Petrovic v Transport Accident Commission
[2017] VCC 368
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01111
| LJILJANA PETROVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 March 2017 | |
DATE OF JUDGMENT: | 7 April 2017 | |
CASE MAY BE CITED AS: | Petrovic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 368 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury to the lower back with Complex Pain Syndrome affecting the left lower limb and foot – plaintiff required to disentangle the psychological factors from the physical injury – plaintiff required to disentangle injuries as a result of subject accident and a subsequent accident – plaintiff required to identify and prove to the requisite standard the consequences applicable to the injury to her lower back as a result of the subject accident
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; O’Donnell v Reichard [1975] VR 916; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for serious injury certificate dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms C Kusiak | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr P Y Rattray QC with Mr P J Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion filed 23 March 2016. 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 16 December 2011.
2 Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff in s93(17) is:
“a serious long-term impairment or loss of a body function; … .”
4 In this application, the plaintiff seeks serious injury certification by the Court for loss of body function to the lower back. The inquiry under s93(17) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and second, by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by ss17(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, an impairment of the body function.[1]
[1]Richards v Wylie (2001) 1 VR 79
6 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by a comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
7 The plaintiff in this application had been involved in three transport accidents. The plaintiff was injured in a transport accident in 2006. The 2006 transport accident has little or no relevance to the determination of this application. The accident the subject of this application was on 16 December 2011 and in these Reasons will be referred to as “the first accident”. The plaintiff was involved in a subsequent accident on 18 August 2012, which will be referred to as “the second accident” in these Reasons.
8 The plaintiff swore and relied upon two affidavits dated 8 January 2015 and 23 February 2017. The plaintiff also relied upon an affidavit of her neighbour, Krista Leigh Cedillo, sworn 14 March 2017. The plaintiff gave evidence and was cross-examined. Ms Cedillo was not called upon to give evidence or be cross-examined.
9 In addition to the affidavits referred to above, the plaintiff and the defendant relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material.
10 The tendered evidence in this proceeding is as follows:
·Exhibit P1 – the Plaintiff’s Court Book (“PCB), pages 11-59, page 62, pages 67-75a, pages 76-144
·Exhibit D1 – surveillance footage of the plaintiff dated 16 September 2015, 18 September 2015, 2 January 2016, 3 January 2016, 3 November 2016, 8 November 2016 and 22 November 2016
·Exhibit D2 – PCB, pages 145-156
·Exhibit D3 – clinical notes of Dr Adrian Castro, general practitioner, and Dr Kenan Rahmanovic, psychologist
·Exhibit D4 – Defendant’s Court Book (“DCB”) pages 1-37.
Issues identified by the parties
11 In his opening on behalf of the plaintiff, Mr McGarvie identified that the claim for serious injury by the plaintiff is based on a physical injury to her lower back, with a Richards v Wylie[2] factor. The application for serious injury was under s93(17)(a).
[2]Supra
12 Mr Rattray, on behalf of the defendant, identified the following issues in this application, as follows:
(a) The injury to the plaintiff’s lower back is disputed;
(b)The case was a “range” case and the plaintiff did not succeed in passing the statutory test;
(c)The plaintiff suffers from a Chronic Pain Syndrome, which is a psychiatric injury and is not “severe”;
(d)The consequences of the pain and restriction of movement to the plaintiff’s spine are generated by psychiatric and psychological causes;
(e)The credit of the plaintiff is challenged on the basis of not giving proper histories to doctors and the surveillance material; and
(f)The plaintiff is required to disentangle the consequences of the injuries she suffered in the subject accident on 16 December 2011, and the subsequent accident which occurred on 18 August 2012.
The Plaintiff’s background
13 The plaintiff was born in 1965 in Bosnia. She is now fifty-one years old.[3]
[3]PCB 11
14 The plaintiff migrated to Australia in 1995. The plaintiff and her husband left Bosnia during the course of the Balkans War and came to Australia via Sweden.[4] The plaintiff is a married woman, who lives with her husband and daughter, aged twenty-five, and son, aged twenty-one years.[5]
[4]PCB 11
[5]PCB 12
15 The plaintiff was educated in Bosnia for eight years at primary-school level. Upon completing primary school, she then attended a technical college for four years in the area of woodwork.
16 Upon completing her technical school education, the plaintiff worked for six years in a furniture factory in Konjic, Bosnia.[6] When the plaintiff came to Australia, she commenced working in a furniture-polishing factory in 1997. She remained in that employment for nine months. In October 1999, she commenced work as a food services assistant with St Vincent’s Private Hospital and worked there until the first accident.[7] The plaintiff has not worked since the first accident in December 2011. The plaintiff is currently not in receipt of benefits from Centrelink.
[6]PCB 11
[7]PCB 12
The transport accident involving the Plaintiff
17 The plaintiff described the first accident in her affidavit dated 8 January 2015 in the following terms:
“On the 16th December, 2011 I was driving to work at about 5.30 am along Ballarat Road in Maidstone towards the city. There were two lanes of traffic in the direction I was travelling and I was in the right lane. A short time before I approached the intersection of Ballarat Road and Rosamond Road, I could see in my rear view mirror that a car behind me was travelling very fast. As I approached the intersection facing a red traffic light I slowed down with the traffic in front and noticed the same car coming quickly behind me. I was nearly stopped when hit in the rear by this car pushing me forward. I had to swerve to my right to try and avoid hitting the car in front and the car which hit me ended up almost beside me on my left. I was shaken up and in shock after the collision. I exchanged names and addresses. I thought that I had to call the police. The young female driver of the car who hit me said this was not necessary. My car was damaged in the back but was still drivable. I drove on to work.”[8]
[8]PCB 13 at paragraph [6]
18 After the accident, the plaintiff attended her work at St Vincent’s Private Hospital in Fitzroy. The first accident occurred at approximately 5.30am on 16 December 2011.[9] The plaintiff attended at the St Vincent’s Hospital Emergency Department near her place of work at approximately 3.20pm on the same day.[10] The plaintiff has not returned to work at St Vincent’s Private Hospital in any capacity since 16 December 2011.
[9]PCB 13
[10]PCB 14 and 56A-56B
The Plaintiff’s medical treatment as a result of the first accident on 16 December 2011
19 The plaintiff continued on her way to work after the first accident on 16 December 2011. She attended at her place of work and completed her normal shift. At the completion of her normal shift, she then attended at the St Vincent’s Hospital Emergency Department at approximately 3.30pm.[11] The plaintiff was complaining of pain to the right side of the chest and to her lower back. The plaintiff was complaining of restricted movement of her body due to pain.[12] The plaintiff was discharged and advised to attend upon her general practitioner.
[11]PCB 14 and 56A-56B
[12]PCB 56A
20 On 19 December 2011, the plaintiff attended on her then general practitioner, Dr Adrian Castro. Dr Castro noted that the plaintiff was tender in the lower lumbar area, with no bruising. He gave her a certificate for work and prescribed Panadeine Forte.[13]
[13]PCB 56C
21 The plaintiff re-attended Dr Castro on 20 December 2011, complaining of lack of sleep that was due to lower back pain going down her left leg. Dr Castro examined the plaintiff and found that she was tender in the lumbar muscles. He gave her a sample of Lyrica medication.[14]
[14]PCB 56C
22 The plaintiff then re-attended Dr Castro on 28 December 2011, stating that she was unable to do the cooking and clean the house due to the ongoing lower back pain. Dr Castro ordered an x-ray of the thoracic and lumbar spine region.[15] The plaintiff underwent an x-ray examination on 28 December 2011. That was reported as displaying minor degenerative change at L2-3 and L3-4, without disc-space narrowing.[16]
[15]PCB 56D
[16]PCB 57
23 The plaintiff was unhappy with the treatment and diagnosis by Dr Castro and upon the advice of a friend, changed her general practitioner to Dr Peter Andrianakis. She first attended Dr Andrianakis on 8 February 2012.[17] On the advice of Dr Andrianakis, the plaintiff attended upon Ms Maria Pennas for physiotherapy treatment. She continued in that physiotherapy treatment for some three months. Following the treatment by Ms Pennas, the plaintiff then attended a chiropractor on a fortnightly basis for some six weeks. She found the chiropractor did not assist with her symptoms.[18]
[17]PCB 15
[18]PCB 15
24 The plaintiff was referred by Dr Andrianakis for an MRI scan on her back on 2 March 2012. The MRI scan reported no significant pathology seen in the lumbar spine.[19] The plaintiff was then referred to Dr Brian Lovell, musculoskeletal physician, at the Metropolitan Spinal Clinic. The plaintiff first saw Dr Lovell on 17 April 2012. Mr Lovell recommended that the plaintiff have injections to her low-back region. The plaintiff had injections to her back on 9 May 2012, but thought that did not help her back pain.[20]
[19]PCB 59
[20]PCB 15
25 In April 2012, the plaintiff was referred to a psychologist, Mr Kenan Rahmanovic.[21] The plaintiff had received psychological treatment from Mr Rahmanovic prior to the first accident the subject of this application. Mr Rahmanovic had treated the plaintiff for anxiety and depression in 2011, prior to the first accident. In 2012, the plaintiff received treatment from Mr Rahmanovic for five sessions every three weeks and had some benefit from it.[22]
[21]PCB 91
[22]PCB 91
26 On 12 June 2012, the plaintiff underwent a left sacroiliac joint injection.[23]
[23]PCB 92
27 On 30 June 2012, the plaintiff attended at the Emergency Department of Sunshine Hospital complaining of an exacerbation of her lower back pain. The plaintiff was examined and it was noted that there were no neurological deficits and a negative double straight leg raise. The plaintiff was managed with Diazepam and Endone. It was noted that the plaintiff was to see a pain specialist in the next few days.[24]
[24]PCB 56F
28 On 16 July 2012, the plaintiff underwent a CT scan of her lumbar spine. The conclusion in respect of the CT scan of the lumbar spine was:
“Some very mild degenerative change but no evidence of a focal disc protrusion nor of any significant canal stenosis.”[25]
[25]PCB 75a
29 On 23 July 2012, the plaintiff was reviewed by Dr Lovell. On that occasion, he suggested to the plaintiff that she undergo a radiofrequency neurotomy of her sacroiliac joint. The plaintiff decided against continuing with that procedure.[26]
[26]PCB 53
30 On 18 August 2012, the plaintiff had her second accident.
31 On 24 August 2012, the plaintiff attended upon her general practitioner, Dr Andrianakis, for treatment in respect of the second accident.[27]
[27]PCB 53 and 16
32 The plaintiff underwent an x-ray of her cervical and thoracic spine and an ultrasound of her left buttock on 27 August 2012.[28] In respect of the thoracic spine, the x-ray report stated there was minimal spondylitic changes in the upper thoracic spine, otherwise a normal examination.[29]
[28]PCB 62
[29]PCB 62
33 On 31 August 2012, the plaintiff attended the Modern Medical Town Centre practice in Caroline Springs. The plaintiff stated that she saw a Dr Matic-Stancin, general practitioner, who arranged for x-rays of her cervical, thoracic and lumbar spines.[30] The x-rays ordered by Dr Matic-Stancin were not part of the Court Book-tendered material in this case.
[30]PCB 16 at paragraph [18]
34 In September 2012, Dr Andrianakis referred the plaintiff to the chiropractor, Mr Jason Lejcak. The chiropractor treated the plaintiff for a further five months. The plaintiff then resumed her treatment with the physiotherapist, Ms Pennas.[31]
[31]PCB 16 at paragraph [19]
35 On 30 November 2012, the plaintiff was referred to Dr Clayton Thomas. Dr Andrianakis noted that Dr Clayton Thomas’s opinion was that he had diagnosed her as suffering from an undifferentiated pain problem, was concerned that there was an emotional component, and that she could be difficult to manage.[32] It was also at this time that the plaintiff was referred to Dr Byron Rigby, psychiatrist, as Dr Andrianakis was of the opinion that the plaintiff was becoming depressed and unwell by her pain. The plaintiff has continued to see Dr Rigby on a regular basis as frequently as every second to third week from that time until the current time.
[32]PCB 54
36 In March 2013, the plaintiff was commenced on Norspan narcotic patches, as well as being prescribed Lyrica and Tramadol for the management of her pain. At that stage, Dr Rigby had placed the plaintiff on Mirtazapine, an antidepressant, to manager her pain and Depression.
37 The plaintiff attended at the Dorset Rehabilitation Hospital for pain management purposes under the auspices of Dr Clayton Thomas from October 2013 to June 2014.[33] Dr Andrianakis described the results of the treatment at the Dorset Rehabilitation Hospital as “mixed results”.[34] There was no report from the Dorset Rehabilitation Hospital in respect of the treatment received by the plaintiff at that institution in the materials in this case.
[33]PCB 54
[34]PCB 54
38 Dr Clayton Thomas reviewed the plaintiff on 22 May 2014 and reported to Dr Andrianakis that the plaintiff had reached a medical endpoint in her treatment. It was Dr Thomas’s opinion that no further change in her treatment would be of any benefit to the plaintiff.[35]
[35]PCB 55
39 The plaintiff was then referred to Dr Alex Stockman, rheumatologist, in April 2015. Dr Stockman treated the plaintiff by seeking a further MRI scan of her lumbar spine and left foot. The MRI scan conducted on 14 May 2015 reported, in respect of the lumbar spine, as follows:
“L4-5
There is mild facet and ligamentum flavum hypertrophy.
The spinal canal remains adequate.
Minimal narrowing of the left lateral recess.
The neural foramina remain adequate.
No traversing or exiting nerve root impingement.
L5-S1
minimal broad based disk bulge.
Mild facet joint hypertrophy.
The central canal, and neural foramina remain adequate.
No neural impingement.
CONCLUSION:
No traversing or exiting nerve root compromise … .”[36]
[36]PCB 71
40 Dr Stockman prescribed the plaintiff Lyrica, 150 milligrams twice a day, and Panadol Osteo. There were no follow-up appointments made.[37]
[37]PCB 31
41 The plaintiff, in her affidavit, stated that her general practitioner, Dr Andrianakis, had arranged for cortisone injections to her left hip and lower back in early 2016. The plaintiff stated that these procedures had helped her achieve some temporary relief from her pain.[38] However, I note in Dr Andrianakis’ comprehensive report dated 28 November 2016, that he makes no mention whatsoever of any injections being administered to the plaintiff in 2016. Dr Andrianakis confirmed he had prescribed medication for pain relief to the plaintiff.[39]
[38]PCB 23 at paragraph [3]
[39]PCB 55 and 56
42 The plaintiff’s current medical treatment is continuing consultations with the psychiatrist, Dr Rigby, and medications of Panadol Osteo, mirtazapine (Avanza), venlafaxine (Effexor) and Nexium.[40] The plaintiff has ceased taking Lyrica.
[40]PCB 23
Medical opinions
The Plaintiff’s doctors
Dr Peter Andrianakis, general practitioner
43 Dr Andrianakis is the plaintiff’s general practitioner and has been so since 8 February 2012. Dr Andrianakis prepared one medical report dated 28 November 2016 in respect of this application. In that report, he set out a detailed history of the treatment of the plaintiff while she has been his patient, to the present time. Dr Andrianakis’ opinion is that the plaintiff has not recovered from her lower back injury caused by the car accident and that she continues to suffer lower limb pain and weakness. He went on to say that the plaintiff suffered from depression caused by her pain and disability. He noted that she also complained of right shoulder pain.[41] Dr Andrianakis stated that the prognosis for recovery is very poor, especially since there has been minimal improvement despite over four years of rehabilitation with specialists and allied health professionals.[42]
[41]PCB 56
[42]PCB 56
44 In his medical report, Dr Andrianakis did not distinguish or differentiate between the two transport accidents, firstly, in 2011 and then, in 2012. Dr Andrianakis was the plaintiff’s general practitioner at the time of the second accident and has not differentiated the additional or different symptoms and consequences for the plaintiff arising from that injury, as distinguished from the symptoms and consequences he was treating prior to the second accident.
Dr Brian Lovell, musculoskeletal physician
45 Dr Brian Lovell prepared a report dated 17 April 2012 and sent it to the general practitioner, Dr Andrianakis.
46 In his reported, Dr Lovell stated:
Examination
...
… . The main sensitive reactions were on the left side in the paravertebral areas at L4 and L5, particularly L5. She was much less reactive on the right side. This is certainly consistent with her pain being predominantly left sided, as are her leg referral pain patterns as well.
Assessment
As you are aware the MRI scan looks essentially normal, which reduces her chance of having discogenic pain to 5% only.
I discussed this with her and reassured her that this is a pain problem, and not a damage problem and hence she need not fear damage if she experiences pain.” [43]
[43]PCB 28
47 The history from the plaintiff is that she received the injections from Dr Lovell on 9 May 2012. Unfortunately, there is no up-to-date report, or a report prepared after the completion of Dr Lovell’s treatment of the plaintiff.
48 I conclude from his letter dated 17 April 2012 that Dr Lovell was satisfied that there was no physical damage to the plaintiff’s back, but that he described her problem as a “pain problem”.
Dr Alex Stockman, rheumatologist
49 Dr Stockman prepared a medical report for the purpose of this application on 12 August 2015. Dr Stockman saw the plaintiff on 28 April 2015. He noted that the plaintiff had been involved in two motorcar accidents in December 2011 and October 2012, respectively. I note that the second accident actually occurred in August 2012. He took a history from the plaintiff as follows:
“… Following the first car accident she developed low back pain and pain in the left leg; and this continued to worry her and was exacerbated after the second car accident.”[44]
[44]PCB 30
50 Dr Stockman noted that when he examined the plaintiff in April 2015, the straight leg raising test was almost 90 degrees, but she experienced a stretching sensation in the left leg when this was performed. She had a positive femoral stretch reflex bilaterally. There were no neurological abnormalities in the lower limbs. There was slight pain on lateral squeeze test of the metatarsophalangeal joints of the left foot.[45]
[45]PCB 31
51 Dr Stockman noted that the MRI scan of the lumbar spine performed on 2 February 2012 (following the first accident) was reported to be normal. The MRI scan of the lumbar spine performed on 14 May 2015 showed normal vertebral bodies and disc height. Disc signal was maintained. The spinal canal and neural foramina remained capacious and the sacroiliac joints were unremarkable. At L4-5, there was mild facet and ligamentum flavum hypertrophy, and there was minimal narrowing of the left lateral recess, but no nerve root impingement. At L5-S1, there was minimal broad-based disc bulge and there was mild facet joint hypertrophy.[46] Dr Stockman gave his opinion as follows:
“Ljilana (sic) Petrovic has been complaining of low back pain and pain in the left hip and thigh since the first car accident in December 2011 and this was exacerbated by the second car accident ten months later. The pain and swelling in the left foot occurred some six to eight months after the first car accident. I am of the view that her back pain is due to mild degenerative changes in the lumbar area as seen on the second MRI Scan and pain in the left leg and foot is caused by regional pain syndrome, that is, hypersensitivity of nerve fibres that can occur following an injury. Also, she has flattened longitudinal arches which may be contributed to her pain.”[47]
[46]PCB 31
[47]PCB 31
52 Dr Stockman has had the advantage of seeing MRI scans before and after the second accident. In his opinion, he has differentiated between the complaints of lower back pain and left hip by the plaintiff as a result of the first accident and her complaints in relation to the second accident.
53 A plain reading of his opinion indicates that as a result of the findings of the second MRI scan which was taken on 14 May 2015, he determined that there is a Regional Pain Syndrome causing pain to the left leg and the foot. He does not attribute that Regional Pain Syndrome to the first accident, which is the accident the subject of this application. Based on this opinion, I am not satisfied, on the balance of probabilities, that Dr Stockman is of the opinion that the Regional Pain Syndrome he described the plaintiff suffering from, is attributable to the first accident.
54 Dr Stockman went on to state that he could not estimate the degree of disability for the plaintiff, but he considered it to be of a mild degree. He stated that her condition had stabilised on the current treatment, but he would expect some improvement with the commencement of exercises or hydrotherapy, and obtaining orthotics for her foot condition.[48]
[48]PCB 32
Dr Byron Rigby, psychiatrist
55 Dr Rigby is the plaintiff’s treating psychiatrist. He prepared two reports, dated 8 April 2015 and 8 July 2016, for the purposes of this application.
56 As at July 2016, Dr Rigby had had fifty-three clinical consultations with the plaintiff, covering a period of some three years.[49] Dr Rigby, in his personal history section of the report dated 8 July 2016, stated that:
“It has become clear that her marriage and family structure have deteriorated since her accident.”[50]
[49]PCB 33
[50]PCB 35
57 I note that despite having treated the plaintiff for over a three-year period, Dr Rigby has not obtained a history from the plaintiff relating to the following stressors in her life:
(a) she is a refugee from war-torn Bosnia;
(b)her father was assaulted to the extent where he died as a result of his injuries some three months after that assault;
(c)her husband was incarcerated in the course of the Balkans War and they, as a family, effectively escaped to Sweden before coming to Australia;
(d)her daughter had been shot in January 2011. The plaintiff had been treated by Dr Rahmanovic, a psychologist, for her anxiety and depression arising from that incident; and
(e)her mother continued to live in the Balkans, and the plaintiff was concerned for her mother’s safety.
58 While this is not a paragraph (c) claim – that is, the plaintiff is not seeking to establish a serious injury under that part of the definition in the legislation – it is an important history and background to determine what part of the plaintiff’s current psychological and psychiatric symptoms related to the first accident.
59 I note that Dr Rigby had a history from the plaintiff that the second accident had made her back pain worse.[51]
[51]PCB 34
60 Dr Rigby has diagnosed the plaintiff as suffering from Major Depression and Post-Traumatic Stress Disorder. In his opinion, the prognosis for that condition is extremely poor.[52] Dr Rigby attributed the cause for the Post-Traumatic Stress Disorder and depressive symptoms as follows:
“The condition is consistent with the stated cause. As mentioned by Dr Robert Athey, the combination of two similar accidents, in which the impact of the second was on already developed Post-Traumatic Stress Injury, was particular[ly] potent in generating long-lasting and refractory symptoms.
The depressive symptoms originate through a combination of (1) distress at the severity and persistence of pain with (2) severe impact on Ms Petrovic’s identity and self-worth as a person capable of work and contribution.”[53]
[52]PCB 39
[53]PCB 39
61 A plain reading of Dr Rigby’s opinion in relation to the causation for Post-Traumatic Stress Disorder is that the second accident had a major part to play in forming and consolidating the plaintiff’s condition of Post-Traumatic Stress Disorder. Dr Rigby had not differentiated between the relative levels of severity caused by either of the transport accidents. The same analysis applies to his opinion on causation in respect of the depressive symptoms suffered by the plaintiff.
Mr Charles Flanc, vascular and general surgeon
62 Mr Flanc prepared two medico-legal reports dated 5 June 2013 and 9 January 2017 in respect of this application. In his first report, Mr Flanc noted that the plaintiff gave a history that the neck pain which resulted from the 2006 accident had resolved. The evidence in this case was that the plaintiff was continually receiving treatment for neck pain from a general practitioner up until the time of the first accident. The plaintiff also gave a history to Mr Flanc that after the second accident (which he had mistakenly noted to be in October 2012) the plaintiff had not aggravated her lower back pain in that accident. The evidence in this case clearly contradicts that history.[54]
[54]PCB 80
63 In his first report of 2013, Mr Flanc diagnosed the plaintiff’s injuries in respect of the lumbosacral spine as follows:
“i. The history of the accident is consistent with a sudden jarring of the lumbosacral spine, causing a soft-tissue injury and a possible aggravation of a pre-existing degenerative condition of the lumbar spine.
ii. Her investigations reveal minor facet joint degenerative disease, but no evidence of disc degeneration and, in my opinion, her current symptoms may be related to a chronic musculoligamentous strain, together with a mild aggravation of mild, degenerative changes of the lumbar spine in the sense that they became symptomatic.
iii. it is likely that her symptoms are being significantly influences by nonorganic factors which consist of a chronic pain syndrome associated with a psychological disturbance. Notwithstanding this, it is likely that there is an underlying physical condition which is a significant contributor to her pain.
iv. I consider that the transport accident of December 2011 has been a significant contributing factor to the development and continuation of symptoms in her lower back.”[55]
[55]PCB 83-84
64 Mr Flanc went on to note that the plaintiff symptoms were being influenced by psychiatric factors.[56] Mr Flanc, in his report dated 9 January 2017, noted that the general practitioner, Dr Andrianakis, had taken a history from the plaintiff in respect of the second accident that she was complaining of neck pain and stiffness but also lower back pain and stiffness, persisting with pains in both lower limbs.[57] This is a change in the history that he had previously been given by the plaintiff, when he first examined her.
[56]PCB 85
[57]PCB 135
65 Mr Flanc also noted in a report from Dr Alex Stockman that the history given to Dr Stockman was that the pain in the left leg had become more severe after the second accident.[58] Mr Flanc examined the plaintiff, and noted, in respect of her lumbosacral spine, as follows:
“Lumbosacral spine
She indicated that the pain is situated over the upper half of the lumbar spine.
There was no deformity. There was no tenderness. Flexion was still slightly limited to 60o. Extension was normal at 30o and lateral flexion was not restricted.
She was able to walk on her toes and her heels but limped with the left leg because this aggravated the pain in her left thigh and lower leg.”[59]
[58]PCB 133
[59]PCB 136
66 Mr Flanc then reviewed the total of the radiological examinations of the plaintiff in respect of her lumbar spine and hip pathology, together with the ultrasound of the right shoulder and some x-rays of the cervical spine. In particular, he noted the radiology performed on 14 July 2016 of a weight-bearing MRI scan of the lumbar spine. He noted the findings as follows:
“Imaging of left hip and lumbar spine - 14/7/2016 – Epping Radiology - Ordered by Dr P Andrianakis
i. MRI scan left hip
·No significant chondral degenerative change in left hip.
·Anterior labral tear associated with a small paralabral cyst.
·Moderate tendinosis of gluteus medius tendon with mild trochanteric bursitis.
ii. Weight bearing MRI scan of lumbar spine
No conventional MRI imaging is available for comparison.
There is preservation of vertebral body heights. Intervertebral disc heights appear satisfactory. No spondylolisthesis.
No significant disc lesion demonstrated.”[60]
[60]PCB 137
67 In his report, Mr Flanc referred to the documentation from the general practitioner, Dr Andrianakis; Dr Clayton Thomas; Dr Alex Stockman; Dr Peter Boys, Dr Tony Kostas and the psychiatric reports. He also notes, in respect of Ms Maria Pennas, the physiotherapist, in a report to Dr Andrianakis dated 8 February 2015, she indicated that the plaintiff’s pain was radiating down her right leg, while her left leg was asymptomatic. There was no report from Ms Pennas, physiotherapist, in the papers tendered in this case. The fact that the plaintiff indicated to Ms Pennas that her pain is in the right leg, and her left leg is asymptomatic, is contradictory to all of the other histories given to doctors relating to complaints of left leg pain.
68 Mr Flanc had observed the surveillance films of 16 September 2015 and 18 September 2015. He also observed the surveillance films of 2 and 3 January 2016. Mr Flanc commented as follows:
“She does not display any visual evidence of a disability in these DVDs.
The surveillance did not include any episodes of repeated bending, heavy lifting or sitting for longer than about 10 minutes.”[61]
[61]PCB 139
69 Mr Flanc took a further history from the plaintiff and she stated that the first accident had resulted in the development of lower back pain, which has persisted. The plaintiff then told Mr Flanc that she had been suffering from left leg pain which had become more severe after the second accident.
70 Mr Flanc stated his diagnosis as follows:
“1. Lumbosacral spine
i.The pain in her lower back is consistent with the mild degenerative disease of the lumbar spine as demonstrated on MRI scanning. This I believe is responsible for a component of her back pain although it is doubtful whether it is a major contributor to her symptoms.
ii.Her back pain is being significantly influenced by nonorganic factors in particular a chronic pain syndrome associated with a psychological disturbance.”[62]
[62]PCB 140
71 In respect of the left leg pain, Mr Flanc stated that he was unable to find a physical cause for the pain in her left leg and would regard this as being a referred pain from her lumbar spine.[63] Mr Flanc then described in his report what he meant by Chronic Pain Syndrome. He stated:
“In this condition, there is a sensitisation of pain pathways causing pain which is greater in severity and distribution than that expected from the physical injury alone.
In my opinion, the primary injury may have been a soft-tissue muscle strain and possibly an aggravation of a mild pre-existing degenerative condition of the lumbar spine and the chronic pain syndrome probably developed as a consequence of this initial injury.”[64]
[63]PCB 140
[64]PCB 140
72 In the very next section of his report, Mr Flanc stated as follows:
“The persistence of her symptoms is significantly related to the nonorganic component, namely the chronic pain syndrome.”[65]
[65]PCB 140
73 Mr Flanc, on the one page of that report, has used the term “Chronic Pain Syndrome” in two contradictory manners. In his description of what Chronic Pain Syndrome is, he related it to have an organic cause or basis. However, in the latter part of his diagnosis section, he described it as a non-organic component. A non-organic component is a psychologically or psychiatrically-driven symptom, as distinct from having a physical or organic basis for that symptom. The opinion related to the pain the plaintiff complained of experiencing in her evidence, and her affidavits and histories to the doctors. I find that Mr Flanc’s report in this regard is either contradictory or confusing, and does not satisfy me, on the balance of probabilities, that the plaintiff’s Chronic Pain Syndrome has an organic basis.
74 I note that in this case, there are no reports from the initial treating general practitioner, Dr Castro. There is no report from the psychologist, Mr Rahmanovic, who saw the plaintiff prior to the first, and relevant, accident, and subsequent to that transport accident. There are no reports from Mr Clayton Thomas or the Dorset Rehabilitation Hospital, where the plaintiff underwent considerable pain-management treatment. In a case such as this, where the issue of the origin or cause of the pain is in dispute, that is, whether it is physically or psychologically-based, is in issue, reports from these three treating medical practitioners would have been of great assistance to the Court.
The Defendant’s doctors
Dr Tony Kostos
75 The defendant had the plaintiff examined by Dr Tony Kostos, rheumatologist. Dr Kostos prepared three reports dated 1 September 2015, 7 December 2016 and 21 February 2017. In his first report, Dr Kostos diagnosed the plaintiff as follows:
“6.1 Diagnoses:
This woman has a chronic pain syndrome.
She doesn’t have any injuries related to the motor vehicle accident.
Her presentation today relates to non-physical factors and there clearly has been a long history of these as noted in your file today.”[66]
[66]DCB 4
76 Dr Kostos’ view was that the plaintiff’s prognosis was extremely poor. Dr Kostos noted that the plaintiff should not be treated with the medication, Lyrica, and recommended that it ought to have been stopped immediately.[67]
[67]DCB 5
77 In his second report dated 7 December 2016, Dr Kostos examined the plaintiff and noted that her thoracolumbar spinal movements, while sitting and standing, were markedly restricted with pain in all directions. Pain was also noted with simulated rotation, but not with axial compression. He expressed his opinion in the following terms:
“She still has ongoing restriction of her neck and low back movements.
Therefore I have not seen anything today to change the opinions that I have previously expressed.
The history and examination findings which she has are not typical of an injury and she in fact has a chronic pain syndrome.
The factors that led to the development of her chronic pain syndrome have been detailed by her previous doctor and it is certainly my opinion that the motor vehicle accident was just another stress in her life which has become increasingly difficult to cope with.”[68]
[68]DCB 9
78 Dr Kostos maintained his diagnosis that there were no physical injuries from the transport accident and that her current incapacity related to non-physical factors.
79 Dr Kostos’ final report dated 21 February 2017 was prepared after viewing the surveillance videos of the plaintiff for 25 September 2015, 4 January 2016 and 28 November 2016. His observations of the plaintiff on the surveillance videos was as follows:
“I also observed her to move her neck freely and in a supermarket she was able to bend down to pick an item from the bottom shelf displaying a good range of back movements.
There was no evidence of obvious pain noted with any of these activities.
In answer to your specific questions:
1.The observed movements on surveillance are inconsistent with her observed movements on formal examination.
2.The surveillance footage confirms my diagnosis that this woman has a chronic pain syndrome without evidence of a localized injury.
3.Her prognosis is poor because she is attempting to embellish her physical findings on formal examination which contrasts to her observed physical findings.
Therefore, it may be that her work capacity and her ability to participate in domestic, social and leisure activities is not greatly affected by any physical injury related to the motor vehicle accident."[69]
[69]DCB 11
80 Dr Kostos’ view is that the plaintiff’s complaints have a non-physical basis.
Dr Peter Boys, orthopaedic surgeon
81 Dr Peter Boys examined the plaintiff on behalf of the defendant for the purposes of this application. Dr Boys prepared four reports dated 9 November 2015, 23 December 2015, 21 December 2016 and 1 March 2017. Dr Boys noted that in his first report he had been told by the plaintiff that she had no past history of injuries or symptoms referable to her spine and that she had stated that she had been in good health in the past.[70] That history to Dr Boys is clearly at odds with the evidence that was heard in this case in relation to the plaintiff’s physical and psychiatric conditions prior to the transport accident in December 2011.
[70]DCB 14
82 Dr Boys examined the plaintiff and noted that she could do straight leg raising to 80 degrees bilaterally. The thoracolumbar spine was straight and non-tender. He noted that the plaintiff’s complaints of alteration in sensation were patchy and non-anatomical. The examination was otherwise normal.[71] Dr Boys then noted:
“No specific abnormality is noted on physical or radiological investigation. This lady’s complaints of chronic pain reflect, in all probability, local muscle strain and age related degenerative change within the lower lumbar spine with a degree of psychological overlay.”[72]
[71]DCB 15
[72]DCB 16
83 Dr Boys stated that he could find no evidence of a musculoskeletal condition affecting the lumbar spine which would preclude a graduated resumption of employment as a food service assistant by the plaintiff.[73] The plaintiff has perceptions of disability which are disproportionate to objective evidence of impairment. Her complaints are stable and, in that context, perceived incapacity is permanent.[74]
[73]DCB 17
[74]DCB 17
84 Dr Boys re-examined the plaintiff on 9 December 2016. He noted that the plaintiff could extend her spine 20 degrees without specific complaint. Lateral flexion and rotatory movements are full. Straight leg raising is performed to 80 degrees without complaint. Calf circumferences are equal at 34 centimetres. The muscle power is preserved in all lower limb myotomes, light touch sensation is intact and deep tendon reflexes are symmetrical.[75]
[75]DCB 28
85 In relation to the first accident, Dr Boys diagnosed the plaintiff as follows:
“This lady describes chronic mechanical lower back pain in the context of minor age related degenerative changes within the lumbar spine. A musculoligamentous injury to the lumbar spine would be consistent with the described mechanism of injury occurring on 16.12.2015 (scil 2011). There is no clinical radiological evidence of radiculopathy.”[76]
[76]DCB 29
86 Dr Boys expressed his opinion as follows:
“This lady manifests no significant abnormality on clinical examination. Minor restrictions of spinal movement are evident consistent with age and minor spondylitic changes within the thoracic spine. No specific clinical or MRI abnormality is noted within the lumbar spine at this time.
…
I can find no evidence of a physical condition which would limit this lady’s capacities for employment as a food service assistant.
…
This lady’s complaints of chronic non-specific pain are likely to be ongoing and the prognosis for improvement in the context of compensation claims would appear to be limited.”[77]
[77]DCB 30
87 Dr Boys has viewed the surveillance footage of this lady relating to 16 September 2015, 2 January 2016, 3 January 2016, 3 November 2016 and 26 November 2016. In total, he viewed one-hour-and-thirty-three minutes of surveillance material relating to the plaintiff. He noted, in respect of this video surveillance:
“… The level of activity depicted in the footage would show no specific restriction, abnormality or incapacity in the activities of daily life depicted.
The surveillance footage would confirm my previous statements that I could find no evidence of physical complaint limiting this lady’s capacities (sic) to return to work or undertake normal activities of daily life.”[78]
Richards v Wylie[79] factors
[78]DCB 36
[79]Supra
88 The plaintiff is currently treated by the psychiatrist, Dr Rigby. Dr Rigby has diagnosed the plaintiff as suffering from post-traumatic symptoms, including anxiety, hyper-arousal and flashbacks. He has also diagnosed the plaintiff as suffering from major depressive symptoms.[80] As previously noted in these Reasons, Dr Rigby does not have a history of the plaintiff, on the matters relating to the plaintiff’s personal history, including the Balkan War, the shooting of her daughter, the incarceration of her husband and the death of her father as a result of assault. Dr Rigby has accepted the history from the plaintiff that her psychiatric or psychological difficulties arose from the transport accidents.
[80]PCB 45
89 The plaintiff’s Her general practitioner, Dr Peter Andrianakis, stated that the plaintiff suffers from “depression caused by her pains and disability”.[81] Dr Andrianakis has accepted the plaintiff’s history given to him in forming this opinion. Dr Andrianakis has not been shown the surveillance film, nor has he commented upon it in his medical report tendered on behalf of the plaintiff.
[81]PCB 56
90 In her evidence, the plaintiff was cross-examined about the prior factors relating to the plaintiff’s mental health condition. The plaintiff gave evidence of attending a psychologist, Dr Rahmanovic, concerning the shooting of her daughter. The plaintiff’s evidence was as follows:
Q: “Did you go and see Dr Castro on 17 January and tell him that your daughter, Marina, was shot with a gun?---
A: Yes.
Q: By her Albanian boyfriend?---
A: Yes, I did.
Q: So you did - - -?---
A: It’s assuming but you can’t accuse anybody.
Q: Well, you weren’t sleeping because there boyfriend was free and not in gaol?---
A: Yes.
Q: And you were advised to seek some help from the psychologist, weren’t you?---
A: Yes.
Q: And you saw that psychologist up until August 2011, that is four months before the first motor car accident, correct?---
A: I can’t remember the dates or the month.
A: I’m going to be able to prove that that was the date, do you accept 22 August 2011 was the last time you saw Dr Romanovic (sic)?---
A: Yes.”[82]
[82]Transcript (“T”)26, Line (“L”) 21-T27, L4
91 The plaintiff agreed that she was depressed as a result of her daughter being shot and the alleged shooter, the plaintiff’s daughter’s boyfriend, was not in gaol.[83]
[83]T27, L15-17
92 The plaintiff had attended upon her then general practitioner, Dr Castro, on 24 January 2011, concerning being stressed about her daughter’s position, and had taken some time off work. The plaintiff gave the following evidence:
Q: “And then on March 24, 2011, you were complaining of nightmares, did you have nightmares after your daughter was shot?---
A: Yes.
Q: And you were crying and your concentration was no good?---
A: I was crying but I can’t remember for concentration.
Q: And you complained you’re getting poor support from your husband?---
A: Yes.
Q: And you were still worried or afraid for your daughter’s life?---
A: Yes.
Q: And you were then prescribed Endep?---
A: Yes.
Q: And you had a mental health referral to a lady by the name of Justine Nott?---
A: Can’t remember.
Q: Your saying it didn’t happen or you can’t remember one way or the other?---
A: Can’t remember the name of the – no.
Q: But you went off for a mental health referral?---
A: No.
Q: No, do you have counselling?---
A: No.
Q: Were you prescribed Endep?---
A: Yes.
Q: Then you were back to Dr Castro complaining of some workplace bullying?---
A: Yes, that’s correct.
Q: What was the problem there?---
A: I can’t remember like a hundred per cent but I know one lady was saying like at least she didn’t – she didn’t experience what happened to my daughter.
Q: And at that stage Dr Castro thought you were anxious and had an adjustment disorder, did he tell you that?- - -
A: I can’t remember.
Q: Did he treat you with some patches?---
A: I can’t remember.
Q: Did you have patches for smoking?---
A: Yes.
Q: Then further on you were still complaining to Dr Castro in July of 2011 that you had palpitation and an irregular heartbeat?---
A: Yes.
Q: Because you were upset, particularly upset with a lady by the name of Maria?---
A: Yes, that’s right.
Q: You weren’t sleeping well?---
A: All I know is I was just angry.”[84]
[84]T29, L15 – T30, L17
93 It is clear from this evidence that in the period of time shortly prior to the first accident, the plaintiff was suffering from psychological and psychiatric conditions. The plaintiff agreed with the proposition that she had returned to work after her daughter had been shot in January 2011. She also agreed that she had ongoing psychological problems. The evidence was:
Q: “And then you had ongoing problems with your bullying at work?---
A: Yes.
Q: And you had both tablet medication by way of Endep for treatment?---
A: Yes.
Q: And you were sent to a psychologist for treatment?---
A: Yes.”[85]
[85]T32, L17-21
94 The plaintiff was referred back to Dr Rahmanovic after her first accident and before the second accident. There was no report of Dr Rahmanovic tendered in support of the plaintiff’s claim in this matter and, consequently, no direct evidence from him setting out the effect of the first accident on the plaintiff’s psychological state.
95 The report of Dr Rigby is based on the history of the plaintiff and his treatment of her. Dr Rigby first consulted the plaintiff on 24 September 2012, which was approximately one week after the second accident. Dr Rigby’s opinion stated on PCB 39 places the major cause of the plaintiff’s post-traumatic stress injury on the second accident. Dr Rigby states that the depressive symptoms were a combination of the severity and persistence of pain suffered by the plaintiff, together with the plaintiff’s loss of identify and self-worth in respect of her work. Dr Rigby’s reporting in this case does not distinguish sufficiently between the first accident, the subject of this claim, and the second accident, in respect of the psychological condition that the plaintiff currently suffers. It is to be noted that Dr Rigby did not have any history from the plaintiff in relation to the matters that were the cause of her being sent to Dr Rahmanovic by her then general practitioner, shortly prior to the first accident.
96 I am not satisfied that the plaintiff has established, on the balance of probabilities, that her diagnosed condition of depression and anxiety can be contributed to the first accident. The plaintiff has failed to disentangle the cause of the diagnosed condition of Post-Traumatic Stress Disorder as being caused between the first accident and the second accident.
The credit of the Plaintiff
97 In this proceeding, the plaintiff’s credit was challenged by the defendant.
98 The plaintiff completed a Transport Accident Commission Claim Form on 9 January 2012 in respect to the first accident. In that Claim Form, the plaintiff stated that she did not have any prior treatment from a psychologist or psychiatrist which had caused her to take more than four weeks off work prior to the first accident.[86] In her evidence, the plaintiff was challenged about this answer in the Claim Form. The plaintiff gave the following evidence:
[86]Page 149 of Exhibit D2
Q: “If we go back to page 149 in that, you were asked a series of questions do you see there? Perhaps you might get some help from the interpreter but question 22?---
A: Yes.”
HIS HONOUR:
Q: “Can you read English?---: ‘Before the accident have you ever required treatment?’ And you were asked about whether you required treatment by a psychologist or a psychiatrist and you have answered that no, haven't you?---
A: Yes, I did.
Q: And that's not true, is it?---
A: Not true.
Q: Causing more than four weeks off work for a medical condition, you have answered that no and that's not true either, is it?---
A: No.
Q: Because the very year of the motor car accident you were getting treatment from a psychologist and you were certified as being unfit for work so it is just not true?---
A: It is not because of - - -
Q: No, it's not true, is it?---
A: It's true, I was off work but it is not because of my condition, I was looking after my daughter at that time.
Q: Really? What about seeing a psychologist, that was for your condition, wasn't it?---
A: Sorry when?
Q: You were seeing a psychologist, Dr Romanovic?---
A: I saw Dr Romanovic for my daughter's condition and I was stressed too so it was looking after my daughter and visiting the psychologist.”[87]
[87]T34, L18-T35, L11
99 The plaintiff clearly accepted that she had given a wrong or false answer in the Claim Form she signed in January 2012.
100 In the same Claim Form, the plaintiff gave answers that she did not have any prior neck pain, or any prior psychological or psychiatric condition.[88] The evidence in the case was that the plaintiff had been seeing her general practitioner for neck complaints and symptoms subsequent to her transport accident in 2006. The plaintiff was challenged about her answer to Question 23 of the Claim Form. The evidence was as follows:
[88]Question 23, page 149 of exhibit D2
Q: “You were seeing a psychologist, Dr Romanovic?---
A: I saw Dr Romanovic for my daughter's condition and I was stressed too so it was looking after my daughter and visiting the psychologist.
Q: Well, try question 23, do you see that, ‘Before the accident had you ever suffered from any of the following conditions or problems?’, do you see that?---
A: Yes.
Q: ‘Neck condition or pain’, you have answered that no, and that's not true either, is it?---
A: It's not constant pain so - - -
Q: No, it’s just not true, is it?---
A: It’s not true, no.
Q: And you're saying because it's not constant pain, is that your excuse? You answered it no because it wasn’t constant?---
A: Yes.
Q: Is that what you’re telling us?---
A: Yes.
Q: And you say you answered no in that document about psychological or psychiatric condition, you answered that no because you weren't being treated?---
A: I was but like - I don’t know, it wasn’t like thinking that it’s that serious.
Q: By the way, after your daughter was shot with the hand gun was she sent overseas for five months?---
A: Not for five months but I remember she went twice.
Q: In 2011?---
A: In that time but I can’t remember which - she was recently she was overseas.
Q: Not recently, I’m going back to 2011?---
A: I remember she went to holiday but she went for a wedding.”
HIS HONOUR:
Q: “Sorry?---
A: A wedding.”
MR RATTRAY:
Q: “Let me read you this, this is you talking to Dr Romanovic on 5 April 2011: ‘She believes her daughter’s boyfriend wanted to kill her’, was that your belief in April 2011?---
A: Yes.
Q: Is your daughter’s name Maria, is it?---
A: Marina.
Q: Marina: ‘Daughter marina was sent overseas for five months’?---
A: Not for that long, I know she went overseas, I can’t remember the year when she went overseas but I don’t think it was for that long.
Q: So was your daughter away when you were seeing Dr Romanovic, was she overseas then?---
A: I can’t remember.”[89]
[89]T35, L12 – T36, L15
101 The plaintiff clearly accepted that she had given wrong or false answers to the question relating to her previous treatment in the Claim Form signed in January 2012.
102 In her evidence, the plaintiff agreed that she had not told Dr Rigby about the historical matters relating to her family, including the shooting of her daughter, the bullying problems at work or matters going back to her transport accident in 2006. The plaintiff’s answer to this omission is that she did not think those matters were relevant.[90]
[90]T37, L30-31
103 The plaintiff, when she attended Dr Epstein on 9 December 2016, did not mention her second accident.[91] He noted that the plaintiff stated that the second accident did not play a large part in her mind and that she had forgotten to mention it to him. She stated that the second accident had caused a temporary increase in her pain, but those symptoms had settled.[92] In her evidence, the plaintiff was challenged by Mr Rattray about the pain she suffered as a result of the first accident. In re-examination, the following evidence was given by the plaintiff:
[91]PCB 128
[92]PCB 128
Q: “Mrs Petrovic, you were asked … questions yesterday about the effect of the second motor car accident on your lower back?---
A: Yes.
Q: And you agreed with the proposition that the second motor car accident made your back worse?---
A: Yes.
Q: Did it become worse and then get better - - -”
MR RATTRAY:
“That is a leading question, Your Honour, you’re trying to lead the witness.”
HIS HONOUR:
“Yes.”
MR McGARVIE:
Q: “Could you describe how it was … worse using the interpreter if you prefer?---
Q: (Indirect) I had more often the pain, stronger pain, and I was feeling also kind of a burning sensation.”[93]
[93]T57, L3 – T58, L12
104 The plaintiff stated that the stronger pain and burning sensation had remained with her since the second accident.[94]
[94]T59, L6-7
105 The plaintiff’s answers in evidence are completely contradictory to the history she has given Dr Epstein and, indeed, other doctors, about the effect of the second accident on her symptoms. This contradiction in her evidence causes concern as to her creditability and reliability as a witness in the assessment of her claim in this proceeding.
106 In the course of her evidence and in the history to doctors, the plaintiff stated that her physical condition was markedly affected by the injury to her back. The plaintiff was cross-examined about changing her address in recent times and that the move in house was a downsizing exercise. The plaintiff’s evidence was that she had previously lived in a single-storey premises and now moved to a two-storey house. The plaintiff was asked whether she had any trouble going up and down the stairs of the new premises. Her answer was:
A: “It’s a good exercise going up and down.
Q:I’m sure it is exercise but you don’t have any trouble getting up and down?---
A:No.”[95]
[95]T47, L1-3
107 This was an unusual and puzzling answer from the plaintiff, because it was at complete odds, and in conflict, with her previous presentation and complaints about the impact of her injury to her back.
108 In the course of this hearing, surveillance film was shown of the plaintiff covering the days of 16 September 2015, 18 September 2015, 2 January 2016, 3 January 2016, 3 November 2016, 8 November 2016 and 22 November 2016. The total of the video surveillance film shown was one-hour-and-twenty-seven minutes.
109 The defendant admitted that the plaintiff had been under surveillance on nine separate days, being 29 January 2015, 2 January 2016, 3 January 2016, 3 November 2016, 5 November 2016, 8 November 2016, 15 November 2016, 17 November 2016 and 22 November 2016. The total of nine days amounted to forty-eight hours of surveillance.
110 In general terms, the surveillance film of the plaintiff was unremarkable. The film showed the plaintiff being able to bend down and crouch down to the lower-shelving level at the supermarket. It showed her on a number of occasions at a pokies venue engaging in playing the pokies machines and moving about in a normal manner, it showed the plaintiff going shopping, both at the supermarket and, generally, at the Watergardens Shopping Centre. The surveillance film showed the plaintiff driving her vehicle in rainy conditions. In summary, the surveillance film showed a middle-aged woman going about normal activities of life, going to and from her premises, checking the mailbox, driving a car, going shopping, going to a pokies venue and enjoying the company of her husband at a pokies venue or a coffee shop.
111 I am mindful of the pronouncements by the Court of Appeal in respect of the use of surveillance film in the assessment of the plaintiff’s ability to perform physical tasks over short periods of time.[96] In this case, however, four of the medical practitioners that the plaintiff has been referred to for assessment have had the advantage and expertise of watching the surveillance film. I rely upon their comments and the assessment of the plaintiff’s credit in this regard.
[96]See Church v Echuca Regional Health (2008) 20 VR 566
112 Dr Michael Epstein, psychiatrist, viewed the films with the plaintiff on 9 December 2016. He noted in his report, his findings about the film. He stated:
“The impression gained is that since she was last seen in June 2013 her mental state has improved significantly. The surveillance material, especially the surveillance on 3 January 2016, indicates that she was comfortable in a poker machine venue, she was able to sit comfortably playing a poker machine for fifteen minutes with no awkwardness and no apparent difficulty. She was then able to sit comfortably again with no obvious difficulty outside the venue having coffee with her husband and a friend for another fifteen minutes.”[97]
[97]PCB 128
113 The plaintiff was last examined by Mr Flanc on 21 December 2016. Mr Flanc also had the advantage of observing some video surveillance film of the plaintiff. Mr Flanc, who is a general surgeon, commented on the video film as follows:
“She does not display any visual evidence of a disability in these DVDs.
The surveillance did not include any episodes of repeated bending, heavy lifting or sitting for longer than about 10 minutes.”[98]
[98]PCB 139
114 Dr Tony Kostos, a specialist rheumatologist, had also seen the surveillance film. I refer to my comments in relation to this in paragraph 77 of these Reasons.
115 Dr Peter Boys, an orthopaedic surgeon, has also had the advantage of seeing the surveillance footage of the plaintiff. He stated that the level of activity depicted in the footage showed no specific restrictions, abnormality or incapacity in the activities of daily life. He also went on to say that the surveillance footage would confirm his previous statements that “I could find no evidence of physical complaint limiting this lady’s capacities to return to work or undertake normal activities of daily life”.[99]
[99]DCB 36
116 I do not accept that the plaintiff has been an honest and reliable historian to her treating doctors, or those doctors that were engaged to report on her condition for medico-legal purposes. Her answers in evidence under cross-examination and re-examination contradict the histories given to doctors, as previously set out in these Reasons. The video surveillance film, as seen by Dr Epstein, Mr Flanc, Dr Kostos and Dr Boys, in their opinion, confirms that the plaintiff’s history and presentation of injuries is unreliable and not correct.
117 Mr McGarvie, on behalf of the plaintiff, submitted that the surveillance footage relied upon by the defendant showed that the plaintiff was a consistent historian to her doctors. I do not accept that submission. The plaintiff gave histories to the doctors that she was socially withdrawn and was unable to do a number of physical activities. The surveillance film clearly showed otherwise.
118 Mr McGarvie submitted that the plaintiff readily admitted that she had signed the Claim Form and the answers in the Claim Form were wrong. He said this was an example of how truthful she was. I find that at the time the plaintiff signed the Claim Form, she was not aware that she was going to be challenged about the truthfulness of the answers contained in the Claim Form by reference to her full and total medical history. I do not accept that her answer admitting to making wrong answers in the Claim Form is a sign of truthfulness. It was clearly a sign that the plaintiff knew that she could give no other answer than to admit making the wrong answers in the Claim Form.
119 Mr McGarvie submitted that the surveillance film was, at best, neutral in respect of the assessment of the plaintiff. I rely on the expert opinions of the doctors who have examined the plaintiff to find that the movements and activities shown in the surveillance film contradict, and do not assist the plaintiff’s claim in this case.
Disentanglement of symptoms and consequences from the first accident and the second accident
120 In these reasons, I have previously analysed contradictions in the plaintiff’s evidence and her history to doctors in respect of the impact of the second accident upon the plaintiff’s physical and psychological condition.
121 The plaintiff, in her evidence, conceded that the second accident did have an effect on her lower back, although she stated that the first accident was worse for her.
Q: “And you say, do you not, that the first motor car accident was worse for you than the second motor car accident in 2012?---
A: Yes.
Q: And you tell some of the doctors that the accident in 2012 didn't have any effect on your low back?---
A: Yes.
Q: That is what you have told the doctors?---
A: Yes.
Q: But it did have an effect on your low back, didn't it?---
A: Yes.”[100]
[100]T21, L31-T22, L7
122 The plaintiff finally conceded that the second accident made her condition worse.[101]
[101]T23, L3-4 and T38, L20-22
123 The plaintiff, in re-examination, finally stated that her pain was stronger and it was a burning sensation after the second accident.[102]
[102]T58, L3-12
124 This evidence is contradictory to her evidence or history to doctors, and the evidence she set out in her affidavits. The plaintiff has failed to adequately distinguish between the consequences and symptoms arising from the first accident, the subject of this application, and the symptoms relating to the second accident and its sequelae.
125 The plaintiff relied upon her affidavits dated 8 January 2015 and 23 February 2017 in support of her application. She also relied upon the affidavit of her neighbour, Krista Leigh Cedillo, dated 14 March 2017. I have read each of those affidavits in consideration of this application.
126 In her affidavits and evidence in this case, the plaintiff has set out the following consequences as a result of the first accident.
Sleep
127 The plaintiff complains that her sleep has been interrupted and affected as a result of the injury to her lower back. The plaintiff stated that she finds it more comfortable to sleep on her stomach, but has increased pain when she turns over.[103] The plaintiff was suffering from sleeping difficulties prior to the first accident. She had attended upon Dr Rahmanovic, and her complaints to him were her sleeplessness and anxiety in relation to her daughter, and other matters in her life. I am unable to be satisfied as to whether the interruption to the plaintiff’s sleep relates directly to the first accident, the second accident, or whether it is a continuation of her previous difficulties, as outlined to Dr Rahmanovic.
[103]PCB 19 at paragraph [30] and PCB 24 at paragraph [9]
Pain
128 The plaintiff complained of pain as a result of the first accident. She stated that the back pain is worse if she remains in one position for too long.[104] She confirmed, in her second affidavit, that she continues to suffer from pain.[105] In her evidence, the plaintiff stated that her pain condition has remained unchanged. The plaintiff has support from her general practitioner, Dr Andrianakis, and her treating psychiatrist, Dr Rigby, in respect of her complaints of pain. The plaintiff’s credibility is a crucial factor when determining whether or not she is currently suffering from pain as a result of the injury to her lower back. While video surveillance film is of limited value in assessing whether a person is suffering pain, it is clear from the video that the plaintiff was able to perform normal daily tasks. The doctors agree with that assessment. If the plaintiff is suffering from pain, I am not satisfied that it is more than significant or marked and at least very considerable. The assessment of the plaintiff’s pain is dependent upon my acceptance of her credibility and accuracy in her evidence.
[104]PCB 18
[105]PCB 24 at paragraph [7]
Medication
129 The plaintiff deposed that she was taking Lyrica, 150 milligrams twice a day, and Panadol Osteo, six tablets a day, for pain. She also deposed to taking mirtazapine (Avanza), 45 milligrams once per day, and Effexor, 150 milligrams, two tablets per day, for her psychiatric conditions. The plaintiff also takes Nexium, 40 milligrams, for her stomach-related issues.[106] In her evidence, the plaintiff confirmed that she continues to take that medication.[107]
[106]PCB 23 at paragraph [6]
[107]T21, L5-8
130 The prescription of pain-relief medication is dependent upon an acceptance by her medical practitioners of her symptomology.
Ongoing treatment
131 The plaintiff is currently being treated by a psychiatrist, Dr Rigby, and her general practitioner, Dr Andrianakis. The plaintiff currently has consultations with her psychiatrist, Dr Rigby, every two to three weeks. She attends her general practitioner approximately on a monthly basis. The medical evidence in this case disputes whether or not it is necessary for the plaintiff to continue to attend upon a psychiatrist in relation to her condition at this stage. I note that the plaintiff has been receiving psychiatric treatment for more than three years and the symptomology and complaints remain static.
Mobility and activities of daily living
132 The plaintiff stated in her evidence that she could bend and squat but that activity was restricted.[108] The plaintiff stated that she could go up and down stairs and described it as good exercise.[109] In her affidavit material, the plaintiff set out the restrictions she has in respect to housework, in particular her inability to do the vacuuming.[110]
[108]T41, L7-9
[109]T47, L1
[110]PCB 20 at paragraph [33]
133 The plaintiff, in her application, relied upon the affidavit of Ms Cedillo, dated 14 March 2017, setting out an occasion where the plaintiff’s cat had gotten out. The plaintiff stated that she was unable to bend low enough to pick up the cat when it escaped from her premises due to her back pain. Ms Cedillo also mentioned that the plaintiff complained about the surveillance that she was placed under and that she was having difficulty taking a few steps to go to her letterbox.[111] Ms Cedillo was not cross-examined in this application.
[111]PCB 26-27
134 The video surveillance film clearly shows the plaintiff has an ability to attend at her mailbox and bend down and pick up her mail, and that the other video surveillance film showed a clear ability of the plaintiff to move around by walking, bending and sitting. I do not accept that the plaintiff’s activities of daily living or her mobility have been significantly affected by the first accident.
Work
135 The plaintiff’s claim is that she is unable to return to work. This claim is in contradistinction to the medical opinions of the doctors who have examined the plaintiff on behalf of the defendant. The plaintiff was offered a return to work on light duties. In her evidence, she stated as follows:
Q: “They certainly offered you light work back at St Vincent’s didn’t they?---
A: Yes.
Q: And all you had to do was for a couple of hours stand and sort cutlery, stand or sit as you wanted to?---
A: Yes.
Q: And you said no?---
A: Someone has to bring the cutlery to me.
Q: Well, that’s not you, someone brings the cutlery to you?---
A: And I asked them like, what’s happened – because there is a - like when they bring the cutlery there is lots of water on the floor and I have asked them, like what will happen if I just move and slip on the water and they say you're not covered by anybody, like no work.
Q: So you wouldn’t even give it a try?---
A: I was scared, I knew like my back hurts so if it happens again what am I going to do then?
Q: Have any of your doctors said to you that you ought to try and do something?---
A: Can’t remember that, whether they were pushing me.”[112]
[112]T41, L14-31
136 The plaintiff then answered a series of questions that she could not remember being asked by doctors to try the alternative or light duties.
137 The plaintiff gave evidence that she had performed supervising duties at the hospital and that she knew what light duties involved.[113] The plaintiff conceded that after watching the film in the course of the proceeding, there was no reason why she could not perform light duties of folding linen or sorting cutlery for a couple of hours per day.[114] The evidence in this case is that the plaintiff has made no effort to return to work since the first accident.
[113]T42, 19-24
[114]T55, L27-30
138 The plaintiff has failed to satisfy the Court that she has lost her ability to work as a result of the first accident. The plaintiff has not made any genuine effort to return to work despite medical clearance for her to do so on a light-duties basis.
Failure by the Plaintiff to call witnesses
139 The defendant made a submission on the basis of O’Donnell v Reichard,[115] that the plaintiff had failed to call or file affidavits from her husband, her daughter or her son in support of her application. The plaintiff, in the course of her evidence, stated that the surveillance film did not show what she was like in her home. The submission made by the defendant was that the people who could have given evidence about the plaintiff’s condition have not been called upon to do so.
[115][1975] VR 916
140 The principle in O’Donnell v Reichard is that if a party which has failed to call a witness that would ordinarily be expected to be called to give evidence, then an inference is drawn against that party that the evidence from a missing witness would not have assisted the case for the party that failed to call the evidence. The rule does not extend to draw an inference that a fact which is adverse to the interests of the party is proven.
141 I accept that the evidence from the plaintiff’s husband, daughter and son would not have assisted her case in this application.
142 More importantly, the lack of medical reportage from the psychologist, Dr Rahmanovic, in relation to the psychiatric impact of the first accident, is a most important omission in this case.
Conclusion
143 Based on the evidence that I have accepted and set out in these Reasons, and the opinions of the medical practitioners in this case, the plaintiff has failed to establish that the consequences resulting from the injury to her lower back from the first accident are more than significant or marked and at least very considerable.
144 The application for a serious injury certification for injury to her lower back as a result of the first accident is dismissed.
145 I will hear the parties on costs.
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