Pham v Transport Accident Commission

[2018] VCC 479

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-05331

THI TUYET HA PHAM	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:	28 February 2018
DATE OF JUDGMENT:	19 April 2018
CASE MAY BE CITED AS:	Pham v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2018] VCC 479

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – impairment to the spine

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

Judgment:                 Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr G Clark	Ryan Legal
For the Defendant	Mr R Kumar with Mr D Churilov	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 25 February 2013 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the spine. It was submitted any pain syndrome was organically based. There was no application in relation to this condition pursuant to sub-paragraph (c).[1] 

[1]Transcript (“T”) 2

4       The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

5       The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[2]

[2]see Richards & Anor v Wylie (2000) 1 VR 79

6       In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked”?[3]

[3]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140-141

7       The plaintiff swore three affidavits and was cross-examined.  She also relied on an affidavit sworn by her son, Kevin Nguyen, on 26 February 2018.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

8       The plaintiff is presently aged forty-seven, having been born in July 1970 in Vietnam.

9       The plaintiff escaped Vietnam when she was seventeen.  She then lived in a refugee camp in Malaysia for about four years, until she was accepted as a refugee by the Australian Government, and arrived here in about 1991.  She initially lived in Melbourne.

10      After her son, Kevin, was born in December 1997, the plaintiff shifted to Cabramatta in Sydney, and then came to live in Mildura in 2006 to give her son a better lifestyle.  She divorced about twenty years ago.

11      On arrival in Mildura, the plaintiff opened an Asian grocery store in Deakin Avenue (“the store”) which she operated until her brother-in-law, Tong, shifted from Sydney to Mildura.  She worked very long hours, and very hard, to ensure the store succeeded.[4]

[4]T36; 8.00am to 9.00pm, seven days a week

12      The plaintiff was involved in a transport accident in about 2006 when driving a vehicle which struck a kangaroo (“the 2006 accident”).  Her nephew, who was a passenger, was killed. The plaintiff suffered minor physical injuries, in particular, facial lacerations. She had then just opened the store and was unable to run it for a few weeks.  She was left with no long-term physical injuries; however, she suffered psychological upset and injury.

13      After the 2006 accident, the plaintiff had some ongoing problems with anxiety and sleep, and over the years since, she had suffered some aches and pains. A short time prior to the said date, she had had some mild pain in her hands.  However, she was able to undertake all domestic and work activities without restriction.  She was caring for her elderly father and running the household.

14      The plaintiff’s elderly father came to live with her in about 2009.  He suffered from dementia and required a lot of care.  She became his carer, while still occasionally helping out in the store.  The ownership of the store was transferred to Tong before the said date.

15      The plaintiff thought the transfer was in around 2010, after her father had an episode when he “ran amok”.  Thereafter, the plaintiff continued to work part time, about three hours a day.[5]  Her job was cleaning and filling shelves.  She felt it was her responsibility to work, and was doing these duties and hours at the store as at the said date.[6]

[5]T9; history given to Professor Romas in February 2018

[6]T10

16      The plaintiff was unable to explain the store’s profit of $67,000 in 2010-2011 and then a loss of $291,000 the following year.[7]  In 2010-2011, she was not paid a wage.  She just got some food and pocket money.[8]

[7]T10

[8]T11

17      As at the said date, the plaintiff was in receipt of Centrelink benefits.

18      On the said date, the plaintiff was a passenger in a delivery truck driven by Tong.  They were travelling south along the Calder Highway when he lost control of the truck.  It veered onto the right-hand lane and into an oncoming vehicle, and then rolled onto its side and suffered very extensive damage (“the accident”).

19      A number of photographs from the Bendigo Weekly showed the post-accident scene.  In the attached article, it was noted the plaintiff was airlifted after a crash on the Calder Highway after a car was crushed by a truck south of Bendigo.

20      The plaintiff was taken from the accident scene by ambulance to the Bendigo Base Hospital, where she remained an inpatient until 2 March 2013.  She suffered multiple injuries as a result of the accident.  She had extensive bruising on the left side of her body and that whole side was very sore, as was her abdomen.[9]  She suffered an injury to her lower back and left shoulder.  She had been left with pain in her left arm, extending down to her left hand.  The pain in her hands had worsened since the accident.

[9]Second affidavit sworn 31 August 2017

21      The plaintiff’s menstrual cycle has been irregular since the accident, and she found that her anxiety had worsened and she had become depressed.

22      After the accident, the plaintiff attended Dr Ravoori, her general practitioner.  He referred her to Dr Barraclough, a rheumatologist.

23      In her first affidavit, sworn April 2016, the plaintiff described having suffered ongoing pain in her neck and regular headaches since the accident.  Her neck pain was worse on the left side.  She had numbness and pain down her left arm and ongoing restriction and pain in her left shoulder.  Further, she suffered lower back pain, the level of which varied and sometimes was very bad.

24      The plaintiff also had problems with abdominal/epigastric pain, with the pain being so bad that she had had to attend Mildura Hospital.[10]

[10]T37; 9 March and 10 to 14 April 2013

25      It had always been the plaintiff’s intention, after her father passed away, to return to paid work.  She had a large home mortgage and wanted to contribute to the family’s welfare.  She had a strong work ethic and wished to create a good life for her family.

26      The plaintiff’s father died in March 2015.

27      The plaintiff deposed that she tried to return to work at the store in mid 2015, but lasted about four months before she realised she simply could not cope with the work demands because of her injuries.  She tried to work five to six hours a day; however, the pain in her neck, left shoulder and arm, as well as her lower back, was too great.[11]

[11]T67

28      In cross-examination, the plaintiff initially confirmed the circumstances of her return to work but then said she did work part time before the middle of 2015.[12]

[12]T12

29      The plaintiff stopped work after the accident, because she was in a lot of pain.  She relied on her son.  She could not remember exactly for how long she did not work.  She had to go hospital two or three times.  She ultimately said that she had started working again before mid 2015 on and off when she could manage her pain.[13]

[13]T13

30      After the accident, the plaintiff was not able to perform her pre-injury duties, but she had to continue working to support her family and also take care of her father.  She worked about three hours a day, but sometimes she was in so much pain she had to leave the shop and lie down.  She agreed that within a few months of the accident she had returned to part-time work.  She was back at work when she collapsed in Dr Ravi’s surgery, and had to go to hospital.[14]  There were many times she experienced pain at work, and she would rest in a small room at the store.[15]

[14]19 March 2103

[15]T16

31      The plaintiff explained her affidavit might be wrong as to her return to work because, since the accident, her memory has been bad.[16]

[16]T17

32      When asked about the history she gave to Professor Dennerstein on examination in November 2015 of having been working 20 hours a week but not having worked in the last two weeks because of pain in her left hand and arm, the plaintiff agreed she was having pain; however, she did not really explain the site of her pain.[17]  She agreed she stopped working at the end of 2015, at which time she was suffering from widespread pain.[18]

[17]T18

[18]T20

33      The plaintiff was paid wages whilst working at the store after the accident, but could not remember when she was paid during that period.[19] In the 2013-2014 financial year, her taxation return showed she earned $18,720.  Tong then paid her a weekly wage and also gave her extra money.  She manned the cash register.  She took it upon herself to help with other duties such as cleaning.[20] 

[19]T14

[20]T15

34      The plaintiff is very house proud, but because of her accident injuries, as of April 2016, she found it very difficult to undertake normal domestic activity, and also look after the garden, which she had previously loved doing.[21]

[21]First affidavit

35      The plaintiff then still tried to do as much as she could around the house, but her pain increased if she did too much, and she had to rely on others. That situation caused her great distress, and she felt useless and a burden on her family.

36      The plaintiff has not been a person with recreational activities.  Her focus has always been providing for her family and that has given her a great sense of purpose.  She then spent a great deal of time watching television and tried to go for walks, but that was not how she would like to be spending her life.  She would have loved to be back working full time, and in any spare time, work in the garden and improve her house.

37      The plaintiff was then very worried about the future, as her injury related pain and restriction had changed her life.  She was also worried the bank would try to take her house.

38      It had been the plaintiff’s intention to continue working until at least sixty-five but, at that stage, she had not been able to work since September 2015.

39      In August 2017, the plaintiff deposed that she continued to have very bad neck pain radiating out into both sides of her neck into her shoulders and down towards the middle of her spine.  Her pain went down her left arm and she also continued to have pain in her hands.

40      The plaintiff suffered headaches regularly, and when her neck was bad, the headaches were bad.  Her neck pain and headaches made her feel tired.

41      The plaintiff continued to have lower back pain, which was particularly bad with prolonged sitting. The pain throughout her spine was very bad at night and often in bed she had to twist and change her position to try and relieve the pain.

42      The plaintiff continued to be depressed and often felt like crying, and her mood was often very low.

43      The plaintiff was then attending Merbein Medical Clinic.  She was seeing Dr Shetty, who had recently given her injections in both sides of her neck.  He also gave her pain relief medication and sleeping tablets.

44      The plaintiff had difficulty understanding medical advice because of her language problems.  She requested further investigations be undertaken given her ongoing pain.

45      About a fortnight before the hearing, the plaintiff had a scan, during which she was loaded into a machine.  She paid for this test which was organised by Dr Shetty.  He initially offered her a further injection but she asked for a referral for a scan.[22]  She is to see him again soon.[23]

[22]T25

[23]T26

46      In addition her general practitioner’s treatment, the plaintiff had also had a lot of massages to try and relieve her symptoms and she used patches.

47      As of August 2017, the plaintiff had difficulty sleeping and often woke in the middle of the night because of pain.  Even the medication she took did not stop her waking in pain at 2.00 or 3.00am.  She often felt very tired, and her lack of sleep got her down.  From time to time, she had nightmares about the accident.

48      The plaintiff continued to feel very down and low.  She felt a lot of pain and was often very sad, and did not get much joy out of life.  Her terrible headaches made it difficult for her to think and function properly.

49      The plaintiff was no longer able to engage with her family and look after them as she should.  Her son Kevin was at university in Melbourne, and all the plaintiff thought about was the need to work and be able to look after her family and provide for his education.  In her spare time, she simply tried to sit and do nothing, and try to relieve her pain and headaches.

50      The plaintiff no longer lives in her home and lives with her sister and Tong.  She is very reliant on them to undertake heavier domestic activities.  That situation makes her feel worthless and useless.  She misses living in her own home where she loved the garden.[24]

[24]T27

51      The plaintiff returned to work in September 2016 in her family’s San Mateo Avenue grocery store (“San Mateo”).[25]  As of August 2107, she did light work as a cashier and stocking shelves.  She was paid a proper wage.  Work was very painful, and what was easy before the accident was now very difficult.  She earned about $750 a week and could not afford not to work because she had to support Kevin and pay the mortgage.  She had to keep driving herself to go to work despite the pain, and she found it very difficult.  That situation caused her great distress and she not know for how long she could cope.

[25]T14

52      The plaintiff swore a third affidavit on 13 February 2008.

53      The plaintiff’s neck pain continues and varies between a dull ache and being very severe.  Her neck continues to be very stiff.   It is difficult to explain the pain, but it feels like someone is squeezing her neck.  It gets very tense and goes into spasm, and she feels like she needs to have massages to relieve the tension. She described a throbbing sensation at the back of her neck while giving evidence.[26]

[26]T23

54      The plaintiff’s neck pain radiates into her left shoulder and out into her upper back and down her arm.  She has pain in the left triceps, which goes down into her forearm.

55      The plaintiff continues to have headaches, which start at the back of her neck. Because of pain in her neck and headaches, she often feels unwell.  She was actually having a severe headache whilst trying to answer questions in the witness box.[27]

[27]T17

56      The plaintiff continues to have pain in her lower back, which radiates out into her buttocks and into her legs as far as her knee.  Sometimes she has tingling in her legs. 

57      Pain and restrictions in the plaintiff’s left hand continue.  She now also has pain in her right hand. Her left ring finger is deformed and painful, and the pain goes into the palm of her hand.  Her middle finger continues to be painful.  She also has pain at the base of her left thumb. She continues to use medicated oil for pain relief.[28]

[28]T20

58      The plaintiff has right shoulder pain, and at one stage, had so much pain in both shoulders that she had to get a taxi to her general practitioner, who then gave her injections in both shoulders, which helped.[29]

[29]T20

59      The plaintiff has pain in her knees.  When she stands up she has to lean on something for support.[30]  She indicated pain in both knees and the area around the back of her pelvis and running down both thighs and knees. Pre-accident, she was able to squat quite comfortably, but now when she stands up, she has a lot of pain in one or other knee.[31]

[30]T20

[31]T21

60      The plaintiff has pain in both feet.  She is no longer able to wear shoes, and has to wear sandals or thongs.  If she stands for too long, her right ankle swells up. She has swelling in both ankles.[32]

[32]T22

61      The plaintiff agreed she described intermittent low-back pain to Professor Dennerstein on examination in November 2015.  This is still the case, but the “pain is now more on than off”.  The pain in her spine and lower back radiates down both sides of her leg.[33]

[33]T25

62      The plaintiff agreed she told Professor Helme in mid 2016 that the pain involving the left side of her neck, her shoulder, and the lateral aspect of her arm to the elbow, was intermittent and lasted for an hour or so when present.[34]

[34]T23

63      The plaintiff’s depression continues, as previously described.

64      The plaintiff now sees Dr Shetty, as Dr Ravoori left Mildura.  Dr Shetty prescribes painkilling medication and anti-inflammatories, and he has also given the plaintiff injections.  As western medicine has not helped with her pain, she now uses a range of Chinese medicine.

65      The plaintiff does not know if doctors fully understood her history.[35]

[35]T28

66      The plaintiff continues to have sleep problems and it is very difficult to get comfortable because of her neck pain.  She finds she is constantly tossing and turning.  When she eventually gets to sleep, she wakes in pain.  She often gets out of bed at 2.00 or 3.00am to move around.  In the morning, her neck is stiff and sore.

67      The plaintiff agreed that she requested medication to help her sleep as her general practitioner noted in August 2011 and January 2012.  However, she did not take sleeping tablets every night.  She seemed to have some sleeping problems after the 2006 accident, but only from time to time.[36]

[36]T29

68      The plaintiff explained her current sleep problems were due to pain in her neck, back, and legs.  When she comes home from work, she has to massage her leg and feet.  That pain also contributes to sleep problems.[37]

[37]T29

69      The plaintiff does have pain in her hands when she has to hold or carry things, but the main source of her pain comes from her neck, shoulders, and her back, and those pains contribute to her sleep problems.  She sometimes has nightmares about the accident, and they also affect her sleep.[38]

[38]T30

70      The plaintiff’s pain just wears her down and she feels tired and depressed.  No one understands the pain and what she is going through.  She is frustrated and very sad.

71      The plaintiff keeps telling herself to try.  She tries to push herself through the pain.  Regardless thereof, she has to keep trying to work and contribute to her family. That situation wears her down.

72      The plaintiff’s family is her life.  She is not able to do things with them as she should.  She is unable to support Kevin as she would like, while he is living in Melbourne studying.

73      The plaintiff relies on her family to do the heavy household tasks and she does not contribute to the household as she should, a situation which she finds frustrating and depressing.  Her family does the vacuuming, heavier cleaning and cooking.

74      The plaintiff moved out of her own house because she could not pay the mortgage.  She rented it out until a month ago, when it was sold.

75      It is difficult on the plaintiff’s family as they do not really understand her pain.  She tries to do things, but then her pain increases.

76      The plaintiff generally does not cook at all, and mostly has instant noodles.  Her sister does the cooking, but the plaintiff does not often eat with her and Tong.[39]

[39]T28

77      The plaintiff must work to support her son and contribute to the family.  She continues to assist at San Mateo as best she can.  Even though she is in a lot of pain, she has to keep working.  If she was not working at San Mateo, it would be difficult for her to find work.

78      At work, the plaintiff tries to limit herself to doing light things which do not hurt her so much. When she has to do things like packing, her pain increases, and she suffers a lot afterwards.  By the end of the day, her neck and back are very painful, and she uses oil at night to try and help.

79      In re-examination, the plaintiff described in great detail her duties in the store before the accident: stacking, delivery, handling and cleaning.  She then did everything that needed to be done with her son’s help.  Now, she could not manage anywhere near that level and type of work.  She no longer can carry things.[40]  She cannot do any heavy tasks in the shop.  She cannot do cleaning and stacking, and has difficulty bending.[41]  She has problems extending her arms to stack shelves.  Stacking lower shelves, she has problems squatting, and has pain in her legs, her knees, and usually has to use a small basket like a seat to sit on.[42]  She now could not push a heavy trolley.[43]

[40]T32

[41]T33

[42]T34

[43]T35

80      The plaintiff did not think she presently would be able to manage her pre-accident hours and did not know when and for how long she could continue working.[44]

[44]T36

81      The plaintiff’s injuries have not improved.  All she sees is a future with ongoing neck pain, back pain and headaches.

Lay evidence

82      The plaintiff’s son, Kevin Nguyen, affirmed an affidavit on 26 February 2018.

83      Kevin is twenty, and studying nursing full time at Monash University. He was a young boy when the plaintiff set up the store in Mildura.  They normally had dinner there and usually went home after nine o’clock. The plaintiff worked very long hours and mostly ran the shop on her own.

84      The plaintiff became her father’s primary carer when he moved to Mildura in 2009 and worked in the store on and off because she had to look after him.  She was able to cope with the physical demands of that role. She always intended to return to running the store when he passed away.

85      During that time, the plaintiff loved cooking and was also very house proud. She kept the house clean and enjoyed working in the garden.

86      Post accident, the plaintiff struggled to get out of bed for some time.  She really struggled caring for her father and Kevin had to help her out a lot more.

87      The plaintiff’s English is not good and many times Kevin went with her to see doctors so he could translate.  He did his best to explain to the doctors the pain which the plaintiff was suffering in her neck, lower back, down her arm and into her legs.

88      Kevin’s grandfather passed away in March 2015 and after that the plaintiff started working again, but had difficulty coping and, at times, could not work.  She was frequently complaining about her pain.

89      Kevin moved to Monash University in 2016 and the plaintiff then moved in with his aunty and uncle because she was struggling financially.

90      The plaintiff started back doing some work at San Matteo because of financial need.  She continues to give Kevin money to help him pay for his expenses and it really hurts him to see her trying to work and suffering as a result.

91      The plaintiff does not do much in her spare time now, she is just lying in bed or watching television when he visits.  She has lost her passion for cooking and just eats two minute noodles.  She is no longer able to work around the house, but she tries to do light cleaning, but complains of pain thereafter.

92      The plaintiff’s focus was ensuring he did well at university, and he worries since he has moved to Melbourne, because it is difficult for the plaintiff to explain to doctors the effects of her injuries and pain.

The Plaintiff’s medical evidence

Treaters

93      Following the accident, the plaintiff was an inpatient at Bendigo Health from 25 February to 2 March 2013. On discharge, her prescription included Oxycontin and Endone.

94      Dr Ravoori, general practitioner, provided an undated report on 22 February 2018.

95      Dr Ravoori saw the plaintiff on 5 March 2013 after her discharge from Bendigo Health.  He had then been treating her since April 2010.

96      Dr Ravoori reported that the plaintiff complained of ongoing pain in her left shoulder, elbow, lower back and neck, ribcage and hips.  A number of investigations were undertaken due to her ongoing pain.

97      The plaintiff complained of joint pain and tenderness of the small and large joints, her interphalangeal joints were swollen and tender, and her inflammatory markers were high.

98      The plaintiff was referred to Dr Barraclough, a rheumatologist, who diagnosed cervical and lumbar spondylosis.  He suggested she have pain medication and supportive symptomatic treatment. She was also referred to Dr Sabina Ciciriello, another rheumatologist, as Dr Ravoori thought she was suffering from a rheumatological condition.  The plaintiff was diagnosed with psoriatic arthritis, and was started on Prednisolone and also Methotrexate.

99      Dr Ravoori noted the plaintiff returned to work as a shop assistant in a grocery store on a part-time basis, with a few hours a day, but unfortunately she was not able to continue in that position due to increasing pain.

100     By this time, the plaintiff had become quite depressed and anxious as she was not able to do any of the work she used to do pre accident.  She had been taking anti-depressants on and off for many years.  Since the accident, she had started to have disrupted menstrual cycles.

101     Dr Ravoori noted the plaintiff was never in a position to return to her former employment in the store after the accident.  Prior thereto, she was a caring daughter, looking after her father, who had dementia.  Her father had since passed on peacefully in their family home at Mildura.  The last time Dr Ravoori saw the plaintiff, he thought she was unfit to return to her pre-injury duties.[45]

[45]Notes indicate 22 December 2016

102     Dr Ravoori considered the plaintiff’s prognosis was guarded and that the pain in her neck, left shoulder, lower back and hands would continue for the foreseeable future.  He thought she may be symptomatically better with a multi-disciplinary approach, involving pain management, psychology services and rehabilitation.  Because of her limited English and due to the fact she could not do any other form of physical work, in his view, her returning to any reasonable work was limited.

103     Dr Shetty, from Merbein, first saw the plaintiff on 14 July 2017.

104     On that visit, the plaintiff repeatedly told him about her pain, and kept pointing to her back as the site thereof.  She told him she had had the pain for three years, but not what caused it.  She was then wearing patches on the back of both wrists and the dorsum of her hands.

105     On examination, the plaintiff had bilateral neck muscle tenderness, painful passive movements of the wrists bilaterally, and upper back muscle tenderness.  Dr Shetty infiltrated the tender spots on her neck and prescribed the anti-inflammatory, Celebrex.

106     On examination on 20 July 2017, the plaintiff reported her pain was no better and she was not sleeping.  Dr Shetty then prescribed a different painkiller, Tramadol, and a sleeping tablet.

107     On 11 August 2017, with the assistance of a telephone interpreter service, the plaintiff told Dr Shetty all the pain resulted after the accident.  She wanted x‑rays and pain relief, and was using Chinese hot cupping on her back and neck, the markings of which were visible.

108     The plaintiff attended in November 2017 to find out the results of the MRI scan, and also for a repeat prescription for the neuropathic painkiller, Lyrica. From these attendances, Dr Shetty gained the impression she was very much pain focussed.  He thought that superficial burn marks on her back from Chinese cupping meant her pain must be real, otherwise she would not have done this procedure.

109     Dr Shetty’s feeling was that because of this disability, the plaintiff is permanently unemployable, except perhaps in her family business.

110     Dr Shetty’s noted indicate he most recently saw the plaintiff on 7 February 2018.  The reason for contact was “neuropathy, back pain – acute on chronic”.

111     The plaintiff was then complaining of pain radiating into both legs, and was requesting an MRI scan, which he arranged.  On examination, there was lower back tenderness, and the plaintiff found it difficult to squat. 

112     As at February 2018, the plaintiff’s current medication was Lyrica for neuropathy and Solone (prednisolone) for rheumatoid arthritis.[46] 

[46]Dr Shetty’s clinical notes

113     The plaintiff was referred to Dr Barraclough and Dr Ciciriello, rheumatologists.

114     During the hearing, extracts from Dr Ciciriello’s notes were tendered by the plaintiff, a number having been included in the defendant’s court book.

115     On examination on 21 August 2015, Dr Ciciriello noted the presenting problem was joint pain.  There was a complaint of pain in the lumbar spine and left shoulder.  The diagnosis was “?inflam OA v PsA” and an x-ray of both hands was ordered.

116     On 23 October 2015, when the plaintiff presented for joint pains, Dr Ciciriello also noted she “had had left shoulder pain last 3 days.  Mechanical back pain.”  On examination, the left shoulder was irritable.

117     When seen next on 15 May 2016, the plaintiff complained of worsening pain, swelling and deformity of the fingers, and also neck and lower back pain which affected her sleep.  There was synovitis in multiple finger joints, irritable left shoulder and tenderness over the cervical and lumbar spine.

118     Dr Ciciriello diagnosed PsA, prescribed medication and organised regular reviews at Melbourne Pathology in relation thereto.

119     On 12 August 2016, the presenting problem was psoriatic arthritis.  Dr Ciciriello noted the plaintiff had developed neck pain and numbness affecting the left little finger and extending up the arm to the neck.  Numbness was there intermittently.  “Also feeling body is hot, not sleeping well and has some emotional irritability.  Joints are better but not still not completely resolved.”

120     Dr Ciciriello then changed the plaintiff’s arthritis medication. Dr Ciciriello does not appear to have seen the plaintiff since that time.

Investigations

121     A CT scan of the plaintiff’s cervical spine on 25 February 2015 identified early degenerative change at the C5-6 disc level.  There was no evidence of acute vertebral or neural arch injury.  No acute disc prolapse was shown.

122     Dr Shetty organised an MRI scan of the cervical spine/left brachial plexus which was carried out on 29 August 2017.

123     It was reported there was some degenerative disc disease in the cervical spine, particularly at C5-6, where there was borderline canal stenosis and other exit foraminal stenosis.  No brachial plexus lesion was seen.  There was a trace of fluid in the subacromial bursa, suggesting bursitis.

124     An x-ray of the cervical spine on 29 August 2017 showed alignment to be normal and disc height preserved.  No prevertebral swelling or fracture was seen.  There was mild narrowing of the right sided C5-6 foramen.

125     Nerve conduction studies were carried out on 21 December 2017.  Thereafter, it was reported that upper limb motor and sensory conduction was normal and limited muscle sampling was unremarkable.[47]

[47]Mr Kossmann-  no pathology

126     Dr Shetty arranged an MRI scan of the plaintiff’s lumbar spine on 15 February 2018.

127     It was reported there was no foraminal narrowing or disc protrusion in the lumbar spine.  The paraspinal musculature was preserved and the visualised SI joints had a normal appearance.

128     Coronal T2 large field of view imaging identified multiple cysts within enlarged kidney.  The likely diagnosis was adult polycystic kidney disease - “Query whether pain could be related to multi cystic change in each kidney.”

The Plaintiff’s medico-legal evidence

129     Mr Kossmann, orthopaedic surgeon, examined the plaintiff on two occasions – initially, February 2016 and, most recently, in January this year.

130     On most recent examination, the plaintiff complained of ongoing, intermittent burning pain extending from the upper thoracic spine into the left subscapular fossa, and posterolateral left shoulder and arm as far as the left posterior hand.  She advised there had been no change in her symptoms since being seen in February 2016.

131     The plaintiff also complained about pins and needles, and numbness in her upper thoracic spine.  The pain radiated up into the left side of her neck and caused headaches.

132     The plaintiff had ongoing low-back pain, which was radiating into her legs.  She had difficulty sleeping because of her pain, and had flashbacks and nightmares.

133     Mr Kossmann had a history of the plaintiff initially returning to work in the store after the accident for two hours each day, but she had to stop due to her left arm pain.  Since then, she had returned to work and worked full time as a cashier in an Asian grocery business run by her sister.

134     Mr Kossmann noted the plaintiff’s medications included paracetamol, Oxycodone, an anti-depressant, which she had been taking since 2006, and Lactulose syrup.

135     The plaintiff told Mr Kossmann that she could manage her household duties and no longer had help from her son as he had moved out.  However, she was dependent on him for any hard work.

136     The plaintiff advised that she used to enjoy gardening, but could no longer do it due to left arm pain and difficulty with her hands, and she had some difficulty dressing.

137     Mr Kossmann examined nearly every part of the plaintiff’s body on this occasion but did not provide any commentary or analysis of his findings.

138     Following re-examination, Mr Kossmann diagnosed the following:

·cervical and upper thoracic spine pain radiating into the left suprascapular fossa, posterolateral shoulder and left arm in the setting of cervical spondylosis;

·low-back pain in the setting of lumbar spondylosis;

·pain and movement restrictions of both shoulder joints;

·painful fingers on the left hand in the setting of the initial stages of a swan neck deformity of the left fourth finger;

·anxiety, depression and flashback nightmares, possibly due to post-traumatic stress syndrome.

139     Mr Kossmann noted that since the accident, the plaintiff had continued to suffer from persistent left-sided neck, upper back and left posterior shoulder and arm pain.  She also had persistent back pain and stiffness in her hands with the deformity of the finger.  She stated her depression had worsened and she had flashbacks about the accident.

140     Mr Kossmann thought the plaintiff’s prognosis was guarded and that she would continue to suffer from pain in her neck, left arm, lower back and hands for the foreseeable future, and would require further conservative treatment.

141     Mr Kossmann suggested further investigations, following which the plaintiff should be referred to a neurologist and a hand surgeon.  He also thought she would benefit from a psychiatric referral.

142     Mr Kossmann thought the plaintiff was limited in her capacity to push and pull weights greater than 5 kilograms, engage in movement at or above shoulder height, and stand for prolonged periods.  He noted she did not speak English and had no transferable skills.  Meanwhile, she had returned to work in her sister’s Asian grocery shop as a cashier and seemed to cope with this kind of work.  Time would tell.

143     In a supplementary report, Mr Kossmann advised that upon his recommendation, the plaintiff underwent x-rays of her left hand and cervical spine, and an MRI scan of the cervical spine and left brachial plexus. 

144     The radiologist confirmed the swan neck deformity on the x-rays of the left hand.

145     The x-rays of the cervical spine showed mild facet joint arthropathy and mild narrowing of the right-sided C5-6 foramen. The MRI scan of the cervical spine showed a minor disc bulge in the C3-4 level and borderline canal stenosis and exit foraminal stenosis at C5-6.

146     In addition, the plaintiff underwent a nerve conduction study on 21 December 2017, which did not show any pathology.

147     Professor Helme, consultant neurologist, examined the plaintiff on 17 June 2016. 

148     Professor Helme noted the plaintiff had tried to go back to work in June 2015, but her pain exacerbated and she ceased work, then was restricted to two hours a day in November 2015, and had not worked since.

149     In order of priority, the plaintiff reported the following:

·poor sleep habits;

·pain in the left side of the neck extending through the elbow, shoulder and upper arm to the forearm and into the left hand, affecting predominantly the third, fourth and fifth fingers;

·tiredness, rumination and depression.

150     The plaintiff advised that her sleep deprivation was due to left neck and arm pain, and she was taking a hypnotic.

151     The plaintiff described her pain in two parts ─ firstly, pain which involved the left side of the neck, shoulder and lateral aspect of the arm to the elbow which was contiguous and intermittent, lasting for an hour or so when present or occurring spontaneously.  It was worse at night.  She rated its severity as seven out of ten.

152     The plaintiff had aching pain extending intermittently into the forearm, hand and three fingers, such pain being different in nature to the neck and upper arm pain.

153     The plaintiff was then taking six Panadol a day.  In the past, he had been treated with Celebrex, Targin, Lyrica and Mobic, having originally been treated with Endone, OxyContin, Tramadol and Ibuprofen.

154     The plaintiff readily admitted to being depressed and having crying episodes, and ruminating daily for hours at a time.

155     On further enquiry, the plaintiff stated she had pain and stiffness in the lower back, which she found hard to characterise, and there was no precipitant, apart from sitting.

156     The plaintiff’s earlier reported headaches had diminished to the extent that they only occurred now on the left side, with shoulder and arm pain.

157     The plaintiff did report some intermittent numbness and aching in the left posterior thigh, which had been present for a few years with an onset after the 2006 accident, but could not recall the exact time of onset.

158     The plaintiff’s arthritic condition was then being treated with methotrexate in a low dose, and prednisolone daily.

159     The plaintiff was living with her brother-in-law, sister and nephew.  She undertook all personal activities of daily living.  She was able to wash dishes and do a little bit of weeding.  She could not peg clothes on the line or vacuum.

160     On examination, Professor Helme thought the plaintiff’s affect appeared to be depressed.  She was cooperative.  There was no deformity of the cervical spine and it was non-tender.  The lumbosacral spine was of normal appearance, non-tender, and there was no paraspinal tenderness or spasm.  Movement of the cervical and lumbar spine was full.  There was a tender point over the trapezius and some general tenderness posterior to the shoulder. Neurological examination was normal.

161     There was no imaging was available for inspection.

162     Professor Helme noted the plaintiff complained of shoulder pain about a week after the accident, recorded in a certificate of 1 March 2013.  On examination, she recalled her left shoulder pain, together with arm and hand pain, occurred a month or so after the accident.

163     Professor Helme thought the plaintiff appeared to carry a diagnosis of seronegative arthritis, affecting her hands, for which she had been prescribed medication.  However, the pain in the left upper extremity was radicular in nature, but not associated with objective motor or sensory signs, but there was evidence of lower nerve root or brachial plexus sensitivity retraction.  He thought the radiculopathy at present would affect the seventh and/or eighth cervical nerve roots.

164     Professor Helme noted the plaintiff had a very mild reduction in range of movement of the left shoulder because of pain in the affected area, and remained at risk of developing adhesive capsulitis.

165     Professor Helme also noted the plaintiff was mood disturbed, being depressed and having symptoms highly suggestive of “PTSD”.

166     Professor Helme’s presumptive diagnosis was left lower cervical radiculopathy with cervical degenerative disease, which required elucidation by MRI and neurophysiological studies, both of which he thought may be helpful.  From her injuries, she had evidence of irritative neuropathic pain affecting the lower cervical nerve roots on the left, most likely C7 and/or C8.  This caused her to experience pain in the area affecting the neck, shoulder and upper extremity on the left, associated with numbness and paraesthesia in the mesial fingers.

167     Professor Helme noted the plaintiff had proven, by an attempt to return to work, that she was not able to do so as a result of her injuries, and had not worked since November 2015.  He thought she was not then able to resume work.

168     Professor Helme noted the plaintiff currently had clinically determined irritation of lower brachial plexus roots, which needed further investigation for objective evidence of its presence by neurophysiologic studies and imaging of the cervical spine and brachial plexus by MRI.

169     Professor Helme considered that the plaintiff’s psychological state and lack of conventional management strategies were impeding her progress, and that she was likely to worsen without them.  He thought she should have physiotherapy for her neck and shoulder, leading to range of movement exercises facilitated by hydrotherapy, simple analgesia, and local heat and hydrotherapy may be in order, and a further trial of adjuvant analgesia in higher doses needed to be monitored by a pain physician.  He thought the plaintiff needed the involvement of a psychiatrist, and possibly a psychologist, in the management of her mood disorder.

170     Dr Aliashkevich, neurosurgeon, examined the plaintiff in February 2018.

171     The plaintiff then complained of severe pain affecting her neck, both shoulders, arms, hands, lower back and leg.  The pain was usually stronger on the left side, and she rated it as being 7 to 8 out of 10, despite regular intake of Lyrica and Tramadol.

172     Dr Aliashkevich noted the plaintiff’s daily activities had significantly deteriorated since the accident, with problems with cleaning, laundry, cooking and looking after the garden, and relying on the family for help.

173     On examination, the plaintiff had a slow and antalgic gait, favouring her left side.  She had diminished strength in both shoulders, and was not able to lift her arms above shoulder level.  She had difficulty squatting because of back pain.  She had diminished sensation in the left side of her body without clear dermatomal pattern.  She had a significantly restricted range of cervical movement.  She was able to bend forward to about 45 degrees, with no extension possible.  She had significant tenderness on palpation of the paravertebral muscles in the trapezius region on both sides, and in the sacroiliac region, the right more than the left.

174     Dr Aliashkevich had available the August 2017 cervical MRI.

175     Dr Aliashkevich considered the plaintiff’s complex pain condition was consistent with the history.  Although the source of her multiple widespread symptoms was elusive, he thought the accident could be considered as the main contributing factor to the muscular ligamentous injury of the neck/shoulder region and aggravation of pre-existing degenerative spinal disease affecting the plaintiff’s neck and lower back. 

176     Whilst acknowledging he was not a qualified a pain specialist or rheumatologist, based on the refractory character and distribution of the plaintiff’s symptoms, Dr Aliashkevich had the impression the injury had led to the development of a Chronic Pain Syndrome, central sensitisation and likely evolution of the myofascial pain syndrome and fibromyalgia.  He recommended more detailed radiological investigation to clarify the plaintiff’s spinal injury sustained in the accident.

177     Dr Aliashkevich noted, from the report of the August 2017 cervical MRI scan, there were findings consistent with degenerative disease, particularly at C5-6.  The scan confirmed the presence of a pre-existing degenerative cervical spine condition, and ruled out significant neural compression as the main cause of the plaintiff’s chronic pain condition.

178     Again, citing his qualifications and limitations, Dr Aliashkevich had the impression the plaintiff suffers from chronic cervicogenic headache and a complex chronic pain condition and myofascial syndrome resulting from her whiplash accident injury.  He had formed the impression she had suffered from chronic pre-existing intermittent neck/hand problems and depression since the 2006 accident, which had been significantly exacerbated, and developed chronic cervicogenic headaches after the accident.

179     Dr Aliashkevich considered the plaintiff had very limited radiological investigations of her lumbosacral spine, and there was not much evidence available on the extent of her low-back injuries sustained in the accident.  He thought she may suffer from chronic low-back and thigh/leg pain resulting from aggravation of pre-existing lumbosacral spondylosis, but she needed more detailed investigations.

180     Dr Aliashkevich thought the plaintiff’s prognosis was poor.  She suffered from chronic and refractory pain, a condition which failed to improve after conservative treatment and neck injections.  Her history of depression, regular opioid intake, involvement in two significant motor vehicle accidents and litigation were strong negative predictors of unfavourable long-term outcomes.  He doubted she would be able to achieve full function and recovery in the foreseeable future, and was likely to continue suffering from ongoing pain and restrictions related to her neck and low back conditions.

181     Professor Evan Romas, rheumatologist, examined the plaintiff on 1 February 2018.

182     The plaintiff was then working 40 hours a week in the store, and had been so for at least a year and a half.  She had difficulty working because of aches and pains in her neck, lower back, hips and hands.

183     On examination, the plaintiff complained of right-sided frontal headaches.  She had constant pain in the neck and interscapular area, spreading to the left shoulder, down her left arm involving all fingers.  She had similar symptoms involving her right hand, but not as severe.  She did not have symptoms of a generalised inflammatory arthritis.

184     The plaintiff described mid-lumbar pain spreading to her right buttock and involving the right leg up to the thigh.  She also had similar pain involving the other leg.  Her history was not typical of lumbar radiculopathy.  She slept poorly, mainly because of low-back pain.

185     The plaintiff could carry out all activities of daily living with variable difficulty, and the hardest thing was bending to put her shoes and socks on, and she may also have difficulty raising her arms.

186     The plaintiff felt anxious and depressed, and would often be withdrawn and sometimes cry.  She was currently taking two to four paracetamol daily, occasionally Endone, but not often.  She also took an anti-depressant.  She did not take any arthritis tablets.

187     On examination, the plaintiff’s affect was flattened and her concentration was poor at times.

188     The plaintiff’s neck posture was normal and there was no deep cervical spine tenderness.  Her neck moved non-uniformly, was restricted mildly, especially on left rotation and natural flexion, but there was no spasm, and she showed hesitation in performing active movements due to pain.

189     There was no atrophy around the shoulder girdles or tenderness over the anterior rotator cuff, at the AC joint or the insertion of the supraspinatus.  There was no evidence of capsular restriction.  Passive motion was normal, and, with encouragement, active motions were within normal limits and there was no impingement.

190     There was no evidence of synovitis of the joints in the hands, and there was a mild swan neck deformity.  There were no other specific signs of chronic arthropathy.  Neurological examination of the upper extremities showed some anatomic sensory loss in the left hand, but no clear signs of cervical radiculopathy.

191     The thoracolumbar spine was restricted mildly but uniformly, and there was no specific tenderness or spasm.  There was no evidence of sacroiliac joint irritability or tenderness.

192     On the basis of the history, examination and radiological findings, Professor Romas concluded the plaintiff was currently suffering from:

(i)a Chronic Pain Syndrome attributable to soft tissue injuries involving her neck, back and upper and lower limbs and abdomen.  In his view, clearly her chronic pain also has some psychological and/or a classifiable psychiatric basis;

(ii)Symptomatic cervical spondylosis with referred left upper extremity pain but no clinical radiculopathy or myelopathy;

(iii)no intrinsic medical conditions of the shoulders;

(iv)non-specific low-back pain due to unresolved soft tissue injury with no evidence of lumbar radiculopathy;

(v)no intrinsic medical conditions of the sacroiliac joints, the hip joints or knee joints;

(vi)idiopathic swan neck deformity of the fourth fingers in both hands, which was most likely of a constitutional nature.

193     Professor Romas thought that whilst there may be radiological hand osteoarthritis, currently, the plaintiff does not have clinical evidence of erosive osteoarthritis or psoriatic arthritis.

194     Professor Romas thought the plaintiff’s Chronic Pain Syndrome was still clearly causally linked to the physical and psychological trauma sustained in the accident (attributable to soft tissue injuries involving her neck, back and lower limbs and abdomen).

195     The plaintiff’s symptomatic cervical spondylosis with referred left upper extremity symptoms, but no clinical radiculopathy or myelopathy, could be reasonably causatively linked to the effects of the accident on the underlying constitutional cervical spondylosis condition.  Taking into consideration the likely velocity and impulsive forces involved, Professor Romas thought it likely there had been both an aggravation and acceleration of the plaintiff’s underlying cervical spondylosis degenerative condition.

196     Professor Romas considered it more difficult to specify whether the plaintiff’s current low-back condition was still causally linked to the accident.  However, she did not indicate any extended interval of recovery, and, on that basis, he considered it likely her non-specific low-back pain was due to an unresolved soft tissue injury, with no evidence of lumbar radiculopathy, and was still causatively connected to the accident.  It was clear that her hand arthropathy or deformity was in no way connected to the accident.

197     In view of the duration of her symptoms, Professor Romas thought it likely the plaintiff’s Chronic Pain Syndrome and her intrinsic cervical spine and lumbar spine injury would continue to cause variable pain and limitations and was unlikely to resolve in the foreseeable future.  He stated, however, it was also apparent the plaintiff currently has no incapacity for work, given her current situation.

Psychiatric

198     The plaintiff was examined by psychiatrist, Professor Lorraine Dennerstein, in November 2015.

199     Professor Dennerstein noted the plaintiff was then working 20 hours a week in the grocery shop, but had not worked the last two weeks because of pain in the left hand and arm.

200     In terms of past medical and psychiatric history, Professor Dennerstein noted the plaintiff was injured in a car accident in 2006, in which her nephew died.  Thereafter, she was depressed for about a year, but not referred for psychiatric treatment.  She was prescribed sleeping tablets.  She did not describe having nightmares or flashbacks.  She did not drive for a year after the 2006 accident.

201     Professor Dennerstein noted the plaintiff was not having any continuing psychological problems prior to the accident, and took sleeping tablets occasionally.

202     Professor Dennerstein noted the plaintiff had continued to have intermittent low-back pain, and that the pain in her left hand and shoulder was worsening.

203     On mental state examination, the plaintiff described intrusive thoughts about the accident and difficulties with concentration and memory.  There was no evidence of any formal thought disorder.

204     Professor Dennerstein considered the plaintiff was involved in a serious motor vehicle accident, suffering a number of physical injuries, and had developed chronic pain affecting her arms, hands and shoulders.  This appeared to be exacerbation of pre-existing mild pains.  The plaintiff also had mild back pain.

205     The plaintiff became frustrated with the pain and the limitations and had developed a Chronic Adjustment Disorder with mixed disturbance of emotions and conduct.

206     Professor Dennerstein noted the plaintiff was prescribed an anti-depressant by her general practitioner, but that did not seem to have been repeated after August 2013, and the plaintiff had not had any counselling.

207     Professor Dennerstein thought the plaintiff’s work incapacity was predominantly due to her physical injury, and that the Adjustment Disorder did not incapacitate her for work.

208     Dr David Weissman, psychiatrist, examined the plaintiff in June 2016, and re-examined her on 15 December 2017.

209     On the first examination, the plaintiff told Dr Weissman she suffered from left-sided forehead pain that radiated behind her left ear into her left neck, left shoulder pain, left arm pain and pain going into her left hand, with stiffness in the left ring finger.  She said her lower back ached, although she advised all the x-rays were normal.

210     The plaintiff advised she had been prescribed anti-depressant medication, but they were no help.

211     Following this examination, Dr Weissman commented it was a very difficult, complex and complicated case.  He noted the plaintiff came across as a poor, vague, non-specific, inconsistent, discrepant and unreliable historian and witness.  It was difficult for him to know whether this was consciously or unconsciously based, an example being the plaintiff’s failure to tell him of her nephew’s death in the 2006 accident.

212     Dr Weissman thought it was also a difficult case, because the plaintiff appeared to be very pain and somatically focussed, with somewhat diffuse and widespread chronic pain beyond the initial original sites of injury in the transport accident.  To some extent, he described his assessment reports as non-definitive and incomplete, based upon the unreliability of the plaintiff’s history.  However, based on his clinical experience and expertise, he was still in a position to make a worthwhile formulation.

213     On balance, following that first examination, Dr Weissman thought the plaintiff would have had a significant amount of premorbid psychological and emotional vulnerability pre-accident.  Also relevant were the death of her father and the departure of her son, which were major losses and contributed to her current depressive syndrome.

214     On the one hand, the accident was, and still is to a certain extent, distressing, traumatic and frightening for the plaintiff.  Dr Weissman noted, however, that she did not seem to have sustained very significant or serious physical injuries.  However, she had significant pain and somatic focus, with elevated health concerns.

215     In that respect, Dr Weissman thought the plaintiff had probably also developed symptoms and features of a Chronic Pain Disorder associated with psychological factors, and a general medical condition, DSM-IV, also known as Somatic Symptom Disorder DSM-V.

216     Dr Weissman considered the plaintiff was suffering from mild so-called primary or direct post-traumatic stress and anxiety symptoms, and traumatisation features related to the accident.  However, she had not developed a full-blown, chronic PTSD.  She had mild post-traumatic stress and anxiety symptoms and traumatisation features, and was suffering from moderate, mixed depressive and anxiety syndrome that satisfied the diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity.

217     On re-examination, the plaintiff told Dr Weissman she was working in the same Asian grocery nearly full time every day, but more so helping out rather than cleaning.

218     The plaintiff advised that she still experienced left-sided forehead pain that radiated behind her left ear into her left neck.  She still experienced left shoulder pain, left arm pain, and pain going into her left hand and fingers.  In general, since last seen, her pain and symptoms were more serious and getting worse.  In particular, she told Dr Weissman she had severe pain in her neck and both shoulders, and the injections had not helped.[48]

[48]T20 -  Plaintiff said they had helped

219     The plaintiff reported pain and stiffness, not only in her left ring finger, which was the case on the first examination, but all fingers of both hands.

220     The plaintiff was then taking Tramadol Slow Release, and Lyrica.

221     On mental state examination, the plaintiff tended to be quite flat, intermittently tearful and distressed, occasionally briefly distraught and anguished, and overall moderately depressed.  She was also very pain and symptom focussed.  In addition, she seemed to display some abnormal illness and pain behaviour.

222     Dr Weissman still thought, on balance, the plaintiff has a significant amount of premorbid psychological and emotional vulnerability and a certain amount of pre-existing and unrelated psychiatric impairment.

223     In terms of the subject accident, Dr Weissman thought the plaintiff was suffering from a mild post-traumatic stress and anxiety syndrome, but not full-blown PTSD. She was also suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity, partly due to the accident.  Further, she was suffering from symptoms and features of a Chronic Pain Disorder associated with psychological factors, and a general medical condition, also known as a Somatic Symptom Disorder with predominant pain.

224     Dr Weissman thought the plaintiff’s psychiatric prognosis for the future was a little uncertain and guarded, and probably fair.

The Defendant’s medical evidence

Treaters

225     The plaintiff attended Tristar Medical Group in March 2009 to 25 May 2017. Following the accident, the plaintiff attended on about thirty occasions.

226     On 5 March 2013, the reason for contact was “fracture transverse process L1‑L2‑L3,”[49] 6 September 2013, sore left shoulder, and on 13 February 2015, “back; left, not tender, restriction present”.

[49]T4 – not found on investigations

227     On 26 July 2016, Dr Ravoori noted right shoulder pain for last two months.  There were nine attendances when joint pain/arthritis was noted from March 2009 to May 2017.

228     Dr Ravoori completed Centrelink certificates:  two in 2014, and on 25 November 2015.  In June 2014, he diagnosed chronic joint pains – inflammatory, with the symptoms of severe small joint pains.  In the last certificate, he diagnosed psoriatic arthritis, and noted the plaintiff’s symptoms were severe pain and there were deformities of small joints of hand, and severe pain in left shoulder.

229     There were numerous reports and letters to and from Dr David Barraclough and Dr Ciciriello relating to the plaintiff’s arthritic condition.

230     In the initial referral to Dr Barraclough dated 26 February 2014, Dr Ravoori described the plaintiff’s problem being aches and pains all over with swelling of the small joints of the hands for the last three to four weeks, with pain 8 to 9 out of 10 most of days, and affecting her lifestyle.

231     Dr Barraclough reported to Dr Ravoori on 3 March 2015.

232     Dr Barraclough then advised that the plaintiff had some mild degree of cervical and lumbar spondylosis, and presumably some soft tissue pain.  He suggested investigations of the left shoulder if that continued to give the plaintiff problems.

233     Dr Barraclough advised it would be best to use paracetamol or Panadol Osteo as needed for pain, and to continue with symptomatic treatment with local heat over any particularly painful areas.

234     Having received the investigations, Dr Barraclough advised the plaintiff there were some mild wear and tear changes in the neck and lower back, but certainly nothing serious.  Some of the pain was coming from the soft tissues.

235     Dr Barraclough wrote to the plaintiff’s general practitioner in relation thereto, and suggested it would be best to keep on with Panadol or Panadol Osteo and use some local heat if the neck or back were giving much trouble.  He enclosed a sheet on neck care and told the plaintiff to be careful about too much bending or lifting; however, he could not suggest anything further to be then done.

236     The initial referral to Dr Ciciriello was on 12 June 2014 for the same problem Dr Ravoori described to Dr Barraclough

237     Dr Ciciriello advised, on 23 August 2015, that she had seen the plaintiff regarding her joint symptoms.  The plaintiff described pain and swelling primarily to the DIP and PIP joints in her hands in the last couple of years.  That pain was worse at night and improving with movement.  She could not make a fist first thing in the morning.

238     Dr Ciciriello noted the plaintiff also described pain in the lumbar spine and left shoulder, but that was less clearly inflammatory in nature.

239     On examination, Dr Ciciriello reported there was synovitis present in the joints in the fingers, otherwise examination was normal. The plaintiff had limited lumbar flexion due to pain.

240     Dr Ciciriello advised it was unclear whether the plaintiff’s presentation was due to psoriatic arthritis or inflammatory osteoarthritis.  She had arranged further investigations, and also put the plaintiff on Mobic.

241     On review in late October 2015, Dr Ciciriello noted, unsurprisingly, the plaintiff’s joint symptoms were much unchanged.  She continued to expect the plaintiff had psoriatic arthritis; however, thought this may also be a particularly florid form of erosive arthritis, and suggested she see the plaintiff in four months.

242     On review in May 2016, there was some concern about the plaintiff taking her medication correctly. Monthly blood tests were organised, and Dr Ciciriello arranged to see the plaintiff again in two months.

243     The plaintiff was also referred to Dr Terry Cook, who seems to be an epigastric specialist, as is Dr Mani in Mildura, to whom the plaintiff was referred in April 2013.

244     The plaintiff was also returned to Associate Professor Geoffrey Littlejohn on 25 February 2014.

Defendant’s medico-legal

245     The plaintiff was examined by occupational physician, Dr David Elder, in July 2017.

246     Having reviewed the plaintiff’s general practitioner’s notes, Dr Elder commented that the plaintiff did not appear to have complained of the symptomatology that was listed in her Statement of Claim. Her main complaint when she repeatedly saw her general practitioner was the small joint pain in her hand which had been diagnosed as rheumatoid inflammatory arthritis, a constitutional disorder not related to the accident.

247     Dr Elder also reviewed Dr Barraclough’s notes.  He saw the plaintiff for neck and lower back symptomatology, but did not think there was anything significant.  Dr Elder noted the plaintiff then came under the care of another rheumatologist whose treatment had focused on the plaintiff’s arthritis.

248     Dr Elder was really unable to find any significant chronology of complaints of neck, thoracic or lower back complaints.  The rest of the plaintiff’s complaints were of painful swellings in the small joints of her fingers and shoulder dysfunction which he thought was related to the arthritic change.

249     In Dr Elder’s view, the plaintiff appeared very emotionally disturbed and was crying throughout the consultation.  Her complaints were focused only on the pain in her hands and feet.  She said her hands were swollen, painful and tender, and she had difficulty gripping.  She also had difficulty standing throughout the course of her eight-hour shift due to foot pain.

250     The plaintiff described pain in her hands that spread up into her shoulders, and she also had independent neck and lower back pain.  She did not describe any radicular features and described general fatigue.

251     The plaintiff said she was only really seeing her general practitioner for the prescription of her rheumatoid medications, including Tramadol, Methotrexate, Celebrex, Chloroquine and glucosamine.  She also used Chinese medicine.

252     The plaintiff confirmed that in the 2006 accident, she did not really suffer any significant injury, although her nephew died.

253     The plaintiff advised Dr Elder that she no longer did household chores, and when she returned from a full day at work, she was basically exhausted and tended to rest.  She described no sitting, standing or walking restrictions, given that she was on her feet all day working all day in the supermarket.  She was also independent in self-care.

254     On physical examination, the plaintiff retained a good range of motion in the cervical lumbar spine.  There was normal spinal contour, with no clinical evidence of spasm.  Power was of a collapsing give way pattern in both upper and lower extremities, sensation was normal and reflexes were equal and responsive.

255     Dr Elder noted some deformities in the joints of both hands, and slight swelling in the plaintiff’s feet.  No investigations were available.

256     Dr Elder accepted the plaintiff would have suffered injuries to her neck and lower back but agreed with Dr Barraclough that that did not appear to have been serious, and that appeared to be confirmed in the general practitioner’s notes.  Dr Elder thought obviously the rheumatoid arthritis did not result from the transport accident.  He found there were no restrictions on the plaintiff’s working capacity due to the accident and that her domestic and leisure activities had been interfered with by her arthritis.

Overview

257     There is no dispute the plaintiff suffered injury to her spine as a result of the accident.[50] Her claim for compensation dated 21 September 2013, listing “Contusion, hip and thigh (NOS) (Left), (Cut of elbow) (Left), (Hand pain) (Right).  (Hand pain) (Left)” was accepted, and medical expenses continue to be paid. 

[50]T6

258     The issue, however, is the nature of the plaintiff’s present spinal condition and whether the consequences thereof are “serious” pursuant to ss(a) on an organic basis.  There was no application in relation to a psychiatric impairment.[51]

[51]T2

259     Counsel for the defendant submitted that the plaintiff cannot establish a dominant organic cause for any present spinal complaints and that the medical evidence does not allow the Court to determine whether her condition is organic or psychogenically driven.[52]  It also cannot be said that she suffers an organically-based Chronic Pain Syndrome pursuant to ss(a).[53] 

[52]T41

[53]T6

260     Further, it was submitted, whilst there have been spinal complaints since the accident, there is a real difficulty identifying the cause thereof, and, in any event, any present spinal condition is minor.[54]

[54]T48

261     Counsel for the plaintiff submitted any Chronic Pain Syndrome is organically based and can be taken into account under ss(a) as the Court directed in Richards & Anor v Wylie.[55]

[55]T2

Credit

262     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[56]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[56](2010) 31 VR 1 at paragraph [12]

263     It was conceded by counsel for the plaintiff that the clinical notes in this case are not of much assistance, and at times inaccurate, and in those circumstances, it was submitted it becomes, in large part, a credibility case.[57]

[57]T4

264     It was submitted there was no evasion on the plaintiff’s part whatsoever in terms of answering questions. She made no effort to hide behind an interpreter, and gave fulsome and, perhaps slightly irrelevant but, nevertheless, detailed answers, some of which were not particularly helpful to her case.[58]

[58]T58

265     Further, the plaintiff was very candid and did not in any way seek to equivocate about her comorbidities in terms of sources of pain.  It was submitted that was very important, particularly in a case where the clinical notes were not much help.[59]

[59]T58

266     Counsel for the defendant submitted the plaintiff’s affidavits were problematic, particularly in relation to her return to work, which was clearly inaccurate as it would seem to be the case that she returned to work about six weeks after the accident, rather than two and a half years later as she had deposed.[60]  Further, her attendance at the doctor and hospital in March 2013 at that time related to digestive/epigastric matters, not her spinal condition as she had suggested.[61]

[60]T50

[61]T51

267     Save for a reference to some hand pain before the accident, the plaintiff’s affidavits are silent on her other pains, including arthritis.[62]  Her affidavit also suggested she was referred to Dr Barraclough because of her spinal condition.

[62]T51

268     Although the plaintiff’s credit was not really attacked, as counsel for the plaintiff pointed out, there were difficulties with her evidence.  I accept that, whilst at times there were language difficulties, the plaintiff was not a particularly reliable witness.  I had similar concerns to those expressed by Dr Weissmann in June 2016 that she was a poor, non-specific, vague and unreliable historian.

269     At times however, the plaintiff gave answers not helpful to her case, describing widespread pain and restrictions unrelated to any spinal injury.

Is the plaintiff’s present spinal condition properly assessable under paragraph (a), and are the consequences thereof “serious” now?

270     In my view, it is very difficult, on the medical evidence, to find a physical explanation for the plaintiff’s description of significant spinal pain as a number of practitioners have commented, with a range of possible diagnoses having been made.

271     There are also only minor findings on spinal examination and no findings of radiculopathy, spasm or significant restriction of movement.  Despite extensive investigations, nothing has been shown to explain the plaintiff’s complaints of spinal pain.

272     Medical evidence from the plaintiff’s treaters is of little assistance when considering the basis of her present spinal condition.

273     Dr Ravoori’s undated report does not advance the issue.  It appears, from his notes, he last saw the plaintiff in December 2016 when the reason for contact was “rheumatoid arthritis”.  He seems to have little knowledge of her situation at that time, commenting that he thought she was not fit for work, seeming to be unaware that she had in fact the returned to full-time work.

274     Dr Ravoori’s report mentioned pain in the plaintiff’s neck, left shoulder, lower back and hands but he did not address her spine specifically.  Further, he made no attempt at a diagnosis or discussion of the cause of the plaintiff’s spinal pain. Significantly, his notes indicate the plaintiff’s primary complaint has been in respect of her hands, and he has made specialist referrals accordingly.[63]

[63]T47

275     Dr Shetty only became involved in the plaintiff’s care in July 2017, at which time he noted she was very pain focussed.  He has provided no diagnosis or explanation for her lower back complaints.[64]  In his report of 3 February this year, he stated as he had not seen her for three months, he “did not know her present medical condition.”[65]

[64]T46

[65]However, his notes of recent attendances were available

276     When Dr Barraclough saw the plaintiff in 2015, he thought there was a mild degree of cervical and lumbar spondylosis however, there was “certainly nothing serious there”.[66]

[66]T43

277     Whilst the plaintiff complained to Dr Ciciriello of spinal pain in late 2015 and in 2016,[67] she treated the plaintiff for her psoriatic arthritis and did not really comment on any spinal condition.

[67]T65

278     In terms of the medico-legal evidence, as counsel for the defendant conceded, Dr Aliashkevich was perhaps the most favourable for the plaintiff, with findings of significantly restricted cervical movement, postulating a muscular or ligamentous injury of the neck and shoulder region and an aggravation of pre-existing degenerative spinal disease.  However, even he thought the source of the plaintiff’s multiple widespread symptoms was “elusive.”  Whilst he delved in to the rheumatological field, offering a number of other diagnoses, the further investigations that have been carried out did not confirm any of these suggested diagnoses and showed little of significance.[68]

[68]T44

279     Further, as counsel for the defendant submitted, Professor Helme’s diagnosis of left lower cervical radiculopathy was presumptive, saying he required further investigations in relation thereto. However, he has not been provided with more recent investigations.  Further, he noted the plaintiff’s psychological state and lack of conventional management strategies were impeding her progress, and he thought she needed the involvement of a psychiatrist and possibly a psychologist in the management of her mood disorder.[69]

[69]T45

280     On examination, Professor Helme found the lumbar spine was of normal appearance, non tender, and there was no paraspinal tenderness or spasm. There was no deformity of the cervical spine and it was non tender.  There was full movement of the lumbar and cervical spine.

281     When seen in November 2015, the plaintiff told Professor Dennerstein of continuing intermittent lower back pain, with worsening left hand and left shoulder pain.  She described the plaintiff’s low-back condition as mild.

282     Dr Elder agreed with Dr Barraclough that whilst the plaintiff would have suffered neck and back injuries in the accident, they did not appear to have been serious. On examination, Dr Elder found a good range of cervical spine movement and no evidence of spasm.  Power was of a collapsing give way pattern in both upper and lower extremities.

283     Mr Kossman identified a spinal problem, diagnosing cervical and upper thoracic spine radiating into the left upper limb in the setting of cervical spondylosis and low-back pain in the setting of lumbar spondylosis.  He did however also identify a separate shoulder problem.[70]

[70]T45

284     In addition to symptomatic cervical spondylosis with referred upper extremity pain without radiculopathy or myelopathy and non-specific back pain, Professor  Romas diagnosed a Chronic Pain Syndrome attributable to soft tissue injuries involving the neck, back and upper and lower limbs and abdomen, noting the plaintiff’s chronic pain also has some psychological and or a classifiable psychiatric basis.

285     On examination, Professor Romas found only mildly restricted cervical and lumbar movement, and no spasm.

286     Making the task of identifying an organic injury even more difficult is psychiatrist, Dr Weissman’s, view following examination late last year that, in addition to a range of other psychiatric conditions, the plaintiff was suffering from symptoms and features of a Chronic Pain Disorder associated with psychological factors, and a general medical condition, also known as a Somatic Symptom Disorder, with predominant pain.

287     Further, on re-examination, the plaintiff reported pain in all fingers of both hands and pain in both shoulders which had not been assisted by injections.

288     I do not accept any pain syndrome suffered by the plaintiff is organically based. In Dr Weissman’s view, it is a full blown psychiatric condition, with somatic focus and elevated pain concerns, a condition which is appropriately dealt with under ss(c).

Consequences

289     If, however, it is accepted the plaintiff’s present spinal impairment is organically based, the issue then is whether the consequences thereof are “serious” at the date of hearing.

290     In determining this issue, I must also consider the role played by non-compensable conditions such as the plaintiff’s left shoulder, her arthritic condition, and also psychiatric issues in her current presentation.

Pain

291     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[71](supra) at paragraph [11]

292     In addition to neck and back pain, the plaintiff presently complains of pain in a number of other areas of her body.

293     The plaintiff’s neck pain continues and varies between a dull ache and being very severe, feeling like someone is squeezing her neck.  She experiences neck stiffness and at times it becomes very tense and goes into spasm.  The pain radiates into her left shoulder and out into her upper back and down her arm.  She has pain in the left triceps, which goes down into her forearm.  She continues to have headaches, which commence at the back of her neck.

294     The plaintiff continues to have pain in her lower back, particularly with prolonged sitting, which radiates out into her buttocks and into her legs as far as her knee.  Sometimes she has tingling in her legs. 

295     Pain and restrictions in the plaintiff’s left hand continue, with pain in her left ring finger which goes into her palm.  Her middle finger is still and painful.  Also, she has pain at the base of her left thumb.  She has pain in her right arm and hand.[72]

[72]T20

296     The plaintiff has significant right shoulder pain.[73]  She has pain in both knees and the area around the back of her pelvis and running down both thighs and knees.[74]  She has pain in both feet and swelling in both ankles.[75]

[73]T20

[74]T21

[75]T22

297     The plaintiff has also complained to the various examiners of worsening, widespread pain in similar terms.

Treatment

298     Although Dr Shetty’s treatment has focussed on the plaintiff’s back in the last year, whilst she was seeing Dr Ravoori after the accident until 2017, his treatment had been essentially in respect of the plaintiff’s arthritic condition affecting her hands. 

299     Consistent with that significant arthritic complaint, all referrals by Dr Ravoori were to rheumatologists, and there has been no orthopaedic referral.[76]

[76]T47

300     As to her medication intake, in her most recent affidavit sworn in February 2018, the plaintiff simply stated she was being prescribed painkillers and anti-inflammatories.  In her 2017 affidavit, she deposed Dr Shetty gave her medication for pain relief and sleeping tablets.[77]

[77]The plaintiff told Professor Helme in June 2016 she was taking 6 Panadol a day, Professor Romas in early this year occasional Endone and 4 paracetamol daily.

301     In his February 2018 report, Dr Shetty mentioned he had prescribed Lyrica for neuropathic pain in November 2017, and had prescribed Tramadol earlier that year.  His 7 February 2018 note suggests this medication is prescribed for neuropathy. She is also being prescribed prednisolone for rheumatoid arthritis.

302     It is unclear on the limited evidence available what medication the plaintiff is actually being prescribed for what condition.[78]

[78]T4, T52

303     Counsel for the plaintiff submitted it should be inferred that the current medication was prescribed for a spinal condition, with strong painkilling medication:  OxyContin and Endone prescribed on discharge from hospital.[79]

[79]T62

304     Further, it was submitted there was a continuity in terms of significant medication which it was very clear was related to the compensable injuries.[80]  There was no painkilling medication before the accident and there was thereafter.[81]

[80]T69

[81]T66

305     Although they are very brief and non-explanatory, and at times inaccurate, Dr Ravoori’s notes indicate Endone was ceased in April 2013.[82]  OxyContin was prescribed in March 2013 and ceased in May that year. 

[82]It was also noted to be ceased in December 2016 when the reason for contact was “rheumatoid arthritis”

306     Whilst Mobic was first prescribed in August 2013, it is not clear from the notes for what condition this was prescribed, with the preceding April and May attendances for abdominal tenderness and gastroesophageal reflux disease.[83]

[83]T63

307     From February 2014, Lyrica and Targin were first prescribed in relation to the plaintiff’s arthritis.

308     The plaintiff does not appear to be getting treatment at present, apart from some medication.[84]

[84]T53

309     Significantly, since the accident, there has been no referral to an orthopaedic surgeon, and no other conservative treatment undertaken or suggested such as physiotherapy or hydrotherapy.

A separate left shoulder injury?

310     Counsel for the plaintiff submitted the plaintiff suffered referred pain into her left shoulder from her neck, rather than a discrete left shoulder injury.[85]

[85]T3

311     A number of examiners however, consider the plaintiff suffers from a separate left shoulder condition.

312     On 6 September 2013, the plaintiff told Dr Ravoori she had a sore left shoulder. He organised an ultrasound, which showed subdeltoid and subacromial bursitis, suggestive of a separate left shoulder problem.[86]

[86]T46

313     Dr Ciciriello referred to the left shoulder being irritable on 23 October 2015 and again on 13 May 2016.[87]

[87]T42

314     Whilst Mr Kossmann identifies spinal problems, he also seems to identify a separate shoulder problem.[88] Dr Elder also identified a separate left shoulder injury

[88]T46; Plaintiff’s Court Book page 34A

Psychiatric factors

315     In addition to Dr Weissman’s diagnosis of a sub-paragraph (c) psychiatrically-based pain syndrome,[89] Professor Romas considered psychiatric factors play a role in the plaintiff’s current presentation.[90]

[89]T44

[90]T43

316     Professor Helme considered the plaintiff is mood disturbed, and an independent examination by a psychiatrist is required. Mr Kossmann also thought the plaintiff would benefit from a psychiatric referral.

317     As counsel for the plaintiff submitted the difficulty for the plaintiff was “she put all her eggs in the sub-paragraph (a) basket,” but there has been no disentanglement, and no medical practitioner’s opinion has been sought in this regard.[91]

[91]T45

Level and type of complaint - focus on hands

318     Whilst the plaintiff has at times complained to her treaters of spinal pain, the focus of her complaints and treatment in relation thereto, was on her hands. This situation therefore raised issues of disentanglement as discussed by the Court in Peak Engineering & Anor v McKenzie.[92]

[92]Supra

319     In that case, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

320     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[93]

[93](Supra) at paragraph [1]

321     The President found that the trial judge was:

(a)bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and

(b)when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[94]

[94](Supra) at paragraph [2]

322     Counsel for the defendant submitted the plaintiff’s hand problems were affecting her lifestyle, a situation which was described in, and a feature of, all the general practitioner’s referral letters.[95]

[95]T54

323     I accept that in the post accident period, the plaintiff has experienced significant arthritic pain in her hands, with certificates provided by Dr Ravoori in late 2014 and 2015 making no reference to any spinal condition, noting only the plaintiff’s severe joint pain in her hands.[96] 

[96]T54

324     As I indicated during the hearing,[97] I accept the submission on behalf of the defendant that the plaintiff’s affidavits made no attempt at disentanglement as required by the Court in Peak.[98]

[97]T67

[98]Supra; T49

325     Further, the plaintiff’s affidavits do not acknowledge her non-accident related problems, save for one brief reference in her first affidavit to mild pain in her hands pre accident.  There was no attempt at any disentanglement whatsoever, with the plaintiff simply stating all her problems are related to her spinal condition.

326     In those circumstances, I have some difficulty in being satisfied the claimed serious consequences relate to her spinal condition.[99]

[99]T53

327     Further, significantly, whilst giving evidence, the plaintiff confirmed the widespread nature of her current pain, encompassing nearly all parts of her body, with significant problems with both hands, shoulders, feet and knees as well as her spine.

Work

328     Counsel for the plaintiff submitted the plaintiff had a reduced work capacity as a result of her spinal injuries, having been able to work twelve hours a day, seven days a week before the accident and now struggling to work eight hours a day.  Further, it was submitted any problems with her hands alone would not stop her doing what she used to do.[100] 

[100]T70

329     Whilst the plaintiff deposed to being unable to work for two and half years due to her accident injuries, it became apparent her initial absence from work was only for about six weeks.

330     Further, it is clear that since the accident, the plaintiff has had difficulty working at times because of her hand pain alone.  She agreed she stopped work two weeks before she saw Professor Dennerstein in late 2015 because of problems with her hands. She told Mr Kossmann that having returned to work after the accident for two hours each day, she had to stop because of her left arm pain,

331     Whilst suffering from a number of physical complaints, the plaintiff is still able to work forty hours per week at San Mateo.[101] Current difficulties the plaintiff describes with her work are related to a number of her physical problems in addition to her spinal complaints.  Her inability to squat relates to her bilateral knee pain.  Her problems lifting and carrying are due to her arm pain.[102]

[101]T6

[102]T53

332     There is little medical evidence supporting any significant problem with work related to the plaintiff’s spinal condition.

333     In mid-2017, Dr Elder considered there are no restrictions on the plaintiff’s work capacity.  Mr Kossman understood she was coping with her return to work when he examined her in January this year, and Professor Romas also had no concerns with the plaintiff’s work at that time.

334     Dr Shetty has not commented on any work difficulties, and whilst Dr Ravoori thought the plaintiff was unfit for work, she was in fact able to work full time when he was treating her.[103]

[103]T55

335     Whilst the plaintiff relied on an affidavit from her son,[104] there is no evidence from family members who work at San Mateo or other or co-workers as to any difficulty she is experiencing with her present duties.[105]

[104]T70

[105]T55

336     In this case, where the onus is obviously on the plaintiff,[106] I am not satisfied that there are serious employment consequences as a result of any accident-related spinal condition.

[106]T69

Other activities

337     Further, I am not satisfied any present organically-based spinal impairment has serious consequences in relation to the plaintiff’s other activities.

338     Although there are some difficulties with her spinal pain, I accept that the plaintiff has also has problems with housework due to the condition of both hands and knees.[107]

[107]T53

339     While the plaintiff claims to be restricted in her gardening activities, she told Mr Kossmann that she stopped gardening because of her hands.[108]

[108]T53

340     As Dr Elder noted, domestic and leisure activities have also been interfered with by the plaintiff’s arthritis.[109]

[109]T55

341     Taking into account all the evidence, I am not satisfied the plaintiff has a serious organically-based spinal impairment. As Dr Weissmann commented, she is very pain and somatically focussed with somewhat diffuse and widespread chronic pain beyond the initial sites of injury in the accident. Further, her complaints of significant spinal pain are difficult to explain on a physical basis as a number of practitioners have opined.

342     Accordingly, the application is dismissed.

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