Norman v Transport Accident Commission

[2012] VCC 1483

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CIVIL DIVISION

Revised
Not Restricted
Suitable for publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-03685

LOUISA LESLEY NORMAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	3 and 4 October 2012
DATE OF JUDGMENT:	22 October 2012
CASE MAY BE CITED AS:	Norman v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VCC 1483

REASONS FOR JUDGMENT

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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – impairment to the lower back
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.

JUDGMENT –  Leave granted to bring proceedings for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with Mr D Seeman	Brown McComish
For the Defendant	Mr P Elliot QC with Mr J Batten	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 which occurred on 5 February 2008 (“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”. The body function pursuant to (a) relied upon by the plaintiff is the lower back.

4       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.

5       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 (2000) 1 VR 79.

6       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 than “significant” or “marked”?:  See Humphries v Poljak [1992] 2 VR 129, at 140-1.

7       The plaintiff relied upon two affidavits and gave viva voce evidence.  She also relied upon an affidavit sworn by her husband, Christopher, on 28 September 2012.  Mr Schofield, orthopaedic surgeon, was required for cross examination.  In addition, both parties relied upon medical reports and other tendered material, which I have considered.

The Plaintiff’s Evidence

8       The plaintiff is aged thirty seven, having been born in February 1975.  She is married with four children, aged eighteen, sixteen, nine and seven (“the family”). 

9       Prior to the said date, the plaintiff did not suffer from any back pain and she was well, apart from some depression in 2004, when her daughter was injured in a car accident.  The plaintiff was then prescribed Efexor, 75 milligrams a day.

10      In cross examination, the plaintiff confirmed she had stayed on Efexor after that time until her medication regime was altered after the said date.  Further, she agreed she had sprained her wrist at work and received physiotherapy treatment.  She did not know anything about a diagnosis of reflex sympathetic dystrophy at that time.

11      Otherwise, the plaintiff was fit and active.  She enjoyed going for long walks for pleasure and exercise. She loved to spend time in the garden and helping her husband build things.  Around the home, she shared the domestic duties with her husband.

12      In re examination, the plaintiff described how on a Sunday morning before being injured, she went for a walk for about eight kilometres before the family got out of bed and then they went down the beach or had a kick of the football. 

13      Before the said date, the plaintiff’s home in Portland was a “renovator’s delight”.  She and her husband agreed the plaintiff would continue to work while he renovated the home.  This arrangement worked very well.

14      The family often went camping at the plaintiff’s parents’ property in Nhill.  The plaintiff enjoyed riding motorbikes and outdoor games and activities with the children.

15      The plaintiff also enjoyed going out for dinner and to the theatre and liked to dress up and wear high heels.

16      The plaintiff attended school to halfway through Year 12 and thereafter, worked as a beautician, before raising her first two children.  She returned to the workforce as an administrative officer for about six years, stopping to have her third child. 

17      The plaintiff and her family moved from Melbourne to Portland in 2003.

18      Shortly before the plaintiff’s fourth child’s first birthday, the plaintiff returned to work as an administrative officer at Portland Hospital (“the Hospital”), becoming a full time permanent employee in July 2006, working approximately fifty hours a week and earning $52,000 per annum.

19      The plaintiff was in this job for about two years before the said date.  Her duties included reception work, maintaining medical records, assisting the personal assistant to the CEO and general administrative and clerical work.

The Accident

20      After work on the said date, the plaintiff attended a family gathering at a Portland restaurant.  On the way home, the plaintiff was a passenger in the front seat of a Hospital vehicle driven by her husband.  It had been raining and the road was slippery.  Suddenly, and without warning, the vehicle left the road and hit a tree (“the accident”).

21      Photographs of the plaintiff’s car, which was a right off, were tendered.

22      Following the accident, the plaintiff was initially very concerned about her husband and children.  He was trapped in the car and the children were all hysterical.  Emergency vehicles attended the scene.

23      The plaintiff and her children were taken to the Hospital.  Upon her arrival, the plaintiff only became aware of the extent of her injuries, particularly to her neck, back, chest and knees.  The plaintiff was an inpatient at the Hospital for five days. 

24      The plaintiff was discharged to accompany her youngest child in an air ambulance to the Royal Children’s Hospital (“the Children’s”).  He was diagnosed with a lacerated liver and collapsed lung from the accident and remained an inpatient at the Children’s for sixteen days.

25      After the plaintiff arrived at the Children’s, she experienced severe back pain as the painkillers wore off.  She was seen by a doctor and then taken by ambulance to The Royal Melbourne Hospital where a CT scan was undertaken, which revealed she had suffered a fractured rib.  At that time, she had pain in her neck, back and ribs.

26      The plaintiff was again discharged with painkillers and instructions to see her general practitioner on her return to Portland.  She was then treated at the  Hospital where she was given painkillers for her neck and back pain.

27      After the plaintiff’s son was discharged from the Children’s, the family returned to Portland.  Because of her ongoing back and neck pain, the plaintiff attended her doctor, Dr Das, who issued her with a no work capacity certificate. The plaintiff’s claim for compensation was accepted by the defendant. 

28      Dr Das recommended the plaintiff undergo physiotherapy to her back and neck, which she initially received from Mr Walker, for about six months, then from Backfocus in Melbourne for about four months, one week per month.  Whilst that latter program helped with her neck and somewhat with her upper back problems, there was no improvement in her low back pain and restrictions. She did not know that any physiotherapy had really had that much effect but it was hard to say.

29      As the plaintiff continued to suffer severe ongoing back and neck pain, she decided to see Dr Rana for a second opinion as Dr Das did not like dealing with the defendant.

30      Dr Rana referred the plaintiff to an orthopaedic surgeon, Mr de la Harpe.  The plaintiff saw him in late 2008 and he recommended she undergo rehabilitation.  He also suggested she do Pilates, which the defendant subsequently funded for about six months.

31      Mr de la Harpe told the plaintiff that the MRI scan organised by him in August 2009 did not show much and that no surgery was required and he suggested physiotherapy.

32      In cross examination, the plaintiff explained how Dr Rana was concerned about treating her with painkillers when she was still taking Efexor that Mr Das had prescribed years before and Dr Rana then referred her to Dr Tarek at the same clinic.

33      The plaintiff deposed that she was unable to resume her pre injury duties as an administrative officer because of ongoing back pain and restrictions and she received loss of earning benefits until October 2009.

34      The plaintiff’s employment with the Hospital was terminated as a result of the accident.

35      In cross examination, the plaintiff explained her employment was terminated partially because of her injuries.  She was able to work but she had to resign because her husband was driving the car, which was later a write off, without the permission of the Hospital and he had a blood alcohol reading of .14.

36      The plaintiff confirmed that she had written a letter to Mr O’Neill, the Hospital CEO explaining the circumstances of the accident.  She was suspended while an investigation took place.  The plaintiff agreed that she wanted to get back to work as soon as possible and put the whole event behind her.  She enjoyed and liked the job.

37      Unfortunately, the plaintiff’s employment was terminated after the investigation and she never returned to the Hospital.  She wrote a letter of resignation on 21 April 2008 setting out she had taken that course for personal reasons.

38      In her TAC claim form, the plaintiff set out an expected return date of 25 February 2008 with reduced hours on light duties, a situation she hoped would occur had she been allowed to stay on. She was not sure whether Dr Das’ advice was in these terms.

39      In cross examination, the plaintiff agreed that it was a pretty traumatic time, having had the accident and as a result losing her job and her husband and one of her children being badly injured.

40      When the plaintiff was treated by Mr de la Harpe, Work Able Geelong was involved in her rehabilitation.  She had a few discussions with that agency but did not think they actually found any work that she thought she was capable of.

41      The plaintiff could not remember talking to Mr de la Harpe about a Work Able questionnaire but it was quite possible it was his view that she had a capacity for some limited work.

Pain

42      The plaintiff deposed in September 2010 that her pain ranged from two to  eight or nine, out of ten.  The constant back pain radiated into her right leg and foot, and sometimes both buttocks.  She also experienced significant upper back pain and occasional neck pain and stiffness. 

43      In her most recent affidavit sworn in August this year, the plaintiff confirmed she continues to have constant low back pain, which she rates at around two or three out of ten.  Every day she wakes up, she knows she has a “crook” back and several times a week, the pain increases, sometimes spontaneously to seven out of ten.

44      The plaintiff described having constant pain through her spine, pointing in the middle of her back underneath her bra strap and lower down to the top of her pants.  That pain goes down through her right buttock, down the outside of her leg and into her foot, and stops at the ball of her foot.  She has had some problems with her knees, but those problems are “not huge.” Her neck still gets a little bit stiff but it is certainly not her biggest problem.

45      In the first eighteen months after the accident, the plaintiff also had a lot of pins and needles.  Her right foot pain persists but it is not as bad as it was in the first two years after the accident.  It worsens when she stands for longer than twenty or thirty minutes.

46      The plaintiff had learnt to better distinguish between different pains. She does not have the same pain in her neck and shoulder she had originally and she has learnt to move differently so she does not cause extra pain.  Her pain plateaued after the first eighteen months and it is pretty much in the one region.  Sometimes it is through the spine and other times at the top of the right buttock.

47      Initially after the accident, the plaintiff took two to four Mersyndol tablets in the evening and up to four Tramadol and two Endone tablets during the day.  She also took Mobic when her back was at its worst.  She has also tried Fentanyl patches, which assisted her with pain relief but made her violently ill. 

48      The plaintiff has recently tried to cut down on medication.  In the days that she has taken less or no medication, her low back pain is unbearable.  She feels medication is the only thing getting her through the day. 

49      The plaintiff suffers from constant pain and is reliant on high doses of strong painkilling medication to help her get through the day.  She presently continues to take Durotram every morning, three to four Endone a day, Mobic, Valium and occasionally Mersyndol.

50      In re-examination, the plaintiff confirmed that in the last couple of years, there has not been a day without pain. She usually takes about three Endone, but had not taken any on the morning of the hearing because she could not concentrate.  As a result, she was in a lot of pain when she first got to Court after having to drive and was still in a lot of pain when giving evidence.

51      This intake often causes nausea, tiredness and concentration difficulties.  The plaintiff also relies heavily on other strategies, including relaxation and counselling. 

52      The plaintiff has tried to cut down on Endone and Mobic but has not been very successful and has ended up in too much pain and ends up taking them.  Painkillers definitely assist her doing the activities she is doing. 

53      The plaintiff has considerable restriction of movement in her back, worse with activities such as lifting, bending, stretching and twisting, and it is difficult to stand or sit for prolonged periods.  She can stand for about five minutes before her pain becomes uncomfortable.  Her sitting tolerance is ten to twenty minutes.

54      The plaintiff’s sleep continues to be interrupted every night.  Most times she gets up and walks around the house or does some stretches.  Sometimes she reads.  It is usually half an hour to three quarters of an hour before she goes back to bed.  Occasionally, she just tries to relax in bed to tries and get back to sleep.  Intimacy with her husband is painful and difficult, and remains non‑existent. 

55      The plaintiff continues to wear a back brace if she has to drive for longer than thirty five or forty minutes.

56      The plaintiff did not receive psychological treatment immediately after the accident but later started to see a counsellor, Jackie Carmody, on referral from Dr Rana.

57      Due to the amount of painkilling medication she initially was taking, the plaintiff was unable to resume her antidepressant medication.

58      The plaintiff saw Ms Carmody initially on a weekly basis, as she felt depressed due to her ongoing chronic back pain, her inability to work and the deterioration with her relationship with her husband and children. 

59      In examination-in-chief the plaintiff confirmed she had last seen Ms Carmody about a year ago.  The plaintiff is now trying to deal with the situation without counselling or medication. 

60      There was a gap in treatment with Ms Carmody between October 2010 and November 2011. 

61      The plaintiff said she will return for further counselling if she feels she needs to, but she feels as though she is pretty much coping with the techniques given to her, much better than she did than previously with the painkillers and counselling.

62      The plaintiff agreed that she had completed two questionnaires which reflected how she was feeling at the time.

63      The accident happened on a bend in the road and the plaintiff had become a nervous passenger and became quite agitated when travelling near the accident site.  Her anguish was worse when travelling as a passenger.

Domestic and sporting activities

64      In addition to work, many of the activities the plaintiff enjoyed prior to the accident have now been affected by her injury, including walking longer distances, riding a motorbike and camping.  She has become more reclusive and her social life has deteriorated significantly.

65      Prior to the accident, the family had quite a few dirt bikes which they used to ride at the plaintiff’s parents’ Nhill property.  The plaintiff still has a bike but has not ridden it for a long time, although her family still ride occasionally. 

66      The plaintiff can no longer wear high heels and she does not get the same enjoyment as she once did dressing up and going out to social engagements.  She and her husband have not gone out for dinner for a long time and she no longer finds that activity very enjoyable as she has problems sitting for prolonged periods of time.

67      The plaintiff has not returned to long distance walking, riding motorbikes or camping.  She is also unable to do gardening, having previously done quite a lot.  She cannot do any of the heavier work or even weeding, which she once enjoyed.

68      The plaintiff has difficulty interacting with her four young children as she did before the accident.  She is acutely aware of her limitations and difficulties she faces participating in physical activities she previously enjoyed.  As a family, they used to play social games, enjoying motorbikes, and family events like ten pin bowling are now out of the question.

69      The plaintiff struggles to get in and out of the Nissan Patrol four wheel drive vehicle.  In 2010, picking up her younger children was beyond her and she no longer attempted to have a kick of the football with them.  Even pushing the children on a swing caused the plaintiff excess pain for days, which she found distressing.

70      The family went on holidays to Queensland in September 2012.  The holiday was paid for by a relative’s estate.  The family attended theme parks but the plaintiff was only able to go on a very small ride with her seven year old. Before the accident when the family went to Queensland theme parks, the plaintiff was able to enjoy all the rides with her children without any problems. 

71       The plaintiff has not gone camping since the accident. 

72      The plaintiff is able to drive to Melbourne and Geelong to attend appointments and see her parents.  On a drive to Melbourne she has to stop three times to  stretch her back.

73      Around the house, the plaintiff has difficulty performing many of the domestic chores.  She manages with small tasks at bench height, such as cooking and washing dishes for a short period.

74      In the early days after the accident, the plaintiff had home help twice a week but that ceased in early 2010, as the defendant decided that the plaintiff’s husband and children could perform the household work, even though her husband struggled with his own injuries.

75      Simple domestic tasks are very difficult, such as making and changing the beds, washing the floors and vacuuming.  Even with the assistance of her children, when the plaintiff tries these tasks, she experiences extra pain, which can take many days to settle down.  She usually finds that by 10.00 am on most days her pain is unbearable and she needs to lie down and rest.

76      The plaintiff now has help for an hour a week which is subsidised by Portland Council. The cleaning lady usually does the mopping. Otherwise, everyone in the family helps with gardening and housework which the plaintiff cannot do, involving bending or pushing or pulling.  Even the nine year old washes the car.

77      In cross examination, the plaintiff described having good and bad days.  Sometimes she does heavier housework but it usually causes extra pain so she tries to avoid it, particularly the motion of pushing a vacuum cleaner.    

78      The plaintiff and her husband share the shopping, although it is difficult because he has his own problems.  They find it a little easier lately as Safeway have installed smaller trolleys which minimise bending and are easier to handle.

79      The plaintiff is restricted across a wide range of activities and is not able the work, and the family is struggling financially.  That has placed a considerable strain on relationships with her husband and family.  Were it not for the fact she was granted a disability pension in late 2009 when TAC payments stopped, their financial hardship would be even more severe.

80      The plaintiff’s children are now aged nineteen, sixteen, ten and seven.  The sixteen year old attends Bayview College (“the College”).  His school fees are about $18,000 in arrears and are being paid off at $20 a week.

81      The plaintiff was cross examined about her involvement in the parents and friends’ committee at the College.  She has been a member of the committee for two years.  Sometimes she attends meetings and she also helps with some fundraising at the College. 

82      This year, the plaintiff was involved in organising a fashion parade.  This required her sending e mails to parents to round up support.  She also helped out with debutante training, supervising the students.  She was not involved in the setting up or cleaning after a charity lunch this year.

83      The plaintiff’s two younger children attend the local Catholic primary school.  The plaintiff gets up and makes sure the children get to school with breakfast.  She cannot walk very far and struggles to walk two hundred metres to the children’s school and back uphill to home.

84      The plaintiff’s husband is her carer and receives a carer’s pension.  He does not really have a maintenance business.  He advertises but does not really get any work and does not do anything.  It is not a serious business and it was not in operation before the accident.  He registered a business name many years ago but has not really done much with it as he does not really follow through on many things he does.

85      The plaintiff confirmed this situation in re-examination and the fact that she has always been the breadwinner.  She needed to get back to work soon after the accident.  He husband can look after the children at home but not look after the family financially. 

Work future

86      The plaintiff does not believe she would be able to return to her old job.  She loved the work but felt she simply would not be able to cope.  Nor would she be able to do any work involving lifting, carrying, bending or twisting or prolonged sitting, standing or walking. 

87      The plaintiff remains extremely concerned about her future work prospects and has not been offered any substantive retraining or rehabilitation by the defendant to enable her to return to the workforce.

88      The plaintiff cannot think of anything she could realistically do.

89      In the early stages after her injury, the plaintiff thought she had just a whiplash type injury and she continued to look for work.  Her doctor had advised her to this effect and told her that condition did not usually last that long.

90      The plaintiff was later told by Mr Schofield that she had a disc injury and soft tissue damage.  Since receiving that advice, the plaintiff has looked for a few administrative jobs in Portland.   

91      The plaintiff agreed it was quite possible that having been told of a manager’s job that was available, the plaintiff advised she had been referred to a specialist and was not ready to look at returning to work but she could not remember clearly. 

92      The plaintiff now looks in the paper occasionally because she wishes she could go back to work.  The plaintiff and her family have been really desperate but nothing has come of it.  She found it very difficult trying to live off the pension.  The jobs applied for were mainly administrative type roles but the plaintiff had not got an interview.  She did not think she could really carry through with applications but when she is not feeling so bad and quite desperate she likes to think she can apply for either part-time or full-time and work and will try the job if offered it. She hoped she could get her pain to a level where she could go back to work at some time.

93      The plaintiff explained in re examination that Portland is definitely a labouring town.  There is probably scope for clerical work on the shire or at the Hospital.  She did not think she could work as a receptionist because it was not possible to dictate how long she could sit or stand - it depended on the job.

Recent treatment

94      After she stopped seeing Mr de la Harpe, the plaintiff had physiotherapy in Warrnambool for a while and then started to see Mr Schofield in Warrnambool, initially at the reference of her solicitors but then he took over her treatment.  He mainly monitored and made suggestions about investigations and advised her to continue Pilates and ordered further injections which were never approved.  The plaintiff agreed Mr Schofield told her she needed to try and continue to stretch and become supple.

95      Mr Schofield arranged a vertical MRI scan, which the plaintiff was advised revealed disc damage in her spine.  The plaintiff understands Mr Schofield is trying to arrange for her to undergo epidural injections.

96      The plaintiff attends a general practitioner, Dr Stephanson every month.  She has participated in Pilates on a weekly basis until the defendant stopped funding.  However, she continues to regularly do exercises at home.

97      Dr Stephanson, referred her to Dr Grave, a musculoskeletal physician, whom she saw on 20 June 2012.  The plaintiff had some benefit from the nerve injection which he performed.  She would like to continue this treatment but cannot afford to.

98      In cross examination, the plaintiff described how earlier injections under CT scan and by way of epidural had had little effect on her pain level. Dr Grave gave the plaintiff over forty nerve injections around the top of her buttocks and lower back in one visit but they did not help the deep seated pain.  She would not say the procedure felt good, it was very painful. 

99      The plaintiff has not attended a pain management clinic and that issue has not been discussed with her doctor.

100     The plaintiff has done a lot of hydrotherapy.  She is not a member of the gym.  Swimming makes her feel better, just doing something, and it is good for her strength.

Summary of Earnings

Summary of Earnings
Financial Year	Gross Earnings
2006/2007	$27,073
2007/2008	$35,785
2008/2009	$39,425
2009/2010	$12,198

Lay Evidence

101     The plaintiff’s husband, Christopher, swore an affidavit on 28 September 2012.

102     Mr Norman confirmed he and plaintiff purchased a property to be done up by him while the plaintiff worked, with a view to selling it at a profit.  They had only been in the house for a short time when the accident occurred.

103     Mr Norman confirmed the plaintiff’s treatment post accident and the fact that her injuries had had a massive effect on her life and that of the family.

104     Prior to the accident, he and the plaintiff were both very active as a family and a couple, but since the accident they have really put all their lives on hold and had not been able to complete the planned renovation due to their injuries and limited finances.

105     Mr Norman sees the plaintiff suffering from pain daily and also dealing with the adverse effects of the medication.  Lately, she seems to be getting worse, and he often sees her having to take pain medication just to make it through the day. 

106     As a result of her injuries, the plaintiff has not been able to return to work and she would prefer to be still working.  She was previously a strong, hardworking and active wife and mother and loved challenges in her working life and took pride in providing for the family.  He believes it upsets her that she is no longer able to work.

107     The plaintiff and Mr Norman have had a very rough time since the accident, both physically and emotionally.  Their relationship has been placed under strain from guilt, stress and the pain of the accident and their injuries and if not for their children, they would have not made it this far. Their relationship is now very different.

108     Mr Norman and the plaintiff previously enjoyed doing fun physical family activities with their children.  The plaintiff now struggles to do anything physically strenuous and even family walks have become a thing of the past.  The accident has taken something from the plaintiff that just cannot be given back; namely, the ability to live a happy, pain free fulfilling life.

The Plaintiff’s Medical Evidence

109     The Portland and District Hospital records set out the plaintiff was admitted under the care of Mr Das on 6 February 2008.

110     Dr Rana from Tri Star Medical Group, reported on 24 March 2009.  He noted  the plaintiff remained Dr Das’ patient until July 2008, when she transferred to become his regular patient.

111     Dr Rana reported that since the accident, the plaintiff had complained of continuous back pain and problems with sleeping.  He referred her to Ms Price, primary health care nurse, and Mr de la Harpe, orthopaedic surgeon.  The plaintiff had also received physiotherapy treatment and was referred to Backfocus physiotherapy by Mr de la Harpe.  X-rays had been carried out on 10 February and 2 May 2008.

112     Dr Boling, neurosurgeon, wrote to Dr El‑Kheir on 11 August 2010, having seen the plaintiff that day.  Dr Boling advised on examination the plaintiff had normal strength except 4/5 strength in extensor hallucis longus on the left.  She had normal sensation.  Her reflexes were 2+ at the ankle and knee and symmetrical.  Her toes were down going and she had no clonus.  She had no pain aggravated by straight leg raise and she did have tenderness over the right sacroiliac joint. 

113     Dr Boling thought the plaintiff had pain that was typical for a nerve root compression and radiculopathy.  He noted the tenderness over the sacroiliac joint was certainly typical for sacroiliitis, although he noted the plaintiff unfortunately received no relief from the recent injection.  He recommended further imaging to further evaluate for the presence of nerve root compression causing radiculopathy.  As the plaintiff’s pain was much worse than when she was up and active, Dr Boling thought she would benefit from an upright MRI scan of the lumbar spine.

114     Dr El‑Kheir from Tristar Medical Group reported to the plaintiff’s solicitors in November 2011 that the plaintiff was suffering from chronic low back and neck pain following the accident.  Dr El‑Kheir thought the plaintiff was unfit for any kind of job, even part time.  Medication was then Mobic, Durotram, Endone and Diazepam.

115     Dr Stephanson reported on 11 April and 25 July 2012. He referred the plaintiff to Dr Grave for treatment of low back pain with associated radiation into the right lower limb.  Dr Stephanson noted there appeared to be little functional overlay to the plaintiff’s presentation and she had a genuine resolve to improve her symptoms. 

116     In his report of July 2012, Dr Stephanson advised he had been the plaintiff’s primary treating medical practitioner since March 2012.  He noted the plaintiff currently managed her symptoms with a combination of analgesic (Endone, Durotram and Mersyndol) as well as anti inflammatory and muscle relaxant medication.  Dr Stephanson reported the plaintiff had persistent pain from T10 to L5 and associated marked spasm in the region.  The tenderness over the iliac crest was in the cluneal nerve distribution and he thought pain in that region was likely to represent a neuropathic pain syndrome.  In his view, the spinal pain appeared to be myofascial and the plaintiff also demonstrated apparent central sensitisation to pain. 

117     Dr Stephanson thought the plaintiff presented as a well motivated person whose daily activities were limited by her physical symptoms rather than by a lack of desire and motivation.  He considered her mood was currently stable and there appeared to be no significant functional component to her presentation.  He thought her condition had led her to being on the physical disability pension and limited her work and social capacity. 

118     In Dr Stephanson’s view, the plaintiff may make further incremental gains in her pain levels and mobility but it was unlikely she would ever be pain free and experience normal functionality. 

119     In a referral letter to Dr Grave, Dr Stephanson set out that the plaintiff had had several CT guided epidural and facet joint nerve root injections with minimal benefit. 

120     Mr Schofield, orthopaedic surgeon, examined the plaintiff on 17 September 2009 on behalf of her solicitors and later became her treater.

121     The plaintiff then continued to complain of persistent low back pain felt to the right of the midline, radiating distally down the back of her right buttock and occasionally to the calf.  She also had some pain which radiated superiorly into the thoracolumbar region felt centrally in that area.

122     On examination, the plaintiff had a normal lordotic spine where she was tender to the right of the midline at the lumbosacral level.  There was significant muscle spasm when attempting to bend, which was to about twenty degrees only.  Extension was painful to ten degrees, and she had limited rotation and lateral flexion to the right and a little more to the left.  There were no neurological abnormalities.

123     Mr Schofield noted the report of the August 2009 MRI scan set out at L4-5, there was degenerative change including mild bilateral subarticular recess stenosis.  There was also mild right sided neural foraminal stenosis.  He noted there was no mention as to whether the disc was bulging, prolapsed, or normal.

124     In his initial report, Mr Schofield thought the plaintiff had suffered soft tissue injuries to the lumbar spine.  He thought that she had not been adequately investigated.  He was unhappy with the report of the MRI scan, as there was no mention of the disc pathology, and he requested that the films be sent to his rooms.  He then thought, in view of the plaintiff’s persisting symptoms and significant restriction of activities causing pain, she was not fit to return to her previous job.  He noted that, although she did not have evidence of radiculopathy, she had significant lumbar muscle spasm.

125     Mr Schofield reported again in September 2010, noting that in November 2009 the plaintiff was referred to him for ongoing assessment and treatment by her general practitioner.  Her symptoms then had not altered.  Again there was marked lumbar spasm, restricted straight leg raising on the right to forty degrees and to the left eighty degrees, two centimetre wasting of the right calf, and reduced sensation over the right outer thigh and calf.  Mr Schofield noted x‑rays with erect views were normal except there was significant facet hypertrophy at the lower two lumbar levels.

126     Mr Schofield advised a program of home based flexion exercise.

127     On review on 1 April 2012, Mr Schofield noted the plaintiff was no better, and the symptoms were worse on the right.  Flexion had improved to about fifty per cent of normal range, straight leg raising was better but still restricted on the right to sixty degrees, and normal neurology was noted.

128     Mr Schofield next examined the plaintiff in August 2010, at which time she continued to have persistent and unrelieved back pain.  He noted then she could not sit for more than fifteen minutes, and she had referred pain into both buttocks, worse on the right.

129     There was evidence of a lordotic lumbar spine with low lumbar tenderness.  Spinal flexion was only thirty degrees, extension twenty, with other movements mildly restricted.  Straight leg raising to the right was to sixty degrees, and to the left seventy, and neurological examination of the lower limbs was normal.

130     Mr Schofield thought the plaintiff should have a weight-bearing MRI scan in Sydney.

131     Mr Schofield concluded at that stage all examinations pointed to an organic injury causing pressure in the lower lumbar spine.

132     Mr Schofield thought the plaintiff was genuinely disabled and that there were organic signs of disability arising from the low lumbar spine.  He advised a vertical MRI scan with flexion and extension views was required to establish diagnosis, and after that he would be able to provide an opinion as to ongoing treatment.

133     Mr Schofield provided a further report in June 2011 as to the plaintiff’s capacity for pre injury employment.

134     Mr Schofield, having seen the reports from Mr Simm and Dr Wyatt of 2011 and Dr Boling of 11 August 2010, he concluded that the plaintiff had every reason to want not to have any pain or disability with four children and a husband to look after.

135     Mr Schofield thought the plaintiff’s symptoms and signs were typical of a lumbar disc injury and she should be sent to Sydney for an upright MRI scan.  He disagreed the plaintiff had any evidence of abnormal illness behaviour.

136     Mr Schofield advised he disagreed with the opinion of Mr Simm and Dr Wyatt.  In his view, the plaintiff was a totally genuine patient with ongoing organic disability.  He thought there were no gains to made by suffering from abnormal illness behaviour with four children and a husband to look after.  He thought the plaintiff continued to have an incapacity for employment.

137     Mr Schofield reported again in September 2011 following the receipt of the upright MRI scan. 

138     Mr Schofield advised the results stated the major pathologies at L3-4, with less changes at L4-5.  L3-4 reports a minor herniation with the sitting-up view and extension.  There was mild foraminal stenosis without changing flexion.  At L4-5 the appearances were normal in the sitting position but in extension there was a small annular tear, particularly on the right.  There was no herniation or protrusion seen.  There was also a mild herniation at the lumbosacral level without evidence of nerve contact or stenosis. 

139     Mr Schofield’s reading of the MRI scan also noted that the nucleus in the disc appeared to be normal.  In the oblique views there was foraminal narrowing, which at the upper limit was at L2‑3.  That narrowing was noted to proceed through L3‑4 and become wider from the mid L3‑4 vertebral level to the sacrum.  He noted the narrowing was likely to be due to facet hypertrophy which was also noted from L2 to L5.

140     Mr Schofield concluded it was likely the injury in the accident had caused the disruption of the posterior annulars of both L3-4 and L4-5 with resultant thickening of the facet joints as they took more of the weight bearing process on the lumbar spine.  In his view, there was no gross pathology noted but the upright scans demonstrated pathology consistent with the plaintiff’s pain.  He did not believe the plaintiff was suitable for surgery.

141     Mr Schofield thought the plaintiff’s prognosis remained uncertain and that she may benefit from an epidural injection targeting L3-4 and L4-5 but otherwise he recommended exercises and continuing medication.

142     The plaintiff was re-examined on 23 September 2011.  She continued to have pain in the lumbar spine and referred right lateral buttock pain radiating down the back of the thigh to the lateral calf and foot with occasional twinges in the left leg.

143     On examination, the plaintiff presented with low lumbar tenderness in her lordotic spine.  Her range of spinal flexion was forty per cent of normal at most, although that caused pain.  Palpation of her lumbar muscles when bending forward did note quite significant muscle spasm on the right more than the left.  There was pain on extension but other movements were normal.  Straight leg raising on the right was to seventy degrees reproducing right buttock pain.  There was normal straight leg raising on the left but this reproduced right buttock pain.  There was no wasting and neurological examination was normal.

144     Mr Schofield thought the plaintiff continued to be significantly disabled as a result of her accident injuries.  The many examinations with him were all consistent with pathology, mainly affecting the back causing stiffness, and the right leg causing limited straight leg raising.  There had been no evidence of any functional overlay.

145     Mr Schofield noted the plaintiff also continued to have significant muscle spasm in her back and continued to be unfit to return to pre injury work.  He thought she may benefit from an epidural injection but that would not be the cure.

146     In a report of October 2011, Mr Schofield advised the defendant that the plaintiff was keen to have the upright MRI scan and had that carried out in Sydney on 9 September 2011.  He advised he now wished to proceed to an epidural injection targeting the right L5 nerve root exiting from the L4-5 disc.  Mr Schofield advised he disagreed with Mr Simm’s report.  He thought the plaintiff had an organic condition due to disruption of L4-5.  He considered her clinical signs were consistent with a prolapse at that level with limited straight leg raising on the right and limited movement of her lumbar spine, particularly extension.

147     In examination in chief, Mr Schofield confirmed he had been actively acting for the plaintiff as her treating surgeon.

148     Mr Schofield was cross examined about a letter written by him to the defendant on 20 September 2011 in which he advised he was not the plaintiff’s treating surgeon.  He explained he had been asked to examine her on a number of occasions as an independent examiner.  He advised an upright MRI scan was necessary to provide an accurate assessment of her condition. 

149     Mr Schofield denied he had arranged any injections – that was a radiologist’s job.  He said it was correct he was not involved in the plaintiff’s management and had seen her on many occasions mainly to decide whether she needed surgery or not.  Ultimately after this exchange, Mr Schofield confirmed he did not describe himself as the plaintiff’s her treating surgeon because had not operated on her.

150     Mr Schofield confirmed that his initial advice to the plaintiff was to continue exercises.  He had advised the general practitioner to organise an injection. 

151     Mr Schofield was taken through the 2009 MRI scan and the more recent upright investigations.

152     Mr Schofield confirmed that in his various reports he had noted he was unhappy with the 2009 MRI report as there was no mention of disc pathology.

153     Mr Schofield explained there was a big difference between a patient lying down or standing up when undergoing an MRI scan.

154     Mr Schofield confirmed that following the more recent MRI scan, he reported that his latest opinion was that the plaintiff was suffering from a prolapsed disc.  Having been taken to the report of that MRI scan, Mr Schofield then agreed there was no mention of that finding in the report.

155     In response to my question as to what was said on the report that supported a diagnosis of prolapse, Mr Schofield explained there was evidence on the upright MRI scan of a minor broad based herniation at L5-S1 and at L4-5, with extension, there was a small annular tear which became apparent.  There was also clinical evidence of a prolapse at L4-5 with limitation of movement due to muscle spasm. 

156     Mr Schofield was critical of a sitting MRI scan where the back was not really arched as much as he would like.  He thought if standing, the plaintiff would be shown to have a prolapse.  In his view, there was a likelihood of a bulging or prolapse when she was in extension in a standing position and the extension was not done properly when sitting.

157     Mr Schofield disagreed with Mr de la Harpe’s view that the findings shown in the 2009 MRI scan were consistent with the plaintiff’s age.  The reference to mild subarticular recess canal stenosis and mild right sided neural foraminal stenosis without neural compromise was not normal.

158     Mr Schofield confirmed his examination findings were different to Mr Huffam’s, he having noted she had lower lumbar tenderness and a greater level of restriction which caused severe muscle spasm.  Also on every examination Mr Schofield found more restricted straight leg raising, specifically on the right compared to the left. 

159     Mr Schofield explained an examiner can detect spasm if he actually feels the lumbar muscles when a patient is bending forward.

160     In terms of the plaintiff’s work capacity, Mr Schofield said it was difficult to say as to the future.  He noted she had four children and he wondered how she would cope with working and looking after them.  If she had any work capacity he thought it would only be on a light duty part-time basis depending on her condition improving.  He confirmed that there might be problems with aggravation with sitting or standing for prolonged periods.  He thought it would be very difficult to know what the plaintiff was capable of but if she was going to do any work it would have to be on a trial basis.

161     Mr Schofield was not prepared to make any comments as to the relevance of psychosocial factors.  Each time he had seen the plaintiff there had been a consistency in her clinical signs which made him fairly confident that her condition was all organic and not an overreaction to non physical matters.

162     Mr Schofield agreed with Mr Huffam’s view that there was an involvement of the lower spine at more than one level.  He considered the plaintiff’s condition was consistent with a violent motor vehicle accident.  Mr Schofield agreed that Mr de la Harpe’s lifting restriction of five kilograms did not involve a large weight.

163     Mr Schofield confirmed he found the plaintiff totally genuine and he had noticed spasm on each examination.  The MRI scan had shown evidence of irritation of the L4-5 nerve and which he believed was consistent with the straight leg raising of sixty or fifty degrees on each occasion.  There was evidence of radiculopathy in November 2009 with two centimetres wasting with the right calf changes over the outer aspect of the right thigh and calf which had since improved, although straight leg raising pain had remained the same.

164     Dr Grave, musculoskeletal physician, reported in June 2012, having seen the plaintiff that month. 

165     The plaintiff complained to him of ongoing back pain which tended to be central from the mid thoracic spine down to the low lumbar spine.  She described it as fairly constant and related it to being told that her discs were bulging.  The plaintiff also complained of bilateral iliac crest pain.  She  described pain referring into the back of her thigh down the side of her calf and referring into the sole of the right foot.  Initial pins and needles seemed to have abated.

166     On examination, the plaintiff walked very stiffly and uprightly.  She appeared to have a hyperlordosis lumbar spine.  The plaintiff could flex to thirty degrees and there was a rotation to the right in the lumbar spine with that movement and there was marked decreased mobility in the low lumbar segments.  Extension was to twenty degrees and side bending was to fifteen degrees bilaterally and she was very cautious with all movements.  Bilateral straight leg raise was to ninety degrees and the slump test was negative.  Neurologically the plaintiff was normal.

167     Dr Grave noted segmental palpation of the lumbar spine demonstrated tenderness at L4 and L5 and also at the thoracolumbar junction at L1 and T12.  Examination of the musculature demonstrated altered musculoskeletal movement and the plaintiff tended to hyper extend the lumbar spine when doing the hip extension test, which was worse on the right.  Palpation of the musculature demonstrated marked spasm quadratus lumborum on both sides, but more pronounced on the left, and there was also notable tightness of iliopsoas bilaterally.

168     On examination of the iliac crest, there was apparent tenderness over the medial branches of cluneal nerves on both sides predominantly.  That was treated for neuropathic pain syndrome using a neural prolotherapy technique as a trial treatment. 

169     Dr Grave concluded certainly the plaintiff was centrally sensitised as well as having a myofascial component to her pain and likely neuropathic pain syndrome involving her iliac crest region.

Medico Legal

170     Mr John O’Brien, orthopaedic surgeon, initially examined the plaintiff on 20 April 2009 and re examined her in November 2011.

171     On the first examination, the plaintiff described constant pain localised in the lower lumbar spine, particularly on the left, extending into the left buttock.  She also described continuing pain which could vary between two to eight out of ten at the level of the thoracolumbar junction.

172     On examination, there did not appear to be any specific local tenderness in the cervical spine, although the plaintiff reported feeling some stiffness.  Cervical flexion, extension and rotation were to forty degrees and there was twenty degrees of lateral flexion.

173     The thoracolumbar spine was straight with a mild lumbar lordosis.  Flexion and rotation were to forty degrees with extension and lateral flexion to twenty degrees, accompanied by the complaint of back and left buttock pain. 

174     The plaintiff reported a definite tenderness on the left at the lumbosacral junction and in the left buttock.  Passive straight leg raise was to sixty degrees, with the description of pain on active straight leg raising and also active sit up.  There was some mild sensory change to light touch over the lateral aspect of the right foot.  The plaintiff also reported some sensory changes on the left side of her nose and left cheek.

175     Mr O’Brien noted an x‑ray report of May 2008 which set out there was a mild scoliosis convex to the left in the lumbar region with small osteophyte projection anteriorly from the upper body of L4 with no associated disc space narrowing. 

176     After the first examination, Mr O’Brien noted physical signs were basically subjective and demonstrated definite restriction of lumbar movement.  There were no signs to suggest a nerve root irritation or compression and he did not think the minor sensory change in the left foot related to any nerve root involvement.

177     In Mr O’Brien’s view, the plaintiff suffered from non specific back pain, but it was difficult to precisely define the underlying pathology.  He thought the symptoms had stabilised and he considered a conservative course of treatment seemed appropriate but perhaps the plaintiff required a more intensive program of physical treatment.  He was then guarded about her progress and thought she was certainly moderately disabled due to continuing back pain.

178     On re examination, the plaintiff stated there had been no change in the severity of her pain, although she felt with current medication she had more control over its severity.  She described constant pain extending from the mid line at the thoracolumbar junction distally to the lower sacrum fluctuating between two to eight out of ten.  She also described constant pain across the sacral region into both buttocks with the severity of pain being six out of ten.

179     On examination, the plaintiff appeared to be in some discomfort, moving quite slowly and, when walking, was inclined to hold onto her lower back.  Cervical spine flexion, extension and rotation were forty degrees with some twenty degrees of lateral flexion.  There did not appear to be any significant local cervical tenderness and there was a full range of shoulder movement.

180     The thoracolumbar spine was straight with a moderate lumbar lordosis.  Flexion, extension and lateral flexion were to twenty degrees accompanied by significant back pain.  Tenderness was reported mainly in the lower lumbar spine.  Passive straight leg raising was to seventy degrees bilaterally with a report of pain on active straight leg raising.  Neurologically the plaintiff was normal.

181     Mr O’Brien noted the MRI scan of the lumbar spine of August 2009 and the multi-positional MRI scan of 9 September 2011.

182     Mr O’Brien thought physical signs remained subjective and predominantly related to the significant limitation of all range of lumbar movement.  He considered there was no evidence clinically of any nerve root compromise or, indeed, radiculopathy.  Investigations had shown some degenerative change in the lumbar spine; however, he did not think the reports had identified the precise pathology.  He therefore thought the plaintiff continued to experience non specific back pain and, as indicated, was clearly affected by mechanical factors.  He thought the problems were chronic and stable.

183     Mr O’Brien did not believe the plaintiff’s symptoms would respond to physical treatment and thought she would require ongoing pain management and referral to a multidiscipline pain management program. In his view, the prognosis was poor, as the plaintiff now had well established chronic back pain which was likely to continue.  He considered the plaintiff had a significant disability.  She was physically restricted in most activities, although she did report being capable of normal activities of daily living. 

184     The plaintiff’s current presentation was such that, in his opinion, she would not obtain gainful employment and, from a physical perspective, he considered her to be totally incapacitated on a permanent basis and significantly restricted in her other activities on a permanent basis.

185     Mr Huffam, orthopaedic surgeon, examined the plaintiff on 23 August 2011. 

186     On examination, the plaintiff stood with normal posture.  There was a tender area over the lumbosacral region which seemed to extend down over the sacrum.  She would flex her lumbar spine to about half normal range then complained of pain.  Extension was full and not painful and lateral flexion to the right was a little limited.

187     Mr Huffam noted Mr Schofield thought an MRI scan report of August 2008 showed degenerative changes in the L4-5 intervertebral discs.  Mr Huffam concluded the plaintiff sustained injury to her back in the accident with resulting persisting low back pain and some radiation to her legs.  He thought she had clinical evidence of dysfunction of the lower lumbar spine but no clinical signs to indicate a radiculopathy, save for the finding of Mr Boling. 

188     Mr Huffam thought the plaintiff’s symptoms had an organic basis. In his view, she certainly may have sustained some injury to the lower lumbar intervertebral disc but it would be simplistic to attribute her symptoms just to the lumbar disc.

189     Mr Huffam’s final conclusion was that the plaintiff had sustained a genuine injury to the lower part of her back.  Although she continued to have organic back pain, he considered her overall disability would also be influenced by a number of psychological factors.  He noted the plaintiff’s children sustained severe injuries in the accident and her husband had multiple injuries. He thought she was taking a considerable amount of medication which may be contributing to a dulling of her mental facilities and a review of those medications at the pain management clinic may help her.

190     In the supplementary report of 30 August 2012, Mr Huffam advised that it was his impression the plaintiff sustained genuine injuries in a high speed motor vehicle accident and she had persisting dysfunction and pain.  He thought it simplistic to try and attribute that pain to individual structures in the lower lumbar spine, as all structures must be considered together.  He thought perhaps the plaintiff was taking an excessive amount of analgesic medication and there did appear to be psycho social problems in that her husband sustained multiple injuries and appeared to have a very limited work capacity.

Investigations

191     Mr de la Harpe organised an MRI scan of the plaintiff’s lumbar spine on 12 August 2009.  It was reported there was mild bilateral facet joint degeneration from L1-2 to L3-4 and mild left sided facet joint degeneration at L4-5.  At L4-5 there was mild bilateral subarticular recess canal stenosis and mild right sided neural foraminal stenosis without neural compromise.

192     Mr Schofield organised a multi positional MRI scan of the lumbosacral spine on 9 September 2012. 

193     At L3-4 neutral imaging showed no disc herniation, canal or foraminal stenosis.  Dynamic imaging showed with extension, minor herniation occurred laterally with mild foraminal stenosis developing.  There was no change with flexion.  At L4-5 neutral imaging showed appearances within normal limits and there was fluid in the right facet joint.  Dynamic imaging showed with extension a small annular tear became apparent, particularly on the right.  With flexion there was no change.  There was no disc protrusion or herniation seen.

194     At L5-S1 neutral imaging showed there was a very minor broad based herniation but no nerve root contact or stenosis.  Dynamic imaging revealed no significant change.  It was concluded there was a small annual tear becoming apparent on the right side of the L4-5 disc with extension.  There was minor disc herniation at L3-4 with extension and right L4-5 facet joint arthropathy. 

The Defendant’s Medical Evidence

195     The plaintiff attended The Royal Melbourne Hospital on the said date following the accident.  The report from the RMH set out that the plaintiff had been transferred from the Children’s following a high speed accident five days ago.  The report also set out ongoing headache, neck pain, had loss of consciousness. 

196     The plaintiff was seen by Mr de la Harpe on referral from Dr Rana in November 2008.

197     Mr de la Harpe advised on examination the plaintiff walked with a slow guarded gait and stood in a slightly forward flexed position.  Range of movement was forty five degrees of lumbar flexion and ten degrees at extension limited by apprehension and pain.  There was no neurological abnormality.  It was noted there would appear to be no surgical lesion in the form of a fracture of dislocation from the x‑ray reports. 

198     Mr de la Harpe believed the plaintiff had suffered a significant soft tissue injury, as a result of the accident, which was causing her to experience soft tissue and mechanical axial spinal pain.  He thought there was no evidence of neural compression.

199     Mr de la Harpe did not think surgery was warranted and he considered the plaintiff should continue with physiotherapy and he would be keen to organise a rehabilitation program for her.

200     Mr de la Harpe advised Dr Rana in January 2009, he had seen the plaintiff that day.  He believed she had a chronic whiplash syndrome. 

201     Mr de la Harpe wrote to Dr Miller at TAC in January 2009 advising he was happy the plaintiff undergo some vocational assessment and rehabilitation.

202     Mr de la Harpe wrote to Dr Rina on 14 August 2009.  He advised he reviewed the plaintiff on 13 August and she had had an MRI scan which would be passed as normal for age.  He advised he thought there was no neural compression.  He thought the best way he could think of treating her lumbar spine was with some Pilates. 

203     Mr Schofield wrote to Dr El-Kheir in April 2010 following review.  Mr Schofield advised his emphasis was on regular flexion exercises, including standing flexion and avoiding extension.  Mr Schofield noted that the MRI scan failed to show any evidence of a disc prolapse at any level.  He was hopeful that if the plaintiff continued exercising she would get some relief as her clinical signs had improved.  He saw no other course of action, although he did mention the possibility of an epidural injection and advised the plaintiff would be reviewed in three months.

204     Mr Schofield advised the defendant on 20 September 2011, when asked to give more information about accepting an upright MRI scan, that he was not the treating surgeon of the plaintiff.  He had been asked to examine her on a number of occasions as an independent examiner.  He was therefore acting in the same position as he was in 2009.  He advised it was his role to provide an opinion as to her condition and prognosis.  He thought the upright scan was necessary to provide an accurate assessment of the plaintiff, whether or not he was acting for the solicitor, for the insurance company or for the defendant.  As an independent examiner he thought it was not his role to take sides and advised furthermore he was not involved in her management. 

Medico legal

205     The plaintiff was examined by Dr Mary Wyatt, occupational physician, on 12 August 2008, 4 August 2009 and 19 January 2011.

206     On the initial examination the plaintiff complained of ongoing soreness in the low back, with occasional soreness in her neck, but not much of a bother.

207     On formal testing the plaintiff demonstrated about half normal back movement, but after discussion was in fact able to fully bend.  She said she initially stopped when she felt some soreness.

208     Extension was mildly restricted.  Lateral flexion to the right was the most limited, and there was reduced mobility of the lumbar spine and advised soreness with lateral flexion to the right.  Lying face up, straight leg raising was not problematic.  Lying face down, the plaintiff had a moderate degree of tenderness noted over the spine itself and paraspinal regions, particularly in the lower lumbar area.  There was some mild tenderness in the upper lumbar and lower thoracic region.   Straight leg raising was normal.

209     At that stage, Dr Wyatt thought the plaintiff had persisting soreness in her low back best described as non specific back pain.  She presented to have a typical back problem, moderate in severity.  She then noted the plaintiff’s symptoms had an organic basis and were attributable to the accident.

210     Dr Wyatt thought psychosocial factors were likely to be influencing the situation, as they would be for most people, mentioning the plaintiff’s domestic situation.

211     At that stage, Dr Wyatt thought the plaintiff was capable of doing about twenty hours’ work a week and would be generally fit to increase her hours to full time over the next three to four months.  She thought the plaintiff was then physically capable of doing a range of non-physical duties.  She thought the plaintiff would struggle to do fifty hours of work at that point.

212     In the second examination, inspection of the back revealed a normal thoracolumbar curve and no tilt of the spine.  The plaintiff was able to demonstrate a reasonable range of movement of her back, although indicated soreness over the lower back on forward bending and extension.  There was no muscle spasm.  Lying face down, the plaintiff indicated mild tenderness over her lower thoracic spine with further tenderness over her lower lumbar spine. The plaintiff then advised of soreness in her low back, with pain over the lower lumbar spine present regularly.

213     Dr Wyatt again thought the plaintiff’s current symptoms had an organic basis.

214     Dr Wyatt considered the plaintiff presented to be fit to return to pre accident employment as a receptionist if she could stand up intermittently and stretch her back.  Dr Wyatt thought the plaintiff may benefit from returning to work on reduced hours, but did not think that was a medical necessity.

215     On the final examination, the plaintiff said she had had persistent back pain since the previous examination, and indicated that it had not materially altered.

216     On examination, the plaintiff moved somewhat cautiously and held her back at times.  A normal thoracolumbar curve was noted.  She demonstrated reduced movement of her back, stopping at half normal forward flexion.  Extension was demonstrated to two thirds of normal, with the plaintiff advising soreness in her back at that point.  There was no significant restriction of lateral flexion or rotation, and no muscle spasm.

217     The plaintiff said just before climbing on the couch she had increased pain in her upper lumbar region and felt as though her back was going to spasm, but there was no visually evident spasm noted.  Straight leg raising was not restricted.

218     Dr Wyatt thought the plaintiff should work in a job where she was able to change her position intermittently.

219     Dr Wyatt thought the plaintiff’s back problems would reasonably make it difficult for her to do long periods of demanding tasks domestically.  She thought the plaintiff’s perception about her condition, lack of clarity about the importance of a return to normal activities, the impact on her family, and losing her job, may be factors that may be influencing her situation.

220     Mr Simm, orthopaedic surgeon, examined the plaintiff on 9 May 2011 and provided a supplementary report of 19 September 2011.  He again saw the plaintiff on 23 August 2012.

221     On initial examination, the plaintiff’s main complaint related to her lower back with intermittent symptoms in the neck.

222     On examination, Mr Simm noted the plaintiff presented with strong symptom focus and with features of abnormal illness behaviour.  She seemed to be in considerable discomfort throughout the interview, and frequently reached behind her back with her right hand.  She moved her head and neck without evidence of restriction when interviewed.  She walked with a slow shuffling gait, leaning forwards.

223     There was only mild restriction of cervical movement, and there were no signs of radiculopathy.

224     The plaintiff was advised to move her back to the point where she experienced pain, and she demonstrated very little forward flexion or extension. Movements seemed to be associated with apprehension, guarding, and pain.  There was some tenderness in the lower thoracic and upper lumbar region, and some localised tenderness in the sacroiliac regions, particularly on the right.  There was moderate restriction of lateral flexion to the right and left sides, and mild restriction of rotation.  There were no signs of radiculopathy.

225     Mr Simm thought the plaintiff had a soft tissue injury to the cervical spine which had partially resolved, and also a soft tissue injury to the lumbar spine.  He noted there were no clinical signs of radiculopathy, and the plaintiff’s pain was not typical of radicular pain from an identifiable nerve root.

226     Mr Simm considered the clinical presentation was now that of a chronic pain syndrome triggered by a soft tissue injury to the lumbar spine.  He noted the plaintiff appeared anxious and strongly focused on her symptoms, and he suspected she had a significant post traumatic emotional disturbance which needed to be evaluated fully by a psychiatrist.

227     Mr Simm thought the injuries were consistent with the accident, and that protracted spinal pain was not uncommon in the context of a soft tissue trauma in a transport accident.  He noted patients with that clinical course frequently had an associated emotional disturbance.

228     In Mr Simm’s view the plaintiff had an entrenched pattern of symptoms which were now likely to persist indefinitely.  He thought those symptoms would prove difficult to treat, and he expected the plaintiff to continue to avoid physical activities because of her chronic pain and associated emotional disturbance. He thought overall operative treatment was contraindicated.

229     Mr Simm considered the plaintiff’s chronic pain and self perception of ongoing injury, disability, and susceptibility to further injury, would keep her out of work indefinitely. In his view, one would expect her to be able to go back to administrative work in a sympathetic environment if she was allowed to move at will, but he noted in her current frame of mind it seemed unlikely she would undertake return to work activities, having put up a number of barriers when discussing a return to work.

230     Mr Simm concluded the plaintiff seemed to present as an entirely genuine person who was now quite disabled by a chronic pain syndrome and associated emotional disturbance.  She made a number of statements that suggested her illness response had been reinforced by being advised that she had a severe injury with associated scarring to her lower back.

231     Mr Simm provided a supplementary report, having been provided with reports from Dr El‑Kheir and Mr Schofield’s request for an upright MRI.

232     Mr Simm thought there was no indication for the plaintiff to have that further investigation and it was not a reasonable diagnostic tool.  He did not believe the plaintiff required ongoing formal orthopaedic treatment in the form of physical therapy or invasive treatment. He considered she required management for a chronic spinal pain syndrome, which may include psychological support from a GP and/or psychologist and the provision of a chronic spinal pain medication regime.

233     On re examination, the plaintiff complained of constant pain, starting as low as two out of ten and sometimes rising to eight or nine out of ten.  The pain extended from the lower thoracic spine to the lumbosacral region.

234     On examination, the plaintiff again presented as an anxious person with a symptom focus.  She demonstrated overt illness behaviour, walking leaning slightly forwards and slightly favouring her right leg, and sitting with her right hand on her back for most of the interview and seeming to be uncomfortable.

235     The plaintiff cooperated fully, and there was no significant elaboration of physical signs.  Her gait was normal, but she tended to walk leaning slightly forward.

236     There was minor restriction of rotation of the cervical spine and the complaint of stiffness.

237     Movements of the thoracolumbar spine were undertaken cautiously.  At twenty degrees of flexion, the plaintiff complained of back pain, and a similar response at fifteen degrees of extension.  Lateral flexion to both sides was to thirty degrees, and that was only mildly painful.  Rotation to both sides was thirty degrees and only slightly painful.

238     Waddell’s vertex compression test was weakly positive.

239     The plaintiff had two localised areas of tenderness at about T10 and L4‑5.

240     There was no neurological abnormality.

241     Mr Simm had available the multi-positional MRI of September 2011.

242     Mr Simm thought the plaintiff had a soft tissue injury to the cervical spine from which she had largely recovered.  There was also a soft tissue to the lumbar spine.  He noted multiple investigations had not demonstrated any significant disc protrusion or other cause for neural compression to explain the right lower limb symptoms.

243     Mr Simm thought the plaintiff’s clinical presentation was again that of a chronic spinal pain syndrome triggered by a soft tissue injury.

244     Mr Simm repeated his earlier comment that the plaintiff’s clinical presentation seemed entirely genuine, and although the diagnosis of chronic spinal pain syndrome implied non‑organic and/or psychological factors may be contributing to the perpetuation and amplification of the pain response, he was not suggesting that the plaintiff’s clinical presentation was in any way contrived.

245     Mr Simm noted that the very minor degree of pathology shown on investigations would be very common in the general population of the plaintiff’s age.  He thought her established pattern of chronic and disabling pain would persist and it was proven to be resistant to treatment.  He thought the plaintiff needed to be advised that treatment was unlikely to influence the pain, and that the management of her condition should be now directed towards living around the pain and adapting to it as best as possible.

246     Mr Simm noted that the severe pain associated with the soft tissue injury had prevented the plaintiff from returning to work, and the distraction of severe pain and the associated limitations would probably continue to keep her out of the workforce. He thought there was no indication for operative or other invasive treatment.

Vocational Evidence

247     Work Able Consulting (“Work Able”) wrote to Mr de la Harpe in April 2009 seeking information about the plaintiff’s work capacity. 

248     Work Able having met with the plaintiff in July 2008 and identified the following potential roles as suitable for her – administration officer, receptionist, personal assistant, customer service officer and medical receptionist.  It was noted the plaintiff had worked in similar roles to the above in the past and the majority of those roles were mainly sedentary and would offer the plaintiff the opportunity to alter her posture as required.  The roles did not require heavy manual handling to be undertaken.

249     Mr de la Harpe thought the plaintiff had a current work capacity for suitable employment such as identified by the vocational assessor.  He believed the plaintiff had the capacity to participate in job seeking services provided by Work Able which would involve her searching for and applying for suitable employment positions.  He believed the plaintiff had a capacity for part time work and that there should be no lifting over five kilograms, no sitting beyond thirty minutes and no bending or twisting.

Lay Evidence

250     Hilary King swore an affidavit on 24 January 2012 to which was exhibited a statement made by her on 24 June 2006.  She was the human resource manager at Portland District Health.  It was noted that Ms King had provided the defendant with a copy of the letter the plaintiff wrote explaining the circumstances of her accident involving the use of the vehicle without authorisation.  As a result of the breach of policy, the plaintiff was suspended on full pay as of 25 February 2008 and an investigation conducted.  The investigation revealed other serious breaches of the plaintiff’s employment contract which had resulted in the termination of her employment.

251     Ms King noted the plaintiff resigned from her employment effective 21 April 2008 citing personal reasons.  The resignation was a result of the investigation finding and not related to any injury sustained in the accident.  As far as Ms King was aware the plaintiff was fit to return to work, however her employer would not have her back nor give her a reference. 

Employment Documents

252     The plaintiff wrote to John O’Neil, the chief executive at Portland District Health, on 7 March 2008, summarising her version of the accident circumstances.

253     The plaintiff described going out for dinner after work.  At about 10.45 she was tired so her husband drove home two kilometres away.  She remembered the rear of the car slide and the next thing they went “bang” and came to a stop.

254     The plaintiff could not remember a lot about the actual crash but was concerned about her husband and children.

255     Mrs Norman noted that she had full authorisation to use the vehicle and prior to the incident had never read the policy which she now knows very clearly states vehicles should not be driven for personal use without authorisation.  She noted she greatly regretted the entire incident and she and her husband were terribly sorry for the concern and inconvenience caused.  She wished she had never asked for permission to use the vehicle and had just taken a taxi.  She advised it had been a very disturbing ordeal for her whole family.  She had had many sleepless nights during the period of suspension not knowing whether she would ever be back at work.  She loved her job and the varied tasks involved. 

256     The plaintiff advised she was under the impression she was a great asset and on many occasions was praised by the CEO and fellow workers for her performance of her duties.  The plaintiff hoped that all that could be overcome and she could go back to work as soon as possible.  She realised the matter of the vehicle’s insurance must be addressed but did not see why she needed to be suspended during that time, nor why the future of her employment needed to be in jeopardy.

Termination

257     On ? Mr O’Neill wrote to the plaintiff, terminating her employment.  He advised subsequent investigations of several matters had revealed a serious pattern of dishonesty and of unacceptable behaviour and failure to follow policy and procedures which include breach of vehicle policy, email usage policy and abuse of the phone network.

258     Mr O’Neil described the circumstances of the plaintiff allowing her husband to use the work vehicle after she had had permission to use it.  Also that she had overloaded her car with six people when five was the accepted number, placing two children in the one seat belt.  He noted the insurer had written off the vehicle and he was awaiting a police report to see if there would be any criminal charges.

259     Further, Mr O’Neil advised that a witness had reported the plaintiff’s husband had been seen driving a hospital vehicle the weekend before, and that when the plaintiff dropped Mr O’Neil off at the airport she continued to use the car over the weekend without any permission.  There were also alleged breaches of the email and phone usage policies.

260     The plaintiff was advised that, as CEO of Portland and District Health, Mr O’Neil had made the decision to terminate her employment effective immediately.

261     On 21 April 2008, the plaintiff wrote a letter of resignation, citing personal reasons, effective immediately.

Overview

262     I accept the plaintiff suffered an injury to her spine in the single vehicle transport accident involving a violent impact .

263     The preponderance of medical evidence is that the plaintiff suffered a soft tissue/whiplash injury in the accident – a diagnosis accepted by the defendant. 

264     Mr Schofield alone was of the view that there was more sinister pathology in the form of a disc prolapse.  He made this finding after a recent MRI scan carried out whilst the plaintiff was seated.  However in cross examination, he agreed that there was no specific findings to this effect on that testing.  Commenting on that recent investigation, Mr Simm noted it showed very minor changes. 

265     Whilst there is mention by Mr Simm, Ms Wyatt and, to a lesser extent, Mr Huffam, of a functional element to the plaintiff’s presentation, I am satisfied that her back condition is organically based.

266     Current treater, Dr Stephanson, thought there appeared to be little functional overlay to the plaintiff’s presentation and that she had a genuine resolve to improve her symptoms. 

267     Although noting that the plaintiff’s presentation was that of a chronic spinal pain syndrome triggered by a soft tissue injury of the lumbar spine in the accident, Mr Simm noted that situation was commonly encountered with patients reporting protracted and often unexplained spinal pain following a car accident.  Further, he thought the plaintiff’s clinical presentation seemed entirely genuine.  Although the diagnosis of chronic spinal pain syndrome applied and non organic factors may be contributing to the amplification of the pain response, Mr Simm was not suggesting the plaintiff’s clinical presentation was in any way contrived.

268     Further, Mr Simm conceded there was some pathology with a soft tissue injury to the lumbar spine and accepted that the plaintiff had severe persistent thoracolumbar spine pain.  It was not his view that the primary organic basis of the plaintiff’s condition had been overtaken by psychological factors.

269     Mr Huffam accepted the plaintiff continued to have organic back pain and that her overall disability was influenced by a number of psychological factors.  Ms Wyatt considered the plaintiff’s presentation had an organic basis. 

270     Although there was a subjective nature to the plaintiff’s complaints, Mr O’Brien thought the plaintiff continued to experience non specific chronic back pain, clearly affected by mechanical factors.

271     Further, on occasions, there have been objective findings of spasm by Dr Stephanson, Mr Schofield and Dr Grave.

272     I am satisfied taking into account all the evidence, the plaintiff continues to suffer back pain which is organically based.

Credit

273     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:

“… 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.”

274     I found the plaintiff to be a genuine truthful witness who did not overstate her level of pain and disability.  I accept that she has battled on stoically after the accident in the face of significant ongoing back pain looking after her family.  Further I accept that she would work if she had the capacity as she is the only breadwinner in the family.

275     I accept Dr Stephanson’s view that the plaintiff presented as a well motivated person whose daily activities were limited by her physical symptoms rather than by a lack of desire and motivation.     

276     I accept that since the accident, the plaintiff has had constant spinal pain – predominantly in the lower lumbar area.

277     High dosages of strong painkilling medication help the plaintiff get through the day with Durotram every morning, three to four Endone a day, Mobic, Valium and occasionally Mersyndol.  These medications however cause side effects such as nausea, tiredness and concentration difficulties. 

278     Further, the plaintiff’s sleep continues to be interrupted every night by pain.

279     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:

“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.  … [The plaintiff] often experiences multiple painful awakenings in the course of a single night.  As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”

280     The plaintiff has required a range of treatment modalities including physiotherapy and hydrotherapy.  Of more recent times, she has undergone an invasive needling procedure undertaken by Dr Grave.  This painful procedure involving forty needles into her spine, provided some relief to the point where the plaintiff would like it repeated but she cannot afford to do so.

281     Due to back pain, the plaintiff is limited in the amount of house cleaning she can undertake and is no longer able to spend time in the garden, an activity she previously enjoyed.

282     As a result of her back condition, the plaintiff is no longer able to enjoy a very active recreational and sporting life which previously included camping, long distance walking and riding a trail bike.  Further, she is unable to enjoy a full range of activities with her children.  Her involvement at the College is limited to purely administrative assistance in short term projects without the ability to help out hands on as other parents are able to do.

283     Even though the plaintiff’s employment was terminated due to the misuse of the work car, I accept that her failure to return to the work force after the accident was a result of her accident injuries.

284     The plaintiff was very anxious to get back to work as set out in her letter of 28 February 2008 and her notation on the claim form that she anticipated a return to work on light duties on 25 February.  Whilst she was keen to return to work, I accept that the plaintiff was still experiencing pain at that time and her desire was motivated by financial necessity being the family’s sole breadwinner.

285     Whether the plaintiff saw her condition as a whiplash injury or later one involving her lumbar discs as Mr Schofield advised, she has not given up her attempts to return to some form of administrative work.

286     I do not accept that the plaintiff has made a lifestyle choice to stay home and look after her four children and husband and run the household, the plaintiff and her partner having organised prior to the accident that she be the sole breadwinner.

287     I accept as the result of her back condition the plaintiff no longer has the capacity to sit for prolonged periods undertaking administrative work as she was previously able to do for up to fifty hours per week. 

288     The preponderance of medical opinion is that at best, the plaintiff would now require regular rest breaks and the ability to stand from the work station when necessary to be able to engage in administrative work.

289     Mr de la Harpe in 2009 thought the plaintiff had a capacity for part time with a five kilogram lifting restriction, no sitting beyond thirty minutes and no bending or pushing.

290     Mr Schofield was of the view that if the plaintiff had any work capacity he thought it would only be on a light duty part time basis depending on her condition improving.  He confirmed that there might be problems with aggravation with sitting or standing for prolonged periods.  He thought it would be very difficult to know what the plaintiff was capable of but if she was going to do any work it would have to be on a trial basis.

291     As Mr Simm concluded, the severe pain associated with the soft tissue injury prevented the plaintiff from returning to work and the distraction of her severe pain and the associated limitations would probably continue to keep her out of the workforce.  If she had any work capacity he thought it would only be on a light duty part time basis depending on her condition improving.  He confirmed that there might be problems with aggravation with sitting or standing for prolonged periods.  He thought it would be very difficult to know what the plaintiff was capable of but if she was going to do any work it would have to be on a trial basis.

292     In late 2011, Mr O’Brien thought the plaintiff was totally incapacitated for employment.  Following examination in 2012, Mr Huffam thought the plaintiff had a very limited work capacity.

293     Dr Wyatt alone was of the more optimistic view as to the plaintiff’s work capacity.  She thought the plaintiff presented to be fit to return to pre accident employment as a receptionist if she could stand up intermittently and stretch her back.  Dr Wyatt thought the plaintiff may benefit from returning to work on reduced hours, but did not think that was a medical necessity.

294     This interference with the plaintiff ability to carry out her pre injury duties is a consequence which I consider to be serious.

295     I am also entitled to take into account the expected mental consequences of the plaintiff’s physical impairment such as frustration and depression when considering the seriousness of her impairment – see Winneke P in Richards v Wylie (supra).

296     I accept that the plaintiff has had difficulties coping with her changed circumstances following the accident.  She has learned to cope with this situation to some extent through counselling but now prefers to self manage with the coping strategies she has been taught. 

297     Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s back impairment are serious.

298     As the condition has persisted for in excess of five years without improvement despite treatment, I am satisfied the impairment is long term.

299     Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident. 

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