourne Hospital. She was given Panadeine Forte. Ms Moskala said that she felt that her right flank region was swollen. … .”[29]
[29] DCB 18
53 In her affidavit sworn in August 2015, Ms Moskala made no mention of the incident that occurred on the June long weekend of 2014, or her attendance at the Royal Melbourne Hospital after it.
54 Ms Moskala was cross-examined extensively about these various and sometime inconsistent histories. She admitted that she had provided each of those histories to the doctors in question. She did not give any explanation for the various discrepancies. While I consider that courts need to exercise care in relying on records of medical practitioners, and that they cannot be treated as a verbatim transcript of the entire medical attendance, I am satisfied that the histories to which I have referred do identify, with reasonable accuracy, the history of events and symptoms reported by her.
55 I accept that, prior to the accident, Ms Moskala had not experienced symptoms of pain in her low back or hips.
56 It can be seen from the histories referred to above that the symptoms complained of by Ms Moskala often varied. At times, she complained of right hip or sacroiliac pain whereas, on other occasions, her complaint was of left hip or left sacroiliac pain. There were many instances where, when seen by treating or medico-legal doctors, she made no complaint at all of hip symptoms.[30]
[30] Mr Metter at DCB 30-32; Dr Sexton at PCB 103; Ms Chislett at PCB 101; Dr de Graaff at PCB 22
57 Numerous medical reports were tendered containing opinions as to the injuries suffered by Ms Moskala. Having perused each of the reports tendered, I concluded that, on many occasions, medical practitioners were provided with differing histories of symptoms, their nature, and when they were experienced by her.
58 At the commencement of the hearing, counsel for Ms Moskala stated that the application was brought only in respect to her low back and her right hip and that this claim does not concern her right leg, right foot, left hip or any mental or behavioural disturbance or disorder.
59 No doctors were required by the parties for cross-examination. Some thirty-five medical reports were tendered.
Radiology
60 Numerous radiological reports were tendered:
(a) In May 2012, Ms Moskala underwent an MRI scan of her lumbar spine which was reported as showing mild multi-level lumbar degenerative disc bulging with mild narrowing of the central canal at L4-5. There was a lateral L4-5 annular tear on the left side. There was no direct neural impingement.[31]
[31] PCB 152
(b) In March 2013, an MRI scan of the left hip disclosed mild cam deformity with irregularity of the anterosuperior labrum suggestive of femoroacetabular[32] impingement. No labral tear or joint effusion was observed. Also seen was a subtle low grade gluteal tendinopathy with minor trochanteric bursitis;
[32]As I understand these terms, they relate to the hip joint. The acetabulum is the socket into which the head of the femur fits.
(c) Also in March 2013, a localised bone scan of the lumbar spine, pelvis and hips was performed and reported as being normal;
(d) In October 2013, an ultrasound and MRI scan of the right ankle were reported as being normal and showing no cause for her ankle pain;
(e) In June 2014, an MRI scan of the lumbar spine and left hip and buttocks was performed. The left hip and buttocks showed no abnormality. At the L4-5 disc, mild degenerative changes were seen, but no other significant abnormality;
(f) Also in June 2014, an ultrasound of the right buttock was reported as being normal;
(g) Also in June 2014, an MRI scan of the right hip was performed and reported as showing a mild degree of hip dysplasia with a short femoral neck and coxa valga (which term, as I understand it, relates to a hip deformity where the angle between the head and neck of the femur is increased), a suggestion of impingement, anterosuperior labral abnormality and extensive labral degeneration and a tear. There was mild osteoarthritis of the hip joint;
(h) In July 2014, an x-ray of the pelvis and right hip was reported as showing normal left hip joint, normal sacroiliac joints, an os acetabulare and a small cam deformity;[33]
(i) In August 2014, an x-ray of both hips was reported as showing some mild posterior narrowing of both hip joint spaces with some minor irregularities. The sacroiliac joints appeared to be normal.
[33] As I understand the term, os acetabulare refers to an unfused fragment of bone from the acetabulum
61 There appears to have been no radiological investigations since August 2014.
Opinions concerning a low back Injury
62 Dr Pinczower considered that Ms Moskala had suffered an injury to her low back in the accident, but has not opined as to the nature of such injury. In his report of October 2013, he stated that he expected gradual improvement, but that his prognosis was guarded.[34]
[34]PCB 18
63 In August 2012, a podiatrist, Ms Chislett, noted that Ms Moskala had a leg length discrepancy and that such a condition had a significant link with low back pain.[35] No medical practitioner commented on this link.
[35] PCB 102
64 In September 2012 and July 2015, Ms Moskala was examined by Mr David Brownbill, neurosurgeon, at the request of her solicitors. On the earlier occasion, Mr Brownbill observed a full range of thoracolumbar spinal movements, although she had marked tenderness to palpation on the top of the left iliac crest and of the right Achilles tendon region. He considered that, on probability, she did not sustain any injury to the spine but, rather, there had been some soft-tissue damage to the structures about the left iliac crest and the right Achilles tendon.[36]
[36] PCB 118
65 On 7 July 2015, Mr Brownbill re-examined Ms Moskala and learned of the Queen’s Birthday weekend incident of June 2014 and her attendance at hospital on that weekend. He again opined that Ms Moskala’s symptoms have been directed to the iliac crest region and not specifically to the lumbar spine, notwithstanding the evidence of the disc bulging and L4-5 annular tear. He commented that the orthopaedic reviews with which he had been provided indicated bilateral hip issues, but he said that these lay within the province of an orthopaedic surgeon rather than a neurosurgeon such as himself. He, again, considered that, on probability, she had not sustained any injury to her spine in the accident. In his report of 21 July 2015, having been provided with reports of Mr Dooley and Mr Fraser, Mr Brownbill expressed the same views.
66 In February 2013, Ms Moskala was examined by Dr David Elder at the request of the defendant. He found no abnormality in, and a full range of pain-free motion of, her lumbar spine. On that occasion, Dr Elder did not believe that Ms Moskala had any clinical features of any significant ongoing medical condition.[37] When he examined her again in March 2014, she made no complaint of back pain to him. He noted a full range of movement in her lumbosacral spine, with an ability to touch her toes easily. He found no sacral, sacroiliac or other relevant tenderness.
[37] DCB 4
67 Mr Grossbard, orthopaedic surgeon, examined Ms Moskala in May 2013, February 2014 and March 2015. Initially, he considered that she had an injury to her lumbar spine, probably at the L4-5 level, with radiation of pain into the iliac area and buttock on the left side. He thought this related to a split of the intervertebral disc at the L4-5 level, most likely occurring as a result of the accident, but becoming symptomatic a couple of days later.[38]
[38] PCB 108
68 In February 2014, Mr Grossbard considered that she had a soft-tissue injury to her lumbar spine as a result of the accident. He thought there were radiological changes in the lumbar spine, particularly at the L4-5 level, where there was an associated annular split. He thought she was making slow but steady recovery. She had a full range of back movement without radiculopathy. He thought that she would probably always have a degree of intermittent back pain which should pass on each occasion with appropriate exercise and medication. There was no evidence of sciatica. He thought that Ms Moskala should be able to return to employment even if it was on limited hours, with graduation to longer hours as tolerated.[39]
[39] PCB 109
69 In a further report of 17 July 2015, Mr Grossbard concluded that Ms Moskala had suffered a back injury which probably related to the accident. He thought that it had probably been subsumed by the focus on her hip pathology.[40]
[40] PCB 113-4
70 In March 2013, Dr Steven de Graaff was of the view that Ms Moskala had features consistent with “mechanical back pain” and left hip trochanteric bursitis and gluteal tendinopathy.[41] He considered that she was a prime candidate for multidisciplinary rehabilitation and pain management. He considered her prognosis to be “quite reasonable”.[42] In March 2014, he was of the view that she was making good progress and that further improvement was anticipated. He stated that he wished to review her again in June of 2014. There was no evidence that such a review had taken place.[43]
[41] PCB 23
[42] PCB 23
[43] PCB 26
71 In June 2014, Dr Sexton, an osteopath, considered that Ms Moskala had general pain and stiffness in the lumbar region and that the MRI scan of May 2012 had demonstrated L4-5 annular damage to the disc. Nevertheless, he suspected that she could return to her pre-injury work, but not without careful management and some degree of discomfort. He thought that her long-term prognosis should be fair to good, within implementation of appropriate management and stabilisation. He did not expect that she would ever be totally symptom free.[44]
[44] PCB 104
72 In July 2014, Mr Esser reported that it was “possible” that Ms Moskala could have injured the intervertebral discs and that one way of sorting the problem out was to inject her right hip with an injection of local anaesthetic and steroid.[45] Such an injection was administered in early July 2014. Following it, Mr Esser concluded that her right hip pain was almost certainly coming from the labral tear of the right hip with some mild early osteoarthritis.[46] From this, I understand that Mr Esser did not believe that the hip pain was emanating from her low back.
[45]PCB 39
[46]PCB 32
Opinions concerning a right hip injury
73 Dr Pinczower initially considered that Ms Moskala’s injuries were to her lumbar spine, left sacroiliac joint and right foot.[47] He did not refer to her right hip in his report of 11 October 2013.[48] However, by late June 2014, he had plainly had concerns regarding her right hip. Between late June and August 2014 (after the June 2014 long weekend), he referred her to a number of orthopaedic surgeons who specialise in hip joints – Mr Esser, Mr Robin, Mr Singh and Mr Nizam – all regarding her right hip pain.[49] Dr Pinczower has provided no diagnosis of his own concerning Ms Moskala’s right hip.
[47]PCB 18
[48]PCB 18
[49]PCB 59, 65 and 80
74 In February 2013, Dr Elder reported that Ms Moskala had a full range of pain-free motion in the hips. He noted a number of bruises in her lower legs, but said she could not recall how they happened. He found no tenderness at all at either hip. He thought she had an excellent prognosis with no inability to work. At that time, he had only been provided with ultrasound scans of her right foot and Achilles tendon. He considered that the history which had been given to him by her[50] was not a history that she had been injured at the time of the accident, and that her symptoms came on later when she was caring for her child.[51] Dr Elder examined Ms Moskala again in March 2014, and reached similar conclusions.[52]
[50]PCB 2
[51]PCB 4
[52]PCB 10
75 In March 2013, Dr de Graaff, at Epworth Rehabilitation, reported that Ms Moskala had complained to him of “recent” development of left buttock and hip pain.[53] He reported that she had features consistent with “left hip trochanteric bursitis and gluteal tendinopathy”[54] (emphasis added.) He did not consider her right hip. She appears to have made no complaint to him of any right hip symptoms.
[53]PCB 22
[54]PCB 23
76 In March 2013, Dr Pinczower referred Ms Moskala to Mr John McMahon. He reported to Dr Pinczower the history obtained by him; that is, that a few days after the accident, she had quite severe right-sided pain over her buttock and hip region which progressively worsened and radiated into the right buttock and calf regions. Approximately three months later, the right-sided pain had improved and she developed pain over the left buttock and sacroiliac joint region. That was the location of the pain complained of by her at the time she saw Mr McMahon.[55]
[55]DCB 28
77 Notwithstanding, on the date that Mr McMahon saw Ms Moskala, he wrote to the Transport Accident Commission, advising that Ms Moskala had ongoing left-sided paraspinal buttock and sacroiliac joint pain and sought approval for her to undergo an MRI scan. Although he does not suggest in that letter that her symptoms were caused by the accident, I cannot imagine that he would have sought Transport Accident Commission approval unless he considered those symptoms were either caused by the accident or, at least, that the accident had contributed to them.
78 In July 2014, Mr Esser was of the view that Ms Moskala suffered from right hip pain almost certainly coming from a labral tear, with some mild early osteoarthritis.[56] He thought that she was completely incapacitated for pre-injury employment and that she would benefit from a hip arthroscopy. Mr Esser referred her to Mr Balakumar. He thought the right hip pathology was consistent with the effects of the accident. In August 2014, Mr Balakumar reported that Ms Moskala had a limited range of motion in the right hip and in the left hip. He considered that the MRI scan of her right hip was concerning, disclosing, as it did, significant chondral thinning in the central pole of the hip, as well as a quite large labral tear with the labrum being incarcerated into the hip joint. He thought the labrum looked very degenerate and that she might require a reconstruction in the future.
[56] PCB 32
79 In September 2014, Mr Robin, orthopaedic surgeon, opined that Ms Moskala had a Complex Pain Syndrome, but thought that her groin pain could be boiled down to femoral acetabular impingement with a chondrolabral separation.
72He thought that even with an arthroscopic procedure on her hip, it was distinctly possible that she may have a less than perfect outcome. He thought that Mr Balakumar might well be right in saying that she will end up needing a joint replacement down the track.[57]
73In a report dated May 2015, Mr Robin considered that her diagnosis of right hip pain was probably secondary to a combination of cam impingement and chondrolabral injury, possibly verging on early osteoarthritis of that hip. He thought that the prognosis was one of progressive degenerative changes within the hip, resulting in increasingly frequent or severe pain and then stiffness of the hip joint and, presumably, to frank degenerative osteoarthritis of the hip.
74Mr Robin considered that Ms Moskala was significantly incapacitated with regard to her pre-injury employment as a beautician, accepting her description of herself as in continual unremitting pain requiring various analgesics. He considered that the condition was likely to result in a chronic and slowly progressive slide into degenerative hip disease over a few years. He considered that it would be slowly progressive. He thought that she should consider arthroscopic surgery of the right hip with the intention of debriding the femoral head and re-attaching to the labrum if that was possible. He said:
“It is difficult if not entirely impossible to prove that her symptoms are related directly to either her occupation or to her motor vehicle accident. Certainly, her cam lesion would have required many years to develop, and the current theories regarding their development suggest that they tend to develop during teenage and adolescent years rather than subsequent to this sort of minor trauma. However, it is possible that the impact that occurred at the time of the accident may have exacerbated her pre-existing condition, although again this would be difficult to prove conclusively, and the chronology of her symptoms do not necessarily marry up directly with this.”
(emphasis added).
[57] PCB 53
80 Later in that report, Mr Robin said:
“I think she is a lady who has a complex pain syndrome, but certainly her groin pain could be boiled down to femoral acetabular impingement with a chondrolabral separation and a secondary os acetabular. Whether or not this was related to her motor vehicle accident is difficult to determine, and would be difficult to prove.”[58]
[58] PCB 53
81 In October 2014, Mr John O’Donnell saw Ms Moskala on referral from Dr Pinczower. He reported that she had a chondrolabral tear in the right hip likely secondary to femoro-acetabular impingement, and that there was an increased risk of osteoarthritis in the future as a consequence. He said:
“It is unlikely that this problem relates totally to a motor vehicle accident. The underlying bony architecture of the hip has been present since teen age. This type of injury is associated with a higher incidence of chondrolabral damage, with or without injury. However, a motor vehicle accident may have rendered this condition symptomatic.”[59]
(emphasis added).
[59] PCB 48
82 Mr O’Donnell had been given no history that for two or three days after the accident, she had been pain-free, nor a history of the incident on the floor with her daughter three days after it, nor of the incident on the June 2014 long weekend.
83 In February 2015, Mr Balakumar’s diagnosis was one of bilateral hip dysplasia, right side worse than the left, with a secondary diagnosis of right hip labral tear and right hip osteoarthritis. He thought it was inevitable that she will require a hip replacement and certainly, although the hip dysplasia pre-existed the accident, the accident itself would have contributed to her problem.[60]
[60] PCB 29
84 In August 2014 (also after the June 2014 long weekend), Mr Nizam considered that the MRI scan of the right hip revealed a cam lesion with labral tear. By way of prognosis, he thought that she may progress to osteoarthritis in the future, but that she may still end up with early osteoarthritis in the future, with the possibility of hip replacement. He thought the current problem would become worse if hip arthroscopy was not performed soon. He thought her current symptoms were consistent with the injuries sustained in the accident, although his opinion seems to be based upon an understanding that she had had ongoing right hip pain since the accident. It appears that he received a history of right hip pain from the time of the accident until the date of his examination.[61]
[61] PCB 63-64
85 Mr Nizam noted that another orthopaedic surgeon had suggested total hip replacement, but she was considered to be very young at that time for such surgery. At the time, he recommended hip arthroscopy.
86 I note that none of Mr Esser, Mr Balakumar, or Mr O’Donnell had seen Ms Moskala at all prior to the long weekend of June 2014. Further, she made no mention of the incident to them.
87 Ms Moskala was examined in April 2015 by Dr Kevin Fraser, rheumatologist, at the request of the defendant. He considered that she had mild dysplasia of both hips and some associated degenerative changes, particularly on the right. He considered this was due to congenital and constitutional factors. He did not consider there was any indication for surgery at that time. He considered there was nothing in her history or associated documentation to suggest that she sustained any trauma in the transport accident which occurred in August 2011, and he did not believe that it had in any way aggravated the underlying condition. He noted that she had not complained of any skeletal pain until sometime after the accident and, in his opinion, her condition in April 2015 is the same as it would have been regardless of the accident.
88 In June 2015, Ms Moskala was examined by Mr Michael Dooley at the request of the defendant. He was of the view that she did not sustain any specific orthopaedic injury in the accident. He thought that she had signs consistent with femoro-acetabular impingement. He thought she had some early narrowing of her right hip joint consistent with developing degenerative osteoarthritis. He said as follows:
“It is evident from ordinary clinical practice that patients with radiological signs of femoral acetabular impingement may be asymptomatic, may become symptomatic spontaneously and may become symptomatic after episodes of acute or repetitive trauma. In my view, if the impact of the motor vehicle accident was to render Ms Moskala’s underlying condition to be symptomatic, then she would have noted pain at the time of the impact or very soon after. I do not believe that the history of no pain at the time of the motor vehicle accident and no pain until playing on the floor with her daughter until two days later, would be consistent with an injury to the hip joint and aggravation of an underlying pre-existing condition, etc. Again in my view, if Ms Moskala’s underlying condition has been aggravated by an incident or episode, then it is the playing on the ground with her daughter that has done so. …
On the balance of probabilities, my firm view is that Ms Moskala did not sustain an injury directly or indirectly to the right hip region in the motor vehicle accident. I accept that there are those who might say Ms Moskala did sustain an injury in the motor vehicle accident. While I do try to be respectful of each and every opinion given, my eyebrows would be raised by suggestions that Ms Moskala did note hip pain following the accident but that it was not evident for two days because she was in shock. Clearly, it is important for a treating doctor to be supportive of their patient.
This support, however, should not override evidence-based medicine.”
(emphasis added).
89 Mr Dooley stated that he had read Mr Robin’s report and was in overall agreement with his comments.
90 Mr Grossbard had seen Ms Moskala on some three occasions between May 2013 and March 2015. Mr Grossbard thought there was also some evidence of early degenerative disease of the right hip on the MRI scan (I assume he was referring to the scan taken in June 2014). In March 2015, he said:
“On going back over my notes, this lady did complain of some iliac pain from very early on and I am therefore prepared to consider a nexus between the hip pathology and the motor accident. The fact the pain tends to fluctuate from side to side is a little against the relationship between the motor accident and the pathology, but I am prepared to give this lady the benefit of the doubt. Irrespectively, I do not think the pathology or the pain on the left side relates to the motor accident.”
(emphasis added).
91 Mr Grossbard learned of the incident of the long weekend of June 2014 when he re-examined Ms Moskala in March 2015, and the symptoms experienced after it. Since then, he noted that the severe pain had settled and her complaints that she continued to have pain, the level of which fluctuated. By then she was having pain in both hips and the level of pain changed with activity.[62] At that time, he reported:
“Although the initial pain seemed to be in the right buttock and my initial view was that it was probably arising from her back, I am prepared to accept the pain as having arisen from a soft tissue injury to the right hip in the presence of an underlying constitutional abnormality resulting in femoro-acetabular impingement and an associated torn labrum.”
[62] PCB 110
92 In July 2015, Mr Grossbard was provided with additional medical reports obtained from Dr Fraser and Mr Dooley, who had been retained by the defendant’s solicitors. He stated, in his final report, that when he had seen her initially, she had a full range of motion in her back and hips, although she was tender around the iliac crest and sacroiliac area. He stated:
“The view I formed at the time was this lady had developed some hip pain in addition to her lumbar spine injury, and I have outlined those observations in my report of 24 March 2015. At that time I expressed some doubt about relating this lady’s hip pain to the motor accident, a view strongly put by Mr Dooley. I do however belief (sic) this lady has also had a back injury which is probably related to the motor accident. I suspect the hip pain is superimposed on the back injury. I doubt the relationship between this lady’s hip pathology and the motor accident, although I would support the contention of a back injury at that time. The back injury seems to have been subsumed by the focus on this lady’s hip pathology.”[63]
(emphasis added).
75In July 2016, Mr Singh thought that if, in the accident, Ms Moskala’s hip was forced into the flexion abduction internal rotation position and/or the flexion abduction internal rotation position, this may well have injured her hip. I consider that there was no evidence of her right hip being forced into any particular position in the accident. Ms Moskala’s evidence was that there had been no impact with her hip. Mr Singh also thought that persons with labral tears can be at increased risk of developing premature arthritis.
[63] PCB 113-114
Are the injuries “serious injuries”?
93 While the medical opinions are not as one, I am satisfied that Ms Moskala does suffer from injuries to both her low back and right hip. The defendant did not dispute that this was so.
94 However, it does not follow, from such findings, that Ms Moskala has suffered a serious injury to either her low back or right hip. She must also establish that the accident contributed to, or caused, the injury in question, and that the injury is a “serious injury”.
95 On the basis of the evidence as to Ms Moskala’s low back injury, I have concluded that she probably did suffer a soft-tissue injury to her lumbar spine in, or as a consequence of, the accident. Most probably, this was an injury to her L4-5 disc which had been degenerate prior to the accident but apparently asymptomatic. No doctor opined that the annular tear at the L4-5 disc was the result of the accident. I further note that the tear was observed on the MRI scan of the lumbar spine of 6 May 2012, but not reported on the MRI scan of 20 June 2014, at which time only mild degenerative changes were noted.[64]
[64]PCB 152 and 159
96 I am not satisfied that her low back injury is a “serious injury” as defined in the Act. I note the findings by examining doctors of a full range of pain-free movement of her lumbar spine,[65] positive prognoses concerning her low back condition,[66] and the lack of complaint of low back pain in recent years.
[65]Dr Elder at DCB 4; Mr Grossbard at PCB 109; Mr Brownbill at PCB 118
[66]Dr Sexton at PCB 104; Dr de Graaff at PCB 23
97 The onus is on Ms Moskala to establish the consequences of each of the injuries alleged by her to be a serious injury. With regard to the injury to her low back, I am not satisfied that she has established that she is currently suffering from a low-back injury, the consequences of which are sufficient to warrant a finding that they were “at least very significant”.
98 The issue concerning injury to Ms Moskala’s right hip is more complex.
99 From the date of the accident in 2011, there is little mention of right hip symptoms by treating or medico-legal doctors who examined her prior to the long weekend of June 2014, a period of nearly three years.
100 I accept that the notes of Dr Jaworowski made on 23 August 2011 do refer to her developing pain on the lateral side of her right hip on the evening of the accident. This is at odds with nearly all of the other histories provided by her which were that she only experienced hip pain after playing with her daughter on the floor two to three days after the accident. She told Dr Jaworowski that she still, as at 23 August 2011, experienced tingling at the front of her left thigh to the right knee and right foot. There was no evidence concerning a possible, or probable, link between that lateral pain or the tingling sensation referred to, and any injury to the right hip identified by doctors from mid-2014.
101 The evidence was that, on that long weekend of June 2014, Ms Moskala had sat on a sofa in a flexed and abducted position and, on rising from the sofa, had suffered posterolateral right hip pain and that twenty-four hours later, she was unable to move, toilet, or get dressed. She had to ambulate sideways, leading with the right side, and remain bent over.[67] She attended at the Emergency Department at the Royal Melbourne Hospital. No evidence from that hospital was tendered. From that time, doctors who saw her reported her complaining of right hip pain.[68]
[67] PCB 52, 97
[68]Mr Esser at PCB 30; Mr Balakumar at PCB 27; Dr Nizam at PCB 65; Mr Robin at PCB 61; Mr O’Donnell at PCB 47; Mr Singh at PCB 70; Mr Fraser at DCB 24-25; Mr Dooley at DCB 18; Mr Wallis at PCB 97; Dr Brownbill at PCB 120
102 From that time, but not before, she was advised to undergo a right hip arthroscopy.
103 On 20 June 2014, about one to two weeks after the long weekend, Dr Pinczower arranged for an MRI scan of her right hip. This was the first radiological examination of the right hip of any type.
104 On 3 July 2014, two to three weeks following the long weekend, Ms Moskala consulted Mr Esser for the first time. She complained of pain and discomfort in the right hip, but made no reference to him of the incident on the long weekend, when it must have been fresh in her mind.
105 Similarly, when Ms Moskala saw Mr Balakumar on 5 August 2014, less than two months after the long weekend, the only history taken by him was that “more recently her right hip became more symptomatic”.[69]
[69] PCB 27
106 I find that Ms Moskala did not suffer from right hip pain after the accident until an incident two to three days after, when, while she was sitting on the floor with her young daughter, she noted a sudden pain outside her right hip and the right buttock and needed help to stand up. I am not satisfied that, following that incident, Ms Moskala suffered ongoing pain in her right hip, or that the pain suffered by her on that occasion was related to the accident. I am satisfied that she did not suffer any further significant pain in her right hip until the incident that occurred on the long weekend in June 2014.
107 I accept that Ms Moskala suffers from a femoro-acetabular impingement of her right hip joint with probable early osteoarthritis of that joint.
108 I accept the analysis of the genesis of that condition as set out in Mr Dooley’s report of 16 June 2015.[70] I accept that the condition is due to congenital and constitutional factors.[71] I consider that the reports of Mr Fraser, Mr Robin and the final report of Mr Grossbard, are largely consistent with this.
[70] DCB 17, pages 20-21
[71] DCB 26
109 I note that Mr Grossbard had initially been prepared to accept that Ms Moskala had suffered a soft-tissue injury to her right hip in the presence of an underlying constitutional abnormality resulting in femoro-acetabular impingement and an associated torn labrum. He indicated that he was prepared to give her the “benefit of the doubt” notwithstanding the puzzling fluctuation of pain from left to right, which he said was a little against the relationship between the accident and the pathology.[72]
[72] PCB 111 to 112
110 However, once he was provided with the reports of Mr Dooley and Mr Fraser, Mr Grossbard withdrew his opinion that the right hip pathology is related to the accident. He now doubts that there is any relationship.[73]
[73] PCB 113 to 114
111 The reports of Mr Dooley and Mr Fraser date back to mid-2015 or earlier. There has been ample time for the plaintiff to obtain reports from doctors including Mr Esser, Mr O’Donnell, Mr Balakumar, Mr Singh or Dr Nizam, if it was considered that they might disagree with the opinions of Mr Dooley or Mr Fraser concerning causation. It is, after all, the plaintiff who carries the onus of establishing her case.
112 On the totality of the evidence, I am not satisfied that Ms Moskala has discharged the onus upon her of establishing, on the balance of probabilities, that her right hip injury was caused by the accident or that the accident has contributed to it.
113 In the event that I am, at some later time, found to have erred in coming to that conclusion, I should for completeness state that, if the accident was found to be a cause of the right hip injury, I would consider that it was a “serious injury”. I come to that conclusion largely on the basis of the problems encountered by Ms Moskala as set out in her affidavits, and the report of Mr Robin concerning the likely continuation and deterioration of symptoms. These lead me to conclude that the consequences of that injury or condition are more than marked or significant and are at least “very considerable”. I consider that the consequences of it would prevent Ms Moskala from returning to her pre-injury employment, which included a significant amount of standing and sitting. While she may have some work capacity, it has been significantly restricted. Counsel for the defendant did not challenge her concerning her alleged restrictions.
114 I am not satisfied that Ms Moskala suffered any serious injury to her left hip, right leg, or ankle in the accident. These were not relied upon in this application.
Conclusion
115 For the reasons expressed above, I am not satisfied that Ms Moskala has suffered a “serious injury” as that term is defined in the Act.
116 Accordingly her application is dismissed.
117 I shall hear the parties in regard to any consequential orders sought.
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