Ognenovska v Transport Accident Commission
[2016] VCC 150
•29 February 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02492
| VENDA OGNENOVSKA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2016 | |
DATE OF JUDGMENT: | 29 February 2016 (Revised) | |
CASE MAY BE CITED AS: | Ognenovska v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 150 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – injury to the cervical spine
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering v McKenzie [2014] VSCA 67; Bezzina v Phi & Anor [2012] VSCA 161; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr L Paine | Grando & Breheny |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 2 February 2011 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the cervical spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”.[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at [140] – [141]
7 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.[2]
[2]Richards v Wylie (2000) 1 VR 79
8 The plaintiff swore two affidavits and was cross-examined. Both parties relied on medical reports and other material that was tendered in evidence.
The Plaintiff’s evidence
9 The plaintiff is presently aged sixty-five, having been born in June 1950 in Macedonia. She arrived in Australia in February 1969. She is married with two adult children.
10 After arriving in Australia, the plaintiff undertook packing duties in various factories and on the assembly line at Holden. Whilst working for Pelaco as a presser in 1983, the plaintiff developed right Carpal Tunnel Syndrome, following which she had to cease work. She underwent a right carpal tunnel release that resulted in only limited improvement of her symptoms.
11 Gradually, the pain and numbness in the plaintiff’s right hand improved. Around the year 1986, she received a $25,000 lump sum payment for this injury.
12 The plaintiff returned to work in about 1989 and worked for B & B Hosiery for about four years as a packer.
13 The plaintiff then worked for Carborundum as a machinist and packer for approximately three years. During that time, she developed pain in her left arm and wrist, as well as the neck region, and back.
14 In evidence in chief and in cross examination, the plaintiff stated the reference to the neck region was incorrect.[3] She had pain from her wrist up to her shoulder and the side of her neck.[4] The neck region meant the pain spread from her wrist to her arm.[5]
[3]Transcript (“T”) 11
[4]Transcript 26
[5]T44
15 The plaintiff however went on to say that since the accident, she had neck pains. The pains have not stopped. She has continuous headaches and neck pain since the accident.[6]
[6]T12
16 Before the accident, her arm was always hurting. It felt numb and she had difficulty sleeping.[7]
[7]T11
17 The plaintiff was treated by Dr Gorgioski. She had to stop work because of left arm pain.
18 The plaintiff underwent a left carpal tunnel release (“the left carpal tunnel surgery”) in November 1997, after which she had physiotherapy for about two years. There was some relief after this surgery. The plaintiff was not in as much difficulty as she has been since the transport accident.[8] Since then, her neck and headaches have been persistent, not her carpal tunnel condition.[9]
[8]T13
[9]T14
19 The plaintiff received WorkCover payments for about two years for her back injury[10] and a lump sum of about $50,000 for her back and left arm injuries.[11]
[10]T24
[11]T23 and T42
20 Following the left carpal tunnel surgery, the plaintiff continued to have numbness and weakness in the left hand, as well as intermittent back and right leg pain.
21 The plaintiff had a CT scan of her lumbar spine on 3 February 2010. She also had problems with nasal stuffiness, although she was otherwise in reasonably good health prior to the accident.
22 In cross examination, the plaintiff initially could not remember any claim brought by her against Galbally & O’Bryan for its failure to bring serious injury proceedings in relation to her lumbar spine and left arm complaints, however she later recalled she received some settlement monies.[12]
[12]T22 ($50,000 – letter from Grando & Breheny to the Transport Accident Commission dated 15 May 2015)
23 Since injuring her back and left wrist the plaintiff has been in receipt of an invalid pension.[13] She wanted the pension because of her “difficulties and suffering” – for the back, leg and the arm.[14]
[13]T24
[14]T37
24 Much of the cross examination focused on the plaintiff’s pre-accident back and arm conditions.
25 The plaintiff gave confusing answers about her medication intake pre-accident, for example:
· taking Panadol for pains, regardless of what they were then she said the medication was for her back.[15]
[15]T40
· not taking medication every day, now she takes it continuously every day.[16]
[16]T16
· had tried all sorts of tablets and none had helped.[17]
· only taking intermittent medication when in severe pain. It could have been once or as many as three times a week.[18]
[17]T31
[18]T44
26 The plaintiff needed to take sleeping tablets for her back prior to the accident. She could not remember if she was taking them immediately before the accident.[19]
[19]T13
27 The plaintiff could not remember a lot about the matters set out in her 1999 affidavit in support of her s98 claim.
28 At the time she swore that affidavit, the plaintiff’s shopping was limited to small items because of her back and her wrist. It has been a very long time since she has been able to do any shopping. She cannot lift.[20]
[20]T18
29 The plaintiff’s daughter was then living at home and she helped out a lot after 1997, as the plaintiff could not do vacuuming or cleaning. The plaintiff felt bad as her daughter had to look after her and she should have been taking care of her as her mother.
30 Since the accident, the plaintiff has tried to do her own chores, but found it very difficult and has been unable to do many of them. Her daughter moved out a year ago but still regularly calls in at least twice a week to help.[21]
[21]T19
31 The plaintiff could not remember problems with socialising as described in her 1999 affidavit. She could recall not being able to visit friends because she could not visit and then ask to lie down.[22]
[22]T20
32 The following table is a summary of the plaintiff’s attendances with Dr Gorgioski and her response in cross examination when the various entries were put to her.
Date Summary of Doctor’s Entry Plaintiff’s Response 3 February 2009 Carpal tunnel syndrome deteriorating. Agreed. 11 February 2009 Left hand persisting. Ultrasound left shoulder, tendinopathy, partial tear. Denies left shoulder ultrasound. 14 May 2009 Reviewing medication. Headaches. Carpal tunnel syndrome worsening. Can’t remember. 3 August 2009 Headaches. Can’t remember. 28 August 2009 Severe headaches. Referred to physio. Can’t remember. 16 November 2009 Headaches and dizziness. Can’t remember. 21 December 2009 No difference – headaches and dizziness. Can’t remember. 28 January 2010 Referral to Mr Flood about carpal tunnel. Can’t remember. 30 January 2010 Severe lower back pain. Can’t sit and walk. Tramadol injection, Panadeine Forte, Nurofen and Panadol. No. I can’t remember. Just knew I took medication when I had pain. February 2010 Severe pain in left shoulder. Don’t remember. 4 September 2010 Left wrist pain. Persisting restricted movement. Operation scheduled. Don’t remember. 25 October 2010 Anxiety. Headaches for two days. Dizziness. Don’t remember. 23 November 2010 Lower back pain persisting. Carpal tunnel stable. Can’t remember. 14 December 2010 Left wrist. Review carpal tunnel syndrome and medication. Recalls taking Panadol and Nexium.
33 The plaintiff agreed she was taking Panadol in December 2010. She was taking it for her pains, whatever they were, and then said she was taking it for her back.[23]
[23]T42 – WorkCover printout Claim No 97 7531 (Defendant’s Court Book (“DCB”))
34 The plaintiff saw Mr Flood in 2010 because she was experiencing numbness in her arm and she wanted to ask what he could further offer. He advised her that surgery could not help anymore.[24]
[24]T15
35 The plaintiff could not remember seeing her general practitioner in January 2015 about her left wrist.[25]
[25]T15
36 The plaintiff did not think she mentioned neck pain when she saw Mr Battlay in June 2010. She must have indicated her pains were in the arm up to the shoulder.[26]
[26]T42
The accident
37 On the said date, the plaintiff’s vehicle was struck on the left while in a roundabout, forcing it into the median strip. The plaintiff was shaken up by the collision and then drove home.
38 The next day, the plaintiff’s neck felt very stiff and she also had a headache. She thought the symptoms would resolve but they did not.
39 The plaintiff attended Dr Gorgioski on 8 February 2011. He prescribed medication and arranged for a cervical CT scan.
40 The plaintiff was then referred for physiotherapy in Lalor, where she first attended on 9 March 2011 twice per week for approximately twelve months, and then once per week until late 2012 when the defendant ceased funding for the treatment.
41 The plaintiff could not remember whether she had challenged the defendant’s decision to terminate funding.[27]
[27]T28
42 The plaintiff has continued to have five physiotherapy visits a year funded by Medicare. These provide temporary relief for her neck discomfort. If funding had not been ceased, she would have had more regular physiotherapy because she is still in pain.[28]
[28]T42
43 Dr Gorgioski arranged an MRI scan of the plaintiff’s cervical spine, which took place in September 2011. He then referred her to Mr Timms, a neurosurgeon, whom she first saw on 11 November 2011.
44 Mr Timms advised the plaintiff to continue physiotherapy. Acupuncture was suggested by the physiotherapist. The plaintiff had one session in late 2011 but she was scared of the treatment and felt nauseous and did not continue.
45 The plaintiff returned to Mr Timms on 15 February 2012. Her neck pain seemed to be spreading into her right shoulder and arm and he suggested neck surgery. The defendant denied his request for funding.
46 If surgery had been funded, the plaintiff would have had it because, “even today, she still has a lot of trouble.”[29] She denied that she had not gone on the public waiting list because she did not want to have surgery. She was not lying in this regard because she was having pain and difficulty sleeping. She wanted to have surgery privately and get it over and done with. She could not remember how long Mr Timms told her she would be on the waiting list.[30]
[29]T28
[30]T29
Symptoms
47 As of March 2014 when she swore her first affidavit, the plaintiff had constant neck pain which was a tight and aching feeling, made worse if she turned her head too quickly or too far. She also had increased neck pain if she held her head in the same posture, particularly if bending forward for longer than a few minutes. If she was on her feet for more than a few hours at a time, she felt more fatigued and wanted to rest her head on something.
48 The plaintiff’s neck pain was worse on the left but turning to the right usually produced the most discomfort. She also had a pulling feeling in the top of both shoulders when she moved her head. Raising her arms above chest height could also increase neck pain. She tended to now move slowly and stiffly and she was conscious to avoid any activity that would jar her neck.
49 In cross examination, the plaintiff confirmed this pain persisted. There was nothing she could do about it and she could not get rid of it.[31]
[31]T31
50 The plaintiff has had a good recovery from bowel cancer. She underwent surgery in July 2013, and requires check-ups every three to six months.
51 The plaintiff could drive but preferred to be a passenger and often only drove locally. She used her mirrors more and avoided reverse parking. She could drive for about 30 minutes before her neck seemed to become increasingly stiff and she experienced headaches. She gently did tilting and rotation movements and rubbed her neck whenever she was sitting, which could reduce the stiffness. Sometimes when sitting, the pain seemed to spread down her shoulder blades, at which time she found it best to get up and move around.
52 The plaintiff’s neck pain also spread into the back of her head, worse on the left. That caused headaches, particularly above and behind her left ear. These occurred daily and usually lasted between 30 minutes and one hour.
53 The plaintiff found it hard to get comfortable to sleep and used heat packs on her neck in winter on her shoulder blades, as well as a pillow under her neck. That seemed to make it more comfortable. Nearly every night, she tossed and turned a lot because it was hard to get to sleep with neck pain. When that happened, she often got up and sat in the lounge room and watched television for about half an hour. She found it too uncomfortable to stay in bed and was better off sitting in a recliner, purchased before the accident, which she could adjust for neck support.[32]
[32]T33
54 The plaintiff’s sleeping has been worse since the accident. It is causing her more stress and she is “more frightened”. She always had difficulty sleeping, but when she had pain and difficulty sleeping, there was not much she could do.[33]
[33]T32 – never taken sleeping tablets cf T13
55 The plaintiff has not taken sleeping tablets since the accident, and could not remember taking them before.[34]
[34]T33
56 In the morning, the plaintiff’s neck was always stiff. She reheated the heat pack and wrapped it around her neck if the weather was cold. She also had a hot shower, which seemed to loosen her muscles. She dressed slowly and tried to keep her head up.
57 As of March 2014, the plaintiff’s daughter and rand daughter still lived at home. The plaintiff still did much of the cooking but could only stand at the bench for about 10 to 15 minutes before needed a break and move around.
58 The plaintiff used to make homemade pastry that her husband liked but she could no longer do so as it involved prolonged working of thin pastry. She now just prepared basic foods and tended to buy more take-away food.
59 The plaintiff could put washing in the top loader machine. Her husband or daughter then hung most of the washing on the line and she only hung light clothes on a low line or clotheshorse. The plaintiff’s daughter or husband did the vacuuming as that caused the plaintiff too much neck discomfort with bending and stretching.
60 After the accident, the plaintiff’s daughter moved in because the plaintiff could not cope.[35]
[35]T35
61 The plaintiff’s daughter and granddaughter moved out in about late 2014. Her daughter still comes and visits most days however and helps with the housework. Her son also lives close by.
62 The plaintiff’s granddaughter moved in two or three years ago to help out. Her school was close by. The plaintiff tells her what to do with cooking. Her granddaughter does most of the cooking.[36]
[36]T34
63 The plaintiff’s husband puts the washing in the machine. However, the plaintiff does not have to depend on him for everything.[37]
[37]T35
64 The plaintiff is upset that she cannot cook, socialise or drive to visit friends.[38]
[38]T43
65 The plaintiff deposed in her first affidavit she had never been much of a gardener.
66 The plaintiff had socialised less since her injury. She previously went to barbecues, picnics and hosted friends and family at home. She also attended functions organised by her local community. When her neck pain was worse, she could no longer attend those activities and generally looked for excuses not to attend unless there was a social obligation.
67 Standing and sitting around was likely to cause more neck pain and if the plaintiff did attend social occasions, she usually left after two or three hours because of increased neck discomfort. She now could only go four times a year to these events.
68 Socialising had also been restricted since the accident because of the plaintiff’s headaches. She denied headaches before. When it was suggested that there were records of headaches prior to the accident, the plaintiff said they were not the same as those complained of now. Since the accident, she got a lot of headaches associated with neck pain.[39]
[39]T36
69 The plaintiff also used to accompany her husband fishing at times but no longer did so and he just went with his friends.
70 The plaintiff could not remember when she went fishing with her husband. It was maybe three years before the accident. It was not something she did regularly.[40] He usually went fishing with his friends and she had probably been a few times before the accident. She did not remember exactly when and she did not know the places they went to. She agreed her husband had a debilitating back injury.[41]
[40]T36
[41]T37
71 The plaintiff went camping and fishing after her back injury. She was not “paralysed to be stuck at home.”[42]
[42]T37
72 The plaintiff felt frustrated at the restrictions on her activities because of her neck discomfort. She became teary at times and was generally more anxious about the future.
73 In her recent affidavit sworn in August 2015, the plaintiff confirmed she continues to see Dr Gorgioski every few weeks for neck pain and also blood pressure treatment.
74 Dr Gorgioski referred the plaintiff to Mr Timms in 2015. When she saw Mr Timms in March, he arranged a further MRI scan of the plaintiff’s brain and neck, which took place in June 2015.
75 The plaintiff was sent back to Mr Timms by Dr Gorgioski and her lawyers in May 2015. Dr Gorgioski had advised the plaintiff that just taking tablets and physiotherapy was not going to cure her and she was not going to improve anymore. She did not know whether she had arm symptoms when she saw Mr Timms on that occasion.[43]
[43]T30
76 When the plaintiff saw Mr Timms again on 19 June 2015, he told her that he did not think he could help her discomfort with an operation. He advised her to keep to keep taking medication and have physiotherapy.
77 The plaintiff now takes two Panadol or one Nurofen or one Panadol Extra every morning for neck pain, about every four hours during the day. About every second night, she also takes two Panadol because she cannot sleep with neck pain and headaches. She usually takes Panadol Extra before she goes to bed as that seems to help her get to sleep.
78 The plaintiff also takes blood pressure medication and Nexium for her stomach. She has had a stomach ulcer for a long time which prevents her from taking strong painkillers.
79 The plaintiff takes Panadol some days and when she is in severe pain, she takes Panadeine Forte for which her doctor gives her prescriptions.[44]
[44]T31
80 Panadol helps with the plaintiff’s back pain. It helps a little with her neck but after less than four hours, the severe pains continue.[45]
[45]T32
81 In re-examination, the plaintiff described having side effects from painkillers after the accident and the medication was changed. Since then, she has taken Panadol, Panadeine, Nurofen and sometimes used Voltaren cream. She takes one Nurofen or Panadol every morning for her neck pain and about every four hours during the day thereafter.[46]
[46]T45
82 The plaintiff deposed that since swearing her earlier affidavit, her neck pain has remained much the same, although she believes her neck now feels stiffer. She also believes she gets more headaches, mainly on the left side of the back of her neck. She tends to have a headache associated with neck pain nearly every morning that can last for an hour or so, improving after medication. She then usually has a further headache with worsening neck pain after the pain-relieving medication wears off in a few hours and then she takes further medication.
83 The plaintiff believes, since swearing her previous affidavit, her neck pain has got her down more and that she has become more anxious.
84 In re-examination, the plaintiff said that her neck pain, in particular, and other pains are worse now than before the accident.[47]
[47]T43
85 The plaintiff’s sleeping remains poor and she usually wakes several times during the night with neck pain and headache.
Medical evidence
86 The plaintiff’s general practitioner, Dr Gorgioski, saw the plaintiff on a number of occasions in February 2011 after the accident.
87 On initial presentation, the plaintiff complained of severe headaches, neck pain and lower back pain and was feeling anxious about her pain.
88 Dr Gorgioski organised various investigations. The plaintiff’s treatment was conservative with analgesics and physiotherapy.
89 As of March 2013, the plaintiff still complained of severe neck pain aggravated by physical activities. She told Dr Gorgioski she could not do heavy domestic duties, nor could she do chores requiring her to lift her arms above her shoulder. Her sleep was poor and she was very anxious.
90 On examination, the plaintiff had restricted neck movement with marked stiffness and she had numbness in her upper limbs.
91 In that March 2013 report, Dr Gorgioski noted the plaintiff had a past history of chronic lower back pain and bilateral Carpal Tunnel Syndrome.
92 At that stage, taking into account her previous medical history, clinical findings and MRI results, Dr Gorgioski thought the plaintiff suffered from a whiplash injury of the cervical spine, especially with trauma at C5-6 and C6-7, as a result of the accident. He considered her condition to be stable and permanent and that she could continue with conservative treatment indefinitely. He noted that a neurosurgeon had advised the plaintiff would benefit from surgery.
93 In his most recent report of July 2015, Dr Gorgioski noted he saw the plaintiff regularly. She still complained of headaches, insomnia and neck pain. She told him that the headaches and insomnia were caused by her neck pain. She advised she tried to stay mobile and took painkillers. She drove for short trips and did light housework.
94 Dr Gorgioski noted that on examination, the plaintiff had always been very co-operative and did not exaggerate her symptoms. She had restricted movements of her neck in all directions and marked stiffness. The neck movements triggered headaches more on the left side of her head.
95 Dr Gorgioski noted the recent examination by Mr Timms, who advised that surgical treatment was not indicated.
96 Dr Gorgioski thought the plaintiff suffered whiplash of her neck and also a disc injury to her neck with some bulges in the lower part of the cervical spine and some foraminal stenosis. She also suffered from post-traumatic headaches and insomnia.
97 Dr Gorgioski noted that since the accident, the plaintiff had had some restrictions of a social and domestic studies. Her recreational activities had been curtailed. She used to enjoy camping and fishing trips with her husband. She also used to help taking care of her elderly parents. Now she drove for only very short distances.
98 Dr Gorgioski thought the plaintiff’s injuries were permanent and stable and that she should continue with the conservative treatment for an indefinite period.
99 The plaintiff’s attendances following the accident commenced on 8 February 2011.
100 During that year, there were numerous attendances for neck pain, headache and a referral to Mr Timms on 18 November 2011.
101 Investigations were arranged and a prescription of Digesic continued. The following is a summary of relevant attendances since that time.
· 24 January 2012 - Severe neck pain and headaches – Panadeine.
· 2 February 2012 - Neck pain deteriorating. Refer to Mr Timms.
· 9 February 2012 - Review meds.
· 23 February 2012 - Review meds. Seen Mr Timms, who says needs operation.
· 20 March 2012 - Neck pain persisting.
· 19 April 2012 - Neck. Painful movement. Review meds. Panadeine.
· 19 April 2012 - Prescription for Panadol Extra and Valium.
· 26 April 2012 - Review neck pain, stiffness +++.
· 19 May 2012 - Neck pain persisting. Tramal.
· 14 June 2012 - Neck pain persisting. Tramal. 100 milligrams (previously 50 milligrams).
· 26 June 2012 - Neck pain persisting. Tramal.
· 12 July 2012 - Neck pain persisting. Headaches.
· 30 July 2012 - Neck pain persisting. Prescribed Panadeine.
· 13 August 2012 - Severe neck pain. Seen Mr Timms. Tramal.
· 28 August 2012 - Pain the same.
· 25 September 2012 - Digesic.
· October 2012 - Neck pain persisting. Insomnia because of pain.
· 1 November 2012 - Severe headaches. Neck pain persisting.
· 16 November 2012 - Review meds. Neck pain persisting. Prescription for Digesic.
· 8 January 2013 - Neck pain persisting. Refer for operation.
· 18 January 2013 - Restricted neck movement. WorkCover low back pain. Discontinue brufen.
· 1 February 2013 - Neck pain. Persisting stiffness. Discontinue physio.
· 20 March 2013 - Neck pain persisting with stiffness.
· 8 April 2013 - Review and headaches. Digesics, Nexium, Valium.
· 20 May 2013 - Neck pain persisting.
· 11 June 2013 - Neck pain persisting. Tramal.
· June 2013 - Colonoscopy.
· July 2013 - Very upset regarding bowel cancer.
· 6 August 2013 - Neck pain persisting. Restricted movement. OxyContin, 10 milligrams twice a day.
· 30 August 2013 - Review meds. Nexium and Panadol
· 9 September 2013 - Neck pain. Review meds. OK. Panadol. WorkCover prescription for Valium.
· 13 March 2014 - Severe neck pain persists.
· 8 April 2014 - Nexium and Panadol.
· 3 June 2014 - No difference. Still persisting neck pain.
· 13 June 2014 - Voltaren and Nexium.
· 27 June 2014 - Referred to psychologist. Post-operative depression.
· 17 November 2014 - Neck pain persists. Stiffness +++.
· 29 January 2015 - Neck pain persisting. Refer to Mr Timms regarding operation.
· 9 February 2015 - Wants operation.
· 20 February 2015 - WorkCover review. Lower back pain. Persisting restricted movements.
· 2 March 2015 - Month of headaches and neck pain.
· 9 May 2015 - Still headaches.
· 25 May 2015 - Seen Mr Timms. Neck pain persisting.
102 Mr Timms first saw the plaintiff on 11 November 2011 on referral from Dr Gorgioski for symptoms of neck and arm pain since the accident.
103 On initial examination, the plaintiff demonstrated decreased range of movement in the cervical spine, mainly due to midline posterior pain. There was reduced power bilaterally of Grade 4/5. Bilaterally, the plaintiff had decreased sensation in the C5-6 and C6 distribution.
104 Mr Timms noted the mild weakness in the plaintiff’s arms and the sensory disturbance with recent imaging suggesting neural compression. He felt that was the disc and osteophyte formations at C5-6 and C6-7 that were most likely causing her symptoms and recommended she consider more intensive physiotherapy and if that was not successful, she may require surgery.
105 There was a review on 15 February 2012 before which the plaintiff had had physiotherapy and acupuncture but her symptoms were worsening. Mr Timms then felt it reasonable to offer her surgery and wrote to the defendant to seek approval for an anterior cervical discectomy and fusion, with partial vertebrectomy at C5 and C6-7.
106 The plaintiff was re-examined in August 2012, at which stage the defendant had denied liability for surgery.
107 The plaintiff then reported she was pursuing legal process to resolve her complaint. Mr Timms offered to place her on a public waiting system to pursue surgery. At that consultation, the plaintiff opted to pursue the defendant through her solicitors.
108 Mr Timms noted that prior to the accident, the plaintiff did not have any cervical pain or upper limb symptoms. From the mechanism described, he thought it was likely she suffered a whiplash type injury to her cervical spine.
109 Mr Timms thought the plaintiff had limited cervical spine movement, as well as symptoms in her upper limbs which had caused weakness, pain and tingling. He was not specifically aware of her exact social and recreational activities but suspected her domestic life and day-to-day activities had been impaired by her current physical limitations.
110 Mr Timms noted, despite a number of treatments, the plaintiff’s symptoms had slowly worsened and he had recommended surgery.
111 The plaintiff was most recently reviewed by Mr Timms on 21 May 2015. She was then complaining of cervical spine pain with decreased range of movement secondary to pain and that was causing stiffness, spasms in her neck and triggering headaches, worse on the left. She told him those symptoms had persisted since the initial consultation.
112 Following this examination, Mr Timms thought the plaintiff warranted an up-to-date MRI scan.
113 On review on 19 June 2015, the plaintiff had similar complaints. She felt her pain medication was useful.
114 Mr Timms reviewed the June 2015 MRI. He noted a number of disc injuries throughout the spine, the worst at C5-6 and C6-7 with only mild stenosis.
115 In Mr Timms’ view, there was now no indication for neurological operative intervention. He recommended continuing physiotherapy and massage and thought that a pain management course may be of some benefit. The plaintiff was discharged from his service as there was no indication for operative treatment.
116 In summary, Mr Timms noted the plaintiff had no symptoms down her arms but described a tension headache originating from the base of the neck, extending up, and worse on the left than the right. Mr Timms thought the plaintiff was incapacitated due to her symptoms but could not be more specific in what regard.
117 Mr Timms concluded the plaintiff had suffered a whiplash-type injury that had caused neck pain, decreased range of movement and headache. She had no focal or neurological deficit but disc injuries in her cervical spine at C5-6 and C6-7. He thought her condition had stabilised.
Investigations
118 Dr Gorgioski organised a CT scan of the cervical spine in February 2011.
119 It was reported that at C5-6, there were minor lipping changes impressing on the thecal sac. There was some disc narrowing evident but no disc herniation. There was bilateral bony narrowing of the neural exit foramina more marked on the left side. There were some uncovertebral degenerative joint changes.
120 At C6-7, there were minor lipping changes impressing on the thecal sac. There was no disc herniation. There was some disc space narrowing. There were some uncovertebral degenerative joint changes and there was some bony compromise of the neural exit foramina bilaterally.
121 There was an MRI scan of the cervical spine organised by Dr Gorgioski in September 2011.
122 It was reported there was multi-level spondylosis and disc disease. That was most prominent at C5-6 and C6 where associated nerve root contact/impingement was present.
123 There was an MRI scan of the cervical spine arranged by Mr Timms in June 2015.
124 It was reported there was no central canal stenosis. There was multi-level mild disc disease. At C6-7, there was a mild to moderate broad disc bulge which just reached the cord but did not cause central canal stenosis.
125 There was severe left C5 and C7 neural foraminal stenosis demonstrated elsewhere. There was no traumatic lesion.
The Defendant’s medical evidence
126 On 3 November 1997, Mr Flood, plastic surgeon, requested WorkCover pay for left carpal tunnel surgery which was carried out on 19 November 1997.
127 Following surgery, the plaintiff developed “sudden severe and out of proportion to surgery type pain,” which may well have been reflex sympathetic dystrophy. She was referred to a pain management specialist.
128 When examined on 3 March 2010, Mr Flood noted that post-surgery, the plaintiff failed to thrive. She complained of numbness persistent in the hand, especially at night. Repeat EMGs had suggested mild Carpal Tunnel Syndrome. An ultrasound had showed thickening of the median nerve compared to the normal right median nerve. Mr Flood requested permission to re-release the median nerve on the left side.
129 Mr Flood advised the plaintiff’s solicitors in October 2010 that she may benefit from further surgery.
130 The plaintiff was seen by Mr Peter Kudelka, orthopaedic surgeon, in July 1998. He then thought her capacity for work was considerably limited due to her back and left arm condition. He thought she had no capacity for factory work as of 2008.
131 The plaintiff was examined by Mr Peter Mangos, general surgeon, in October 1998.
132 The plaintiff told him that she had chronic back pain, suffered sleep disturbance and was anxious about her future. He doubted she could perform any serious regular work.
133 The plaintiff was examined by Mr McDermott in March 1999.
134 The plaintiff’s complaints then were of constant left upper extremity pain. There was sudden onset of lumbar spinal pain which radiated to the right leg.
135 Mobility was restricted and pain increased after walking more than 15 minutes. The plaintiff drove a car only short distances. She had less social contact with her friends. She was helped at home by her husband and daughter. She managed some cooking but no cleaning or gardening. Leisure activities had not been affected.
136 Mr Carmine Vinci, physiotherapist, wrote to CGU in September 2007. The first treatment was in August 1998 and continued until May 1999. Mr Vinci then diagnosed chronic lumbar musculoskeletal dysfunction and chronic left Carpal Tunnel Syndrome.
137 The plaintiff recommenced treatment in October 2006. Mr Vinci then noted deterioration was evidenced by reduced tolerance to static postures, increased pain level and significant disrupted sleep. Since resuming treatment, those parameters had been steadily improving. The plaintiff was not yet stable and therefore required ongoing treatment three times a month.
138 Mr Neil Sherburn, physiotherapist, conducted an independent physiotherapy assessment, having examined the plaintiff on 25 January 2008.
139 The plaintiff then reported she had pain across the lower back but more on the right, with referral down the right leg. She also had numbness down the right leg and she mentioned pain could radiate from the lower back to an area between the shoulder blades. The pain was constant, varying in intensity, and did not change significantly over the last year.
140 The plaintiff said she could do activities of daily living, albeit slowly at times. She reported her sleeping was disturbed by lower back pain and she was often stiff and sore in that area when she got out of bed in the morning, taking a while to get going. She had been in so much pain in the past, she required injections from a doctor.
141 The plaintiff reported she had a reduced sitting and standing tolerance due to lower back pain. She gave the impression she led a very quiet and inactive life due to pain levels.
142 At that stage, the plaintiff reported that she was attending a doctor regularly for review of her condition and provision of certificates and medication. She was having physiotherapy twice a week with some transient pain reduction thereafter. She was taking Panadol on an ‘as needs’ basis.
143 On examination, there was very limited movement of the cervical spine and the movement was variable on repeated testing, indicating a functional overlay.
144 In Mr Sherburn’s opinion, the plaintiff presented with a chronic pain scenario of lumbar spine as a result of her 1997 work injury. He thought ongoing physiotherapy was not appropriate or reasonable. In his view, the plaintiff should be given an appropriate exercise program. He thought there should be limited physiotherapy in the future to implement a comprehensive exercise and stretching program.
145 The plaintiff saw Mr Peter Battlay, orthopaedic surgeon, on 25 June 2010.
146 The plaintiff told him of pain in her left hand since injury, as well as tingling and numbness at night. She said the pain spread to her shoulder and neck and she had been on medication continuously.
147 Mr Battlay noted the plaintiff had basically put up with pain ever since and had been seen by Mr Flood, who advised a further decompression.
148 The plaintiff then described pain in the volar aspect of the wrist and spreading up the arm, as well as a continuous numb feeling in the left hand, worse at night. She only took Panadol for pain, although when severe she had Panadeine Forte. She generally coped with housework, although her husband had to help her with vacuuming, mopping and anything else heavy.
149 Mr Battlay noted there may have been episode of Reflex Sympathetic Dystrophy to perpetuate the plaintiff’s symptoms but he could not find any evidence of it then.
150 Mr Battlay thought an operation would not help from a physical point of view and it may well make the plaintiff’s symptoms worse.
151 Mr Battlay changed his view as to compensability because of recent literature as to the carpal tunnel and its relationship to work. He then thought the plaintiff’s initial condition would not have been compensable and the case for operative intervention was not strong.
Vocational evidence
152 In April 1998, Work Solutions carried out a vocational assessment, following which it concluded the plaintiff did not possess a capacity for employment. Her physical injuries involved her left wrist and lower back, affecting her ability to undertake any work, and outside of the workplace, she did not have any transferrable skills as she had been largely involved in process and packaging work.
Medico-legal examiners
153 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff in February 2011.
154 The plaintiff told him of the accident circumstances and treatment thereafter. She denied any past history of neck pain, even after he specifically indicated that this was documented in her local doctor’s notes.[48]
[48]There is no reference in Dr Gorgioski’s notes to neck pain pre-accident
155 The plaintiff complained of neck pain and headaches, pain in the upper thoracic spine and both shoulder girdles. She did not specifically complain of arm pain or numbness in the left arm.
156 Dr Thomas noted the plaintiff had been in receipt of a Disability Support Pension since 1997 due to back problems and left Carpal Tunnel Syndrome.
157 On examination, the plaintiff was tender to palpation in the cervical and upper thoracic spine. Neck movements were limited, with flexion reasonably well preserved. She reported decreased sensation to the left fingers. Power in both upper limbs was only mildly limited.
158 There was marked limitation of movement of the lumbar spine.
159 Dr Thomas noted the MRI scan of the cervical spine of September 2011.
160 Dr Thomas concluded the plaintiff had whiplash and associated disorder and there may be some symptoms emanating from the cervical spine discs. He accepted the symptoms had been aggravated by the accident and given that she denied any previous neck problems and the difficulty deciphering the handwritten notes from her general practitioner, he thought that was reasonable.
161 Dr Thomas noted the plaintiff had pre-existing unrelated conditions but they did not seem to be involving her cervical spine. He thought she had poor overall coping strategies and that had impacted on her recovery.
162 Dr Thomas thought recurrent physiotherapy was inappropriate and counterproductive and needed to be discontinued. Accepting ongoing pain and neck stiffness, referral to a pain management program would be reasonable.
163 Given the plaintiff’s neck pain was the dominant problem and there was no evidence of radiculopathy and she did not complain of brachialgia, Dr Thomas thought there was no indication to consider cervical fusion and that surgery was most unlikely to help the plaintiff’s cervical spine complaint.
164 Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff in June 2015.
165 The plaintiff then complained of neck pain along the length of her neck, going up the back of her head and out towards the left shoulder and down into her thoracic spine. She described a pulling feeling in the neck and the pain did not go into her arms. With neck pain, there was an associated significant problem with headaches.
166 The plaintiff rated her neck pain on a visual analogue scale as 8 to 9 out of 10 and she was never free of pain. The pain was constant and woke her at night. It was improved by medication and hot packs, but physiotherapy only gave temporary relief.
167 The plaintiff confirmed medication then consisted of Panadol Extra every four hours – two tablets – and also Nurofen – two tablets a day, mostly at night.
168 The plaintiff indicated she had past injuries which included WorkCover claims for a back injury and bilateral Carpal Tunnel Syndrome. She indicated she was still having symptoms referrable to the lower back and was being treated by her general practitioner for this with injections.
169 Mr Dickens thought the plaintiff’s presentation was straightforward, without any suggestion of embellishment. In his view, the overall contour of the cervical spine appeared to be relatively normal, although the plaintiff tended to hold her neck slightly forward. She was tender throughout the cervical spine and tenderness appeared to be maximal high up in the occipital region.
170 To formal testing, neck range movements were significantly restricted. Mr Dickens thought that seemed in excess of what would be expected, noting the plaintiff had virtually no flexion and minimal rotation.
171 Upper limb reflexes were normal.
172 Mr Dickens noted the range of investigations undertaken.
173 Mr Dickens diagnosed a soft-tissue injury to the cervical spine, causing aggravation of underlying degenerative disc pathology. He thought there was no evidence of radiculopathy.
174 Mr Dicken thought other pre-existing other problems had not been aggravated by the accident, the exception being the degenerative pathology in the cervical spine shown on investigations immediately following the accident.
175 Mr Dickens thought there had been no other injuries or disease arising since the accident influencing the course of the current injury.
176 The plaintiff confirmed that her biggest problem was her neck, not her lower back.
177 Mr Dickens did not get the impression that there were any major psychosocial issues impacting on the accident-related neck injury. He thought the plaintiff sounded quite straightforward in her presentation, although a little flat in affect, which may suggest an element of depression or anxiety, a diagnosis which should be left to psychiatric colleagues.
178 Whilst the plaintiff indicated a major problem was her neck, Mr Dickens had no doubt there were other physical problems, including a preceding back problem, which were impacting on her domestic activity.
Claim documentation
179 The plaintiff lodged a Claim for Compensation on 22 January 1997 for injury to the left wrist.
180 The plaintiff lodged a Claim for Compensation in relation to her back on 12 November 1997.
181 The plaintiff lodged a Claim for Permanent Disability for her back, right leg, left hand and left arm in January 1999. She received a lump sum payment of $50,709.
182 A WorkCover payment printout set out an attendance with Dr Gorgioski on 3 January 2015 in relation to the left carpel tunnel claim.
The Plaintiff’s 1999 affidavit
183 The plaintiff filed an affidavit in support of her s98 claim for her left carpal tunnel and back in January 1999.
184 In that affidavit, the plaintiff deposed to her left carpal tunnel problems from 1997 and that prior to surgery in relation thereto, she suffered an injury to her back on 7 October 1997.
185 As of January 1999, the plaintiff was taking Panadol daily and Panadeine Forte occasionally. She had difficulty sleeping due to the pain since the development of her injuries but she did not take medication.
186 The plaintiff was restricted in her ability to lift or sit for long periods.
187 The plaintiff’s left arm was weaker than her right and she had pins and needles.
188 The plaintiff suffered from anxiety and depression due to her injuries, inability to work, and financial pressure.
189 The plaintiff only did light shopping and her twenty-five-year-old daughter did the cleaning. The plaintiff had assistance from her sixty-five-year-old mother.
190 The plaintiff could not do gardening. She used to take care of the house and work hard and now could not do either. She did not socialise very often and became very upset and frustrated at her family.
Overview
191 It is not disputed the plaintiff suffered an injury to her cervical spine in the accident.
192 The plaintiff’s cervical injury has been diagnosed as a soft-tissue/whiplash injury causing aggravation of underlying degenerative disc pathology.
Credit
193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[49]
“… 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.”
[49](2010) 31 VR 1 at paragraph [12]
194 Counsel for the defendant submitted that the plaintiff was an unreliable witness and the lack of supporting lay evidence was very significant.[50]
[50]Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23] (per Harper JA and Beach AJA)
195 Further, in her viva voce evidence, the plaintiff disavowed her affidavit or rejected material that went against her interests, such as her description of pain in the “neck region” prior to the accident when she had complained of neck pain to Mr Kudelka and Mr Battlay before the accident.[51]
[51]T51, see also Mr Sherburn - 2008
196 The plaintiff deposed in her second affidavit that her neck condition had been the same since she swore her first affidavit, but then said in her viva voce evidence that her condition had worsened.[52]
[52]T52
197 In her viva voce evidence, the plaintiff admitted to having sleeping tablets before the accident, but later in her evidence denied this was the case.
198 Counsel for the plaintiff submitted the plaintiff’s evidence should be accepted despite the absence of a supporting lay affidavit. It was submitted the plaintiff was a frank witness who tried to give a good account of herself.[53]
[53]T75
199 I did not think the plaintiff was a particularly reliable witness. She tended to attribute all the blame for her current problems to her neck injury when her current restrictions are clearly related also to her back and left wrist, conditions for which she has been in receipt of a Disability Support Pension since 1997.
200 Further, the plaintiff attempted to minimise the seriousness of her pre-accident complaints. One such example was the plaintiff said that in 2010, Mr Flood had advised her left carpal tunnel surgery would not help, yet it is apparent that he requested funding and he advised the plaintiff’s solicitors of the need for this surgery.
201 Whilst the plaintiff’s credibility is compromised, there is objective evidence to support her claim that she suffers from a serious injury to her cervical spine.[54]
[54]Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108 paragraph [171]
Unrelated conditions
202 In Peak Engineering & Anor v McKenzie,[55] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[55][2014] VSCA 67
203 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[56]
[56]Peak Engineering & Anor v McKenzie (supra) at paragraph [1]
204 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the knee injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[57]
[57]Supra at para 2
205 I am therefore bound to identify, and exclude, the continuing consequences for the plaintiff of her various unrelated conditions and consider whether the consequences referable to her neck injury are “serious”.[58]
[58]Supra
206 Whilst the plaintiff lists a number of activities she claims are compromised by her neck injury, the plaintiff’s ability to engage in these activities is also significantly affected by her chronic back pain and left wrist conditions.
207 Counsel for the defendant submitted there is a lack of medical evidence as to the plaintiff’s pre and post-accident condition as to what ongoing problems are related to the transport accident. There is nothing from the general practitioner in this regard.[59] He clearly failed to do any analysis, simply referring in one sentence to chronic low back and chronic carpal tunnel, not exploring the issue in any way.[60]
[59]T50
[60]T57
208 It was submitted that none of the other medical practitioners who have opined in this case address the plaintiff’s neck condition in the detail that is required by the Court of Appeal in Bezzina v Phi & Anor.[61]
[61]Supra
209 In that case, Harper AJ stated that the trial judge was required to examine the impact of the injury on the applicant as a whole. When examining the consequences of the claim for serious injury, the trial judge was bound to look at how they affected the applicant as he was, and would likely have been, absent the injuries he sustained in the transport accident.
210 This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries. To the extent that the evidence was said to be so sparse as to impede the judge in that task, the responsibility lies with the applicant or his legal advisers.[62]
[62]T23
211 The plaintiff’s affidavit did not include any comparison of her medication intake pre and post accident. Her general practitioner was also silent in this regard.[63]
[63]T53
212 It was submitted it was wrong for the plaintiff to say that she was in reasonable health prior to the transport accident. Medical records made that suggestion “farcical”.[64] She clearly had ongoing left limb problems, with Mr Flood suggesting further surgery in late 2010.
[64]T55
213 It was submitted it was impossible to say which injury was productive of impairment of body functions to the point where the plaintiff suffers consequences that are serious.[65]
[65]T56
214 I accept this submission generally and have difficulty identifying any particular activity where the plaintiff’s neck injury has produced consequences that meet the narrative test.
215 In my view, many of the plaintiff’s other activities were significantly compromised before the accident – housework, shopping, cooking, socialising and driving.
216 Further, pre accident, the plaintiff was having significant headaches and she had difficulty sleeping because of her arm and back pain.
217 The plaintiff’s lifestyle difficulties were clearly set out in her 1999 affidavit and more importantly, mentioned by her to medical examiners in the years leading up to the accident.
218 Accordingly, at the time of the accident, the plaintiff’s activities were significantly restricted by her back and left arm conditions.
219 However, it is clear that since the accident, a further major factor has been added to the plaintiff’s pre-accident presentation, namely severe, persisting neck pain. Until recently, this was accompanied by arm pain such that her treating orthopaedic surgeon, Mr Timms, thought the plaintiff’s condition warranted cervical surgery.
Pain
220 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[66](Supra) at paragraph [11]
221 I accept that since the accident, there has been a very consistent pattern of ongoing complaints of neck pain and stiffness by the plaintiff to Dr Gorgioski. Whilst the plaintiff continued to complain of back and left arm pain before the accident, during that time, there was no complaint of neck pain or any treatment in relation thereto by Dr Gorgioski.
222 Counsel for the plaintiff relied heavily on Dr Gorgioski’s clinical notes showing ongoing complaints of neck pain and treatment after the accident of a significant nature.[67]
[67]T63
223 It was submitted on Dr Gorgioski’s notes, the predominant problem since the motor vehicle accident had been the neck.[68]
[68]T73
224 Counsel for the defendant relied on the comments of Ross AJA in Tatiara Meat Company Pty Ltd v Kelso,[69] where his Honour noted that a complaint of pain even repeated many times does not establish the veracity of the complaint.
[69][2010] VSCA 12 at paragraph [46]
225 However, in the present case, it is not just a situation of complaint of pain, the assessment of pain and suffering consequences also involves what the plaintiff has done about the pain.
226 Clearly, post incident there are numerous attendances on Dr Gorgioski when the plaintiff complains of severe persisting neck pain. Pre accident, she was not attending her general practitioner as frequently, as is now the case with her neck.[70]
[70]T60
227 Whilst the exact nature of the plaintiff’s medication regime post-accident is unclear, I am satisfied that on numerous occasions she has been prescribed Tramal for her neck, as well as Panadeine, Voltaren and Digesic. There appears to be one neck-related prescription of OxyContin in August 2013 when the note of that date detailed neck pain persisting and restricted movement.
228 Whatever be the correct picture in terms of prescribed medication for the neck, I accept that since the accident, the plaintiff has been taking painkilling medication on a regular basis for her neck pain.[71] Pre accident, Dr Gorgioski’s notes do not indicate ongoing prescription of medication or the use of painkillers on a regular basis for the plaintiff’s back and left arm condition.
[71]T64
229 Whilst surgery was suggested at an early stage by Mr Timms, the plaintiff did not go ahead with it as a private patient. She recently sought a referral back to Mr Timms seeking surgery because of her ongoing neck pain and restriction. However, as she no longer complained of arm pain, he did not consider surgery was warranted.
230 Taking into account all the evidence, I am satisfied that the consequences referrable to the plaintiff’s compensable neck injury – persisting pain, restriction of movement and the need for medication – excluding the consequences of her back and left arm injury, meet the narrative test of “serious”.
231 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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