Potter v TAC
[2009] VCC 634
•12 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
Case No. CI-07-04713
| WENDY POTTER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 18 and 19 May 2009 |
| DATE OF JUDGMENT: | 12 June 2009 |
| CASE MAY BE CITED AS: | Potter v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0634 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment of the right shoulder – impairment of the cervical spine – chronic pain syndrome – psychiatric impairment
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with | Ryan Carlisle Thomas |
| Mr K Mueller | ||
| For the Defendant | Mr P Scanlon QC with | Solicitor to the Transport |
| Mr I Gourlay | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 20 June 2001 (“the accident”).
2 Section 94(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 Section 93(17)(a):
“Serious long term impairment or loss of a body function.”
4 The enquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 The plaintiff further relies upon a psychiatric impairment pursuant to sub- paragraph (c):
“Severe long term mental or severe long term behavioural disturbance or
disorder.”
7 The body functions relied upon by the plaintiff in this case are the cervical spine, right shoulder, and psychiatric impairment.
8 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked?”: see Humphries v Poljak [1992] 2 VR, at 140-1.
9 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied upon an affidavit sworn by her husband, Paul Potter, on 29 October 2008. 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
10 The plaintiff is presently aged fifty one, having been born on 30 September 1957.
11 The plaintiff left school at the age of sixteen and commenced work in an administrative clerical position, work she has performed throughout her life. In the second half of the 1990s, the plaintiff obtained a Business Management Degree, studying part time at Deakin University.
12 From the late 1980s, the plaintiff worked as a finance administration manager at the Country Fire Authority (“CFA”) in Ballarat. Whilst the plaintiff was employed in this job, the Linton bushfires occurred. The plaintiff suffered psychological ill-health when she was overcome by the tragic experiences of those affected in the fires. The plaintiff left her job at the CFA and was then off work for about six months.
13 The plaintiff suffered some occasional back pain dating back to the 1980s which on occasion would flare up. She suffered a flare up in about 1999 when she required inpatient treatment in hospital for about a week. However, at most times the plaintiff’s back was under good control and she was able to go about her usual work, social and recreational activities without restriction.
14 The plaintiff was taking anti-inflammatory medication for her back and an arthritic problem with her hands at the time of the accident and had been taking medication for a long time before then. She had been taking Zoloft during 2000 to cope with her psychological problems following the fires. The plaintiff could not recall being weaned off Zoloft by Dr Faull in early 2001 and then having a relapse.
15 In January 2001, the plaintiff commenced employment as a business manager at the Daylesford Secondary College (“the College”).
16 The plaintiff deposed that prior to the accident, she was in good health. She was still suffering some psychological issues because of her CFA involvement but she felt she was on the road to recovery, she was enjoying her work at the College and she was happy to be back in the workforce.
17 On 20 June 2001 (“the said date”), during the course of her employment, the plaintiff was involved in the accident in Lydiard Street, Ballarat, when, whilst stationary, her car was hit from behind with some force by another vehicle.
18 There was a lot of damage done to the plaintiff’s vehicle in the accident but it was still drivable. Having exchanged names and addresses with the driver of the other vehicle, the plaintiff continued with her work duties and then went home for the day. She rested overnight, at which stage she was suffering some pain in her right shoulder, neck and low back. During the next day at work her pain started to get worse.
19 On 22 June 2001, the plaintiff attended her general practitioner, Dr Faull, who put her off work for about a week and referred her for physiotherapy. On her return to work the plaintiff was not coping as she had not recovered. In particular, she was having difficulty with the pain and restriction in her right shoulder and neck.
20 In cross examination, the plaintiff said that she had at least ten days off work after the accident. She then returned to her normal duties for four hours per day until she was unable to perform them later in the year. She submitted her WorkCover claim on 3 August 2001.
21 Dr Faull referred the plaintiff for an ultrasound which was carried out on 6 November 2001, which she understood showed some definite damage to the tissues within her right shoulder.
22 Dr Faull then referred the plaintiff to see orthopaedic surgeon, Mr Byrne, who advised her she required surgery on her right shoulder, which he performed on 18 December 2001 (“the shoulder surgery”).
23 In cross examination, the plaintiff could not recall that the reason she left work was because of a review that took place at the College, which found she was doing work out of her depth. She agreed there was such a review, which indicated she was having problems in the area of the budget and that the budget was in disarray, but she denied that she chose to leave work in December 2001 because of this situation. She could not recall whether there were discussions at the College that she needed to improve the College’s budgetary position or undergo further training. She said there may well have been a bit of tension because she was responsible for something that was in disarray.
24 The plaintiff agreed that the financial records of the College were in an appalling state and that she “was unable to use the tools that she needed to fix it”. The “tools” that she described was the antiquated system of doing the College finances. She explained that no one had any idea how to use the system, nor did anyone have any idea of the budgetary process. Further, the principal had only started at the College in early July.
25 The plaintiff agreed that there were meetings convened to discuss the budget issue. She could not recall a meeting that took up the whole day on 19 November 2001, nor could she remember that she was quite shaken by it. Initially she denied that she would have been worried at all or felt a little bit uncomfortable about the issue and she said she was “more angry than anything else”. She then agreed that she would have been concerned because she was responsible.
26 The plaintiff denied she left work at the College as a result of the November meeting, saying she was not managing at all. She was struggling with great difficulty at work. She left work because of the shoulder surgery which took place on 18 December 2001.
27 After the shoulder surgery, the plaintiff attended several meetings at the College with a rehabilitation provider, IWCC. The plaintiff was being certified as unfit at that time. The plaintiff met with the provider on three occasions. During this period, the plaintiff was hoping to get back to work. She did not receive any particular feedback from IWCC. She has not received any ongoing assistance with a return to work and she has not worked in paid employment since shortly after the accident.
28 Following the shoulder surgery, the plaintiff had extensive physiotherapy; however, she continued to suffer right shoulder pain, pain at the back of her shoulder, in the shoulder blade and in her neck. That pain quickly increased the more she attempted to use and move her arm.
29 Dr Faull referred the plaintiff to a pain specialist, Professor Collins, in 2002. She attended Professor Collins on a number of occasions and he arranged for some tests to be undertaken but he did not provide any particular treatment.
30 In early 2003, Dr Faull referred the plaintiff to a rehabilitation physician, Dr Kinloch, whom she first attended in January 2003. Dr Kinloch recommended the plaintiff undertake a pain management course at Epworth Hospital, which she underwent for a number of weeks in the second half of 2003. Having completed that course, the plaintiff then underwent hydrotherapy for a short period of time.
31 The plaintiff was referred to the Physical Therapy Centre at St John of God Hospital, Ballarat, in September 2003 for treatment of her neck and shoulder injuries.
32 WorkCover would not agree to any further funding of physiotherapy or hydrotherapy. As a consequence, the plaintiff has not had access to that treatment for some time. She obtained a machine similar to a TENS machine which she used regularly to help alleviate her pain and she also attended for remedial massage when she could afford it.
33 In 2006, Dr Faull referred the plaintiff to another specialist, Dr Vivian, whom she has attended many times. Dr Vivian has performed a number of medial branch block injections into the plaintiff’s neck.
Work 34
The plaintiff’s work at the College involved almost constant use of her right arm and hand, with her often spending long periods before a computer with her head stationary in the one position. As a consequence of the injuries sustained in the accident, the plaintiff has not felt able to work since shortly after the said date.
35
In the past the plaintiff enjoyed working, both for the sense of independence and because of social interaction and satisfaction. She has lost a lot of confidence since the accident and her life is quite empty by comparison to what it was before. The plaintiff now feels very worried and pessimistic about her future. She is uncertain what work she could do.
36
In cross examination, the plaintiff said that she felt she would not be able to hold down a job such as working in the secretary’s office at the Ballarat Turf Club because she was not reliable. She could not work as a receptionist answering phones. Whilst she has more than basic computer skills, she cannot use the computer for long periods because of her shoulder pain. The plaintiff agreed she did not know whether she could do these sorts of jobs unless she tried them. She would love to work but there were issues of her reliability.
Activities
37 Prior to the accident, the plaintiff enjoyed a very active life. She and her husband were very keen football followers and used to go to Melbourne every two to three weeks during the season to watch AFL matches. The plaintiff now avoids going to the football. The drive to Melbourne is too painful and being out in the cold and sitting in one position causes her too much pain.
38 Over the summer season the plaintiff and her husband used to go to the MCG occasionally to see a one day cricket game or watch a day of Test cricket. However, since the accident, the plaintiff no longer feels able to attend the cricket.
39 The plaintiff and her husband used to love going to the theatre or cinema in Ballarat and in Melbourne. The plaintiff can now no longer sit comfortably for long enough to watch a film. They also enjoyed attending car racing at Phillip Island, Sandown or Calder, which was a big day out. The plaintiff is now prevented from engaging in this interest because of her shoulder and neck pain.
40 The plaintiff has substantial difficulty interacting with her grandchildren as she would like. In the past she was always able to be active with them, picking them up and playing games and so forth and now she has to avoid such activities.
41 The plaintiff is able to do very limited gardening. She can use a ride-on mower and she does some pruning with her left hand.
42 The plaintiff does the cooking and the washing. She has problems with lifting heavy kitchen utensils from the low height of the oven because of her shoulder pain.
Horses 43
The plaintiff has had a close association with horses all her life. They have been a passion of hers for decades. The previous four generations of her family have trained horses. She started riding at about the age of three.
44
Prior to the said date, the plaintiff rode two to three times per week. For some time during the 1980s she was unable to ride because of her back condition. Since the accident she tried to ride once in February 2002 but she has not ridden since. Riding horses now causes her too much pain. She is very upset that her interaction with horses is now so restricted because of her injuries.
45
The plaintiff has held an owner-trainer’s licence on and off since around 1979 and continuously held a licence for the last ten years or so. In re examination, she explained that her licence had lapsed a long time before 2001.
46
Since taking up her licence again, the plaintiff has trained twelve horses, four of which have raced. She has trained on and off every year since the accident. The plaintiff’s most successful horse in terms of prize money was “Roman Spirit” which she leased until it broke down in July 2008, having won prize money totalling about $35,000.
47
Since the accident, there has never been a time when there has not been a horse on the plaintiff’s property. Prior to the accident, the plaintiff used to work the horses daily. This was a hobby that she dreamed one day she might be able to turn into a growing concern. However, since the accident, the plaintiff is restricted in what she can do and she finds it very difficult to control her horses.
48
The plaintiff and her husband still own seven horses, two of which are unraced racehorses. The plaintiff feeds these horses, and also the horses agisted on her property, when she has to. She puts the feeds together and delivers them to the paddock, along with the hay. She generally carries feed buckets in her left hand. Most of the time she throws lucerne over the fence with her left hand, holding the bag of feed in her right. She has help feeding the horses from her husband and also from a friend, Amy Peace.
49
On the said date the plaintiff and her husband lived in Invermay. They had horses agisted at Mt Rowan. It was too much for the plaintiff to drive backwards and forwards from her home to Mt Rowan to see the horses and tend to them. As a consequence, in November 2004, the plaintiff and her husband moved to the Mt Rowan property, where they currently live.
50
The plaintiff was cross examined at length about her training and agistment activities. At times she loads the horses onto the float but they have been taught to self-load. She puts a tail strap behind the horses in the float. She drives the horses to the track for work.
51
The plaintiff explained that it is not difficult leading a horse as she chooses the one she leads. She leads as often as she has to if there is no one else to help. She agreed that when the horses play up they can give her “a decent tug”.
52
When she attends track work the plaintiff just supervises. Her husband helps her two or three mornings a week, as does Amy. It is not heavy work for her. The bridle and saddle are not difficult to put on the horse and the blanket is not heavy.
53
With or without help, the plaintiff goes to the track every day but not every week. The vast majority of time she goes to track work six days a week. She has had some weeks where she has not gone to the track because she has been unable to get out of bed for four days. This has happened more than twice a year. She last took her own horse to the races in July 2008 but she has taken horses for other trainers since then.
54
The plaintiff could be at the track by herself, sometimes once or twice a week. At other times she is not alone. It takes the plaintiff an hour and a half to supervise and watch track work with two horses. It can be active at track work when the plaintiff might have to go onto the track. The plaintiff agreed she did manual work on days when she was at the track on her own.
55
Danny Crozier rides the plaintiff’s horses at track work. When track work is finished the plaintiff takes the horses to the washing shed next to the stall and scrapes the horses at times. She very rarely washes the horses. At times she also cleans the horses’ feet. The plaintiff explained that these are not difficult tasks.
56
In cross examination, the plaintiff agreed that the chestnut she currently has in work is a little unruly. It wears a rearing bit. Every day in the week prior to the hearing she took that horse to the track and loaded it onto the float.
57
The plaintiff had a flare up in her neck and shoulder pain and spent the weekend before the hearing in bed. She “overstepped the boundaries” at track work on the Saturday when she had to restrain the filly which was being difficult. She had to continue what she was doing and she then went home.
58
In 2002 following the accident, the plaintiff registered a business called Erinbank Performance Horses (“the business”) through which she wished to conduct horse training and horse agistment. She felt that if her condition improved then she may even be able to make some money out of the business. Unfortunately her condition has not improved and the business has always made a loss. The plaintiff claims the costs of stud fees for her brood mares, together with other expenses, through the business.
59
In cross examination, the plaintiff said the business started in 2000 under the same name but on a more casual basis, with horses being agisted on her property for friends. The plaintiff agreed that it was not right to say she had not worked since the accident because she was running the business of agisting horses for other people.
60
There are presently five horses agisted on the property. On average there have been two to three horses agisted there since 2002. The plaintiff agreed that sometimes the business occupied a large proportion of her time. She fed, looked after, rugged and maybe exercised the horses that were agisted at her property for clients. She disagreed it was a full time job. At most she would now spend an hour a day on the business. Besides feeding the horses, she may change their rugs once or twice a week.
61
The business has made a loss every year. There are no paid employees and the plaintiff is the sole proprietor. She has met the business expenses from money bequeathed to her by family members.
62
The plaintiff has struggled over the last few years with training and with looking after the horses on the property. She intends to continue to be involved in the horse industry “because it is a thing that keeps her going and interested in life”.
63
The plaintiff still attends race meetings quite regularly at places like Warrnambool or Coleraine, and usually goes to the races with Danny Crozier. Longer trips cause her increased pain so she has to get out of the car and stretch and try and relieve the pain. Usually she does not go for a whole race meeting but just attends for one or two races.
64
The plaintiff recently attended the Warrnambool Carnival with some difficulty, having to sit down for a lot of the time during the day.
Current Treatment
65 The plaintiff continues to see Dr Faull, who prescribes Neurontin, Panadeine Forte, Digesic, Celebrex, Valium and Zoloft. In addition, he occasionally prescribes Endep and Lyrica when the plaintiff’s pain is more severe.
66 The plaintiff has continued to attend Dr Vivian reasonably regularly. He has performed a number of radiofrequency neurotomies. The plaintiff last saw Dr Vivian the week before the hearing. Dr Vivian then told her he was going to apply for funding for a further neurotomy as, due to a technical error the last time the procedure was carried out, the procedure had not worked.
67 The plaintiff has obtained some relief from her neck pain following the neurotomies but her pain has remained and the benefit slowly wore off.
68 In cross examination, the plaintiff agreed that since the neurotomies she had become more active and her condition has improved. She does not have the level of restriction in her activities that she described to Dr Horsley in June 2008 when she told her all activities had ceased or been significantly curtailed.
Current Condition
69 The plaintiff continues to suffer virtually constant neck pain and regular muscle spasms in the muscles around her neck and right shoulder. Those spasms cause severe pain which is greatly incapacitating for a day or so. Her neck and shoulder movements are restricted, although the degree of restriction varies.
70 The plaintiff is naturally right handed. Her right arm feels weaker than her left. Her shoulder movements are sometimes restricted. Her neck and shoulder pain is made worse by activity and holding her head in the one position for too long. On occasions it is difficult for her to say whether the pain originates from her neck, her shoulder or both.
71 When asked in court to demonstrate her level of arm movement, the plaintiff was able to raise her arm to about eye level. She could put her arm out to the side to a little over forty five degrees.
72 The plaintiff finds it very difficult to sleep without taking significant medication before going to bed and even then she wakes throughout the night because of shoulder and neck pain.
73 As a result of her injuries, the plaintiff has been a lot less active since the accident and as a consequence she has put on a great deal of weight. She finds it impossible to keep her weight under control because she can only get very limited exercise.
Summary of the Plaintiff’s Taxation Returns
Financial Year Employer Gross
1997-1998 Country Fire Authority $32,109.00 1998-1999 Country Fire Authority $35,429.00 1999-2000 Country Fire Authority $35,880.00 2000-2001 Termination Payment $35,037.00 Daylesford Secondary College $18,315.00 Country Fire Authority
$22,265.00 $75,617.00
2001-2002 Daylesford Secondary College $43,749.00 Less: Rental loss
-$1,766.00 $31,983.00
2002-2003 Daylesford Secondary College $34,157.00 Erinbank Performance Horses loss
-$10,354.00 $23,803.00
2003-2004 Daylesford Secondary College $35,059.00 Erinbank Performance Horses loss
-$28,116.00 $ 6,943.00
2004-2005 Daylesford Secondary College $36,658.00 Erinbank Performance Horses loss
-$9,836.00 $26,822.00
2005-2006 Daylesford Secondary College $2,025.00 Erinbank Performance Horses loss
-$41,059.00 ($39,034.00)
2006-2007 Erinbank Performance Horses loss ($45,222.00) 2007-2008 Erinbank Performance Horses loss ($18,009.00)
Lay Evidence
74 The plaintiff’s husband, Paul Potter, swore an affidavit on 29 October 2008. He has been married to the plaintiff since 3 May 2001, having met her in 1995 whilst they were both working at the CFA.
75 The plaintiff was not training horses at the time they met. Her only interest in horses at that stage was showing them at agriculture shows. She had commenced that interest in the late 1990s, continuing to approximately 2001, when she gave it up to train thoroughbred horses prior to the accident.
76 Mr Potter noted that after the plaintiff finished work at the CFA she had more time to embark upon racehorse training seriously and her involvement encompassed all tasks, such as lifting and carrying rugs, gear, feed, sweeping, raking stables, hands on control of the horses and loading and unloading of horses onto floats.
77 Since the accident, the plaintiff has curtailed but not totally withdrawn from her involvement in training horses. She can still manage the lighter activities associated with training, but she has delegated most of the hands on work to others, including himself.
78 Since the accident, Mr Potter has observed the plaintiff continue to take a small part in the hands on activities, like throwing a rug over a horse, but she has modified her involvement. She throws the rug over the horse and puts on the saddle from the other side than she would normally do, being right handed.
79 Whilst the plaintiff has carried horse rugs, picked up manure and swept the stables, he has not seen her rake or clean out or fill horse boxes. The plaintiff still takes the reins of a horse to lead it but she will take them in her left hand and only use her right in a sense to support the reins.
80 Almost on a daily basis the plaintiff goes to the track to train horses. She is capable of driving a car and frequently drives from home to the track.
81 On arrival at the track the plaintiff carries the race bag which contains reins, a towel and a squeegee but she does not carry the saddles. She gives orders to those helping her as to what she wants done with the horses.
82 Prior to the accident, the plaintiff was a keen gardener. They now have forty nine rose bushes at Mt Rowan and the plaintiff just prunes those over a period of time. Prior to the accident, the plaintiff was actively involved in weeding and lawn mowing but he does that now.
83 Since the accident, he and the plaintiff have received home help cleaning and bed making. Initially they received an hour and a half of help per fortnight, during which time the heavier household tasks were done. From time to time the plaintiff helps change the sheets on the bed but she does not attend to harder, more strenuous physical activities. The plaintiff still attends to general cooking as it is only for the two of them, save for when their granddaughter comes to stay. If there is any heavy lifting, he does it.
84 Since the accident, he has been responsible for all the household ironing, except for the race colours, which the plaintiff will not trust him with. The plaintiff loads the washing machine and he removes the washed clothes and hangs them on the line because she cannot lift her arms above shoulder height.
85 Mr Potter deposed that since the accident, the plaintiff’s quality of life had been greatly diminished by her injury. Her main interest in race horses had been restricted. He and the plaintiff have a very limited social life, limited largely by her constant pain which affects her sleep patterns, resulting in disrupted sleep throughout the night, particularly during the nine weeks after each nerve ending procedure. In those times he has felt he has had to sleep in another bedroom to at least get some uninterrupted sleep. Their sex life has deteriorated markedly since the accident largely due to the plaintiff’s constant pain.
The Plaintiff’s Medical Evidence
86 Dr Faull at the Ballarat Group Practice first saw the plaintiff after the accident on 22 June 2001 when she presented with a soft tissue injury to her neck. He noted at a subsequent consultation on 6 August 2001 that she was also suffering a soft tissue injury to her lower spine.
87 On 26 October 2001, the plaintiff presented with a right shoulder painful arc suggestive of a rotator cuff injury. This was confirmed by ultrasound which demonstrated a full thickness tear of the right supraspinatus tendon.
88 Dr Faull noted the plaintiff also suffered from a chronic depressive illness, the onset of which predated her accident but had been exacerbated by it.
89 In November 2004, Dr Faull reported that the plaintiff was running her own horse training business which would indicate she was capable of work to which she was suited. However, in view of the chronic and refractory nature of her injuries, he felt it highly unlikely the plaintiff would return to her pre injury employment. He thought her current incapacity would be long term.
90 Dr Faull reported in October 2008 that he had not been involved in the active management of the plaintiff’s injuries and his role had been providing WorkCover Certificates, writing prescriptions and treating the plaintiff’s depressive illness. He noted the plaintiff’s pain management had been managed by Dr Kinloch and Dr Vivian.
91 Mr Andrew Byrne, orthopaedic surgeon, first examined the plaintiff on 3 December 2001 on referral from Dr Faull. At that time, examination confirmed subacromial tenderness of a marked degree in the setting of a reasonable range of motion but a painful arc was noted in flexion and abduction.
92 Mr Byrne advised the plaintiff she had evidence of a full thickness tear and suggested an arthroscope with a view to decompression and assessment of the rotator cuff for a potential repair.
93 On 18 December 2001, the plaintiff underwent a right shoulder arthroscopy where a subacromial decompression was performed. A tear involving the supraspinatus tendon was noted and repaired (“the shoulder surgery”).
94 The plaintiff attended Mr Byrne post operatively on 2 January and 7 February 2002. She described a fall which occurred a week after the shoulder surgery which she felt aggravated her shoulder. The plaintiff still had shoulder pain and felt Panadeine was not helping. She was having physiotherapy and he suggested continuing conservative measures.
95 On review on 1 March 2002, the plaintiff complained of a dull ache and she felt she was improving in part. At that stage Mr Byrne thought perhaps there was a cervical spine contribution to the plaintiff’s shoulder pain.
96 When seen on 15 April 2002, the plaintiff described right sided neck pain as well as shoulder girdle pain. Mr Byrne noted that an MRI scan of the right shoulder performed on 22 May 2002 showed no evidence of any rotator cuff abnormality or tear. An MRI scan of the cervical spine raised the possibility of mild disc degenerative change at C4-5 with mild left sided left neural foraminal narrowing.
97 On examination on 27 June 2002, Mr Byrne advised the plaintiff there may be a mild contribution from her cervical spine but there was no evidence of any ongoing shoulder abnormalities. He advised a trial of acupuncture.
98 Mr Byrne concluded that the plaintiff did not respond in the “usual manner” to the shoulder surgery. He noted ongoing pain was present at rest, as well as with activity, suggesting a possible neural basis for the pain. He has not seen the plaintiff since June 2002.
99 Associate Professor Collins first saw the plaintiff on 23 August 2002. On examination, he noted there were no definite neurological abnormalities in the upper limbs. There was pseudoparesis with right shoulder abduction due to pain. The cervical spine showed a generally restricted range of movement with aggravation of the pain with right lateral flexion and rotation. There was a trigger point in the upper right cervical paraspinal muscle with palpation, causing referral of pain to the right medial scapular.
100 Associate Professor Collins thought the plaintiff was likely to have chronic cervical soft tissue pain syndrome which may have a muscular origin or at least a musculoligamentous origin. He wondered whether the pain was coming from the upper trapezius with referral approximating the anatomical distribution of the trapezius muscle. Having noted the relatively normal MRI scan of the cervical spine, he thought that would further circumstantially support a more superficial musculoligamentous basis to the plaintiff’s pain. He noted because of the plaintiff’s hand symptoms he was organising an electrophysiological study. If further testing did not show any serious explanation for her sensory symptoms, he wondered whether the plaintiff would be best undertaking a trigger point injection to see if it could help with her pain syndrome.
101 The plaintiff was reviewed by Associate Professor Collins on 31 October 2002. He noted the entirely normal test regarding carpal tunnel. He thought the weakness of the right arm was on the basis of pseudoparesis secondary to pain, which he said was really very common in chronic regional soft tissue pain syndromes from which he believed the plaintiff was suffering.
102 Giving the finding on investigation, he thought the most likely diagnosis was that of a soft tissue regional pain syndrome centred around the shoulder girdle muscles with extensive referral.
103 In July 2003, the plaintiff was first examined by Dr Bruce Kinloch, consultant physician in pain medicine and rehabilitation. On examination, Dr Kinloch noted a very poor range of cervical motion and that the range of motion of the right shoulder was quite reasonable for post repair.
104 Dr Kinloch felt the plaintiff had developed a chronic pain syndrome and there were also issues of mechanical back pain, in relation to which the plaintiff was referred to a spinal physiotherapist.
105 When Dr Kinloch reviewed the plaintiff in March 2003, she had developed low- back pain with left sciatica and a lumbar MRI scan was requested, which showed mild degenerative change. Dr Kinloch noted the plaintiff completed the Epworth Pain Management Program in September 2003 and she was then commenced on Neurontin.
106 Dr Kinloch reviewed the plaintiff in October 2003, September 2004 and in January 2005. He noted she was using wheat packs and ice for her right shoulder girdle pain and spasm, and that she was continuing to take Celebrex and Zoloft, and she found that Neurontin was giving her a good night’s sleep.
107 The plaintiff was next seen in December 2005 when she was still suffering chronic neck pain and quite significant disability. Dr Kinloch then referred her to Dr Vivian.
108 Dr Kinloch last saw the plaintiff on 29 November 2007. He then noted that the plaintiff still had quite significant pain and disability from the neck injury and he suggested repeat neurotomies as they had previously been successful.
109 In Dr Kinloch’s view, the plaintiff had a reasonably substantial disability as a result of her chronic neck pain and that was likely to be permanent and to prevent her from returning to her former work as a business manager. He described her condition as chronic relapsing neck pain with some response to denervation procedures. He considered her condition to be substantially stabilised.
110 Dr Vivian first saw the plaintiff on 20 February 2006. On initial examination, he found there was limited neck movement because of pain. There was restricted shoulder movement. He noted resisted shoulder movements did not reveal persisting rotator pathology and there were no neurological abnormalities in the upper limbs. There was tenderness in the neck.
111 In Dr Vivian’s view, the plaintiff had neck origin pain from around the C4 facet joint which could be tested with medial branch blocks. There was right shoulder pain which he thought was referred from the neck largely, but there could have been a mild element of capsulitis. He wondered whether at some stage it would be worth trialling another hydrodilatation.
112 Dr Vivian has carried out a number of diagnostic and therapeutic procedures. A right C4-5-6 medial branch block was carried out on 24 May 2006 which was negative for shoulder pain, equivocal for neck pain and positive for headache.
113 On 21 June 2006, a right third occipital nerve C3-4 medial branch block was performed. There was a positive block for neck pain with minimal numbness. That suggested to Dr Vivian that the block only was effective at C3-4 and he considered one further diagnostic block that included the right third occipital nerve was of relevance. He noted as the previous block was less positive, it seemed possible he might be able to do something to help the plaintiff with her neck pain. In his view, the burning interscapular pain did not derive from any of the joints as far as C5-6.
114 On 26 July 2006, a right C6-7-8 medial branch block was performed. The C4- 5-6 block was negative for all pain. The C2-3-4 joint block was positive for neck pain but negative for shoulder pain; this block was positive for shoulder/arm pain at a sixty per cent or thereabouts diagnostic level (amount of pain relief). In his view, the blocks suggested multi-level facet joint contribution to pain and that with one negative and two positive blocks it was reasonable to perform a radiofrequency neurotomy.
115 On 13 October 2006, the plaintiff underwent a right third occipital nerve C3-4 radiofrequency neurotomy.
116 On review on 6 February 2007, Dr Vivian noted that that neurotomy had helped the plaintiff’s neck pain and headache and noted that her pains were typically none out of ten, that none of the previous pain had recurred and the shoulder and arm pain was the same. He noted the plaintiff also had a new pain in the right cervicothoracic region. He noted the plaintiff felt she could do things easier than before and the scapular pain was the one that stopped her doing more.
117 On 14 March 2007, the plaintiff underwent a right C5-6 medial branch block. On 5 April 2007, she underwent right C5-5 radiofrequency neurotomy.
118 On review on 30 July 2007, Dr Vivian noted that the plaintiff had had a few incidents with a horse hitting her on the top of her head, knocking her out, and a few weeks later having a fall and being knocked out. The plaintiff thought the April 2007 neurotomy had helped. Her pain was under better control, the arm pain disappeared and the upper scapular pain was easier. She was taking fewer pills. Since these other incidents her pain had recurred but it was different, it seemed to be in a different area, more right lateral, and the scapular pain was in another area and she had headaches again.
119 On 16 January 2008, the plaintiff underwent right third occipital nerve C3-4 radiofrequency neurotomy.
120 Dr Vivian carried out a further cervical radiofrequency neurotomy on the right C5-6 medial branch and a right shoulder hydrodilatation on 15 August 2008.
121 A right cervical radiofrequency neurotomy was carried out on 16 January 2009. Dr Vivian noted that it had not made any difference and the plaintiff’s pain was prominent in the right neck to the shoulder and scapula and the right arm as far as the elbow.
122 On examination on 12 May 2009, the plaintiff described pain scores of typically seven out of ten and the pain in the neck was often a burning pain and could be associated with neck spasm. He noted the plaintiff’s arm pain had only recurred in the last month.
123 On examination, there was no third occipital nerve numbness. The plaintiff’s right shoulder movements were somewhat reduced and produced neck/scapula pain. Dr Vivian diagnosed persistent neuropathic pain. In terms of further management, he suggested a request be made to repeat the upper cervical radiofrequency treatment and do a shoulder injection.
124 In Dr Vivian’s view, it appeared that the plaintiff’s neck pain and sacral pains arose from the accident. He considered there had been various incidents subsequent to that time that may have aggravated her symptoms but probably not caused further injury.
125 Dr Vivian determined the plaintiff had chronic pain that may be associated with generalised sensitisation of the pain system, together with specific injuries to the cervical facet joints.
126 In his view, the plaintiff was chronically disabled and she was unlikely to recover from the effects of the accident and therefore would have longstanding disability. He noted that if the procedures he had undertaken had given longstanding pain relief, they may be required to be repeated regularly over the years.
127 The plaintiff was examined by Mr Schofield, orthopaedic surgeon, on 17 July 2008. At that time the plaintiff complained of neck pain which she said was “not too bad”. She had post occipital headache, referred pain into the right scapular radiating to the elbow and restricted movements. She also had a minimal amount of low back pain.
128 On examination, Mr Schofield noted the plaintiff appeared mildly depressed. Her neck was tender without deformity. She had a restricted range of movement which was moderate but appeared to represent some reservation of effort, especially in the flexion range. Neurological examination of the upper limbs was normal without any muscle wasting. There was a functional weakness of grip in the right hand, as well as elbow flexion and extension.
129 Mr Schofield noted there was no wasting of the right shoulder muscle compared to the left. Again, movements of the right shoulder appeared to represent some reservation of effort with a markedly restricted range of movement.
130 Mr Schofield thought that the plaintiff presented with significant mixed orthopaedic and non orthopaedic aspects of her injury with long term consequences. He noted that the previous MRI scan had failed to identify any significant long term orthopaedic condition which could cause the persistent pain in her neck and right arm. In his view, the anatomical reason for the plaintiff’s pain had not been identified.
131 On examination, Mr Schofield believed there was a significant functional overlay in his assessment of the plaintiff’s right shoulder movements and that further investigation should be done to determine if there was any ongoing disability from the previous tear and repair.
132 Mr Schofield believed it necessary to assess the non orthopaedic aspects of the plaintiff’s condition. He noted that the orthopaedic injuries appeared to have been relatively minor in the neck but with a full thickness tear in the right shoulder.
133 Mr Schofield considered the nature of the plaintiff’s injuries included soft tissue injury trauma to the lower cervical discs in the neck and soft tissue injury to the right shoulder. In his view, the plaintiff’s current orthopaedic condition appeared to have significant amplification due to the non orthopaedic aspects which followed the injury. He noted it was difficult to assess the true nature of the plaintiff’s orthopaedic disability without an up to date investigation.
134 From an orthopaedic point of view, Mr Schofield considered the plaintiff’s prognosis to be good and that her condition had stabilised. Further, from an orthopaedic point of view, he noted there had been some interference with the plaintiff’s recreational and social activities as a result of her injury but that degree of disability had to be disentangled from the non orthopaedic aspects which followed the injury.
135 Mr Schofield thought the plaintiff was not fit for her pre injury duties but she was fit to perform restricted duties.
136 Dr Robyn Horsley, occupational physician, examined the plaintiff on 26 June 2008. The plaintiff told Dr Horsley she had ongoing neck pain and right shoulder girdle pain and that the discomfort had settled somewhat in the cervical spine since the January 2008 neurotomy. She described her level of discomfort prior to the neurotomy at nine out of ten on the visual analogue scale on a chronic basis, but since then it sat at between four and six out of ten.
137 The plaintiff told Dr Horsley that her hobbies and interests prior to her injury included horses; gardening; going to the football; attending theatre; fishing; and motor sports as a spectator. The plaintiff told her all of these activities had ceased or been significantly curtailed since her injury.
138 On examination, Dr Horsley noted the plaintiff’s weight gain to one hundred and five kilograms from eighty nine kilograms before the accident. Dr Horsley found there was a gross restriction of cervical movement and a significant restriction in right shoulder movement.
139 Dr Horsley diagnosed mechanical cervical dysfunction. She noted the plaintiff had degenerative change at the C3-4 facet joint, noted radiologically. Further, the plaintiff had sustained a full thickness tear to the right shoulder girdle and presented with a regional pain syndrome. In her view, the plaintiff also presented with symptoms highly suggestive of a major depressive disorder which required further evaluation.
140 Dr Horsley considered the plaintiff was clearly in need of psychological intervention. She thought that the plaintiff would benefit from re-referral to the Pain Management Program at Epworth Hospital. She noted the plaintiff’s physical tolerances had diminished and that the plaintiff had remained disability focussed and her level of participation in activities of daily living had significantly declined.
141 In Dr Horsley’s view, the plaintiff had no capacity for work, and that was likely to continue into the foreseeable future unless a pain management program and psychological assistance reduced her level of disability.
142 In addition to mechanical cervical dysfunction and a tear to the supraspinatus tendon, Dr Horsley considered that the accident had resulted in the development of a chronic pain syndrome and the plaintiff’s pre-existing history of depression had been exacerbated with her increasing level of pain and reduced disability.
143 In Dr Horsley’s view, the prognosis for a return to work was very poor and she believed that various work restrictions should apply, such as avoidance of pushing and pulling, over shoulder activities, repetitive neck flexion, repetitive bending, and avoidance of prolonged sitting or static posture.
144 Dr Weissman, psychiatrist, examined the plaintiff on 23 May 2008. The plaintiff told him that she had developed post-traumatic stress disorder relating to the bushfires in the 1990s when working at the CFA. She told him she saw a psychologist and was on medication and off work for a couple of months and then did not return to her pre injury employer. She told him that she was still very sensitive to the smell of fire and smoke.
145 On examination, Dr Weissman noted the plaintiff’s affect was restricted in range, subdued, depressed and anxious. There was no formal thought disorder. The plaintiff expressed mild to moderate primary or direct post- traumatic stress and anxiety features and symptoms, and moderate reactive depressive symptoms and themes. There were no formal abnormalities of perception or current bad dreams. There was driver/passenger accident site and roundabout related activity, nervousness and hypervigilance. He noted the plaintiff’s cognition appeared to be intact and her insight and judgment were characterised by lowered self esteem and confidence and elevated health concerns.
146 Material with which Dr Weissman was provided from the Epworth Hospital Pain Management Program indicated the plaintiff had been taking Zoloft for many years prior to the accident.
147 The plaintiff told Dr Weissman she was not taking any anti-depressant medication at the time of the accident. He noted, because of that, her earlier condition had essentially resolved. He considered that she had a mild vulnerability to depression and anxiety but no pre-existing psychiatric impairment as such. He noted the plaintiff was working well at the time of the accident and only got married again three months before it.
148 In his view, the plaintiff was suffering from a mild to chronic post-traumatic stress disorder directly due to the circumstances of the accident. She was also suffering from a chronic adjustment disorder with depressed and anxious mood of moderate severity as a consequence of or secondary to her accident related pain, injury and disabilities.
149 Dr Weissman noted the plaintiff also seemed to be somewhat pain focussed with elevated health concerns. He was not saying there was no organic basis for her pain as, in his view, clearly there was. He noted he was simply suggesting there may be psychological, functional and non-organic factors amplifying the plaintiff’s perceptions, sensation, experience and reporting of pain. He noted the plaintiff seemed to have developed elements of chronic pain syndrome in this regard. He considered her psychiatric symptoms, conditions and impairment had stabilised.
150 In his view, due to the moderate nature, severity and extent of her accident related psychiatric symptoms, her presentation and her medical and surgical conditions, the plaintiff was most probably totally incapacitated for all work. He considered that she would benefit from psychiatric or psychological counselling, even at that stage, for her depression and anxiety.
151 In his view, on purely psychiatric grounds, the plaintiff had sustained a moderately severe long term psychiatric mental or behavioural injury, disturbance or disorder. It was not severe on purely psychiatric grounds alone. Having said that, Dr Weissmann noted that the plaintiff’s psychiatric injuries should be added in a narrative or qualitative sense to any physical or surgical conditions or disabilities that she had sustained and developed.
152 Dr Weissman thought the plaintiff’s psychiatric prognosis was fair. In his view, she was unlikely to return to any paid employment in the open labour market and he thought she would continue to experience moderate psychiatric symptoms and features for the foreseeable future.
Investigations
153 An ultrasound of the right shoulder carried out on 6 November 2001 showed a full thickness tear of anterior supraspinatus insertion. There was associated tendinopathy and mild bursitis. There was dynamic bursal impingement. There was incidental shallow bicipital groove with medial subluxation of the biceps tendon.
154 An MRI scan of the right shoulder performed on 22 May 2002 showed no evidence of any rotator cuff abnormality or tear.
155 Two MRI scans of the cervical spine have been carried out. The reports of these procedures were not tendered. It appears from medical reports that the MRI scan of the cervical spine taken on 22 May 2002 raised the possibility of mild disc degenerative change at C4-5 with mild left-sided left neural foraminal narrowing. An MRI scan of the cervical spine taken on 6 January 2006 showed minor disc degeneration with an osteochondral bar resulting in foraminal stenosis on the left at C4-5.
156 Electromyography carried out on 31 October 2002 to assess right hand sensory symptoms was normal with the only remarkable feature being pervasive sub-maximal voluntary efforts in proximal right upper limb muscles during needle electrode examination.
Vocational Evidence
157 A vocational assessment of the plaintiff was carried out by Ms Katrina Henderson of Evidex on 5 August 2008. Ms Henderson concluded that the prospects of the plaintiff securing and sustaining employment in the open labour market in the future were poor because of her injuries.
158 Having gone through a range of employment alternatives, in Ms Henderson’s view, all of the occupations for which the plaintiff had qualifications, work experience or transferrable skills – such as administration officer and finance and administration manager – had been found to be unsuitable for her following her injury. Ms Henderson concluded that the plaintiff’s opportunities for alternative employments were restricted to occupations which had no specific prerequisites, such as retail sales assistant or product quality controller. However, she considered such jobs were unsuitable as they exceeded the plaintiff’s medical restrictions. Further, on this basis, Ms Henderson also concluded that the job of horse manager was unsuitable.
The Defendant’s Medical Evidence
159 The plaintiff was examined on two occasions by Dr Leon Fail, psychiatrist, firstly, on 6 July 2000; and then on 22 November 2000. These examinations related to the plaintiff’s psychiatric treatment resulting from her employment at the CFA and her involvement in the Linton bushfires in December 1998.
160 Dr Fail reported that the plaintiff ceased work at the CFA in May 2000 “because she could not stop crying; she did not want to leave the house; she had headaches and diarrhoea”. When asked what caused her to go off work in May, the plaintiff told Dr Fail, “reluctantly and in very vague terms” that the straw that broke the camels back was that a colleague had made some accusations of impropriety, in that the plaintiff was alleged to have gained some financial benefit from her job as finance administration manager.
161 At the time of this examination, an investigation into these allegations was pending. The plaintiff was being prescribed Zoloft by her general practitioner and she had been seeing a psychologist monthly since January 1999.
162 As at November 2000, the plaintiff was continuing to take Zoloft but was seeing a different psychologist. She had resigned from the CFA and she had obtained a position as the administrative manager with the VWA which she commenced in September 2000. The plaintiff told Dr Fail her employment was terminated on the day she commenced work after the VWA was contacted by the CFA and the plaintiff was advised that the VWA no longer had faith in the plaintiff’s ability to perform her role.
163 Dr Fail noted that the plaintiff stated she was successful in obtaining a position of coordinator at a legal centre but she turned down the job because she did not feel she could cope with it because she had developed a bad back and she was in hospital for seven days with her bad back. The plaintiff also advised that her psychologist had told her she would not be able to cope with the job.
164 None of these matters were put to the plaintiff in cross examination however she deposed to having spent a week in hospital in 1999 due to back pain.
165 In November 2000, the plaintiff was complaining of constant headaches and nightmares three to four nights a week. The nightmares involved dead bodies from the Linton fires.
166 Dr Fail found the plaintiff was suffering from a chronic post-traumatic stress disorder. He noted her chronic anxiety state appeared to have been exacerbated by allegations of impropriety at work and that there appeared to be no evidence that there was any foundation for that.
167 The defendant tendered Dr Faull’s clinical notes of an attendance by the plaintiff on 9 January 2001. Dr Faull recorded that the plaintiff was back working and that she had been weaned off Zoloft until a relapse.
168 The defendant relied, as did the plaintiff, on the reports from Associate Professor Collins dated 23 August 2002 and 13 October 2002.
169 Mr Scott, orthopaedic surgeon, examined the plaintiff on 31 October 2002, 1 May 2003 and 30 October 2003.
170 On the most recent examination, Mr Scott found there was a full range of movement of the cervical spine but the plaintiff complained of marked tenderness over the cervical spinal musculature. Movements of the right shoulder were markedly reduced and the plaintiff complained of severe pain at extremes of movement.
171 Mr Scott accepted, that as a result of the accident, the plaintiff sustained an acute soft tissue injury of the cervical spine with features suggestive of the development of a right upper limb radiculopathy as a result of her right cervical nerve root irritation, probably the result of a discogenic lesion. He thought she had suffered a right shoulder rotator cuff lesion which had been treated surgically and from which she had made a good recovery. He also diagnosed an anxious, nervous, depressive response.
172 On the last examination, Mr Scott noted there appeared to have been some minor improvement in the plaintiff’s condition but she continued to be severely disabled with a chronic pain syndrome or abnormal pain response, particularly affecting the right side of her neck, shoulder and upper limb without the evidence of any ongoing significant organic disability, although he stated there had been no evidence provided that she had had a CT scan of the cervical spine to exclude a cervical disc lesion.
173 Mr Scott considered the plaintiff totally unfit for work by virtue of her ongoing symptoms and an abnormal pain response, causing severe symptoms affecting particularly the upper right limb.
174 He noted there did not appear to be any significant non work related factors apparent but that there was a marked functional, nervous or emotional response which required interpretation by a consultant psychiatrist. He did not believe the plaintiff was fit to return to the workforce and he considered that she was unfit for her pre accident job.
175 Dr Andrew Miller, occupational health consultant, examined the plaintiff on 20 June 2003. He noted that on examination, the plaintiff had difficulty undressing and redressing. There was normal alignment of the cervical spine. There was slight restriction of flexion, extension, left lateral flexion and left rotation of the neck. There was no muscle wasting, soft tissue swelling or joint effusion in the upper limbs. There was restriction of forward flexion, abduction and external rotation of the right shoulder.
176 In his view, the plaintiff had sustained chronic incapacitating injuries to her neck, back and right shoulder in the accident. His clinical examination revealed a moderate disability of her neck, back and right shoulder due to limitation of movements and local discomfort.
177 Dr Miller considered the underlying pathology appeared to be a rotator cuff tear of the right shoulder and probable facet joint strain of the cervical and thoracolumbar spine.
178 Since it had been two years since the accident and the plaintiff had had surgery on her right shoulder, he did not expect any further significant improvement.
179 Dr Miller considered that the plaintiff had developed a chronic disabling pain which needed to be treated with careful pain management and he thought that attendances at a specialised pain management clinic would be useful.
180 Dr Miller thought the plaintiff was capable of working with restrictions, avoiding lifting in excess of five kilograms, moving her neck or back beyond a third of normal range, use of her hands above shoulder height, forceful pushing or pulling activities and prolonged static postures, such as sitting or standing in the same position for more than forty five minutes at a time.
181 Associate Professor Balla, consultant neurologist, examined the plaintiff on 18 October 2004. At the time of examination, the plaintiff complained of pain behind the right ear going through the shoulder blade present all the time. She also had pain going to the upper outer part of her right arm and in the elbow region. She was becoming very depressed but she was managing her depression better than previously.
182 On examination, Professor Balla noted the plaintiff appeared to move with discomfort and apparently in pain. Neck movement was limited by about twenty per cent on leaning to the right. The plaintiff could not lift her right arm beyond the horizontal as it caused pain in the shoulder and shoulder blade. There was tenderness to light touch over the base of the neck on the right and over the right shoulder blade. Neurological examination was normal but for a diffuse anatomical sensory loss affecting the whole of the right upper limb to pinprick and vibration sense.
183 In Professor Balla’s view, the plaintiff suffered an abrupt flexion-extension injury to the neck and back in the accident. His clinical findings indicated the plaintiff had had soft tissue injuries to her neck and low back. As far as the cervical spine was concerned, in his view, there was no actual evidence on clinical grounds that the plaintiff had nerve root compression, and he thought it was likely that some of the pain related to the abrupt flexion-extension injury to the neck with ligamentous strain and muscle injury. He noted after such injuries some degree of chronic pain can persist indefinitely. He also thought it was evident that the plaintiff was significantly depressed and that that was aggravating the situation.
184 Professor Balla’s diagnosis at that stage was soft tissue injuries with ligamentous strain to the cervical and lumbosacral spine. Depression was associated with the plaintiff’s present symptoms aggravating the situation. He considered there were a number of non organic factors clearly making the matter worse than would be on a purely physical basis.
185 Professor Balla believed that some of the plaintiff’s symptomology could be related directly to the original soft tissue injuries. Based on his observation and reports available to him, he thought it would be reasonable to attribute twenty five per cent directly to the physical injuries in the neck and low back as being related to the accident.
186 Professor Balla considered, as far as work was concerned, the plaintiff could not work in a position where she had to sit at a desk for long periods of time, but he suggested a workplace assessment should be arranged to see if there were any other types of activities she could be involved in.
187 Dr Hedley Griffiths, rheumatologist, examined the plaintiff on two occasions: firstly, on 24 November 2004, and most recently on 17 April 2008.
188 On the first examination, there was a full range of shoulder movement but the plaintiff’s right shoulder was painful at extremes of range and there was neck pain as well. Neck movements were reduced by about seventy five per cent in all directions but Dr Griffiths noted the restriction was quite variable from moment to moment, as was the plaintiff’s lumbar spine mobility. There were no neurological deficits in the upper nor the lower region and the plaintiff had generally brisk reflexes.
189 Dr Griffiths thought the plaintiff had sustained a soft tissue injury to her spine, and regional pain syndrome as a result of the accident. On the first examination, he said the reason for the plaintiff’s ongoing pain was unclear and there were features suggestive of illness conviction or possibly malingering.
190 Dr Griffiths noted that soft tissue injuries to the spine can often lead to long term pain for which no obvious cause can be found and that the mechanism is poorly understood. In his view, there was no evidence to suggest the plaintiff’s employment (the accident) was still a material contributing factor to the injury.
191 Dr Griffiths noted age related changes appeared to be affecting the plaintiff’s hands and they had no relationship to the original injury. He noted again her stated level of function, apparently not able to even operate a computer mouse, was at variance with her clinical signs.
192 In his opinion, there appeared to be considerable psychological issues impacting on the plaintiff’s current medical status which had no relationship to work. He found no objective physical impairment and he thought the plaintiff would have the capacity to perform light office work at least. He considered the nature of her condition would normally be expected to resolve with the passage of time. He thought the plaintiff also had regional pain syndrome affecting the right arm which he considered would also be normally expected to settle. He noted the plaintiff’s injury resulted in incapacity to perform work requiring heavy lifting or prolonged bending.
193 On re-examination in April 2008, Dr Griffiths noted the plaintiff walked in a very cautious manner but nonetheless co-operated with the consultation and examination. He observed her to be uncomfortable sitting for any period in excess of ten minutes as she would get pains, stabbing in the back and shoulder girdle. He noted the plaintiff occasionally became observably sweaty when she was suffering exacerbations of pain.
194 On examination, the right shoulder was moderately restricted on internal rotation and the plaintiff experienced pain with most movements of the shoulder. Cervical spine mobility was reduced by about seventy five per cent on formal testing, but Dr Griffiths noted the plaintiff seemed to move more freely when talking during the consultation. He thought there were no neurological deficits. Lumbar mobility was virtually normal compared to the significant restrictions shown on the earlier examination.
195 Dr Griffiths concluded that the plaintiff’s neck and right shoulder regional pain syndrome was effectively unchanged and her level of function had not really improved despite her apparent belief her pains had reduced as a result of the neurotomies.
196 Given her symptoms and signs had persisted for seven years without any objective improvement, Dr Griffiths considered the plaintiff’s pain and impaired function were likely to be permanent. He thought there were no surgical treatments appropriate and it was debatable whether the radiofrequency neurotomies had led to any objective improvement, although subjectively the plaintiff felt better. He thought she would probably require ongoing analgesic medication.
197 In Dr Griffiths’ view, the plaintiff could only do very light tasks, and even office work would cause an exacerbation of her shoulder girdle pain. He thought the plaintiff was not fit to perform any meaningful work and that incapacity was likely to be permanent. He noted that the plaintiff’s symptoms did not prevent her from doing domestic activities although she claimed she was much slower than she used to be. The plaintiff told him her only enjoyment was with horses and she can no longer ride them or do anything other than just feed them and change their rugs. He noted that all other leisure activities were apparently beyond her.
198 Dr Griffiths thought that the plaintiff was not likely to respond to any form of treatment now and it might be in her best interests if she was encouraged to be responsible for her own pain control. He was not convinced the neurotomies were of any significant benefit to her.
199 Dr Kotzman, specialist occupational physician, examined the plaintiff on 31 May 2006 for the purposes of an AMA assessment.
200 On examination, range of cervical movement was markedly restricted in all directions and range of motion of the right shoulder was moderately restricted on flexion and abduction. There were sensory changes in all the fingers which was not consistent with any peripheral nerve injury or radiculopathy and there was no significant muscle wasting in the arms.
201 Dr Kotzman considered the plaintiff was suffering from a chronic pain syndrome affecting the neck and right shoulder girdle and to a lesser extent, the low back as a consequence of an aggravation of cervical and lumbar disc degenerative disease and a right rotator cuff treated by arthroscopy.
202 Dr Barrie Kenny, psychiatrist, examined the plaintiff on 3 December 2004. He noted that on examination, the plaintiff gave the impression of being of average intelligence, she was not hallucinated, deluded or thought-disordered and there was no obvious impairment of memory, concentration or cognition.
203 From a psychiatric perspective, Dr Kenny diagnosed an adjustment disorder with depressed mood with a minimal degree of post-traumatic stress type symptoms. He noted if the plaintiff’s physical status was not as restricted as she claimed, it was quite likely her psychiatric status likewise was less severe than she presented.
204 Dr Kenny re examined the plaintiff on 5 June 2008 and confirmed his original diagnosis. On examination, he noted there was no impairment of memory, concentration or cognition. The plaintiff’s mood was marginally lowered and her flow of speech was normal and its content appropriate.
205 Dr Kenny considered any restriction on the plaintiff’s work capability depended upon her physical symptoms, not any psychiatric problems she may have. He did not believe that the plaintiff’s mild psychiatric state interfered in any way with her domestic and leisure activities.
Racing and Training Records
206 Records from Racing Victoria Limited indicated that the plaintiff was registered as an owner-trainer for the 2006-07 and 2007-08 racing seasons.
207 Racing Victoria Limited provided a report dated 8 September 2008 detailing the last ten runs of “Roman Spirit” between 10 October 2007 and 25 June 2008.
Video Surveillance
208 The plaintiff was shown on 1 August 2008 at around 9.30 am feeding three or four horses on her property for about eight minutes. She went between a couple of paddocks on a little tractor with a trailer carrying feed buckets. She operated the gears of the tractor with her right hand.
209 The plaintiff was wearing a glove on her right hand so she could mix the feed. She was shown carrying buckets of feed in both her right and left hands. At times she carried empty buckets. She was not shown using her left hand to any significant extent more than her right. She was not shown to engage in particularly heavy lifting with her right hand. At times she carried a biscuit of hay in one hand and a bucket in the other. At one stage the plaintiff climbed over a small fence to feed a horse – an activity she agreed earlier in cross examination she could do if she had to. On one occasion she was shown to throw hay using her right hand, having said earlier in cross examination that most of the time she used her left hand.
210 On 8 August 2008, the plaintiff was again shown feeding several horses just after 9.00 am for about nine minutes. Essentially she performed the same activities as shown on the earlier date.
211 In re examination, the plaintiff said the feed buckets carried by her were a third full. She disagreed that the majority of time she was carrying buckets in her right hand.
212 Later, on 8 August 2008, the plaintiff was shown on a couple of other occasions – sitting in her car at 11.54 am and later waiting for take away food in a noodle shop at 12.12 pm for about five minutes.
213 For two to three minutes the plaintiff was then shown standing putting petrol in her car. During that time she was resting her head on her right hand.
214 In cross examination, the plaintiff agreed she was using her right arm and neck and moving fairly freely in the noodle shop and at the petrol station. She explained that she held her neck at the petrol station because sometimes she needed support, and she was quite probably getting a spasm at that time.
215 Whilst the films show the plaintiff only feeding the horses for about eight minutes for two days in August 2008, I did not see any particular restriction of movement and the plaintiff seemed to freely use both arms in carrying feed bins and lucerne. There was no obvious overuse of her left hand or avoidance of right-handed activities.
Findings
Impairments pursuant to sub paragraph (a).
216 There is no dispute that the plaintiff suffered a soft tissue injury to her neck in the accident. Dr Horsley and Dr Miller considered that she also may have suffered mechanical cervical dysfunction. Dr Vivian, Dr Murphy and Dr Horsley were in the minority diagnosing a facet joint involvement in the plaintiff’s condition.
217 Further, it is not disputed that the plaintiff suffered injury to her right shoulder which was diagnosed as a right supraspinatus tear which was surgically repaired.
218 Whilst a serious injury as defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – see Richards v Wylie (2000) 1 VR 79 – I must be satisfied, at the date of hearing, that there are ongoing consequences which are organically based that can be described as “serious” pursuant to the statutory test – per Winneke P at pp 85-87, with whom Buchanan and Chernov JJA agreed.
219 I must be satisfied that the present basis or genesis of the plaintiff’s pain is organically based. If the basis of her pain is psychological or psychosomatic in nature, it would be erroneous to allow those consequences to intrude into a finding under sub paragraph (a).
220 However, when a person suffers a significant physical impairment it is not uncommon for a mental response to that impairment to follow. Where such a response is an expected consequence, it may be taken into account in determining the nature and extent of the physical injury: per Winneke P at p 87.
The Right Shoulder
221 Following the shoulder surgery there was no evidence of any right rotator cuff abnormality and no evidence of any rotator cuff tear shown on the MRI scan taken on 22 May 2002.
222 When the plaintiff was last seen by her treating orthopaedic surgeon, Mr Byrne, on 27 June 2002, he noted she had not responded in the usual manner to the shoulder surgery. He found there was no evidence of any ongoing shoulder abnormalities that required treatment.
223 The plaintiff has not seen Mr Byrne for nearly seven years. Treatment for her shoulder since that time has been physiotherapy at the Physical Health Centre at St John of God in Ballarat in September 2003. Dr Vivian has performed hydrodilatations to the plaintiff’s right shoulder in April 2007 and August 2008. Dr Vivian’s only comment after the second hydrodilatation was that the plaintiff’s arm pain had only recurred in April 2009 and that her shoulder movements were somewhat reduced on examination on 12 May 2009.
224 Other specialists who have seen the plaintiff for treatment have not considered the plaintiff has a significant shoulder problem.
225 In 2002, Associate Professor Collins thought the most likely diagnosis was that of a soft tissue regional pain syndrome centred around the shoulder girdle with extensive referral – noting pseudoparesis with right shoulder abduction due to pain. He made no separate diagnosis of any neck condition.
226 When Dr Kinloch first saw the plaintiff in 2003 he noted that her right shoulder was quite reasonable for post repair. He did not mention the plaintiff’s shoulder condition in subsequent examinations later in 2003, 2004, 2005 and 2007, save to say that the plaintiff was using wheat packs and ice for right shoulder girdle pain and spasm.
227 When Dr Vivian first saw the plaintiff on 20 February 2006 he noted that resisted shoulder movements did not reveal persisting rotator cuff pathology. He thought the plaintiff’s right shoulder pain was referred from her neck largely but he considered that the plaintiff could have a mild element of capsulitis there with end range movement producing some shoulder pain. His next mention of the right shoulder was in terms of the hydrodilatations he performed in 2007 and August 2008. The focus of Dr Vivian’s treatment since 2006 has related to the plaintiff’s cervical facet joints. When summarising the plaintiff’s accident related condition, Dr Vivian noted the plaintiff’s neck and sacral problems resulted from the accident and he made no specific reference to her right shoulder.
228 Any ongoing problems in relation to the plaintiff’s shoulder have been considered by other medico-legal examiners for both parties to form part of a chronic pain syndrome involving the plaintiff’s neck and back.
229 Mr Scott, in 2003, having found a full range of movement of the cervical spine and marked tenderness, thought the plaintiff continued to be severely disabled with a chronic pain syndrome or abnormal response without the evidence of any ongoing significant organic disability. He thought there was a marked functional, nervous or emotional response which required interpretation by a consultant psychiatrist. A subsequent normal MRI scan taken in 2006 would have allayed Mr Scott’s concern that there was no CT scan available to him to exclude a cervical disc lesion.
230 In 2003, Dr Miller, having found a moderate disability of the plaintiff’s neck, back and right shoulder due to limitation of movement and local discomfort, thought the plaintiff had developed a chronic disabling pain which would need to be treated by careful pain management.
231 In addition to soft tissue injuries with ligamentous strain to the cervical and lumbar spine, Professor Balla, in 2004, considered there were a number of non organic factors clearly making the matter worse than it would be on a purely physical basis. He found no evidence of nerve compression and he felt that the plaintiff was significantly depressed which aggravated the situation.
232 Dr Kotzman considered the plaintiff was suffering from a chronic pain syndrome affecting the neck and right shoulder girdle and to a lesser extent, the low back as a consequence of an aggravation of cervical and lumbar disc degenerative disease and a right rotator cuff treated by arthroscopy.
233 Together with the rotator cuff tear and mechanical cervical dysfunction, Dr Horsley considered, in 2008, that the accident had also resulted in a chronic pain syndrome and an exacerbation of the plaintiff’s pre existing depressive condition. She thought the plaintiff was clearly in need of psychological intervention and that she remained disability focussed.
234 In 2008, Dr Griffiths found no objective physical impairment and thought that there seemed to be considerable psychological issues impacting upon the plaintiff’s current medical status. He diagnosed neck and right shoulder regional pain syndrome, having found inconsistencies between the plaintiff’s levels of movement casually and on formal examination, when seen in both 2004 and in April 2008.
235 In 2008, Mr Schofield considered that there was a significant functional overlay in the assessment of the plaintiff’s shoulder movements. There was no wasting and he found some reservation of effort by the plaintiff in her movements on examination.
236 Mr Schofield did not believe there was an ongoing organic basis for the plaintiff’s neck complaints. In his view, the plaintiff presented with significant mixed orthopaedic and non orthopaedic aspects of her injury with long term consequences. He thought no anatomical reason for the plaintiff’s pain had been identified. In his view, the plaintiff’s orthopaedic condition appeared to have significant amplification due to non orthopaedic aspects.
237 In 2008, Dr Horsley, whilst of the view that the plaintiff’s shoulder condition went onto secondary adhesive capsulitis, considered the plaintiff had ongoing disability and presented with regional pain syndrome. In addition to mechanical cervical dysfunction, Dr Horsley thought the accident had resulted in the development of a chronic pain syndrome.
238 In 2008, Dr Weissman, psychiatrist, also considered the plaintiff to be somewhat pain focussed with elevated health concerns. He thought she seemed to have developed elements of chronic pain syndrome. Whilst not saying there was not an organic basis for her pain, Dr Weissman suggested that there may be functional, psychological and non organic factors amplifying the plaintiff’s perceptions, sensation, experience and reporting of pain.
239 Treating doctors, Dr Kinloch and Dr Vivian, have also found chronic pain to be a relevant factor in the plaintiff’s presentation.
240 Dr Kinloch, in 2006, considered the plaintiff had developed a chronic pain syndrome and there were also issues of mechanical back pain. Dr Vivian determined that the plaintiff had chronic pain that may be associated with generalised sensitisation of the pain system, together with specific injuries to cervical facet joints.
241 Counsel for the plaintiff submitted that the fact the plaintiff had reported improvement following the neurotomies indicated that there was an organic basis for her pain.
242 Whilst the plaintiff has reported significant relief of her neck pain following these procedures, her responses have not been consistent.
243 There was a positive block for neck pain at C3-4 in the June 2006 branch block procedure. After the October 2006 C3-4 neurotomy, the plaintiff reported that none of her previous neck pain and headaches had returned and her pains were typically none out of ten. However, following that procedure, she reported having developed a new pain in her right cervicothoracic region.
244 On examination in July 2007, the plaintiff thought the April 2007 neurotomy had helped but since two incidents when she had been knocked out had resulted in a recurrence of her pain but the pain was different and seemed to be in other areas.
245 A right cervical radiofrequency neurotomy carried out in January 2009 made no difference to the plaintiff’s condition.
246 Having noted that the plaintiff stated she had benefitted from repeated injections into the right side of her neck, Mr Schofield commented that the anatomical reason for this pain had not been identified.
247 Further, Dr Griffiths thought there were no surgical treatments appropriate for the plaintiff and that it was debatable whether the radiofrequency neurotomies had led to any objective improvement, although subjectively the plaintiff felt better. He was not convinced the neurotomies were of any significant benefit to her.
248 In summary, the plaintiff did suffer a physical injury to her neck and right shoulder in the accident, however I find that a mental or behavioural disorder has intervened and that disorder is responsible for her present impairment.
249 In this case there is a very considerable pain syndrome and non organic components to the plaintiff’s neck and right shoulder found by nearly all the doctors. This syndrome is not an expected consequence of the plaintiff’s physical injuries and it plays a significant role in her complaints of pain and restriction.
250 A finding of chronic pain syndrome is not one that requires an adverse finding in relation to the plaintiff’s credibility. I accept the plaintiff believes she has the reported pain and that she is not malingering.
251 In this case, the preponderance of medical evidence demonstrates that the consequences of the plaintiff’s chronic pain syndrome are producing her current impairment. The medical opinion that the plaintiff’s current symptoms cannot be explained by or are out of proportion to the underlying physical pathology was not challenged.
252 I do not accept that at the time of hearing the impairment to the plaintiff’s neck or shoulder has ongoing consequences which are organically based.
253 Accordingly, I dismiss the plaintiff’s claim pursuant to sub paragraph (a).
Psychiatric Impairment
254 Having found that the basis of the plaintiff’s present shoulder and neck pain is psychogenic in nature, it then follows from the decision in Richards v Wylie (supra) that a case of functional overlay/chronic pain disorder will fall for consideration under subparagraph (c) and not (a).
255 The plaintiff, to succeed pursuant to subparagraph (c), must establish a causal link between the initial compensable physical injury and a chronic pain disorder which meets the severe criteria.
256 In addition to a claim pursuant to subparagraph (a), the case was also opened by counsel for the plaintiff as one brought under sub paragraph (c) on the basis that there certainly was also a psychiatric element. As to any pre existing condition, it was submitted that the plaintiff was fragile psychologically when she started work at the College prior to the accident but she was well enough to start a new, fairly responsible job. Apart from the physical injury, it was submitted that there was the combination of an adjustment disorder and, to some extent, a chronic pain disorder.
257 Whilst opened, this issue was not really addressed in submissions, with counsel for the plaintiff concluding that he “did not rely heavily on it”. It was submitted that the evidence was overwhelming that the plaintiff was suffering from a physical injury.
258 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
259 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA, at 858, and Charles JA, at 860 to 861, to similar effect.)
260 In this case, where there is a pre existing psychiatric condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the accident is serious and long term.
261 In Petkovski v Galletti (1994) 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. . . .”
262 The plaintiff therefore, to reach the threshold of serious injury, is required to establish the aggravation is long term at the time of the hearing in its effects on her psychiatric condition and the effects of the aggravation must be very considerable.
263 I must be satisfied therefore that the aggravation resulting from the accident can be described as “serious”, namely, whether the consequences to the plaintiff of her psychiatric condition when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being at least “very considerable” and more than “significant” or “marked”?: Humphries v Poljak (supra) at 140, per Southwell and Crockett JJ.
264 Seven months prior to the accident, the plaintiff was assessed by psychiatrist, Dr Fail, in the context of her claim relating to her work at the CFA and her involvement in the Linton fires.
265 It is clear from Dr Fail’s reports that, in his view, the plaintiff was continuing to suffer from chronic post-traumatic stress disorder related to these issues in November 2000 and was being treated in relation thereto.
266 Further, I accept from Dr Faull’s note that the plaintiff was still taking Zoloft, anti-depressant medication in the year of the accident and he considered she was suffering from chronic depression at the time of the accident.
267 Since the accident, the plaintiff has undergone no psychological or psychiatric treatment and there has been no change to her medication regime, with the plaintiff continuing to take Zoloft.
268 The only psychiatric opinion in this case is of a medico-legal nature and is not supportive of the existence of a psychiatric condition that can be described as “severe”.
269 Dr Weissman, who obviously did not have Dr Fail’s reports, thought the plaintiff’s psychiatric condition had essentially resolved at the time of the accident. In May 2008, he diagnosed mild to moderate post-traumatic stress disorder and chronic adjustment disorder with depressed and anxious mood of moderate severity. He considered the plaintiff had moderate accident- related psychiatric, psychological, emotional and behavioural symptoms, signs and features.
270 Following examinations in 2004 and June 2008, Dr Kenny diagnosed an adjustment disorder with depressed mood with a minimal degree of post- traumatic stress type symptoms. He did not believe that the plaintiff’s mild psychiatric state interfered in any way with her domestic and leisure activities.
271 Since the accident, the plaintiff has continued to engage in a wide range of activities without experiencing any particular psychological problems. Significantly, she has been able to maintain a considerable level of activity relating to her interest in horses.
272 As was submitted by counsel for the defendant, this is not a case of someone who was “pottering around the house” after an accident. The plaintiff goes to the track six days a week the vast majority of the time; she drives the horse float; she loads the horses, including difficult ones; she rugs and saddles them using both hands; she feeds them using both hands; she attends race meetings, whether or not she has a runner; and she has taken other trainers horses to the races.
273 When she returns from track work, the plaintiff then looks after her other horses and those which are agisted on her property, feeding them and attending to their other needs.
274 Given this level of somewhat strenuous activity, I do not accept that the plaintiff is as restricted in her housework activities as she described.
275 Whilst the plaintiff gave evidence that she has been unable to ride horses since the accident, she gave evidence that she had to stop riding at some time during the 1980s because of her back condition. Similarly, she would have had difficulty riding with her back problem during 1999 when she was hospitalised because of her back pain.
276 Whilst not cross examined in this regard, I accept that the plaintiff’s ability to ride had been compromised for some time prior to the accident by her back problems which dated back to the 1980s.
277 The plaintiff conceded that the list of restrictions she gave Dr Horsley had changed since the neurotomies, after which she had experienced some improvement. The list was no longer a fair representation of her present position. Whilst the plaintiff agreed that she is much slower doing household tasks, she is not prevented from doing them. She can use a ride on mower and she does some pruning.
278 Insofar as work is concerned, whilst the plaintiff’s evidence is that she left work because of the shoulder surgery in December 2001, it is clear that before she left there were significant issues as to her capacity to do her work managing the budget.
279 Whilst she was initially somewhat reluctant to admit the effect this issue had on her, the plaintiff ultimately conceded that the matter was of concern to her, although it was not the reason she left work. Although it is somewhat unclear from the evidence, the plaintiff appears not to have worked beyond the 19 November meeting, up until which time she was doing her normal duties four hours a day. The plaintiff was not advised of the need for surgery until she saw Mr Byrne on 3 December 2001.
280 As the plaintiff conceded, she has in fact worked since the accident. In 2002, she decided to formalise her agistment activities, setting up the business after having run it on a more casual basis in the previous two years.
281 In addition to setting up the business after the accident, the plaintiff has obtained her owner trainer’s licence, having let it lapse a long time before the accident. She has continued to train at the same level since after the accident 2001 – never without a horse in work in any year thereafter.
282 It is somewhat difficult to accept that the plaintiff would obtain a training licence and decide to set up the business after the accident and continue to engage in both activities if she was as disabled as she suggests.
283 I accept that the plaintiff has made a lifestyle choice, returning to training and setting up the business. Having made this choice, she has not applied for any other work since leaving the College. Whilst the business continues to make a loss, the plaintiff is able to claim various expenses, such as stud fees for her brood mares, against the business’s income. She has chosen to continue in the business, financing its operation through various family bequests.
284 I do not accept, that with this level of physical activity involved in agistment and training of horses, that the plaintiff does not have a capacity for some type of clerical work. Her reliability, which she says is a barrier to her returning to work, is demonstrated by her ability to turn up to the track work six mornings a week the vast majority of the time.
285 On the limited psychiatric opinion available, there is no support for the plaintiff being incapacitated for employment on psychiatric grounds alone.
286 Dr Weissman, who thought the plaintiff was pain focussed, considered that combined with her medical and surgical conditions, plaintiff was most probably totally incapacitated for all work.
287 Dr Kenny considered, in June 2008, that the plaintiff’s psychiatric state did not preclude her from working and that any restriction on her work capability depended upon her physical symptoms not any psychiatric problems she may have.
288 Looking at the activities which the plaintiff continues to enjoy, her present lifestyle and the lack of any psychiatric treatment, save for Zoloft, which I find she was taking at the time of the accident, I do not accept that the plaintiff has a psychiatric condition which satisfies the “severe” test.
289 I do not accept that the chronic pain syndrome from which the plaintiff suffers meets the test of “severe”.
290 Taking into account these matters, I dismiss the plaintiff’s claim in relation to sub paragraph (c).
291 Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings for damages in relation to the accident.
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