Postlethwaite v Transport Accident Commission
[2014] VCC 263
•18 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03234
| CHRISTINA POSTLETHWAITE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 August 2013 | |
DATE OF JUDGMENT: | 18 March 2014 | |
CASE MAY BE CITED AS: | Postlethwaite v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 263 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the cervical spine – causation – nature and extent
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Spence v Gomez [2006] VSCA 48; Petkovski v Galletti [1994] 1 VR 435; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC with Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr J Gorton SC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 15 October 2009. On that occasion, the plaintiff was stationary at a set of lights when another vehicle collided with the rear of her vehicle.
2 The injuries relied on in this application are essentially impairment to the cervical spine with resultant problems of pain and sensory difficulties relating to the left arm and left hand. The plaintiff accepts that she had pre‑existing degenerative changes in the cervical spine and asserts that such changes were rendered symptomatic by the accident. Alternatively, she asserts that the symptoms were increased to such an extent that the increase was a “serious injury” within the meaning of the Act.
3 Apparently, the plaintiff had received chiropractic treatment for neck and arm pain and other injuries at least from 13 February 2008 up until the time of the motor vehicle accident. Relevantly, the plaintiff submits that following the accident, she was taken by ambulance to The Alfred hospital, x-rayed, stayed a nominal number of hours and was discharged. Thereafter, she had pain in her neck and head and suffered headaches. She wore a neck brace for about six weeks and had a week or two off work and, by November 2009, had attended a chiropractor, Dr Zandes.
4 The plaintiff’s case was that prior to the accident, the plaintiff was “by and large well”.[1] It was submitted that she had had some problems with migraines, neck pain and low-back pain in 2008 which had required treatment from Dr Zandes and the St Kilda Super Clinic. It was submitted that after some treatment, these problems “had largely resolved”.[2] As well as being treated by Dr Zandes, she attended the St Kilda Super Clinic, the Highett GP Clinic and currently, the Ballarto Clinic, for treatment of ongoing neck pain. The relevant injuries are described as:
“… significant aggravation of pre-existing cervical spondylosis and a soft-tissue musculoligamentous injury to the cervical spine. She also suffers cervical nerve root irritation at the C6 level (manifesting) itself in the production of pins and needles down both arms and at least some transitory pain in both arms.”[3]
[1]Transcript (“T”) 1, L28
[2]T2, L2
[3]T2, L10-16
5 The defendant contends that the plaintiff’s case is based on an unreliable history, in that she had been suffering from neck pain, migraine and at least left arm pain with C6 neural irritation at least from February 2008 and leading right up until the time of the accident.
The legislative scheme
6 Under s93(4)(d) of the Act, a person whose impairment is assessed at less than 30 per cent can seek leave to bring proceedings for recovery of common-law damages. Under s93(6), a court must not give such leave unless it is satisfied that the injury is a “serious injury”. “Serious injury” is defined by s93(17) as meaning:
“(a) a serious long‑term impairment or loss of a body function … .”
7 The plaintiff relies on paragraph (a) of the definition.
Guiding principles
8 The principles governing an application of s93 were summarised in Spence v Gomez,[4] as follows:
“(a)Standard of proof: an applicant for leave to bring proceedings must establish on the balance of probabilities that he/she suffered a serious injury (as defined) as a result of the transport accident;[5]
(b)Meaning of ‘serious injury’: it is the Judge’s opinion as to the seriousness of the impairment or loss, determined by comparison with other cases in the range of possible impairments or losses, which is decisive.[6] To be ‘serious’, the injury must be capable of being fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[7]
(c)Pre-existing conditions: where there is aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury, and the additional impairment must itself constitute serious long-term impairment of a body function.”
[4][2006] VSCA 48 per Maxwell P at paragraph [8]
[5] See Petkovski v Galletti [1994] 1 VR 436 at 436 per Brooking JA
[6]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
[7]See Humphries & Anor v Poljak (supra) at 140
9 The defendant in this action has taken three basic defences:
(i) Causation/identifying injury;
(ii) Range of impairment; and
(iii) Credit of the plaintiff.
The Plaintiff’s case
10 Following the accident, the plaintiff underwent an MRI scan of the cervical spine on 11 November 2009 at The Alfred hospital. The report recites as follows:
“C5-C6: Posterior disk (sic) osteophyte complex effacing the anterior thecal sac and indenting the right anterior hemicord. No significant foraminal stenosis.
C6-C7: Disk (sic) desiccation, posterior disk osteophyte complex and mild loss of disk height. Effacement of the anterior thecal sac with mild compression of the left hemi cord. Mild left foraminal stenosis, non neural compressive. … .”
The comment was as follows:
“No acute ligamentous injury.
Disk (sic) osteophytes C5-6 and C6-7 non neural compressive.”
The clinical history was given as follows:
“Motor vehicle accident. Flexion extension injury. Ongoing neck pain and paraesthesia in distribution of the ulnar surface [of] both hands.”[8]
[8]Exhibit H, Joint Court Book (“JCB”) 45 and 46
11 It is common ground that the degenerative changes thus revealed pre-existed the motor vehicle accident on 15 October 2009.
12 On 12 July 2013, a repeat MRI scan of the cervical spine relevantly cited as follows:
“End-plate changes noted at C6/7. Marrow signal is otherwise normal.
There are posterior disc osteophyte complexes related to uncovertebral joint degeneration from C4/5 to C6/7. There is a resulted distortion of the ventral CSF space, however, the vertebral canal remains adequate at all levels.
There is no neural foraminal narrowing.
No disco-ligamentous injury.
The paravertebral soft tissues are unremarkable.”[9]
[9]Exhibit H, JCB 49
The conclusion was cited as follows:
“1.Uncovertebral joint degeneration of the cervical spine with posterior disc osteophyte complexes, but without evidence of significant vertebral canal or neural foraminal narrowing. There is no neural impingement.
2.No disco-ligamentous injury. …”
The clinical history at that time was recorded as follows:
“Had motor vehicle accident [in] 2009 with a whiplash injury. Neck pain and left shoulder pain.”[10]
[10]Exhibit H, JCB 49 and 50
13 In her first affidavit sworn 25 May 2012, the plaintiff states she was born in October 1962 in the United Kingdom. She obtained a nursing qualification in that country and thereafter, studied to be a teacher and obtained a Masters degree. She commenced teaching in the United Kingdom as a design teacher.
14 In 2007, the plaintiff migrated to Australia with her husband and two daughters. She obtained employment at Highvale Secondary College, Glen Waverley as a design and technology teacher which involved teaching woodwork and metalwork.
15 The plaintiff swore than in approximately early 2008, she had some problems with migraine headache, as well as some neck, low-back and left hip pain. She attended at the St Kilda Super Clinic and saw a general practitioner. She also attended a chiropractor, Dr Anthony Zandes. She stated:
“… With chiropractic treatment those problems seemed to settle down. … .”[11]
[11]Exhibit A, JCB 8-9
16 Thereafter, on 15 October 2009, she experienced the stated collision which she described as “forceful”. She was taken to The Alfred hospital where she was assessed over a period of several hours and then discharged.
17 Following the accident, she continued to suffer ongoing pain, particularly in her neck, and she was also suffering from headaches. She wore a neck brace for approximately six weeks and was off work “for a short period of time”.[12] She stated she went back to work, despite the pain she was in, because of the needs of her students and their final, end-of-year exams.
[12]Exhibit A, JCB 9
18 Thereafter, in early November 2009, she returned back to see Dr Zandes for the injuries she suffered in the collision and she continued to see him on a regular basis for chiropractic treatment thereafter.[13]
[13]Exhibit A, JCB 10
19 During 2010, she attended general practitioners, initially at the St Kilda Super Clinic and then at the Highett GP Clinic. She stated she saw these doctors for assessment and painkillers but otherwise continued at work and continued with chiropractic treatment.
20 By late 2010, the plaintiff was having problems with jaw pain and was diagnosed with “TMJ”. She was prescribed an antidepressant, Cymbalta, which she stated was to –
“… treat symptoms of anxiety/depression that I began to suffer following the collision, but also as a form of dealing with my pain and in particular my TMJ problem.”[14]
[14]Exhibit A, JCB 10
21 In early 2012, she obtained employment as the head of faculty for art and technology at University High School. It was a higher paying job than her previous employment and was at a “more prestigious school”. She considered herself lucky to have obtained the position as head of faculty. Her current position involves more administration and less hands-on teaching and so she finds it physically less demanding.[15]
[15]Exhibit A, JCB 10
22 In early 2011, she moved to Seaford and commenced attending a general practitioner, Dr Mostolky. She was referred to see a dental specialist, Dr Jonathon Tversky, for her TMJ. Otherwise, she continued to see her chiropractor about once every six weeks. She was also continuing the use of Cymbalta and Panadeine Forte for neck and jaw pain. She took the Panadeine Forte at least once a week and, on occasions, more often.
23 The plaintiff swore that she has constant neck pain, the level of which fluctuates. At times she has severe pain with referred arm pain. She states the neck pain interferes with her sleep and she will often wake in pain and have trouble getting back to sleep. As a result, she says she now has a low libido and the personal side of her marriage has suffered.
24 The plaintiff stated that before the collision, she was a very active person. She enjoyed outdoor activities such as scuba diving, kayaking, snorkelling and water sports. She states she can no longer do these things.
25 The plaintiff states that activity which requires her to repetitively twist and turn her neck is now difficult and painful and she has trouble working at a computer or looking at a television screen for long periods. She also has trouble driving, such as turning her neck to check traffic. She has difficulty lifting her arms above shoulder height because of the pain from her neck into her shoulders. She states she has difficulty doing tasks such as carrying shopping or vacuuming.
26 Presently, she has an assistant who assists her with tasks such as lifting planks of wood and the like. Her current employer is not aware of her injury.
27 In her second affidavit sworn 23 July 2013, the plaintiff stated that she continues to suffer from constant neck pain, and every morning she wakes up with that pain. She finds that lifting her newborn granddaughter causes an increase in her neck pain.
28 Since swearing her last affidavit, the plaintiff has felt a deterioration in the condition in her left shoulder particularly, which has now become more painful and stiff. She has been advised that she may have now developed a condition known as “frozen shoulder”.[16] In addition, she also experiences the sensation of pins and needles radiating down her arms, although the sensation in her left arm is stronger than that in her right. The pins and needles spread into her hands, along to the thumbs and the index finger. These sensations are also stronger in the left compared to the right. She also continues to suffer from headaches and migraines which happens on average once or twice a week. She has recently been referred for physiotherapy once a week and treatment is focused on her neck and left shoulder. She also attends the chiropractic clinic of Dr Zandes, although he personally has relocated to Sydney. She sees instead a Dr Ted Reatza for chiropractic treatment approximately once every fortnight.[17]
[16]Exhibit A, JCB 15
[17]Exhibit A, JCB 15
29 The plaintiff continues to attend the Ballarto Medical Centre for checkups and she is being prescribed, in addition to the Cymbalta, Codapane Forte, Propranolol, Diazepam, Panadeine Forte, Sandomigran and Sumatab.[18] She tries to reduce the dosage of her medications due to the side-effects when working with machinery at work.[19] Her employer is still not aware of her injury but she alleges she struggles with the manual component of her role, although she has technicians at her disposal and whose services she fully utilises.[20]
[18]Exhibit A, JCB 15
[19]Exhibit A, JCB 16
[20]Exhibit A, JCB 16
30 The plaintiff states that the sole reason she continues to work is because her husband and she have a large mortgage and her husband has only recently joined the police force and she worries that his job is not yet secure.[21] Further, she states that her husband now performs most of the domestic duties at home due to her neck and shoulder pain restricting her. Prior to her accident, she stated that she and her husband enjoyed going on outdoor adventures together including camping, horse riding, surfing and diving. She states that she now avoids such activities for fear of aggravating her pain.[22]
[21]Exhibit A, JCB 16
[22]Exhibit A, JCB 17
31 In her final affidavit sworn 15 August 2013, the plaintiff swore that she had been shown a surveillance DVD[23] which:
“… shows me driving to Woolworths supermarket and then shopping inside on 21 July 2013. The DVD shows me reaching above my head to collect items from a high shelf and then some minutes later returning to my car and loading the shopping bags into the boot of my car and then closing the car boot and driving away. On this particular day I was minding my grandbaby as my daughter had recently received bad news about her father-in-law and she and her husband wanted to be at his aid and so asked me to mind the baby which I naturally agreed to do. I very rarely go shopping these days but on this particular day I needed to go to the supermarket and buy baby food as I had none to give the baby.”[24]
[23]Exhibit 1
[24]Exhibit 1, JCB 19 and 20
32 In terms of the video showing her driving her vehicle, the plaintiff states that she has recently purchased a black 2012 Holden 4 x 4 wagon with features such as a reversing camera and specialised mirrors for reversing.[25] It is said that these features make it easier for her to drive because it reduces the frequency with which she needs to turn her head to look for oncoming traffic. Further, she conceded that she incurred a speeding fine which was issued to her on 17 June 2011 and that she was exceeding the speed limit between 15 to 24 kilometres per hour. She states, however, that driving does frighten her.[26]
[25]Exhibit 1, JCB 20
[26]Exhibit 1, JCB 21
The issues
33 In any event, plaintiff’s counsel submits that the matters referred to in paragraphs 24 to 29 above demonstrate the extent of the impairment of the cervical spine after the relevant injury in comparison to the impairment beforehand. Further, he submits that the additional impairments, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as being “more than significant or marked” and as being “at least very considerable”.
34 Further, counsel submits that the claim, thus put, received support from neurologist, Professor Stephen Davis;[27] vascular and general surgeon, Mr Charles Flanc;[28] orthopaedic surgeon, Mr Thomas Kossmann,[29] and finally, orthopaedic surgeon, Mr Robert Dickens.[30]
[27]Exhibit L
[28]Exhibit K
[29]Exhibit N
[30]Exhibit 2
The Defendant’s case
35 The defendant accepts that the plaintiff suffered an injury to the cervical spine as a result of the motor vehicle accident, consisting of some aggravation or exacerbation of the underlying degenerative change, but contends the plaintiff has not established permanent serious aggravation for two reasons. First, the plaintiff has not proved the extent of any change, either physically or clinically, which would satisfy the test laid down in Petkovski v Galleti.[31]Secondly, insofar as the plaintiff may have demonstrated a relevant change in her clinical position, such a change does not amount to a “serious injury” according to the statutory threshold. The defendant submits that the plaintiff’s case relies heavily on a history of there being a very significant change in the symptomology before and after the accident. It is further submitted that a proper evaluation of the contemporaneous objective material does not corroborate her evidence and ultimately she has failed to discharge the onus of proof.
[31]Supra
Comparison of impairments
36 The plaintiff relies significantly on the report of the treating chiropractor, Dr Anthony Zandes, in his report dated 19 August 2010.[32] In the first paragraph therein, Dr Zandes records:
“Mrs Postlethwaite attended the clinic on 4/11/09 experiencing bilateral radial surface paraesthesia and pain in the hands and neck pain especially on the right. The symptoms had commenced after a motor vehicle accident that involved Mrs Postlethwaite’s car being hit from behind while stationary at the traffic lights. The mechanism of injury would be described as a flexion/extension acceleration whiplash injury. The accident had occurred a few weeks prior to attending the clinic on the 15/10/09.”[33]
[32]Exhibit C
[33]Exhibit C, JCB 33
37 In terms of her pre-existing condition, Dr Zandes recites:
“Mrs Postlethwaite had first attended the clinic on 13/02/08 for subacute low back pain and chronic cervical stiffness. The patient had been receiving ongoing treatment since that time on a 5-6 week basis. The low back problem had predominantly resolved and the neck had improved in mobility and less stiffness was felt between treatments.”[34]
[34]Exhibit C, JCB 33
38 With reference to Dr Zandes’ clinical notes,[35] counsel relies on the entries of 26 March 2009 with respect to the entry “improved a lot” and 25 April 2009, where the entry is “much better. Feeling great.” However, on 20 December 2009, 27 January 2009 and 25 July 2009, in my view, makes a reference to “C6”. Defence counsel submits that these entries are consistent with a complaint of ongoing stiffness which has been maintained by the chiropractor in the manner the plaintiff asserts.
[35]Exhibit 3
39 In the period immediately following the accident, counsel relies on an attendance at The Alfred hospital and a report dated 4 November 2009 which recites:
“Since her admission, she has been feeling well. Does report pain at the base of her skull which is a dull ache and fairly constant. Does also report occasional pinching in flexing and extending her neck repeatedly. Also tells me she has occasional pins and needles in the median aspect of the volar surface of her hand bilaterally.”
40 Thereafter, the plaintiff is apparently treated again at The Alfred hospital on 17 February 2010 for conservative treatment and with the notation that there was not to be a routine appointment to see her again.
41 Further, at presentation to the chiropractor on 4 November 2009, Dr Zandes noted that the plaintiff was extremely stiff and sore in the cervical region with significantly reduced range of motion. She was apparently experiencing difficulty sleeping and working due to the inability to hold and carry objects and lift her arms above her head. She also complained of generalised upper back and neck muscular ache and sensitivity.[36] Thereafter, she apparently continued to attend the chiropractic clinic approximately once every five weeks at least up until the time of the report dated 19 August 2010.[37]
[36]Exhibit 3, PCB 33
[37]Exhibit 3, PCB 35
42 Dr Zandes further stated:
“The future extent of incapacity is guarded as is the prognosis … . There is a strong prospect that the patient will continue to experience residual symptoms as the condition of the lower cervical spine is currently moderately degenerated and will continue to deteriorate with time. An evaluation in six months after more regular treatment will provide a more accurate prognostic indicator.”[38]
[38]Exhibit 3, JCB 36
43 Plaintiff’s counsel then invites the Court to accept that this situation has continued up until the present time and indeed, may have got worse in line with the plaintiff’s own evidence.[39]
[39]T76, L9-13
44 There is no follow-up report from Dr Zandes, and upon notice being given to attend for cross-examination, defence counsel were advised that he was not available and such advice was accepted.
45 Within the report, Dr Zandes records:
“The MRI scan report described posterior osteophyte complexes at the C5/6 and C6/7 levels. Mild loss of disc height at C6/7 with left foraminal stenosis. Non neural compressive. Please note in the history section of the MRI report the doctor has stated paraesthesia in the distribution of the ulna[r] surface of both hands. This is incorrect as the pain and paraesthesia is bilateral in the thumbs and index fingers (radial).”[40]
[40]Exhibit 3, JCB 34
46 Insofar as his physical examination revealed findings such as “dermatomes in the C6-7 distribution bilaterally exhibited a decrease in sensation,”[41] Dr Zandes does not specify these findings as being referable to either before or after the injury, or both.
[41]Exhibit 3, JCB 34
47 However, Dr Zandes enlarges on his prognosis to this extent:
“… the patient is categorized as a MIC3 (major injury category) whereby the patient has a decrease in cervical range of motion and symptoms related to a whiplash injury and objective neurological signs (motor and/or sensory). The patient also has a few modifiers including pre-existing degeneration and a kyphotic cervical curve. This constitutes a group 4 which states a guarded prognosis and that the likelihood of persistent neurologic signs such as muscle weakness, atrophy, radiculitis etc, is increased with the possibility of a need for surgical intervention. … .”[42]
[42]Exhibit 3, JCB 35
48 Thereafter, he states:
“The MVA has resulted in the patient being incapacitated to a moderate degree due to the nature of … [her] employment in teaching metal/wood work and the manual aspects required in performing work duties. The inability to lift objects with her hands and also lift her arms above [her] head is debilitating in the workplace. The patient also suffers from inability to sleep well with discomfort experienced lying on the pillow and right ear tinnitus since the injury. Classic migraines have also increased of late due to the lack of regular treatment.”[43]
[43]Exhibit 3, JCB 35
49 However, Dr Zandes also states:
“… Given the low treatment frequency there still have been notable improvements in the patient’s condition. An increase in cervical mobility and decrease[d] tension in the neck region are evident. The patient’s migraines cleared with the initial more frequent visits, but have recently resurfaced. … .”[44]
[44]Exhibit 3, JCB 35
50 Then further, he states:
“The patient’s degree in frequency of radicular pain has not altered since the MVA, the noted improvement is in the reduction of cervical stiffness and increased mobility [and therefore], it would be premature to suggest the patient has stabilised.”[45]
[45]Exhibit 3, JCB 35
51 Plaintiff’s counsel, although conceding that the plaintiff has received a promotion within her chosen profession, submits she still has been affected recreationally and domestically. It is submitted that her husband now does most of the work around the house, all the heavy lifting and the cleaning and bits and pieces and a fair degree of the cooking as well. Her ability to perform her work has been affected and her change of status has come about because of the ongoing pain she has had with her neck and the incapacity to lift things on a regular basis.
52 Counsel also points to the fact the plaintiff has, in relatively recent times, undergone another course of physiotherapy and she is corroborated significantly in her complaints by her husband’s affidavit.[46]
[46]Exhibit B
53 Thereafter, counsel relies on the medico-legal reports of several medico-legal examiners to the following effect:
(a)General surgeon, Mr Charles Flanc, in his report dated 7 March 2011 opined:
“The mechanism of injury was whiplash in type and in my opinion she sustained a severe musculoligamentous injury and a significant aggravation of pre-existing disc degeneration and arthritis of the cervical spine which became symptomatic.
She has a history of previous discomfort in the back of her neck which I believe is also related to her pre-existing degenerative condition but after treatment by Dr Zandes, her chiropractor, improved significantly or even resolved.
In my opinion, her continuing neck pain is still significantly related to the motor car accident of 15 October 2009.”[47]
[47]Exhibit K, JCB 73
(b)Consultant neurologist, Professor Stephen Davis, in his report dated 10 June 2011 opined:
“She did have a previous history of some cervical and lumbar problems but undoubtedly had significant aggravation of pre-existing cervical spondylosis in this accident and soft tissue, musculoligamentous injuries in the cervical spine. The paraesthesia in the upper limbs suggests some cervical nerve root irritation at the C6 level bilaterally, but there are no objective signs and MRI scan showed no evidence of neural compression. …
The increased frequency of the migraines would be explained by psychological factors, particularly her anxiety …
…
There is clearly some psychiatric impairment although apparently some improvement with antidepressant therapy. She does not require any further neurological investigation. Her overall prognosis is good but she is likely to have some chronic cervical symptoms.”[48]
[48]Exhibit L, JCB 95
(c)Further, in a report from Mr Justin Hunt, orthopaedic and spinal surgeon, dated 1 August 2011, he opined:
“I believe that Mrs. Postlethwaite was incapacitated for a short period of time as a result of the injuries sustained as a result of a transport accident. She has been able to return to her usual working hours but is having increased pain and loss of function as a result of the ongoing symptoms that she experiences with associated neck and upper limb pain, recurrent headaches and mechanical lower back pain symptoms.”[49]
[49]Exhibit M, JCB 100
Mr Hunt further stated:
“Mrs Postlethwaite had a previous history of some neck and back pain prior to the accident, in 2008 but this had mostly settled.
I therefore believe her conditions are consistent with the stated cause of the motor vehicle accident which occurred on 15th October 2009 and represent an aggravation of pre-existing cervical and lumbar spondylosis.”[50]
[50]Exhibit M, JCB 100
(d)Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff on 22 July 2013.[51] Apparently the plaintiff told Mr Dickens she –
[51]Exhibit 2
“… never had any neck problems and had never had any arm problems and was fit and healthy prior to the accident.”[52]
[52]Exhibit 2, JCB 124
Her current treatment consisted of physiotherapy to the neck and shoulders and seeing her local doctor for medication and, in particular, getting migraine medication. She described the severity of her neck pain on the day of examination as 5 out of 10 but said that it averaged 5 to 7 out of 10 and she was never free of pain. She further described a headache, which is a migraine, and although she admitted that she did have these before the accident, now they are much more frequent, occurring twice per week.[53]
[53]Exhibit 2, JCB 123
Mr Dickens did refer to the report of Dr Zandes which had described the “chronic cervical stiffness” prior to the accident and also referred to a St Kilda Super Clinic consultation on 8 February 2008 in which the plaintiff was complaining of arthralgia in the neck, inter alia.[54]
[54]Exhibit 2, JCB 125
In any event, he thought the plaintiff had suffered an injury to her cervical spine with radiation of pain into both left and right arms but without a satisfactory diagnosis of radiculopathy. He did not consider that the frozen shoulder which came on after the accident was related to the accident. He considered her injuries were now stable and he would not anticipate any deterioration.[55]
[55]Exhibit 2, JCB 126
As to her prognosis, he did not believe she would suffer harm from engaging in active duties of daily living and occupational activities. The only restrictions or accommodations he would recommend would be to avoid those activities that cause her discomfort and to encourage her to get back to the things that she wished to do and see how she copes.[56]
Further, he stated:
“I believe that she almost certainly has aggravation of underlying pathology and although the accident related effects have now somewhat abated the ongoing symptoms are the natural history of the underlying degenerative pathology which have been accelerated in the presentation as a consequence of the accident.”[57]
Finally, Mr Dickens thought that her current impairment was a consequence of the accident[58] but he made no attempt to analyse the difference in impairments pre and post the accident due to the chronic neck stiffness referred to by Dr Zandes.
[56]Exhibit 2, JCB 127
[57]Exhibit 2, JCB 127
[58]Exhibit 2, JCB 128
Conclusions
54 It is clear that the plaintiff was being treated by her chiropractor, Dr Zandes, for chronic cervical stiffness approximately once every five to six weeks from 13 February 2008 up until the date of the accident. Thereafter, he continued to treat her at approximately the same frequency.
55 There is no follow-up report from the treating chiropractor after August 2010 and in that first eleven months of treatment, there was a noted improvement in the reduction of cervical stiffness and increased mobility.
56 It is only since April 2012 that the treating general practitioner at the Ballarto Clinic has been prescribing painkilling medication.[59]
[59]Exhibit 8
57 Further, Mr Flanc took a history that the treatment by Dr Zandes prior to the motor vehicle accident had improved her condition significantly, or even resolved it. Professor Davis does have a previous history of “some” cervical problems but does not have an analysis of the frequency of treatment and the chronicity of the problem as evidenced by Dr Zandes. Equally, Mr Hunt has a previous history of “some” neck pain with the qualification that “this had mostly settled”.
58 In my view, the medico-legal practitioners do not sufficiently identify a comparison of impairments which is necessitated by the principles laid down in Petkovski v Galletti.[60]
[60]Supra
59 Giving the plaintiff the benefit of the doubt, I would accept that there has been some worsening of her clinical situation since the subject accident, such that there has been a permanent aggravation of the underlying pathology, but I am unable to find that a comparison of impairments has led to an impairment which could be described as at least “very considerable” and certainly more than “significant or marked”.
60 The application is dismissed and I will hear the parties as to any consequential orders.
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