Parker v Transport Accident Commission
[2020] VCC 112
•25 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02341
| DEBORAH PARKER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2020 | |
DATE OF JUDGMENT: | 25 February 2020 | |
CASE MAY BE CITED AS: | Parker v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 112 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – lower back injury –aggravation – motor
vehicle accident
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2001) 1 VR 79; Transport Accident Commission v Florrimell [2013] VSCA 247; Bedeux v Transport Accident Commission [2016] VSCA 127
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms Lang | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr A Moulds QC with Ms Clarke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Ms Parker aggravated her lower back in a motor vehicle accident on 12 November 2015. Her case is not concerned with a wide number of issues. Rather, the issues in her case are narrow and focused.
2 She brings a claim alleging that the aggravation of her pre-existing lower back condition has resulted in consequences which could be considered serious within the meaning of s93 of the Transport Accident Act 1986 (“the Act”).
3 During the trial, it was conceded that:
(a) Ms Parker’s claim was for physical injury only,[1] to the lumbar spine;
(b)in bringing a claim for physical injury, regard could only be had for emotional disturbance and not identifiable psychiatric injury, such as post-traumatic stress disorder symptomology, in accordance with Richards v Wylie;[2]
(c)Ms Parker did sustain an injury to the lumbar spine in the motor vehicle accident;[3]
(d) there were no significant credit issues faced by Ms Parker.[4]
[1]Transcript (“T”) 6, Line (“L”) 1
[2](2001) 1 VR 79; T113, L20-26
[3]T95, L26
[4]T113, L10
4 This leaves the following issues for determination:
(a) is the aggravation of Ms Parker’s lower-back condition a permanent one?;
(b) are the consequences of Ms Parker’s aggravated lower-back condition to be considered serious?
5 In dealing with the evidence that goes to these two questions, an evidentiary point arose. Mr Tobin SC, who appeared with Ms Lang for the plaintiff, sought to have the fact that the Transport Accident Commission (“TAC”) paid medical and like expenses and loss of earnings benefits for a period of eighteen months admitted as evidence of conduct that the defendant accepts the relationship between the treatment that has been received and the injury suffered in the transport accident.[5] That course was opposed by the defendant.[6] In short compass, I find that I am bound by the decisions of the Court of Appeal in Transport Accident Commission v Florrimell[7] and Bedeux v Transport Accident Commission.[8] Given the similar factual matrix and the issue before the Court of Appeal in Florrimell, it is, in my opinion, a decision I am obliged to follow. I decline to accept the evidence on the basis, and for the purposes, Mr Tobin SC submitted. Turning, then, to the substantive issues to be considered.
[5]T89, L14
[6]T96, L10
[7][2013] VSCA 247, at paragraphs [45]-[46]
[8][2016] VSCA 127
6 The primary argument which was agitated was whether the aggravation of Ms Parker’s back condition was a permanent one. To understand the argument, it is helpful to set out the defendant’s argument in stages. It proceeds in a number of steps that can be summarised as follows:[9]
[9]These arguments are set out in long form at T102.
(a) Ms Parker had a long history of lumbar spine degeneration;
(b) that lumbar spine degeneration was one of progressive gradual decline;
(c) prior to the motor vehicle accident on 12 November 2015, there had been many occasions where the lumbar spine degeneration had caused significant pain, required pain medication, physiotherapy, intermittent incontinence and incapacity for work;
(d) while the motor vehicle accident caused an aggravation of the lumbar spine degeneration, the motor-vehicle-accident-related aggravation lasted only three to six months and hence is not a permanent condition;[10]
(e) the extant consequences Ms Parker complains of relate to the underlying progressive lumbar degeneration she was experiencing and not to any aggravation caused by the motor vehicle accident, which had long since ceased.
[10] Report of Dr Anthony Menz, 6 November 2019 at Defendant’s Court Book (“DCB”) 40
7 Ms Parker argued to the contrary. Her position was that while she had a long-term degenerative spine condition, it had caused sporadic problems and was not progressively worsening. She argued that the motor vehicle accident related aggravation remains extant cause and the consequences she, her husband and her daughter had deposed to.
8 Due to the concessions made by the parties, the issue of whether Ms Parker’s lumbar spinal degeneration was naturally progressing, requires determination. If that argument cannot be supported then, logically, it seems, in a situation where credit is not in issue, that her extant symptoms can only be explained by the ongoing effect of the motor-vehicle-related aggravation. The evidence to support the defendant’s contention arises on two fronts. The first is Ms Parker’s longstanding history of complaints, symptoms and treatment for her lumbar spinal degeneration. That chronology reveals problems as far back as 1993,[11] which identified lower back pain and pain to both legs, which had required Ms Parker to cease her work as a cleaner. There is then little history of lower back complaint over the next twelve years.[12] In a full medico-legal report, Dr Brown, an occupational physician for WorkCover, examined Ms Parker in respect of her right shoulder injury on 31 July 2006.[13] He took a history that, other than the right shoulder, Ms Parker was “otherwise well” and “in good general health”.[14] In 2007, she had scans of her lumbar spine[15] and was referred to Mr Khan for increasing lower back pain. Once again, the reasons and consequences of this are obscure and not much can be inferred from these facts alone. Ms Parker said, in evidence, that she had lower back pain, but not a lot of leg pain. When asked further in cross-examination, she conceded she had occasional problems with bowel and bladder incontinence.[16] Interpolated into this medical chronology, it must be noted that Ms Parker started work at Blue Cross Community Care Services Group Pty Ltd (“Blue Cross”) as a kitchenhand performing reasonably physical duties about twenty-five hours per week in 2008.[17] I consider this significant, in that she worked with her lumbar spine degeneration pain and symptoms that she had admitted in cross-examination. It is good evidence of a positive person determined to press on with her life. This seemed to be the position from March 2008 to late 2011.[18] It appears she had lower back pain and some left buttock pain until the end of that year, when her lower back pain was noted as improved.[19]
[11]Report of Mr Raymond Crowe at DCB 5
[12]I note scans of the lumbar spine in October 1994 [at DCB 60] and March 2004 [at DCB 61], but there is little material to indicate the exact problem or consequences.
[13]Report of Dr Malcolm Brown, dated 31 July 2006, at DCB 7
[14]DCB 9
[15]DCB 62
[16]T26, L28
[17]T29, L10
[18]Treating doctor notes, dated 28 November 2011, at DCB 85
[19]Treating doctor notes, dated 31 December 2011, at DCB 86
9 She then had a very specific episode at work in which she hurt her back on 3 June 2012.[20] She was put off work and referred for physiotherapy.[21] Ms Parker was also referred to a neurosurgeon, Mr Tiew Han, for her ongoing intermittent incontinence.[22] She gave evidence in cross-examination that she did not pursue this as she felt her condition had improved.[23] She attempted a return to work at the end of July (or early August) 2012, which her treating doctor supported, but due to workplace bullying, she ceased. She was pressed that she ceased work by reason of her lower back condition, but she denied this.[24] In support of that assertion, are two things. First, the Modified Duties Certificate her treating doctor had obviously prepared to allow her to return to work, and second, her treating doctor’s notes for 20 August 2012, which note her lower back pain had improved.[25] Further, Dr Nitin Dhwadarkar, a medico-legal psychiatrist who examined her for WorkSafe in September 2012, records, again, that her lower back pain was improving.[26]
[20]PCB 87
[21]DCB 88
[22]DCB 93
[23]T36, L9
[24]T48, L27
[25]DCB 77
[26]DCB 25
10 I find consistently with all that evidence, that Ms Parker had lower back pain caused by a work-lifting accident aggravating her spinal degeneration in 2012. I find it kept her off work for about two months before she was able to return to work on modified duties as a kitchenhand. I find she ceased that work on 3 August 2012 due to alleged workplace bullying.
11 There are, thereafter, sporadic notations of lower back pain:
(a) 6 August 2012;[27]
[27]DCB 77
(b) 20 August 2012;[28]
[28]DCB 77
(c) 3 September 2012;[29]
(d) 1 October 2012;[30]
(e) 3 October 2012;[31]
(f) 5 November 2012;[32]
(g) 29 April 2013;[33]
(h) 25 May 2013;[34]
(i) 2 September 2014;[35]
(j) 6 January 2015;[36]
(k) 1 October 2015.[37]
[29]DCB 76
[30]DCB 74
[31]DCB 73
[32]DCB 73
[33]DCB 71
[34]DCB 71
[35]DCB 67
[36]DCB 66
[37]DCB 65
12 In cross-examination, Ms Parker stated that on 27 May 2013,[38] she had returned to work on full-duties work.[39] However, she said that she had a significant lower back condition which she conceded that, by 31 January 2014, required a care plan.[40]
[38]Dr Psycharis note records her back as “stable”, DCB 71
[39]T43, L1
[40]DCB 90
13 However, she had kept working at Blue Cross throughout this period and did so until June 2016.[41] Thereafter, she took up work at Leisure Links Day Centre. Ms Parker currently works there permanent part time for about twenty-four hours per week.
[41]Plaintiff’s affidavit, 2 October 2018, at PCB 11
14 When I have regard to that factual history preceding the motor vehicle accident, I do not find that it reveals a situation which could be categorised as a progressively deteriorating lumbar spine, as the defendant would have me find. I find that not to be the case, as there is no evidence of:
(a) progressively worsening types of pain, that is, an increase in intensity;
(b)no material change in the medication regime, except for acute occasions, that is, June 2012;
(c)no ongoing allied health treatment such as physiotherapy, save for acute periods;
(d)no ongoing incapacity for work save for the two months associated with the WorkCover injury in June 2012.
15 The 2012 WorkCover injury appears to have produced a frank detrimental change to Ms Parker’s lumbar spine condition, but I do not regard it as impending a natural progressive deterioration.
16 Turning, then, to the second limb of the defendant’s argument that Ms Parker’s lumbar spinal condition was progressively deteriorating, I was asked to examine the medical evidence. Ms Parker called in aid the reports of Dr Jim Psycharis, general practitioner, who Mr Tobin SC bravely identified as the least qualified, but best placed to opine in this area. This seems to me to carry some force given Dr Psycharis has treated Ms Parker for over twenty-five years, during which he has watched her lumbar spinal condition and its symptoms closely. I place great weight on his findings and opinion.[42]
[42]Report of Dr Psycharis, dated 29 July 2019, at PCB 45
17 He opined that Ms Parker’s condition was, after the motor vehicle accident, one of an aggravated lumbar spinal degeneration, and that such condition continues until today.[43]
[43]PCB 46
18 His opinion is supported by that of Associate Professor Bruce Love, in his reports of 14 October 2019 and 16 December 2019,[44] who considered this was an aggravation of moderate degenerative change and that it was induced by the motor vehicle accident.[45] He considered it was a long-term condition. Associate Professor Love, however, was criticised for not having a past medical history of incontinence and, therefore, not appreciating the significance of Ms Parker’s pre-existing problems. I consider there is some force in this argument and I do not accept his opinion.
[44]PCB 54
[45]PCB 57
19 I do, however, note the opinion of Mr Thomas Kossmann, who, having been appraised of the full medical history, considers Ms Parker had an aggravation of degenerative changes in her lumbar spine.[46]
[46]Report of Mr Kossmann, dated 24 January 2018, at pg 2.
20 Given the context of his reporting, that is, a report for the TAC regarding the impact of the motor vehicle accident on the lumbar spine, Mr Kossmann must have been acknowledging the motor vehicle accident as the source of that aggravation. It is therefore an opinion in support of that given by Dr Psycharis.
21 Against this, it was said that Ms Parker had described to Dr Andrew Muir, her pain specialist, the onset of the consequences she deposed to three years after the motor vehicle accident. As great weight was placed on the history obtained by Dr Muir prior to his final opinion being given, I have set out the critical part of his report over which there was much debate. When taking her history, Mr Muir recorded:
“For the most part and for many years her pain had been at a very low level and the features were occasional time limited aggravations and exacerbations that were followed by long periods of relatively quiescent pain. This pattern changed approximately three years after a motor vehicle accident and the patient’s pain has been at high levels and intrusive ever since.”[47] (my emphasis)
[47]PCB 68
22 The defendant’s argument was that Dr Muir’s history taking, particularly in the paragraph above, supported their argument that Ms Parker’s extant problems only really arose 3 years after the motor vehicle accident and were related to the progressive lumbar spinal degeneration. Mr Tobin SC suggested that Dr Muir had omitted the word “ago” after the word “years”. He submitted that it was appropriate to read in a word where, quite obviously, the doctor had taken an incorrect history.
23 I will not read words into the sentence as the plaintiff submits, especially where the sentence conveys a clear meaning. I consider, however, the history recorded of symptoms to be inconsistent with the evidence overall and I decline to place the weight on it the defendant urges me to. This is because three years post the motor vehicle accident Ms Parker had already seen her treating doctor, physiotherapist, specialist, Mr David de la Harpe, pain specialist, Mr Clayton Thomas and been referred to pain management under Dr Muir. This suggests, contrary to Dr Muir’s report, the aggravation that occurred was at the time of the motor vehicle accident and not three years later. I consider that history taking to have been against the weight of the evidence and most probably incorrect.
24 The defendant then relied on the reports of Dr Menz to support the theory that the aggravation lasted three to six months only. I do not accept that argument for the following reasons:
(a) it is an isolated opinion – not even expressed by Mr Kossmann, who had previously opined in this matter;
(b) it is inconsistent with the factual history, which I have set out above in some detail;
(c) it is contrary to the reports and opinion of the treating doctor, Dr Psycharis, whose evidence I place great weight on. Dr Menz saw Ms Parker once only. He must struggle to understand the reality of Ms Parker’s conditions when placed against the history of treatment and investigation Dr Psycharis has embarked upon for over twenty-five years.
25 As a corollary to that finding, there is no real dispute that the current condition is long term.[48]
[48]Report of Dr Clayton Thomas, dated 28 March 2018, at PCB 49
Consequences
26 Turning, then, to the consequences said to flow from the aggravation of the lumbar spine degeneration, it is apparent there are no significant issues of credit that are said to arise and believing Ms Parker, as I do (and noting the supportive affidavit material), I find she has consequences which are “more than significant and marked” and must be considered “serious”.
27 I make that finding for the following reasons.
28 Her capacity for work has changed. She ceased work at Blue Cross and took up another role in the disability care sector, working with Leisure Links. That role is not as physical. Ms Parker said in evidence that she, in fact, had to step back from her initial role going on outings with residents, and now works a much lighter role, preparing sandwiches and the like.[49] This inability to go with residents on outings is a loss of real enjoyment for her.
[49]T60, L23
29 Her pain has required treatment with three nerve injection blocks, she has had referrals to Mr Thomas and Dr Muir, pain specialists, and has attended a pain management program in 2008, with Dorset Rehabilitation Centre. Her evidence is[50] of constant fluctuating lower back pain. That pain increases with activities such as sitting or standing for long periods. At times she says it is severe. This evidence is buttressed by the affidavit evidence of her husband and daughter. These are unchallenged.
[50]Plaintiff’s affidavit, dated 2 October 2018,paragraph [29] at PCB 13
30 In terms of medication she takes Lyrica, over-the-counter Voltaren medication and she uses Dencorub and Elmore oil into her lower back.[51]
[51](Supra), paragraph [31] at PCB 13
31 Her sleep is broken and she tosses and turns at night. This is a situation which has been continuing over four years and is a long-term consequence which is significant in itself. She gave evidence, and her husband confirms, that she has lost the ability to sleep with her husband and their intimate life is affected.[52]
[52](Supra), paragraph [33] at PCB 14
32 Her ability to perform housework and grocery shopping is also affected.
33 One of the most important consequences for Ms Parker has been the inability to play with and care for her grandchildren as much as she would like. This is confirmed by her daughter’s affidavit.[53]
[53]Affidavit of Amber Parker, dated 8 January 2020, paragraph [9] at PCB 26
34 Ms Parker also gives evidence, and her husband and daughter confirm, that her ability to socialise and be happy in company has also declined. As a result, she is not as social as she used to be.
35 Having found those matters, I consider the consequences of the aggravation of Ms Parker’s lower back condition caused by the motor vehicle accident to rise to the requisite level to be considered “serious” within the meaning of the Act.
36 I find for the plaintiff and I will hear the parties on the question of costs.
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