Piedimonte v Transport Accident Commission
[2023] VCC 1698
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00466
| ANNA PIEDIMONTE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2023 | |
DATE OF JUDGMENT: | 6 October 2023 | |
CASE MAY BE CITED AS: | Piedimonte v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1698 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – transport accident – right hip injury – labral tear – osteoarthritis – pain and suffering – pecuniary loss – pre-existing injury – natural progression of underlying disease – whether transport accident caused injury or aggravated pre-existing injury
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr C A Sidebottom | Zaparas Lawyers |
| For the Defendant | Mr W R Middleton KC with Ms E Golshtein | HWL Ebsworth Lawyers |
HER HONOUR:
1The plaintiff, Anna Piedimonte, was in a transport accident on 1 April 2016. She brings this application for leave to bring common law proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injuries to her right hip. At the hearing she discontinued her claim in relation to psychiatric injury.
2The legal principles are well known and are not in dispute. The plaintiff must establish that she has suffered a serious long term impairment or loss of a body function that, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[1]
[1]Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140
3It is not disputed that Ms Piedimonte has a significant condition affecting her right hip and that she requires hip replacement.
4The issue in this case is whether that injury is:
(a) a new injury arising from the transport accident;
(b) an aggravation of an existing injury that meets the test; or
(c) the natural progression of underlying disease unrelated to the transport accident.
5For the reasons that follow I am satisfied that Ms Piedimonte has a serious injury that meets the test and accordingly I grant her leave to bring proceedings for both pain and suffering and pecuniary loss.
Background
6Ms Piedimonte has an extensive medical history, much of which focuses on problems with her spine.
7She has disc bulges and herniation at various levels and underwent a microdiscectomy in 2008. She has also had a fractured right ankle, a left knee injury and a right shoulder injury.
8She has undergone carpal tunnel release, has been diagnosed with depression and anxiety, had undergone gastric banding surgery and has had surgery for cerebrospinal fluid leak. She has had twenty-one cycles of IVF, which eventually resulted in the birth of her daughter in 2017.
9She has had regular attendances on osteopaths prior to the transport accident. Her osteopath records include references to difficulties or pain in her hips.
10She worked in her family supermarket business for 35 years, until she ceased work in April 2023 due to medical issues, including pain from her hip and complications from the cerebrospinal fluid leak.[2] Prior to ceasing work she was working part-time hours, ranging from 15 to 22 hours a week. Prior to the transport accident she was working 35 hours a week.
[2]T8, L23-L27
Hip problems prior to the transport accident
11Ms Piedimonte says her hip pain and hip problems prior to the transport accident were in a different location and of a different type than the pain she experienced afterwards.
12At the hearing she demonstrated where she experienced pain prior to the accident. It was across her lower back and in her buttocks and gluteal muscle. She describes it as “low grade”.[3] She was told it was referred pain from her lower back.[4] She describes the pain as “more muscular” and located towards the back, not the front of the hip area.[5] Sometimes the pain radiated down the back of her thigh.[6]
[3]T13, L18
[4]T13, L24-L25
[5]T29, L18-L25
[6]T29, L29-L30
13Prior to the transport accident she had not attended her doctor for complaints relating to her hips, nor had she had any medical investigations for hip problems.
14Below I have extracted all the references in her osteopath notes to hips that I could locate. On none of these occasions were the hips the only body parts mentioned but, for reasons of brevity, I do not include the full notes here. However reading the full notes it is apparent that the hips are rarely, if ever, the primary reason for the osteopath visit. There were numerous visits, not extracted here, where there is no mention of the hips.
15On 1 May 2012, her osteopath recorded residual pain in the right leg and noted on examination “right sij [sacroiliac joint] release, L5, right hip, CBR”.[7]
[7]Defendant’s Court Book (“DCB”) 117
16On 30 May 2012, the osteopath records Ms Piedimonte as being “a bit tight through the low back, mainly left side, into the hip”.[8]
[8]DCB 117
17On 28 June 2012, the left hip is noted to be sore.[9]
[9]DCB 117
18On 6 July 2012, the osteopath notes record “still noticing left side hip pain, into the anterior thigh as well”.[10]
[10]DCB 117
19On 24 July 2012, tension and pain were noted in the left hip.[11]
[11]DCB 117
20On 9 August 2012, she was noted to be “really tender through right hip, can’t lie on that side”.[12]
[12]DCB 117
21On 15 August 2012, she was noted to be having trouble with both hips and pain into low back.[13]
[13]DCB 118
22On 5 December 2012, she was noted to have a lot of hip pain.[14]
[14]DCB 118
23On 8 January 2013, she was noted to have a sore right hip.[15]
[15]DCB 118
24On 13 February 2013, she was “not too bad” in the hips but still having some residual pain.[16]
[16]DCB 118
25On 27 February 2013, she was noted to have a sore low back and hips.[17]
[17]DCB 119
26On 16 March 2013, her hips were noted to be stiff.[18]
[18]DCB 119
27On 2 April 2013, she had some pain in the left hip.[19]
[19]DCB 119
28By 9 April 2013, her hips were noted to be better.[20]
[20]DCB 119
29On 7 August 2013 she had low back and hip pain.[21]
[21]DCB 119
30On 11 November 2013, her low back and hip were noted to be “not too bad”.[22]
[22]DCB 120
31On 13 January 2014, she was noted to be still suffering central low back pain with referral to sacro-iliac joint and hips.[23]
[23]DCB 121
32On 19 March 2014, she attended her osteopath who notes “can get achy and sore across legs/buttocks/hips” and sometimes gets right lateral thigh ache.[24]
[24]DCB 107
33On 21 May 2014, her hips were noted to be sore with bilateral radiation to buttocks.[25]
[25]DCB 109
34On 2 July 2014, she had gentle traction to her left hip.[26]
[26]DCB 110
35On 6 August 2014, she had gentle traction to hip areas.[27]
[27]DCB 110
36On 8 October 2014, she had gentle hip traction.[28]
[28]DCB 110
37On 11 February 2015, she has hip traction.[29]
[29]DCB 111
38On 25 March 2015, there is an indecipherable reference to her hips.[30]
[30]DCB 112
39On 23 April 2015, she had a “left hip internal rotation” and a right hip “tug”.[31]
[31]DCB 112
40On 29 April 2015, she was noted to have an acute episode of lower back pain and right hip area. She had gentle traction and release.[32]
[32]DCB 112
41On 3 June 2015, she was noted to have “L side hip area”.[33]
[33]DCB 112
42On 28 July 2015, her left hip was rotated anteriorly.[34]
[34]DCB 113
43On 7 October 2015, she had gentle traction of right and left hips.[35]
[35]DCB 114
44On 18 November 2015, she was noted to have reported right hip area a bit achy, hard to lie on that side last few days.[36]
[36]DCB 114
45On 2 February 2016, she had some tension in the left hip and left thigh, and underwent left hip release and traction.[37]
[37]DCB 114
46On 9 February 2016, her left hip was noted to be a bit sore. She had traction and release.[38]
[38]DCB 114
47On 23 February 2016, her right hip had “been sore” and her left hip was “ok”. She had right hip traction and release.[39]
[39]DCB 115
48On 10 March 2016, her osteopath notes “R hip” but otherwise the note is indecipherable to me.[40]
[40]DCB 115
49On 23 March 2016, shortly prior to the accident, there was no mention of her hip.[41]
[41]DCB 122
50Ms Piedimonte says that prior to the accident she had treatment to realign her hips about once or twice a month. This involved her osteopath putting her hands under Ms Piedimonte’s back and pulling down on her legs.
51It is apparent from a review of the osteopath records that hip pain and stiffness was part of the complex pain and stiffness she was experiencing, but in general the focus of her osteopath sessions was on her spine.
Hip problems after the transport accident
52Ms Piedimonte describes her right hip pain since the accident as being in the joint of the hip, down the front and side of her hip and down the front of her thigh.
53On 2 April 2016, Ms Piedimonte attended her general practitioner, Dr Ali Taheri. His record makes no note of hip pain, although Ms Piedimonte said she did complain of hip pain.[42]
[42]T24, L29-L30
54On 8 April 2016, she attended her usual general practitioner, Dr Michael Levick. He noted that she had been rear-ended whilst stationary at lights, had whiplash but “reasonable” range of movement. He noted seatbelt bruising to right chest, sternum and right hip.
55Dr Levick initially diagnosed strain to the cervical spine, bruising to her chest wall, injury to her right hip and aggravation to her lower back condition. As time passed he noted the cervical spine and chest wall bruising resolved and the aggravation to her back injury settled. However, her right hip pain persisted and slowly worsened. It did not respond to conservative treatment so in August 2016 he ordered a right hip MRI.[43]
[43]DCB 60
56MRI dated 5 August 2016 noted degenerative chronic tear through the anterior superior labrum and trochanteric bursitis with some adjacent insertional tendinopathy of the gluteus medius and minimus muscles.[44]
[44]Plaintiff’s Court Book (“PCB”) 82
57She had two steroid injections into the hip which did not provide any significant relief.
58During the period immediately post-accident, Ms Piedimonte was undergoing IVF treatment. In September 2016, she went to Greece for IVF embryo transfer. This resulted in a pregnancy and she gave birth on 10 May 2017.
59As a result of the IVF treatment and pregnancy, Ms Piedimonte did not obtain specialist referral for her hip until April 2018.
60On 16 April 2018, she attended orthopaedic surgeon Mr Parminder Singh. He noted right hip pain since the accident and right buttock, peritrochanteric and thigh pain present for two years, constant, 10/10 severity, present at rest and with activity and aggravated by sleeping, sitting, standing, walking and twisting. He noted the MRI report of labral tears and bursitis and recommended arthroscopy.
61On 7 June 2018, she underwent ultrasound-guided steroid injection into the right hip. She did not want to undergo hip arthroscopy at that time as she had an infant daughter to care for.
62She sought a second opinion and was referred to Dr Jit Balakumar, orthopaedic surgeon. He performed a series of PRP injections into her hip which caused some short-term improvement in her pain.[45]
[45]PCB 19
63Dr Balakumar did not consider that laparoscopic repair of the labral tear would resolve her hip pain and she did not proceed with this operation.
64Further right hip MRI on 1 June 2019 showed osteoarthritic changes in the right hip, with cartilage changes, labral tear, joint effusion and synovitis.[46]
[46]PCB 85
65Dr Balakumar has recommended hip replacement surgery. Ms Piedimonte said she feels unable to undertake this surgery until her daughter is older, as the post-surgery rehabilitation requirements are incompatible with being primary carer for a young child.
66Ms Piedimonte said she will have the hip replacement surgery when her daughter is older. In the meantime, she has cortisone injections approximately every six months, and takes Palexia, Mobic, Panadol Osteo and Panadeine to manage her pain.
67She describes her pain as “excruciating”.[47] Generally she would describe it as seven to eight out of ten, and going as high as nine or ten out of ten when she has to sit a lot.[48] Prior to the transport accident her hip pain might occasionally get to two or three out of ten.[49]
[47]T47, L28
[48]T48, L20-L23
[49]T47, L24-L21
Did the transport accident cause the hip problem?
68The fundamental issue in this case is whether her current hip problems of labral tear and osteoarthritis were caused or aggravated by the transport accident, or whether they are a result of the natural progression of underlying disease unrelated to the transport accident.
69There are a number of medical and medico-legal reports however, there is no real dispute between the parties as to the nature of Ms Piedimonte’s hip injury and her need for hip replacement surgery. The dispute is largely confined to whether the transport accident was the cause, or a significant contributing cause, of her current hip condition.
70For this reason, I will only deal with those reports that have a direct bearing on this question.
Mr Anthony Menz
71Mr Menz, orthopaedic surgeon, examined Ms Piedimonte for the defendant. He reviewed her MRI report from 5 August 2016 and made the following comment:
“This demonstrated degenerative chronic tear through the anterosuperior labrum. Trochanteric bursitis with some adjacent insertional tendinopathy of the gluteus medius and minimus and insertional tendinopathy of the external rotator. I should say that no comment was made in this MRI report of the degree of arthritis in this lady’s hip or not which I believe is poor reporting.”[50]
[50]DCB 9
72Mr Menz concludes that Ms Piedimonte had neck pain, bilateral shoulder pain, right hip pain and aggravation of pre-existing lumbar pain following the transport accident. Her right hip now has a quite symptomatic and severe arthritis. The MRI revealed a “chronic” labral tear which, in Mr Menz’ view, “would have pre‑dated the accident”.[51]
[51]DCB 10
73He goes on to say:
“Because the radiologist did not report any arthritis in the hip joint or not I cannot state whether there was any pre-existing arthritis. There is no doubt the labral tear was pre-existing the accident and this is described as chronic.”[52]
[52]DCB 10
74He considered Ms Piedimonte’s prognosis to be poor as her hip symptoms have continued to deteriorate over time “which is the natural history of osteoarthritis of the hip joint”.[53] He “suspected” that the hip was already arthritic at the time of the accident because “she had a degenerative labral tear”.[54]
[53]DCB 11
[54]DCB 11
75In subsequent reports dated 21 October 2022 and 4 July 2023, he attributes the development of arthritis to Ms Piedimonte’s obesity and says the transport accident would have caused only a very minor exacerbation of her “pre-existing” hip arthritis.
Dr Jit Balakumar
76Dr Balakumar has provided a number of reports. He considers that the mechanical load Ms Piedimonte experienced during the transport accident could cause chondral damage to the hip and labrum. He noted the development of early osteoarthritis in the hip consequent upon a labral tear.
77He considered there was some degeneration, which was accelerated by the mechanical pathology caused by the accident. He says the accident was a “large” contributor to the current status of the hip. He reached this conclusion because there was no malalignment of the hip, hip dysplasia or impingement that would otherwise predispose Ms Piedimonte to early osteoarthritis.[55] He understood that she had no hip pain prior to the accident.
[55]PCB 36
Mr Russell Miller
78Mr Miller examined Ms Piedimonte for medico-legal purposes. He opines that the current condition of the right hip is “substantially accident related” but provides no real explanation for reaching this conclusion.[56]
[56]PCB 98
Analysis of the competing medical opinions
79The defendant strongly criticised the opinion of the plaintiff’s treating doctor Dr Balakumar, on the basis that it was predicated on a false basis – that is, that Ms Piedimonte had no hip pain prior to the accident. The defendant submits that the osteopath records show an extensive history of hip pain pre-dating the transport accident.
80The defendant submits that this history of hip pain is in keeping with Mr Menz’ opinion, which is that Ms Piedimonte had a chronic labral tear that pre-dated the accident and had osteoarthritis that pre-dated the accident.
81The defendant submits that any aggravation caused by the accident was minor and brief, and Ms Piedimonte’s current condition is explained by the natural progression of her early onset osteoarthritis, caused by degenerative disease and obesity.
82The difficulty with Mr Menz’ report is that it assumes that the labral tear pre-dated the accident, based on the MRI report of 5 August 2016. However, Mr Menz has not reviewed the MRI film himself.
83The MRI report notes “chronic” labral tear.[57] I have no information upon which I can assume that this means that the labral tear pre-dated the accident. All this report tells me is that the labral tear viewed on 5 August 2016 was not an “acute” or recent tear. However, given that the MRI was taken four months after the transport accident, the identification of the tear as “chronic” provides me with no assistance in determining when it occurred.
[57]PCB 82
84There is no explanation in Mr Menz’ report as to what characteristics of the tear led him to form the conclusion that it pre-dated the accident.
85Mr Menz then assumes that the reporting radiologist has failed to mention the osteoarthritis that he, Mr Menz, assumes existed at the time of the 2016 MRI.
86This seems to me to be a leap in logic. Unless Mr Menz, or someone else, has reviewed the MRI film and identified arthritis, I cannot assume that the radiologist was in error, and instead must assume that the radiologist reported what he saw. Presumably the radiologist did not observe arthritis.
87As I understand it, the existence of a labral tear can lead to the development of arthritis. By the time Ms Piedimonte consulted Mr Balakumar, she had symptoms of early arthritis, a finding which was confirmed by MRI dated 1 June 2019.
88Mr Balakumar had taken a history that Ms Piedimonte had no hip pain prior to the accident. Based on the osteopath records, it is apparent that Ms Piedimonte did experience hip pain in the years preceding the accident.
89However, I accept Ms Piedimonte’s evidence about the nature and location of that hip pain. I note that Ms Piedimonte never attended a medical practitioner for hip pain and was never referred for any hip investigations, despite a complex and lengthy medical history which included significant spinal issues. I conclude as a result that the hip was not a significant issue and was not causing Ms Piedimonte significant pain. I accept her evidence that it was of a different type and location to the post-accident pain.
90I am satisfied that the osteopath attendances, while many and varied, were mostly focused on her lower and cervical spine. They also show treatment of the sacro-iliac joint, but there is no evidence that this indicates hip pathology of the type subsequently diagnosed. The osteopath notes also refer to problems with both hips. Sometimes it is the left hip that is the problem, sometimes the right, and sometimes both.
91The first mention of groin pain post-dates the accident, on 14 April 2016.[58] Groin pain can indicate problems in the hip joint. Other hip pain referred to prior to the accident is rarely identified or located in the records, apart from a mention of “icing” the bursa, which tends to locate the site of the pain on the outside of the hip, not inside the hip joint where a tear in the labrum would cause pain.
[58]DCB 115
92Comparing her complaints and her condition prior to the transport accident to the complaints and condition after the transport accident, it is apparent that there is a clear distinction between the two. She never mentioned hip pain to her general practitioner in the decades in which she had seen him prior to the accident. After the accident she was in such pain that Dr Levick referred her for an MRI of the hip.
93The hip pain, which pre-accident had been variable, sometimes left, sometimes right and sometimes both, became localised to the right hip.
94Although Dr Balakumar had an incorrect history in terms of the hip pain, it is not apparent to me that the sort of pain she describes pre-accident indicates a labral tear. Dr Balakumar has examined Ms Piedemonte and is aware of the date of the accident, and the date of the MRI. Unlike Dr Menz he does not conclude that the labral tear must have pre-dated the accident based on the radiology finding of “chronic” tear. This indicates to me that the appearance of the tear on MRI is not inconsistent with it having been caused in an accident some months prior.
95Given Ms Piedimonte’s accounts of her pain pre and post-accident, which I accept, I prefer the evidence of Dr Balakumar, as his opinion accords with her experience.
96Accordingly, I am satisfied that the labral tear was caused or significantly contributed to by the transport accident and was not a natural progression of underlying disease which would have occurred in any event.
97Given the lack of identification of arthritis in the 2016 MRI, I am satisfied that there was not arthritis present at that time, and that the arthritis most likely developed, as Dr Balakumar says, as a result of the tear.
98It is the development of osteoarthritis, in the context of the labral tear, that has caused the need for the hip replacement.
Does Ms Piedimonte have a serious injury?
99There was no dispute between the parties that, if I was satisfied that the transport accident was a cause or a significant contributing cause of Ms Piedimonte’s hip condition, this would meet the test for serious injury.
100Accordingly, Ms Piedimonte has leave to commence proceedings for damages for pain and suffering.
Has Ms Piedimonte suffered pecuniary loss?
101Ms Piedimonte says she has been unable to work at the same rate since the accident, and recently had to give up work entirely due to health concerns which included her hip.
102As noted above, she has a complex health history. She also had a baby and took a period of maternity leave, unconnected with her hip condition.
103The defendant notes that her application for income protection cites idiopathic intracranial hypertension, CSF leak, cognitive impairment and blurred vision as the reason for her inability to work.[59]
[59]DCB 87
104This application was completed by Ms Piedimonte’s neurosurgeon, Dr Shuey, who was not treating her for her hip complaint. However, her application for income protection was also supported by a report from her general practitioner, Dr Levick, who did note the hip arthritis and labral tears as medical diagnoses impacting her work capacity.[60]
[60]Exhibit P4: Report of Dr Levick for income protection application
105Ms Piedimonte gave evidence that her hip pain substantially impacted her ability to work, including her ability to sit at a desk and climb stairs. I accept that evidence. Mindful that this application is a gateway provision only, and that the issue of the extent of pecuniary loss is a matter for trial, I am satisfied that the transport accident has caused or will cause a pecuniary loss.
106Accordingly, Ms Piedimonte has leave to bring proceedings for pecuniary loss damages.
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