Pickett v TAC
[2012] VCC 640
•13 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01508
| SUSAN PICKETT | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 and 28 March 2012 | |
DATE OF JUDGMENT: | 13 April 2012 | |
CASE MAY BE CITED AS: | Pickett v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 640 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – impairment to the spine
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak (1992) 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr A McNab | Messrs Petersons |
| For the Defendant | Mr R K Meldrum QC with Ms S Manova | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 13 January 2009 (“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
s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine and also both shoulders.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury when judged by comparison with other cases in the range of possible impairments be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak (1992) 2 VR 129 at 140-1.
8 The plaintiff relied on four affidavits and gave viva voce evidence. She was cross-examined. 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
9 The plaintiff is aged thirty seven, having been born in October 1974. She is presently engaged and lives with her fiancé and his two children in Stawell.
10 In 1995, the plaintiff completed a Bachelor of Nursing at Latrobe. In 1998 she completed a Post Graduate Diploma of midwifery at Griffith University. In 2003, the plaintiff completed a Master in Clinical Nursing Maternal Child & Family Health at Latrobe. Since that time she has undertaken a number of other courses related to nursing, including an educator’s course in early 2009.
11 At the time of the accident, the plaintiff was employed by the City of Greater Geelong as a maternal and child healthcare nurse. She was also on the midwifery roster for Barwon Health, working one week a month.
12 The plaintiff is presently employed by Home and Community Care Services in Horsham working three days a week.
13 Prior to her current job, the plaintiff worked as the graduate nurse program coordinator at Wimmera Healthcare Group (“Wimmera”) from April 2009 until June 2011. Between 30 June 2006 and 3 April 2009 she worked at the Maternal & Child Health Service for the City of Greater Geelong.
14 The plaintiff had a short term contract between July and October 2006 with Nurse Worldwide in Cairns to develop primary school health promotion.
15 Between January 2004 and June 2006, the plaintiff was employed by Wyndham City Council in the Maternal & Child Health Service. Between May 2003 and 2004 she was employed as a registered midwife at Sunshine Hospital and had a similar position at Box Hill Hospital between May and August 2003.
16 The plaintiff worked at Hamilton Base Hospital as a Division 1 Registered Nurse between March 2001 and October 2002. Between March 2000 and late February 2001 she worked at a number of prestigious London hospitals.
17 The plaintiff was a casual on call nurse between December 1999 and February 2000. She was employed as a registered nurse and midwife at Redland District Health Service in Queensland between March and November 1999.
18 The plaintiff was employed as a full time registered nurse and midwife at Logan Beaudesert District Health Service in Queensland between December 1998 and Mach 1999. She had a similar job at Greenslopes Private Hospital in Queensland between March 1997 and July 1999.
19 Between March 1996 and March 1997 the plaintiff was employed in a twelve month graduate year program as a registered nurse at Hamilton Base Hospital. Between March 1995 and March 1996, she was employed by Care Nursing Agency as a personal care attendant.
Health Prior to the Accident
20 The plaintiff was cross examined as to her spinal condition before the accident having made no mention of any problems in that regard in her four affidavits.
21 On medico legal examination, the plaintiff told Mr Dooley that in the past she had been generally fit and well. She told Dr Epstein and Mr Brownbill that save for endometriosis, she had otherwise been well without any accidents, illnesses, injuries or operations
22 The plaintiff completed a claim for impairment benefits, signed by her on 14 September 2009. In that document, she answered “no” to the question whether she had a similar injury or condition before making the claim. Further, she set out that she had “mild lower back pain previously but had well resolved prior to accident, hiked in the Himalayas in 2007 and attended fitness boot camp City of Greater Geelong gym October 2008.”
23 In cross-examination, the plaintiff explained that before going hiking she had a check up with an osteopath who lived next door. The plaintiff would occasionally get a little ache in her back but it was not significant. Accordingly it did not come to mind as a significant injury or pain when she was asked about her history by examining doctors.
24 The plaintiff was extensively cross examined about her examination by Mr Dooley. The plaintiff thought he would have seen her for less than five minutes. She initially said she could not remember him examining her and then said an examination did not take place.
25 Mr Dooley talked to the plaintiff about the weather and social matters. The plaintiff confirmed the history she had given to him as to her pre accident condition. She explained a lot of the content of Mr Dooley’s report was obtained from other reports. The plaintiff agreed that what Mr Dooley recorded were her actual problems and that she told him she had no issues with her shoulder.
Pre-accident Activities
26 The plaintiff deposed that prior to the accident, she used to be extremely active. She played basketball and netball and did salsa, swing and Bollywood dancing. She played netball for Geelong West-St Peters in the season prior to the accident, as goalkeeper/goal defence.
27 The plaintiff had played representative netball and basketball and won numerous awards such as the best and fairest and league best and fairest. The plaintiff exhibited to her affidavit a summary of her sporting activities from the age of five.
28 The plaintiff sailed for a crew with the Geelong Yacht Club between 2003 and 2005. Throughout the years, the plaintiff played basketball and tennis and did swimming, gym, aerobics and running.
29 In the year before the accident, the plaintiff played numerous mixed and twilight netball compensations. She had been on a five day hike in the Himalayas in India and was a member of the boot camp training crew with Geelong City Council Belmont Gym between October and November and a member of its hiking group.
30 The plaintiff had been cycling in India in 2007. In addition to numerous mixed and twilight competitions she played netball for St Peters Football & Netball Club in 2005. The previous year, she played netball for Geelong West Blue, where she won the runner up best and fairest for A Grade.
31 In 2002, the plaintiff played netball for Hamilton Western Border as well as numerous mixed twilight competitions. Whilst in Brisbane she played netball and basketball from 1997 to 1999. She played netball in London in 2000.
The Accident
32 On the said date, the plaintiff suffered injury when her parked vehicle was hit from behind on the roadway whilst the plaintiff was sitting unrestrained in the front seat, taking a phone call (“the accident”).
33 The accident occurred during the course of the plaintiff’s work with the City of Greater Geelong. The police attended the accident scene. The plaintiff was collected by her work manager who took her to her general practitioner, Dr Chirawu.
34 The plaintiff then attended a chiropractor in Hamilton and her mother came to Geelong and took her home to recuperate.
35 The plaintiff was off work for two weeks and was then on and off work due to ongoing spinal problems. She continued to see Dr Chirawu and an osteopath, Dr Burrows. She was taking Diazepam for spasms and Nurofen and Panadol.
36 In cross examination, the plaintiff was asked about her condition in the days following the accident. She had more than just a bit of a headache as her general practitioner reported and she told him of stiffness through the top half of her body. She could barely move the next day. Her condition did not initially settle down as her treater’s notes suggested.
37 In cross examination, the plaintiff explained that her doctor encouraged her to have chiropractic or osteopathic treatment to help her spinal pain. Certificates were provided by those treaters. The plaintiff would have told them of occasional low backache before the accident.
38 The plaintiff stopped work in March 2009, as she was having difficulty doing her duties as a childcare nurse, which involved a lot of bending, twisting, working on her hands and knees and lifting.
39 In her job at the Clovedale Community Centre the plaintiff worked five days a week assessing babies and children to the age of three and a half. She was required to bend to speak to children. She had to sit on a little chair and table to talk to the children.
40 The plaintiff was required to conduct a physical examination of a child at every appointment. She had to bend and twist and get on the floor and she was “up and down like a yo yo” for about fifteen minutes of a half hour appointment.
41 The plaintiff confirmed that a further problem with her job after the accident was that her employer wanted her to be car based in carrying out her duties.
42 The plaintiff denied that she left her job with the City of Greater Geelong because her employer refused to provide her with funding for a development program. She confirmed she was not treated well by her employer because of her back injury.
43 The plaintiff did not mention her health in her resignation letter because she had already discussed it with her employer who was aware that was the reason she was leaving.
44 The plaintiff had not decided to become an educator before the accident. Whilst she enjoyed a mentoring role and being an inspiration to other nurses, her plan was to continue hands on child nursing and part time midwifery. She loved the flexibility and travel involved in that job in all different areas and it was also her intention to keep studying.
45 The plaintiff had reached the top of her area as far as practical nursing was concerned. She had no desire to work in management which was the next step.
46 When she realised she could no longer do her normal duties in early 2009 and having been asked to do more work on the road which she knew she would find difficult, the plaintiff decided to change career and she enrolled in the educator’s course. She had to find something different to do. The passion expressed in her resignation letter was accurate and she needed to find a niche.
47 Upon starting the nurse educator’s course, the plaintiff commenced work as a graduate nurse coordinator at Wimmera in Horsham. Her role was to debrief, help and inspire other nurses. She agreed she found that job very satisfying. Whilst she enjoyed her job at Wimmera, she preferred hands on work. She loved children and missed the contact with them.
48 Whilst working at Wimmera, the plaintiff anticipated with costs cutting she would be one of the first to go as it was not an essential service. She felt she was vulnerable in the open marketplace.
49 The plaintiff was forced to resign in June 2011 when her job was redefined and she was required to work a minimum of five hours per days, hands on, or on the ward. She accepted the revised job in late May 2011 however, after a day, her symptoms deteriorated to the extent she could barely walk. She attended a chiropractor and was certified off work for a week and then ceased work the following month.
50 Because of her spinal injuries, the plaintiff has lost her ability to work as a hands on nurse. Had she not been injured, she intended to travel and work. She no longer had that option, when she had a family, to take up shift work or part time work.
51 As a maternal child health nurse, the plaintiff earned $78,000 but earned $5,000 less working with Wimmera in the Staff Development Department. There she was paid $1,506 per week as a Registered Nurse Division 1, Grade 4B, Year 2 teacher.
52 The plaintiff was cross examined about her tax returns and whether they reflected the extent of her earnings as claimed of $78,000. There was no direct attack on the plaintiff’s credibility in this regard. Cross examination focussed on the plaintiff’s salary sacrificing the lower earnings rates shown in the tax returns than the $78,000 loss claimed.
53 The plaintiff explained she gave her wage details to her accountant when he prepared her tax return. He did what was necessary as far as detailing the salary sacrifice she was involved in. The plaintiff thought she salary sacrificed in the range of about $8,000 per year, depending on the arrangement at a particular hospital. She was unsure why her salary as shown on her tax return dropped in 2008-9 but it may have been because she had been in India in 2008 or she had incurred self education expenses that year.
Pain
54 In September 2010, the plaintiff deposed she suffered from stiffness, headaches and aching in her neck, spreading into both shoulders across her shoulder blades. She also had stiffness in the middle of her back and a dull backache with more severe pain at times, with numbness and pain down the back of both legs, right worse than the left.
55 In examination-in-chief, the plaintiff described she presently gets a lot of stiffness and aching through the middle of her back, between her shoulders where she cannot reach. In the lower back, the pain is more like a lack of flexibility and she feels very stiff, sore and aching.
56 In cross-examination, it was suggested to the plaintiff that whilst sitting in the witness box she looked down to read the court book in her lap, rather than raising it closer to her. She agreed that when doing so, her chin was close to her chest when reading.
57 The plaintiff confirmed that in recent times she had had time off work when she had pain in the top middle part of her back and her neck was stiff. Her pain is split about fifty fifty between her neck and lower back.
Treatment and Medication
58 From April 2009, the plaintiff had treatment from Dr Lo in Horsham and Dr Eyre, chiropractor. Physiotherapy with Hayley Roberts made her condition worse.
59 The plaintiff has undergone investigations including CT and MRI scans and been referred to Mr de la Harpe, orthopaedic surgeon, to look at surgical options but he decided to treat her conservatively as surgery was not an option.
60 The plaintiff deposed in September 2010 that she was taking Panadol and Nurofen on a daily basis and saw her chiropractor weekly. She did swimming and water aerobics twice a week.
61 The plaintiff is now under the care of the Stawell Medical Clinic and she no longer sees Dr Lo. The plaintiff attends a chiropractor once a week. After a session, usually she has more movement and movement is easier.
62 The plaintiff takes Panadol fairly regularly. If she does not take Panadol, she pays for it. Most days she takes four tablets and sometimes six to eight a day. She never takes as few as two tablets. She takes Voltaren the same time as Panadol but can only take a maximum of three a day and prefers to take that rather than Tramadol.
63 When her pain is really bad, the plaintiff also takes Tramadol 2000. She takes on average one tablet per month in halves. It is strong medication and she uses it as a last resort. She takes it before going to sleep and it makes her a bit nauseous.
64 The plaintiff uses hot packs when her back is really stiff or sore. She does exercises in the water for about half an hour. She cannot do laps and it is really hard for her to swim properly with her restrictions.
Work Since Wimmera
65 The plaintiff applied for numerous jobs after her job at Wimmera ceased. She was offered five or six interviews but failed to obtain employment, when she advised the interviewer of her restrictions in being able to perform the physical components of the job.
66 The plaintiff was medically assessed by Pyrenees Shire and failed to obtain a position as a maternal health nurse for one day per week, having undergone a pre placement medical examination on 19 July 2011.
67 The plaintiff was out of work from July to November 2011. She then obtained her present job working three days a week on an active service model project for Home and Community Care Services, which involves her interviewing staff and writing a paper on best practice for home and community care.
68 In re-examination, the plaintiff confirmed there was not a full time job of the type she was doing at the moment. No position existed and it was a unique role.
69 This was the only type of work the plaintiff could do as it was not clinical work. She wanted to keep working and contribute, and she needed to work.
70 The plaintiff works three consecutive days because she needs continuing contact with fellow workers. She is ninety per cent in control of the allocation of her work time. She is able to get up and walk around and she is not in a lot of pain at work. The job does not cause pain, like hands on work.
71 The plaintiff would try five days of a similar job but cannot say how she would feel at the end of the week but probably she would be okay. She would need to have time to see the chiropractor and have hydrotherapy.
72 Since January 2009, the plaintiff has not been involved in hands on midwifery. She believes her absence from that practice puts into question whether she can maintain her registration as a midwife within the requirements and registration standards.
73 The plaintiff maintains her registration as a nurse on the basis of the educational role that she has played. She believes, however, the longer she stays away from hands on practice, the less attractive she is as a candidate to obtain educational roles, as she cannot teach current techniques.
74 The plaintiff has not played any competitive sport since the accident. She was invited to join the Horsham Saints Netball Club since she moved to the area, but declined. She was also invited to join a local basketball club. She missed physical activity but also the local sports clubs were important for the local community and a major source of social activity in Horsham. She cannot play basketball or netball any more, nor can she run properly, as her back seizes up when she runs.
75 In cross-examination, the plaintiff confirmed she played competitive netball in the winter season before the accident. She played in twilight competitions and attended most of the games as she was committed to her team.
76 The plaintiff played tennis socially, but competitively, not just a “hit and giggle.” She last sailed competitively on a regular basis in 2005 and from then until the accident was on an emergency crew, sailing perhaps once a summer. In the year prior to the accident, the plaintiff was focussing on other activities.
77 From October to Christmas 2008, the plaintiff participated in a boot camp aligned to her gym. This involved exercising on the Eastern Beach foreshore early in the morning and engaging in a range of activities - predominantly running and also using ropes, tyres and medicine balls. The plaintiff often also attended a spinning or pump class or other activity at the gym later that day.
78 In re-examination, the plaintiff confirmed that she cannot go hiking because of problems bending, sitting and walking. She is unable to dance. She cannot sail as she does not have the physical strength. She cannot play tennis as running aggravates her back. She could not fill in for netball as it would risk her ability to work. Sport was her whole world and she now had to look for different things to do.
79 The plaintiff has a routine of formal walking on non work days when she walks twenty minutes a day. Sometimes she walks very slowly and she cannot walk quickly. She walks much slower than she did before the accident.
80 The plaintiff confirmed she was a back up singer in a band at Wimmera and she also played the tambourine. There were two performances, one in March and one in November, and two or three practice sessions before those shows.
81 The plaintiff has not done formal dancing since the accident. She struggles to dance at a party, so she does not. Her concert performances would be the most she has danced since the accident.
82 The plaintiff agreed she was not clinically depressed and that she made the best out of everything, as she told Dr Epstein.
Present Domestic Situation
83 The plaintiff and her fiancé spend the majority of time in their house in the Stawell town. He also has a hobby farm of eighty acres. The plaintiff cannot do anything on the farm in a physical sense as she does not have the strength. She can walk with the fencing wire and can open a gate.
84 The plaintiff’s fiancé has custody of his two children aged nine and eleven from Wednesday to Wednesday.
85 In cross-examination, the plaintiff confirmed her fiancé is helpful around the house. The plaintiff does the majority of the cleaning but she does not clean the bathroom at all and her fiancé’s children are good helpers.
86 The plaintiff does the things she can do. She waters the garden and there is nothing to prune. Her fiancé does the physical work. She does a lot of the cooking. She tries to avoid a “big shop” and sometimes goes to Aldi but not very often.
Investigations
87 On 19 March 2009, the plaintiff underwent a CT scan of the lumbosacral spine organised by Dr Baker.
88 It was reported there was a shallow central and right paracentral disc protrusion seen at the L4-5 level that may well contact the right L5 nerve root as it entered the lateral recess. It was noted a small central disc bulge at L5-S1 did not appear to contact the neural structures. No other pathology was identified.
89 Dr Lo organised a CT scan of the thoracic and lumbar spine on 4 March 2010. It was reported there was no evidence of fracture, listhesis or wedging in the thoracic or lumbar region. Disc spaces were preserved. There were mild diffuse disc bulges at L4-5 and L5-S1 levels with no compression on exiting nerve roots, but minimal pressure on anterior aspect of the thecal sac at L4-5 level.
90 An MRI scan of the whole spine was carried out on 24 May 2010 at Dr Lo’s request. It was reported there was early spine degeneration with small posterior central protrusions at T7-8 and T8-9 levels and diffuse disc bulge at L4-5 level. There was no direct lateral nerve root compression at any level and no significant canal stenosis.
Treatment
91 The plaintiff underwent chiropractic treatment at the McLindon Chiropractic Clinic in Hamilton on three occasions from Dr Luke Nichols, chiropractor.
92 On initial examination on 16 January 2009, the plaintiff complained to Dr Nichols of neck, shoulder and lower back pain originating from the accident. Her symptoms had been present for four days and were causing reduced range of motion in her neck and back.
93 The plaintiff was given three treatments at the clinic consisting of conservative thoracic manipulation of her cervical soft tissue injury. She showed reduced pain and improved range of motion after those consults. Dr Nichols believed the plaintiff’s work situation changed her capacity to continue care at his clinic.
94 In February 2010, Dr Lo requested the plaintiff be provided with household assistance due to ongoing back pain and restrictive mobility. On 5 March 2010, Dr Lo wrote to CGU asking that an MRI be funded.
95 The plaintiff attended Dr Eyre, chiropractor at Wimmera Chiropractic Centre, on referral from Dr Lo in mid 2010.
96 In his first report, Dr Eyre noted the inability of the plaintiff to continue in Maternal Health Services because of her injuries and that she then obtained employment as a nurse educator.
97 Dr Eyre noted that in about May 2011 the nature of the plaintiff’s employment was changed without any consultation in that she would be required to work a minimum of five hours in active nursing. Dr Eyre thought that the plaintiff’s injuries would make that task completely unrealistic and he reported as a result of the hospital’s intransigence in relation to the matter, the plaintiff was forced to resign.
98 Dr Eyre noted the plaintiff had in fact continued to work despite her symptoms and he thought her determination to continue to work through this episode was commendable, as most other patients would be at home from work with those type of injuries.
99 In his report of September 2011, Dr Eyre diagnosed chronic traumatic strain complex of the cervicothoracic spine and the lumbosacral spine secondary to a hyperflexion extension injury, paraspinal musculature spasm secondary to a traumatic hyperflexion extension injury, cephalgia secondary to the previous conditions, multiple muscular spasm trigger points secondary to the injury described and discogenic involvement of the lumbar discs affecting L5 nerve root and diffuse fibromyalgia involving all spinal areas.
100 Dr Eyre thought the plaintiff’s work incapacity was directly related to the injuries. He then considered the plaintiff was not capable of returning to her pre injury duties or any that required her to repeated or prolonged bend, twist, lift, pull or push, thus general nursing was not a suitable option. He thought that as a result of the plaintiff’s restrictions, she was mainly suited to a position involving administrative tasks.
101 Dr Eyre thought the plaintiff’s condition was intrinsically unstable and noted that she was having periods of exacerbation of her lower back pain separated by periods of relative freedom from her pain. In his opinion, that pattern would continue, although one would hope that over the next two to three years the exacerbations would become less frequent and severe. He thought that without ongoing active treatment and exercise programs, the plaintiff was likely to develop degenerative changes to her spine resulting from the injury. He considered there was a residual disability in the form of the plaintiff’s lower back symptoms which were intermittently quite severe.
102 On 20 May 2011, Dr Eyre certified the plaintiff unfit for any work from 30 May to 6 June 2011 because of a disc lesion.
103 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on referral from Dr Lo on 1 July 2010. Mr de la Harpe noted that in the accident the plaintiff was struck from behind and suffered a hyperextension injury to her neck and developed neck and upper trapezius pain.
104 Mr de la Harpe reported that the plaintiff could not continue working because of neck pain. She changed to a job with no patient contact. She had no history of similar symptoms.
105 When Mr de la Harpe reported in July 2010, the plaintiff’s symptoms were intermittent depending on activity. She was then taking Panadol and Nurofen and had some chiropractic treatment and physiotherapy. She could not play sport or run or dance anymore because of the neck pain. She lived alone and had a cleaner.
106 Mr de la Harpe advised Dr Lo by letter dated 5 July 2010 that he thought the plaintiff suffered a whiplash type injury. In his view, she did not require surgery and she should continue with conservative treatment.
Medico Legal
107 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in May 2010.
108 The plaintiff told him that she immediately noted pain in her neck, shoulders and upper back after the accident. The day after the accident she also had lower back pain and could hardly walk. She changed her role to a nurse educator because of ongoing pain.
109 On examination, there were pins and needles in both legs, more on the right, which were intermittent and present after prolonged sitting. The plaintiff had pinching, shooting pains down her right leg intermittently since the accident. There was general stiffness and lack of mobility of the neck and back. There was pain particularly in the neck and between the shoulder blades and a pinching feeling in the lower back.
110 On examination, active spinal movements were three quarters full in extension and lateral rotation and full in other directions. There was no cervical tenderness. There was no upper limb wasting and power was full and equal. Reflexes were symmetrical and present and coordination was good and equal.
111 Active thoracolumbar spinal movements were two thirds full in flexion and half in other directions. There was generalised lumbar tenderness but no palpable guarding. There was no lower limb wasting and power, tone and reflexes in the lower limbs were normal. Mr Brownbill noted the plaintiff’s demeanour indicated some likely apprehension.
112 Mr Brownbill saw the reports of the March 2009 CT scan of the lumbar spine, the March 2010 CT scans of the thoracic and lumbar spine, the February 2010 CT scan of the cervical spine and Mr Gale’s report.
113 Mr Brownbill noted radiological investigations demonstrated a mild disc protrusion at L4-5 of the lumbar spine but no other abnormality.
114 Mr Brownbill thought the plaintiff had suffered soft tissue damage to structures around the neck and lower back giving rise to pain. He also thought it likely she had suffered some emotional reaction with apprehension to that pain which may extenuate her further appreciation of pain. He suggested an MRI of the neck and back.
115 Mr Brownbill thought it would be prudent for the plaintiff to avoid heavy lifting or forced cervical or spinal movements, but from a neurosurgical point of view he thought she was capable of full time work activities otherwise.
116 Mr Brownbill was forwarded a report of the MRI scan the whole spine of 24 May 2010. He concluded there was no indication as a result of reviewing it to modify his opinion.
117 Dr Anthony Kam, consultant radiologist reported on 13 December 2011 and later provided a supplementary report having been forwarded the investigations of 21 May 2010.
118 Having seen the CT scan of the cervical spine of February 2010, chest and thoracic x-rays of February 2010 and a CT scan of the thoracic and lumbar spine of 4 March 2010, Dr Kam noted that based on the radiographic images available, he did not identify a cause of ongoing neck pain. In his view, the mild degenerative change identified at the plaintiff’s thoracic spine are not uncommon for individuals of a similar age but may be symptomatic.
119 Dr Kam thought the disc bulge at L4-5 was also consistent with early degenerative change, which was not uncommon but may be symptomatic. He concluded the examination suggested the plaintiff did not suffer any bony injury in the accident.
120 Dr Kam then saw the 2010 MRI which he noted demonstrated small focal posterior disc extrusions at T5-6, T7-8, T8-9 and T9-10. The axial images showed resultant spinal cord deformity but no cord signal damage.
121 Having reviewed that MRI, Dr Kam reported that his opinion thereof differed from Mr Gale’s but Dr Kam did not have the original radiologist’s report. In addition to the degenerative change identified in the plaintiff’s spine, Dr Kam noted there were multiple small posterior thoracic intervertebral disc extrusions which were beyond expected for normal and were causing spinal canal narrowing.
122 Dr Kam noted there was resultant compression and deformity of the spinal cord. In his view, those changes may be symptomatic and relevant in the context of the plaintiff’s history and also in the context of the plaintiff’s symptoms of paraesthesia in the legs.
123 Dr Michael Epstein, psychiatrist, examined the plaintiff on 21 July 2010.
124 The plaintiff told him she had problems with endometriosis before the accident but otherwise her health was good.
125 The plaintiff told Dr Epstein that after the accident she was aware of immediate pain in her neck, shoulders and upper back. The following morning she could barely move.
126 The plaintiff told Dr Epstein that her employer wanted her to become an Outreach worker, which meant she would be working exclusively from her car. After the accident she realised she was not going to be able to cope with her current job or with the new job and she began looking for other work.
127 The plaintiff reported pain involving the whole of her back from her buttocks to her neck with restricted movement of her neck. She had intermittent shooting pains and/or numbness in both legs.
128 Dr Epstein noted that the plaintiff was fairly miserable and upset about her ongoing pain and discomfort but had tried to be positive and did not feel depressed now. She enjoyed her work and regarded herself as very effective and confident. She had recently begun learning music again, playing the piano and learning singing.
129 The plaintiff had gained twenty kilograms in weight as a result of lack of exercise but had been dieting and had lost fifteen kilograms. She was frustrated she had not been able to resume playing sport or go dancing.
130 On mental state examination, the plaintiff’s affect was unrestricted and she did not appear depressed or anxious. She appeared to have no problems with perception and her intellectual functioning appeared normal, as was her speech. She had no obvious problems with memory or concentration and there was no evidence of thought disorder.
131 Dr Epstein thought that as a result of the accident, the plaintiff had been left with ongoing back pain with associated significant reduction in her quality of life affecting her work capacity, her recreational enjoyment and probably her relationships. He considered that she appeared to have symptoms of traumatisation and depression after the accident but they had now settled and she did not have any diagnosable psychiatric disorder. He thought her condition appeared to be stable and that her prognosis and psychiatric state was good.
132 On 21 October 2011, the Medical Panel found that the plaintiff had a whole person impairment of ten per cent resulting from the accepted whiplash injury (neck and upper back with referred pain to shoulders) and low back injury.
Other Documentation
133 In July 2001, the Pyrenees Shire carried out a pre placement medical examination following a job application by the plaintiff for a position as a maternal health nurse for one day a week.
134 In a medical report relating to that examination, it was noted that the plaintiff had a work related injury in 2009, which resulted in multiple bulge discs in T7-8, T8-9 and L4-5. It was noted also noted that the plaintiff found back pain usually gets worse when driving, standing, bending and twisting her back.
135 Dr Gong certified the plaintiff was not suitable for employment in the proposed position. It was noted although the plaintiff loved to do her maternal and childcare nurse job, she found her back hurt a lot after a day’s work. In Dr Gong’s opinion it would be quite hard for the plaintiff to do the same job.
136 On 13 October 2011 Wimmera wrote a “to whom it may concern” letter advising that at no stage during her employment did the plaintiff inform the OH&S manager verbally or written by the incident identification procedures of having sustained a workplace injury and there was no evidence on their incident register of her having done so.
Defendant’s Medical Evidence
137 The notes from Dr Baker’s clinic from 5 December 2002 until 23 July 2009 were tendered.
138 On the first examination, Dr Chirawu reported - “Bit of headache. Was involved in a motor vehicle accident. Was sitting in a stationary car, rammed from behind, two hours ago, was not wearing seatbelt, no loss of consciousness. On examination was shaken a bit, restriction of movement, range of movement mildly limited in all directions by pain. Nurofen was prescribed.”
139 On 30 January 2009, it was noted the plaintiff got stiffer in neck two to three days after last visit. “ Settled after a week. Was seeing a chiropractor. Was off work until 27 January 2009. No past history of neck injuries. Analgesics as required.”
140 On 9 February 2009, the plaintiff saw Dr Baker. He noted “neck and lower back pains for a few days. Had been fluctuating since the accident. Seeing an osteopath in two days.”
141 On 23 and 25 February 2009, the plaintiff attended the clinic requesting a WorkCover certificate.
142 On 16 March 2009, the plaintiff saw Dr Chirawu. It was noted “pain playing up again from yesterday. No aggravation. Can’t do anything, can’t sit. Pain in bilateral paraspinal area i.e. dorsal column, muscle spasms. No radiculopathy, emotional tearing. Has appointment with osteopath. Brufen provided.”
143 A further certificate was requested 16 March 2009. On that date it was also reported “emotional tearing. No abnormal findings on examination other than whole body stiffness. Groaning in agony while walking. She was her normal self yesterday.”
144 On 18 March 2009, the plaintiff saw Dr Baker, who noted she now wanted to return to work tomorrow – “Has begun with neck pain after accident but now has thoracic and lumbar pain. Has been working a little then needing time off. Four days ago, woke in more pain? why and seen 16 March in severe pain and crying. Pain described as bilateral and mid thoracic to lumbar and buttock. Says if dorsiflexs foot then has shooting pain up leg both sides walking with a shuffle.”
145 On 20 March 2009, the plaintiff attended for her CT results. It was reported –“Now wanted CT of neck and dorsal spine. Needed a medical certificate and referrals to a specific osteopath and chiropractor.”
146 The next attendance was on 23 July 2009.
Medico Legal
147 The defendant arranged for the plaintiff to be examined by Mr Gale on 18 December 2009 for the purposes of an AMA assessment.
148 The plaintiff told Mr Gale of being forcibly thrown forwards and backwards in the accident. Soon thereafter she was aware of discomfort in the posterior aspect of her neck, and pain later spread down her lower back.
149 On examination, the plaintiff moved very stiffly around the consulting suite with an abnormal shuffling or staggering gait. There was minimal spontaneous movement but free movement of her arms. She was tearful at stages during the consultation and Mr Gale noted there was abnormal response to physical examination. There was widespread superficial tenderness of the head and neck but no muscle spasm or palpable abnormality. There was minimal range of neck movement in any direction. There was no neurological deformity.
150 Examination of both shoulder girdles revealed unrestricted range of movement without complaint of shoulder pain but with some discomfort along the medial border of both shoulder blades. There was no loss of normal lumbar lordosis and no abnormal kyphoscoliotic deformity. There was a minimal range of back movement and flexion of the trunk could only occur by flexing the knees.
151 Mr Gale had available the report of the lumbar CT scan of March 2009.
152 Mr Gale thought it was likely the plaintiff suffered a flexion/ extension injury to the neck and trunk probably in the form of a soft tissue injury. In his view, it was unlikely that she suffered any specific spinal injury. He thought to date her treatment had been inadequate and he considered she had ongoing symptoms and showed features of significant abnormal illness behaviour.
153 Mr Gale thought there was a probable soft tissue musculoligamentous strain injury to the neck. He made a similar diagnosis in relation to the back and noted there was a possible minor abnormality reported on the lumbar spine CT which was unlikely to be a direct consequence of the accident but it was difficult to be positive in that regard without personal examination of the films. He thought the plaintiff’s back symptoms were referred from the flexion/ extension injury to her neck.
154 Mr Gale did not consider that the plaintiff was suffering any specific physical injury to either shoulder girdle but had referred pain from her neck into the general area of both shoulder girdles. He thought her condition had not stabilised and she had not been appropriately investigated or received appropriate management. In his view, if that occurred, there would be a significant improvement.
155 On re examination in October 2010 the plaintiff described a feeling of discomfort and stiffness of the neck and the mid and lower back region and intermittently her back became so uncomfortable it stiffened and seized up. She complained of intermittent numbness involving the whole of both legs.
156 On examination, the plaintiff was tense, anxious and apprehensive and reluctant to move her neck or flex her trunk. She held her neck rigid and in a slightly flexed position and there was significantly restricted range of neck movement. There was no postural or palpable abnormality of the thoracolumbar spine. There was widespread superficial tenderness involving the lower neck, the whole of the thoracic and lumbar regions bilaterally and the plaintiff was reluctant to move her trunk. The axial compression test was positive. The pseudo rotation test was positive and arm elevation produced low back pain. There was no significant restriction in range of movement of either shoulder. There were no neurological abnormalities.
157 Mr Gale had available the cervical spine CT scan of February 2010, the thoraco lumbar CT scans of March 2009 and March 2010 and an MRI of the thoraco lumbar spine of May 2010.
158 Mr Gale confirmed his earlier diagnosis and the fact he thought the plaintiff showed features of illness behaviour and it was probable there was significant psychosocial factors operative in her clinical condition. He thought the plaintiff still had not stabilised and that she required further specific management in a pain management facility which he thought would likely result in a reduction of currently assessed impairment. In his view, a significant component of the plaintiff’s current symptoms related to non organic factors that had developed as a result of her initial injury. He did not believe she had any significant clinical findings due to local physical damage sustained.
159 Mr Gale did not believe the current physical examination findings were consistent with the nature of the physical injuries sustained to the plaintiff’s neck. He confirmed he did not think there was a separate shoulder injury.
160 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 31 October 2010.
161 The plaintiff told Mr Dooley that she was aware of stiffness in her neck and back after the accident impact and the following day was in a lot of pain. In terms of past history she said she had been generally fit and well.
162 On examination, there was tenderness along the dorsum of the cervical spine. There was some restriction of movement. Power, tone, reflexes and sensations were intact in the upper limbs and there was a full range of motion of both shoulders.
163 There was tenderness along the lower thoracic and lumbar spine regions in the midline. There was restricted movement. Straight leg raising was forty degrees bilaterally, at which time the plaintiff noted pain in the lumbar spine made worse by passive flexion of her knees and hips. There were no neurological abnormalities.
164 Mr Dooley noted there was evidence of degenerative change affected the L4-5 and L5-S1 levels and it was reported there were some small postero central protrusions at T7-8 and T8-9. He noted CT scanning of the cervical spine reported no unusual features.
165 Mr Dooley thought the plaintiff sustained a soft tissue injury to the cervical and lumbar spines in the accident. In his view, the neck injury involved musculoligamentous damage, as did the back, which also probably had some aggravation of naturally occurring underlying degenerative disc disease. Following such an injury, he would expect the plaintiff to note some ongoing neck and back pain. Overall it was Mr Dooley’s view, however, that the constancy and intensity of her ongoing pain were greater than one would expect to see for the injury sustained.
166 Mr Dooley believed the plaintiff had a psychological reaction to her injury and/or pain. She did point out her employer, following the accident, was difficult to deal with and he noted such behaviour was often the trigger for a psychological reaction and the development of chronic pain syndrome.
167 Mr Dooley noted overall the plaintiff had remained active taking up alternative work and being diligent with it. She undertook appropriate treatment in the form of exercise and minimal analgesia and anti inflammatory medication. He did not believe there were any specific ongoing conservative measures that would help her predictably.
168 From an orthopaedic point of view, Mr Dooley thought the plaintiff was capable of carrying out light physical work in clerical duties. He believed she would not be able to carry out full duties of a clinical ward nurse on a regular basis and thought she was capable of working in a modified capacity on a full time basis. He expected her to note some occasional neck pain and some ongoing intermittent back pain, associated with some occasional lower limb pain. He thought it important for the plaintiff to continue her exercise and fitness program and not to gain weight in time.
169 Mr Dooley thought the plaintiff would not be able to engage in active impact leisure pursuits such as netball and basketball. From an orthopaedic point of view he did not expect her condition to deteriorate.
170 Mr Dooley provided a subsequent report having read Dr Kam’s report and having seen the May 2010 MRI of the whole spine.
171 Mr Dooley agreed x-rays and CTs of the thoracolumbar spine showed evidence of degenerative change at multiple thoracic spine levels and degenerative change at L4-5. He agreed those findings were not uncommon in other individuals of a similar age. He agreed the MRI of the thoracic spine showed that there were small posterior disc protrusions at multiple levels in the mid to lower thoracic spine which he would describe as protrusions. He agreed at one of those levels there could be some distortion of the spinal cord. He agreed on MRI there was no evidence of cord signal damage, which one would see with true spinal cord compression.
172 Mr Dooley did not believe that small protrusions were causing spinal canal stenosis or spinal cord compression. He noted small focal protrusions do occur as part of the natural degenerative process and, in his view, were not uncommon at either the thoracic or lumbar spine levels in a patient of the patient’s age. He did not believe those small protrusions were causing paraesthesia of the lower limbs.
173 If there was so called spinal cord compression sufficient to cause paraesthesia, Mr Dooley noted then one would expect paraesthesia affecting the chest and abdominal regions and one would probably expect some motor signs and signs of hypertonicity or hyperreflexia in the lower limbs.
174 Mr Dooley noted the plaintiff did not complain of thoracic spine pain. She complained of cervical spine pain and occipital headache and of lower lumbar pain with, at times, shooting pains in the lower limbs.
175 Mr Dooley reported there would be many patients of the plaintiff’s age and some younger and definitely older who had changes on MRI and essentially be asymptomatic or at least minimally symptomatic. He noted some patients with symptomatic thoracic degenerative disc disease would note pain in the thoracic spine and referred pain around the chest wall. Patients with symptomatic degenerative disc disease at L4-5, most commonly noted intermittent low back pain with, at times, acute exacerbations of their pain and they may describe pain felt in the buttocks and thighs.
176 In Mr Dooley’ view, the degenerative changes noted on MRI in the absence of definite neural compression would not be associated with radicular pain.
Resignation Letter
177 On 23 March 2009, the plaintiff wrote to the City of Greater Geelong resigning from her employment and advising she had been offered a coordinator role at Wimmera Health working with new graduates. She advised she had also been offered the option of taking part in some sessional teaching and lecturing with Deakin, which would allow continual improvement in professional development.
178 The plaintiff advised she was very passionate about developing new graduates and inspiring their love for the nursing profession, jumping at any opportunity to mentor and support students throughout her career. Consequently, those opportunities followed the direction in which her career would proceed. She thanked the City of Geelong for the experience gained whilst employed there.
Claim Documentation
179 In a claim for impairment benefits form signed by the plaintiff on 14 September 2009 in answer to a question “have you had a similar injury condition before making this claim?” the plaintiff answered “no”. Further she set out she had “mild lower back pain previously but had well resolved prior to accident. (Hiking in Himalayas in India in 2007 and attended fitness boot camp (City of Greater Geelong in October 2008).”
Earnings
180 The plaintiff’s tax returns were tendered. There was no reference on the returns to any income involved in a salary sacrifice arrangement nor were there any deductions for superannuation.
Financial Year Employer Earnings Total income Taxable Income 2004/2005 Wyndham $56,548
$58,113$53,456 2005/2006 Wyndham $67,900
$69,316$63,730 2006/2007 Wyndham $5,136 Geelong $39,232 Healthcare $23,179 $68,408
$54,7832007/2008 Barwon $1,641 City of Greater Geelong
$56,181$58,629 $55,350 2008/2009 City of Greater Geelong
$58,640Wimmera $9,452 $68,683 $47,212* 2009/2010 Wimmera $57,773 $64,447 $45,289 2010/2011 Wimmera $59,024 $59,024 $49,992
*
$8,650 self education expenses
Overview
181 In this matter, there is no dispute the plaintiff suffered an injury to her spine in the transport accident. The consensus of medical opinion is that she suffered a soft tissue injury or musculoligamentous strain to both her cervical and lumbar spine.
182 Whilst Mr Gale considered the plaintiff’s current presentation to be significantly coloured by non organic factors and diagnosed abnormal illness behaviour, the other medical examiners agreed that the plaintiff continues to suffer organically based spinal pain related to the accident.
183 There was some suggestion in cross examination that the plaintiff had a spinal problem prior to the accident, details of which were set out in her impairment claim form. However, I am satisfied that save for an attendance on an osteopath in 2007 for a spinal adjustment, prior to the accident the plaintiff was a fit young woman able to hike in the Himalayas, work full time and enjoy a wide range of vigorous activities and she did have any ongoing back problem of any significance.
184 I accept that when the plaintiff told medico legal examiners that she was generally well pre accident and she had not had any back problems, this was not inaccurate as she did not have any back injury or problem which could be said to be of any significance.
185 The issue for determination therefore is whether the consequences of the plaintiff’s accident related spinal injury meet the test of serious as set out in Humphries & Anor v Poljak.[1]
[1][1992] 2 VR 129
186 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
187 Despite the attack on her credit by Senior Counsel for the defendant, I found the plaintiff to be a truthful witness who did not, as was submitted, over estimate her level of pain and restrictions.
188 Further, there was no surveillance film or other evidence which challenged the plaintiff’s evidence in this regard. No doctor was of the view that the plaintiff was deliberately overstating her level of disability.
189 Whilst the plaintiff does not describe unremitting intense pain, I accept that since the accident she has experienced pain in both her neck- between the shoulder blades and in her lower back. This pain has been accompanied by a feeling of stiffness and lack of flexibility.
190 Following the accident, the plaintiff initially had treatment from her general practitioner who suggested she undergo osteopathic and chiropractic treatment, which she has continued to obtain from various practitioners on average on a weekly basis to treat her problems with stiffness and lack of flexibility.
191 Whilst the plaintiff has not required ongoing prescription medication, she has consistently taken varying amounts of over the counter medication on a frequent regular basis and continues to do so.
192 I accept that the plaintiff’s spinal injuries have had serious consequences for her in terms of her employment.
193 I accept that whilst trained in a number of nursing related fields, the plaintiff’s focus prior to the accident was on patient contact, particularly with babies, young children and their parents.
194 It is clear that as a result of her spinal injuries, as set out in the Wimmera Health Pre-medical, that the plaintiff is unable to persevere with any hands on clinical work. The consensus of medical opinion in this case is along similar lines.
195 I accept that the plaintiff would have problems with bending and twisting and the lifting of patients involved in hands on nursing as shown by her difficulties performing her duties in the months after her return to work following the accident until she was forced to resign in March 2009 because of these difficulties.
196 I accept that whilst the plaintiff enjoyed her mentoring role at Wimmera, she had no career aspirations prior to the accident to take on the role of an educator and she obtained training in that regard thereafter in an attempt to adapt to her limited physical capacity following the accident.
197 I accept that, whilst she had a number of qualifications, the job the plaintiff had in Geelong at the time of the accident was the most senior she could do in that area, save for management, which was not something she wished to pursue.
198 I accept that the plaintiff resigned from her employment at Geelong because of her accident injuries, although they were not mentioned in her resignation letter, and that her comments about her optimism as to an educator were in light of her recognition that she was unable to continue to do hands on nursing.
199 Whilst a number of matters were put to the plaintiff about problems at the City of Greater in the last couple of months of her employment, I accept that the reasons she left were her inability to cope with her duties physically, picking children and bending to assess them and the requirement to undertake work from her car.
200 I also accept the plaintiff’s evidence that the longer she stays away from hands on midwifery or child nursing, the less attractive she is as an educator because of her lack of hands on experience.
201 Because of her spinal injuries, the plaintiff has essentially adopted the role of an administrator, whereas her career passion was to be a hands-on nurse.
202 The plaintiff’s current work is within her capabilities as it does not require any hands on work. As she freely admitted, she is able to do her duties without pain because of her ability to walk around and the fact that there is no hands on work involved.
203 Whilst she may be able to work five days a week in that job, she would have to try it to know whether this was the case and she would require some help in terms of medication and hands on treatment.
204 I accept that the effect of the plaintiff’s spinal injuries on her sporting activities is also a serious consequence.
205 Whilst obviously the plaintiff was more involved in sport at a competitive level in her younger years, at the time of the accident, she clearly was a young woman who was very focussed on her general physical fitness and exhibited enthusiasm in that regard in a number of ways. Most relevantly, in the months leading up to the accident, she was actively involved in a boot camp program through her local gym three mornings a week, exercising at Eastern Beach. That was an onerous program which she carried out in addition to other classes at the gym, on occasion.
206 The plaintiff’s spinal injuries have meant that she has great difficulty running. She cannot jog or even engage in the amount of running required to play social tennis.
207 Clearly, basketball and netball are out of the question, given the risk of further injury as the plaintiff described which she feared would compromise her already limited employment position.
208 I accept that the plaintiff had a history of playing netball at a high standard and that in the twelve months prior to the accident she still enjoyed playing regularly in a team in a social twilight competition during the winter.
209 In addition to those sporting pursuits, prior to the accident, the plaintiff was actively involved in hiking, having gone on a hiking trip in the Himalayas in 2007. Further, she was involved in a number of formal dancing classes, such as samba and Bollywood dancing.
210 Since the accident, the plaintiff has not been able to resume any of these sporting or physical activities. I do not accept the submission that had she not been injured in the accident, the plaintiff would have lost her keen interest in fitness because of her current domestic situation with a partner and his two children. As the plaintiff described - “sport was her whole world” before the accident.
211 When considering the consequences of the plaintiff’s physical injury, I am also permitted to consider the expected emotional consequences thereof as Winneke P set out in Richards Wylie (supra).
212 As medico legal examiner Dr Epstein noted, the plaintiff was fairly miserable and upset about her ongoing pain and discomfort but had tried to be positive and did not feel depressed now. She was frustrated she had not been able to resume playing sport or go dancing. In his view, as a result of the accident, the plaintiff had been left with ongoing back pain with associated significant reduction in her quality of life affecting her work capacity, her recreational enjoyment and probably her relationships.
213 As the plaintiff’s spinal pain and restrictions have persisted for over three years with no significant improvement, I am satisfied that her impairment is long term.
214 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the transport accident.
215 Whilst a claim was initially made in relation to impairment of both shoulders, submissions were not made in support of this application. In any event, I am not satisfied that the plaintiff has a separate shoulder injury and the pain she experiences in that area is referred from her neck as medical opinion in this case explains. Accordingly the application in relation to the shoulders is dismissed.
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