Sanders v Transport Accident Commission
[2025] VCC 802
•20 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05716
| SHARMAINE SANDERS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2025 | |
DATE OF JUDGMENT: | 20 June 2025 | |
CASE MAY BE CITED AS: | Sanders v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 802 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – thoracic outlet syndrome – aggravation of cervical spondylosis – stenosis of the subclavian artery – whether abnormality in the brachial plexus is linked to the motor vehicle accident
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Findlay v Transport Accident Commission [2025] VSCA 126
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Ms P Prossor | Shine Lawyers |
| For the Defendant | Mr A Moulds KC with Ms J Clark | HWL Ebsworth Lawyers |
HIS HONOUR:
1Sharmaine Sanders claims that as a result of a motor vehicle accident on 5 February 2015 she has sustained “serious injury” within the meaning of that term in s93 (17)(a) of the Transport Accident Act 1986. Her claim breaks into two specific parts. First, that the motor vehicle accident caused thoracic outlet syndrome (“TOS”) on the left side resulting in impairment to her neck and left arm. Second, that in the motor vehicle accident she sustained an aggravation of cervical spondylosis resulting in impairment to her neck and left arm.
2The defendant denies that either injury was caused in the motor vehicle accident. Further, the defendant submits that if the TOS is not caused by the motor vehicle accident, then the impairment consequences which flow from it cannot be separated from the claimed impairment consequences related to any alleged aggravation of the cervical spondylosis.
3For the reasons which follow, while I find the plaintiff has TOS, I find that it is not caused by the motor vehicle accident. Furthermore, I do not find that the plaintiff sustained an aggravation of cervical spondylosis in the motor vehicle accident. I will deny the plaintiff’s application in respect of both injuries.
Brief relevant factual history
4The plaintiff was born in 1977. She is right-hand dominant. She attended school in Melbourne until about Year 11 and then began working general administrative jobs. She developed a serious form of endometriosis and was then in and out of hospital for several years. She ceased working completely around October 2008 and has not worked since that time. She remains currently on Newstart allowance. She was married, and has had one child. She is now separated.
5By way of past medical history, she suffered from periods of depression and anxiety after the separation from her former partner in about 2008. She had a knee arthroscopy in 2009, and then in around 2010 began to experience lower back pain. This worsened, and in 2012 she underwent back surgery being a decompression and internal fixation at the L4/5 level of her lumbar spine. She deposed to having ongoing pain in her back on the left side since that time.[1] She presented with symptoms which her doctor equated to fibromyalgia, and was ultimately referred to an orthopaedic specialist in early 2015 (before the motor vehicle accident) with multiple joint pain.
[1]Plaintiff’s Court Book (“PCB”) 10 at paragraph [9]
6The relevant transport accident occurred on 5 February 2015. She described the accident in the following terms:
“I was driving in Pearcedale. I was on my way to a friend’s house. My 18-year-old son was sitting in the front passenger seat. I approached a roundabout and slowed down. A vehicle collided with my car from the left. My car began to spin and came to rest on the other side of the roundabout.”[2]
[2]PCB 10 at paragraph [11]
7She went to the Dandenong Hospital and had an X‑ray. She presented with pain in the right hand, swelling and tenderness in the middle finger in particular. This was diagnosed as a fracture. She was placed into a volar slab and was told to return for follow-up. During follow-up it appeared that the fracture to the mid-shaft of the right middle finger required internal fixation. She was admitted for surgery on the right hand on 13 February 2015 to internally fix the right middle finger with plate and screws. She had a period of hand therapy thereafter.
8There is some dispute as to the onset of symptoms around the left side of her neck in the clavicular region. Leaving the dates aside for one moment, it is accepted that she developed a lump around the size of a pea in her left clavicle at the base of her neck on the left side. At first her treating doctor considered this to be a sign of an infective process and she was treated with a course of antibiotics. However, the lump persisted, and she ultimately came to consult with vascular specialist, Mr E Wong, in early March 2016. He arranged for a left upper limb CT angiogram.[3] After reviewing that, he informed her that he thought she had a stenosis of the subclavian artery on the left side. He made no comment that she had a finding of TOS.
[3] PCB 40
9She was then referred to the Monash Vascular Clinic and had a CT scan of her neck. Between 2019 and 2021 she had further reviews with vascular surgeon Mr Mark Lovelock in relation to the subclavian artery stenosis. He considered conservative treatment was warranted, as she was at that stage symptomless. He did not make a diagnosis of TOS.
10As to her neck, she had an MRI of her neck in May 2016, which showed a disc bulge with loss of disc height.[4] In respect of her neck problems she was referred to Dr Aliashkevich, neurosurgeon, in 2022. After reviewing her and the radiology,[5] he sought approval for C4/5 disc replacement and C5/6 anterior cervical discectomy and fusion. He wrote to the TAC seeking approval to conduct these surgeries, but this was denied, and the plaintiff has not had these surgeries.
[4] PCB 42
[5] PCB 54
11She was referred to Mr Thomas Kossmann, orthopaedic surgeon, for the purposes of a medico-legal consultation in 2023. In the course of that examination he concluded that she potentially had TOS. This appears to be the first time such a diagnosis was made. He suggested that she be referred to Associate Professor (“AP”) Scott Ferris, a plastic and reconstructive surgeon, who had a particular interest in TOS.
12She consulted with AP Ferris in 2023 and underwent further scanning. In August 2023, an MRI of the left brachial plexus suggested evidence of left TOS with incomplete occlusion of the left subclavian axillary artery when her arms were elevated.[6] On that basis, AP Ferris diagnosed her with post-traumatic TOS and recommended she undergo an open left thoracic outlet release and brachial plexus exploration. Funding was sought from the TAC but was refused. The plaintiff has not had that surgery.
[6]PCB 19 at paragraph [18]
Anatomy and terminology
13In this case the plaintiff has been diagnosed as suffering from a subclavian artery stenosis. That anatomy is best understood by having reference to the diagrams which have been supplied by the parties and are enclosed in the report of AP John Laidlaw.[7] These three diagrams are reproduced as Annexure 1 to this judgment.
[7]Defendant’s Court Book (“DCB”) 242; Annexure 1, Figure 1
14Stenosis is a narrowing of a structure or a duct or canal such as an artery.[8] It can be caused by an external compressive force or can be internally caused as the artery is clogged.
[8]W.B Saunders Company, Dorland’s Medical Dictionary (28th ed, 1994) page 1576
15Thoracic outlet syndrome is not one condition but a diverse group of disorders that results in compression of some components of either the brachial plexus and/or the subclavian artery or vein in the thoracic outlet, which is an anatomical area in the lower neck defined as a group of three spaces between the clavicle and the first rib.[9] This can be shown in the diagram reproduced at Annexure 1, which shows the arterial, neurologic triangle and the venous triangle.[10]
[9]DCB 244
[10] Annexure 1, Figure 3
16TOS can be caused without the presence of a stenosis in the subclavian artery. So for example a cervical rib may encroach into the space resulting in compression.
The plaintiff’s case
17The plaintiff in this case submits that she has suffered TOS as a direct result of the motor vehicle accident in February 2015. In particular, the plaintiff calls in aid the opinion of AP Ferris, who opines in the following terms:
“It is my opinion that Sharmaine’s thoracic outlet syndrome is a direct result of her motor vehicle accident. Prior to the accident she reports no symptoms consistent with thoracic outlet syndrome and subsequent to her accident there are early clinical assessments and ultrasounds which in retrospect strongly localise the problem to the thoracic outlet.
Subsequent to this early identification of a problem, Sharmaine has seen multiple specialists who have acknowledged vascular impairment but not appreciated the concurrent issue of the lower brachial plexus. Anatomically the lower trunk of the brachial plexus lies immediately next to the subclavian artery and is frequently compressed as a result of thoracic outlet syndrome. This dual compression is commonly seen and is an excellent explanation for many of Sharmaine’s longstanding symptoms.”[11] (my emphasis)
[11]PCB 101
18I will return to a consideration of that opinion shortly.
Does the Plaintiff have a stenosis of the left subclavian artery?
19Dealing with some reasonably non-controversial matters, first it appears that the plaintiff undoubtedly has a stenosis of the subclavian artery. This was first diagnosed on vascular ultrasound of 16 March 2016.[12] On review by Mr E Wong, vascular and endovascular surgeon, in March 2016, the investigations were highly suggestive of subclavian artery stenosis; but, in a situation where the elevated arm stress test was negative but there was an audible bruit, he ordered further Doppler investigation. That occurred on 10 May 2016.[13] As a result when she attended the vascular outpatients clinic at Monash, it was recorded that she had an incidental finding of left subclavian artery stenosis.
[12]PCB 72
[13]Ibid
20Mr E Wong noted on 17 June 2016, in a letter back to her treating doctor, that there had been an incidental finding of a left subclavian artery stenosis. However, he considered that her symptoms of a muscular and neurological nature were unlikely to be caused by the subclavian artery stenosis.
21When she came under the care of Mr Lovelock, vascular and endovascular surgeon, on 7 December 2018, he considered that while she had a narrowing of the subclavian artery it did not comprise a significant stenosis.[14]
[14]DCB 162
22It will be apparent from that review of material of the treating specialists that while they considered a stenosis of the subclavian artery was present, they did not consider it to have been caused by the motor vehicle accident or that it had any role in the development of TOS. In fact, neither Mr E Wong, doctors in Outpatients or Mr Lovelock, considered that she had such a syndrome at all.
23Turning to a consideration of the medico-legal reporting.
24Dr Hammond, physician, considered that she had a specific pathology, being a stenosis of the second segment of the left subclavian artery with a post-stenotic dilatation extending to the third segment.[15] I interpret this to mean that there is a narrowing, being the stenosis, in the second segment, and then a ballooning out of the subclavian artery in the third segment which constitutes the dilatation.
[15]PCB 122
25Mr Chehata, orthopaedic surgeon, dealt with the orthopaedic injuries to the right hand predominantly, and as such, makes no finding in relation to any stenosis.
26Mr Kossmann, orthopaedic surgeon, accepted that there was a proximal left subclavian artery stenosis.[16]
[16]PCB 150
27Turning to the defendant’s medico-legal reporting.
28The vascular specialist Dr John Vidovich, having reviewed the radiology from March 2016 onward, considered that in combination with clinical findings of Mr E Wong there was compression of the left subclavian artery.[17] I pause to note that he considered that it was also consistent with vascular TOS.
[17]DCB 215
29Before coming to that, I should also mention AP Laidlaw’s opinion that accepts there has been a stenosis of the subclavian artery, though as to whether or not it occurs in the second or third segment is an issue on which he is uncertain.[18]
[18]DCB 267-268
30The purpose of setting out that review is to make it clear that all relevant practitioners accept that there has been a stenosis of the subclavian artery. I find in concordance with that body of medical opinion.
31If it were necessary I find that the plaintiff has a stenosis of the subclavian artery which occurs at the second segment and leads to a dilatation into the third segment. I consider that finding to be supported by the imaging of 16 March 2016, being the vascular ultrasound at Monash, and again on 10 May 2016 by the CT angiogram of the left upper limb. This showed the left subclavian artery second segment stenosis with post-dilatation extending into the third segment, which is commented upon in AP Laidlaw’s report.[19]
[19] DCB 285; This is also confirmed in the scanning of 12 November 2018, a duplex scan taken by South
East Vascular Ultrasound and commented upon at page 287 of AP Laidlaw’s report. This is further
confirmed in the scan of 5 April 2019; and see also the commentary of Mr Lovelock of 8 June 2021
(DCB 178-179). This is also supported by the medico-legal reporting of Dr Vidovich on 30 July 2021
(DCB 217)
Does the Plaintiff have TOS
32Coming now to deal with whether or not the plaintiff has TOS, and, if so, whether it is necessary to define whether it is arterial, vascular or neurogenic TOS.
33Briefly, it can be seen that Dr Vidovich is of the opinion that there is a vascular TOS.[20] AP Laidlaw considers the plaintiff may have an arterial TOS but he is not definitive and defers to vascular opinion.[21] AP Ferris does not descend to detail whether or not the TOS is of a vascular or neurogenic nature. Mr Kossmann simply accepts the opinion of AP Ferris and does not describe the TOS in vascular, arterial or neurogenic terms. In considering his opinion, however, it is relevant to note that he, out of all practitioners, is the only one to diagnose the plaintiff with bilateral TOS.
[20]DCB 213
[21]DCB 271
34Overall, I do not consider there is much to be gained in an assessment of whether or not the plaintiff’s TOS is neurogenic, arterial or vascular in nature. The primary question to be answered in this application is whether or not the plaintiff has a condition which is causally related to the motor vehicle accident in February 2015.
35In this case, while all practitioners accept that there is a stenosis of the subclavian artery, there is a real dispute as to whether or not this is a constituent part of the overall diagnosis of TOS. However, if the stenosis of the subclavian artery is not related to the motor vehicle accident, then similarly the symptoms which flow from it cannot be related to the motor vehicle accident. In that circumstance, if the TOS is related to the motor vehicle accident, it is entirely unclear how its effects can be disentangled from the effects of the stenosis to the subclavian artery.
36In contemplating that question, the plaintiff’s primary position is that the opinion of AP Ferris, which I have set out above, should be accepted.
37There are several difficulties with accepting AP Ferris’s statement. First, AP Ferris does not identify what the early clinical assessments are that temporally link the TOS to the motor vehicle accident. Assuming he is referring to the plaintiff’s presentation with a pea-sized lump in her left clavicle region, it can be seen that this presentation first occurs on 13 May 2015.[22] Between the date of the motor vehicle accident on 5 February 2015 and 13 May 2015, while there had been attendances at the hospital and on the treating doctor, there had never been a complaint of pain in the left clavicle region. The doctor on 13 May 2015 thought that there was potentially an infection in the area, and so gave courses of antibiotics over a period. However, the first ultrasound to the area was only conducted on 1 March 2016, and this was some 13 months post the date of injury. It was not diagnostic for any stenosis or compression suggesting TOS. Thereafter, a clinical note of 7 March 2016 revealed that the plaintiff was getting lightheaded and dizzy when lifting her left arm up over her head over the last two weeks.[23]
[22]DCB 401
[23]DCB 406; DCB 284
38That appears to me to be the first clinical indication of the stenosis but it may also be a sign of TOS.[24] On the basis of that, a vascular ultrasound was then ordered. That clearly seems to indicate that the clinical sign was indicative of a vascular problem, and hence the specific investigation was ordered. That occurred on 16 March 2016,[25] one year after the motor vehicle accident. I do not consider that such a presentation could properly be described an “early clinical assessment” consistent with TOS.
[24]DCB 246-250
[25]DCB 284
39It must also be recorded that in the period from the motor vehicle accident on 5 February 2015 until March 2016 the plaintiff had been at the hospital on several occasions, both on initial presentation, and then again for surgery and follow-up. There had been no clinical indication similar to that found in March 2016. Certainly she had presented to her doctor on 13 May 2015, some three months after the motor vehicle accident, with the tender lump in the clavicle region,[26] but there appears to have been no indication of vascular compromise which would have resulted in a referral for a specific vascular investigation such as the vascular ultrasound conducted in March 2016.
[26]Ibid
40I accept that there was such a lump present in the left clavicular region, despite Mr Vidovich’s assessment that no such lump was palpable on his examination. I accept that there was a lump, given the overwhelming evidence by treating practitioners at the time that the lump was in fact palpable.
41Overall, I find the statement by AP Ferris of there being “early clinical assessments” consistent with a vascular compromise of the subclavian artery to be incorrect based on the chronology. This is a significant matter because he places such weight on it to link the motor vehicle accident temporally to the TOS.
42The elapse of time from February 2015 to March 2016 for the first presentation of clinical signs is commented upon by Dr Vidovich, and I accept that it makes it less likely that the motor vehicle accident played a role in the development of the subclavian stenosis. Rather, it tends to support the opinion formed by the doctor who attended her at the vascular outpatient clinic contemporaneously on 11 May 2016, who found that the left subclavian stenosis was an incidental one.[27] That is, that it was not specifically related to the motor vehicle accident or the lump in the left clavicle region.
[27]DCB 132
43It is also consistent with the findings of the treating vascular surgeon, Mr E Wong, who considered that there was no relationship between the lump found in the tender left clavicle area and the subclavian stenosis.[28] That opinion is supported by the opinions of AP Laidlaw, who demonstrated in addition that anatomically, the area of tenderness does not relate to the area found to be stenosed in the subclavian artery.[29] This is the second matter which seems to me to cast doubt on AP Ferris’s opinion. That is, that even if it were the argument that the complaints as to the pea-sized lump in the clavicular region were taken as an early clinical sign of the stenosis, the anatomy tends against that assumption. That is because the stenosis is well away from the presentation of the lump in the clavicular region.[30]
[28]DCB 115; DCB 135
[29]AP Laidlaw at DCB 267; see also Mr E Wong at DCB 115
[30]DCB 267
44The next issue the defendant pointed to with AP Ferris’s opinion was that he suggested there was some form of disturbance of the lower brachial plexus concurrent with the subclavian artery stenosis. However, it can be seen from the MRI scan of 9 August 2016 that the “left brachial plexus has normal appearance.”[31] A further MRI of 5 November 2021 specifically of the brachial plexus is reported “No brachial plexus abnormality is identified.”[32] Dr Aliashkevich confirmed this.[33]
[31]DCB 216
[32]PCB 54-55
[33]PCB 98
45It is clear however, that the scan commissioned by Mr Ferris in August 2023, is substantially different. It is in these terms: “Evidence of left thoracic outlet stenosis with incomplete occlusion of the left subclavian axillary artery with arms elevated. Suspected accessory muscle or hypertrophy of scalenus medius which elevates the left brachial plexus lower trunk. No cervical rib.”[34]
[34] PCB 88
46Though AP Ferris does not refer to this latest MRI of the brachial plexus up to that point, the radiology in respect of the brachial plexus does not support his theory of there being a dual compression, being the stenosis of the subclavian artery and that of the brachial plexus. This is a factor which tends against acceptance of his opinion as to the motor vehicle being a cause of the TOS. However it also supports a finding that the plaintiff does currently suffer from TOS.
47It is unclear how AP Ferris comes to the opinion that there is an abnormality in the brachial plexus linked to the motor vehicle accident when it appears normal on the radiology until the scanning in 2023. This normality is also commented upon by Dr Vidovich[35] and also AP Laidlaw.[36]
[35]DCB 216
[36]DCB 314
48In summary, I find that while the plaintiff does suffer from TOS on the left side, it is not caused by the motor vehicle accident for the following reasons:
(a) There is no temporal connection of symptoms consistent with TOS and the motor vehicle accident as AP Ferris suggests. He has operated on the incorrect chronological understanding of the presentation of symptoms;
(b) The contemporaneous radiology does not support a link between brachial plexus injury and the motor vehicle accident;
(c) The contemporaneous specialist opinion of Mr E Wong and Mr Lovelock does not diagnose TOS or ascribe her symptoms to the motor vehicle accident;
(d) There is no anatomical link between the presentation of the pea size lump and the site of the stenosis and/or brachial plexus compression;
(e) AP Ferris’s opinion cannot be accepted for the above reasons and as a result Mr Kossman’s opinion falls away. Further, Mr Kossman is the only one to diagnose a bilateral TOS. This opinion is not supported by anyone and makes his opinion an outlier that cannot be accepted. Mr Hammond’s opinion is based on a reconstruction of the way the accident occurred and this is no more than speculation;[37]
(f) The opinions of Dr Vidovic and AP Laidlaw are to be preferred as they are more in keeping with the chronological unfolding of events, the radiology and the opinions of the treating practitioners Mr E Wong and Mr Lovelock as to the effect of the stenosis.
[37]I have dealt with this reconstruction below
The aggravation of cervical spondylosis
49The plaintiff’s further claim is that the motor vehicle accident aggravated her cervical spondylosis. That worsened state, she submits, has impairment consequences which are more than significant or marked.
Has the plaintiff sustained an aggravation of cervical spondylosis?
50The defendant’s position is that she has not.[38] The defendant argues there is no contemporaneous link between the motor vehicle accident and her extant neck symptoms.[39] In the defendant’s submission, any neck and left arm symptoms are explained by carpal tunnel syndrome,[40] fibromyalgia and TOS.
[38]T8, L20; T73, L10
[39]T73, L20
[40]T75, L40; PCB 88
51On the issue of contemporaneity of complaint of neck symptoms, the plaintiff referred to two medical histories. The first is a Monash Emergency Department note on 5 May 2016, which states there has been pain in the neck over the last five to six months.[41] The second is a letter from Monash Medical Centre of 11 May 2016, which recorded “in the last 12 months she has started complaining of chest and left-sided neck pain after her motor vehicle accident”.[42]
[41]DCB 117
[42]PCB 66
52There are other later references to neck problems as well in the Monash notes. On 25 September 2016, Monash Rheumatology Outpatient notes commented on left supraclavicular pain radiating to the base of the neck.[43] This is similar to recordings in May 2017 of Dr Ngian of Outpatients; both rheumatologists pointing to not only neck pain but widespread pain throughout the body and perhaps consistent with fibromyalgia.[44]
[43]PCB 68
[44]PCB 69
53Her treating doctor, shortly after in July 2018, also noted neck pain.[45]
[45]PCB 81
54However, as that short review highlights, there is overall a telling absence in the contemporaneous medical notes in 2015 across a large number of attendances, any mention of neck pain. This starts with the initial Emergency Department presentation,[46] and then the notes surrounding the right hand surgery.[47] No mention of any neck complaint is made. Similarly, the treating doctor’s clinical notes from the date of injury to March 2016 make no mention of specific neck problems.
[46]DCB 94-100; see specifically the entry at DCB 99 which notes “Pt denies neck pain”
[47]PCB 102-104
55From the date of injury to March 2016, there are numerous consultations with her general practitioner. There is complaint of pain in the right hand, low back, right hip and for dental infection, but in none is there is a recording of neck pain.[48] There is even a referral to the Emergency Department with right hip and low back pain on 8 October 2015, and no reference at all to neck pain. Similarly, the general practitioner care plan of December 2015 makes no mention of neck pain.
[48]DCB 400-406
56So, while there is the letter of May 2016, that plaintiff’s counsel specifically pointed to, there is little to suggest there was in fact a complaint of neck pain in the preceding 12 months. Of course there is the presentation of the lump in the supraclavicular area in May 2015, but it has not been suggested this is related to neck pain.
57That brief review leads me to an initial view that there is not a contemporaneous link of neck pain to the occurrence of the motor vehicle accident. However all the evidence must be analysed before a full finding on the issue of causation can be reached.
58The other evidence called in aid by the plaintiff to support a diagnosis of cervical spondylosis aggravated by the motor vehicle accident was from Dr Aliashkevich, the treating neurosurgeon. He received a referral from the plaintiff’s treating doctor, Dr C Wong, in early 2022. It is noteworthy that, by that stage, she had seen at least Dr Eastaugh, Dr Baum and Dr Bhati at that clinic. None of whom had referred her to a specialist for neck problems. This suggests to me that, certainly in their treatment of her between 2015 and 2022, they did not consider there to be an isolated neck problem.
59However, Dr C Wong’s referral letter came after he had reviewed a medico-legal report of Dr Mittal, pain physician. It appears to me that it was this report which he forwarded to Dr Aliashkevich setting out some of the plaintiff’s history and her diagnosis. Dr C Wong’s referral letter stated that since 2015 the plaintiff had had neck and arm pain. He noted that she also had carpal tunnel syndrome bilaterally.
60The history then taken by Dr Aliashkevich was:
“As her right hand pain subsided, Sharmaine noticed increasing pain in her left neck trapezius area, shoulder, back of the head and down the left arm into the hand and all the fingers. The pain intensity progressively deteriorated in 2020”.[49]
[49]PCB 96
61As a result of this, the plaintiff described extensive cramping and weakness on the left side leading to her dropping things from her left hand. On this basis, Dr Aliashkevich diagnosed the plaintiff with an aggravation of pre-existing degeneration in the cervical spine caused by the motor vehicle accident. In his opinion, a C5-6 decompression with C4-5 disc replacement surgery was required.[50] He sought approval for this procedure from the TAC but it was denied. Surgery has not occurred.
[50]PCB 97
62There is real difficulty in accepting his opinion. The starting point is his recording of the circumstances of the motor vehicle accident. His recording is:
“Sharmaine indicated that she was involved in a motor vehicle accident in 2015 when she sustained a whiplash impact on her neck with forceful left sided tilting movements …”[51]
[51]PCB 96
63That history of the occurrence of the incident Dr Aliashkevich recorded – “whiplash impact on her neck with forceful left sided tilting” – which implicates the neck and left side in particular, is not found in any contemporaneous recording. Or for that matter, in any recording of any medico-legal doctor or even her affidavit material.
64It is not in the Emergency Department notes where such could be expected, given the plaintiff was involved in a motor vehicle accident where whiplash would be common.[52] It is not in the treating doctor’s report closest to the date of injury.[53] It is not in the treating doctor’s clinical notes.[54] It is not in the vascular outpatient reports,[55] or the rheumatology outpatient reports in 2016, 2017 or 2018.[56] It is similarly not in the reporting of Mr E Wong.[57]
[52]PCB 65
[53]PCB 79
[54]DCB 399
[55]PCB 66
[56]PCB 68; PCB 148-153; PCB 75-76
[57]DCB 114
65There is a recording in late 2018 by Mr Lovelock of the motor vehicle accident causing injury to her neck, but the mechanism of that injury is not set out in similar terms to that recorded by Dr Aliashkevich.[58] In a joint medical expert report, Dr Hammond, in 2018, took a history of the motor vehicle accident causing “… a wrenching motion of her left shoulder and upper chest area”.[59] Mr Chehata (who confuses injury to the left and right hands) takes no such history.[60] Mr Kossmann, in his report of 13 February 2023, has an altogether different history of her striking the window and door with her right side.[61] The history is also not in Dr Mittal’s report of 17 June 2021 either,[62] which preceded and may have accompanied Dr C Wong’s referral.
[58]DCB 160-161
[59]PCB 109
[60]PCB 130
[61]PCB 141
[62]PCB 175
66The history is not taken by Dr Vidovich in his report of 30 July 2021,[63] where she further specifically denied injury to the neck in the motor vehicle accident. AP Laidlaw similarly did not take such a history in his reporting of 7 August 2022.[64] In cross-examination, the histories of both Dr Vidovich and AP Laidlaw were put to her and she agreed they were correct.[65]
[63]DCB 211
[64]DCB 230
[65]As to Dr Vidovich, T45-47; as to AP Laidlaw, T47
67For completeness, I repeat that this is not the way she described the motor vehicle accident in her affidavit. That, I consider, is highly significant because, in her own words, she was free to describe the circumstances of the accident and she did not do so in a way consistent with Dr Aliashkevich, implicating the neck and left shoulder.
68From a survey of that material from the date of the injury to the report of Dr Aliashkevich, it can be seen that there is no other recording of a whiplash injury affecting the left side and the neck. I consider that to be telling, and significantly casts doubt on the history taken by Dr Aliashkevich. Importantly also is the plaintiff’s own evidence that she accepted the history taken by Dr Vidovich and AP Laidlaw. In neither is there the same history as Dr Aliashkevich. The closest to it is from Dr Hammond of the wrenching to the left side but, once again, this is an isolated history not reflected in any contemporaneous recording of which there are innumerable doctors all looking at the left side shoulder clavicle area. In that circumstance, why there is no similar history is entirely perplexing.
69Overall, I do not accept the history as taken by Dr Aliashkevich as correctly reflecting the circumstances of the incident. I find that is one significant basis on which he founded his opinion that the motor vehicle accident was related to her neck pathology. It tells strongly against an acceptance of his opinion because it was based on an incorrect understanding of the true circumstances of the accident.
70The second difficulty with Dr Aliashkevich’s opinion I consider is his statement:
“As her right hand pain subsided, Sharmaine noticed increasing pain in her left neck, trapezius area, shoulder, back of the head and down the left arm into the hand and all the fingers. The pain intensity progressively deteriorated in 2020.”[66]
[66] PCB 96
71I come to this view because a review of the clinical notes of her treating doctor, from the day of injury until mid-2016, does not reveal either complaint of worsening neck pain or medication in respect of the neck pain.[67] In this period, there is recording of flare-ups of right leg and back pain requiring pain medication.[68] Similarly, the general practitioner care plan of Dr Eastaugh on 15 December 2015 makes no reference to neck pain. Referral was made to rheumatologists for her neck pain in mid-2016, and her treating doctor at this stage began to note it as “chronic neck pain”.[69] She was prescribed Targin as a result.
[67]DCB 399-409
[68]DCB 405
[69]DCB 411; DCB 343
72As has been noted, that referral led to a diagnosis of fibromyalgia, and then further referral for pain management in late 2016.[70] It will be recalled, however, from the history given at the beginning of this judgment, that the plaintiff, through 2014 and certainly at the start of 2015, was diagnosed with fibromyalgia and in fact was booked for consultation in respect of that fibromyalgia prior to the motor vehicle accident.[71] Whether the motor vehicle accident played a role in the diagnosis of fibromyalgia or worsening of it is completely unclear.
[70]DCB 413
[71] DCB 166, history of fibromyalgia since 2012; DCB 65, in November 2014 she was subject to a GP Care
Plan in part to do with left hand and back pain; PCB 64, her orthopaedic specialist described her
situation in January 2015 as being one of “multiple join pathologies” requiring rheumatology input; PCB
10 at paragraph [9].
73Returning to the notes, she continued having neck pain and was being prescribed Targin throughout 2017, and then Endep was added.[72] However, the notes often do not indicate whether the medication is cover for the neck or other conditions such as:
· chronic back pain;[73]
· chronic fibromyalgia;[74]
· both shoulder girdles;[75]
· chronic bilateral leg cramps;[76]
· acute L5 low back pain;[77]
· worsening low back pain.[78]
[72]DCB 422-424
[73]DCB 438
[74]DCB 438; DCB 429
[75]DCB 432
[76]DCB 431
[77]DCB 439
[78]DCB 443
74By 2019, medication was often simply being prescribed for chronic pain.[79] In fact, in a recording of 26 April 2019, her treating doctor recorded no neck pain but chronic back and hip pain.[80] Targin was still prescribed, indicating the back pain itself was a significant basis for a potent pain medication. It seems this was irrespective of whether there was neck pain at all.
[79]DCB 450
[80]Ibid
75In 2020, the situation was similar – with Targin prescribed broadly for chronic pain.[81] Towards the end of 2020, OxyNorm was added to the Targin.[82] This indicates some worsening in the pain situation but the OxyNorm does not appear to have been continued for any period of time.
[81]DCB 458
[82]DCB 459
76There is a further complicating factor to the opinion of Dr Aliashkevich – which is that he has not properly appreciated her condition prior to the motor vehicle accident. It was put to the plaintiff and she accepted that prior to the motor vehicle accident in 2015 she had problems with her back, left hip and left foot requiring increasing doses of medication since late 2014.[83] Similarly she accepted that at the date of the injury she had problems with numbness and weakness in her left hand,[84] and “multiple joint pathologies.”[85] Dr Aliashkevich makes no mention of this history in coming to his conclusion that the motor vehicle accident is a cause of her neck condition. It was relevant because any one of these conditions needed to be considered in a situation of either linking her onset of neck pain contemporaneously to the motor vehicle accident or similarly to eliminating them as the cause of the worsening of her condition in 2020. He did not perform either task. For this reason, his opinion is robbed of its force.
[83]T28-29
[84]T29, L35
[85]PCB 64; T30, L40-45
77The review of that material up to 2020 does not support the history taken by Dr Aliashkevich that there was a worsening of the neck pain – which is reflected in the pain medication. I consider this significant because he considered this to be a significant factor linking her symptoms to the motor vehicle accident. His opinion is based on an incorrect understanding of the facts. For these three reasons, I do not accept Dr Aliashkevich’s opinion that the motor vehicle accident was a cause of the plaintiff’s neck condition which she complains of today and is put as an aggravation of cervical spondylosis.
78This finding – as to the incorrect history as to the factual circumstances of the “whiplash” to the neck and the history of deterioration, also affects the opinions of Dr Mittal and Dr Akil, which the plaintiff calls in aid. Dr Mittal has a history of the development of left-sided neck pain within two days of hand surgery.[86] For reasons above, I do not consider that to be accurate.
[86]PCB 175
79This is a significant factor because her linking of the motor vehicle accident to the neck complaint and its current condition is based on a temporal link between initial symptoms and ultimate diagnosis. To the extent her diagnosis relies on this history, it cannot be accepted. As it is the major point linking the current condition to the motor vehicle accident, and I have found it to be incorrect, her opinion overall cannot be accepted as to causation of the neck injury.
80In any event, her opinion as a pain specialist on causation must, I consider, defer to the neurosurgical and orthopaedic specialists, given their expertise. On this, the plaintiff relied on Dr Akil’s opinion as a neurosurgeon. Similar to Dr Aliashkevich, he relied on two factual matters in linking the neck pathology to the motor vehicle accident. The first was the presentation of neck pain within three months of the motor vehicle accident, and the second was a progressive worsening of neck pain leading to the referral to Dr Aliashkevich and Dr Akil’s opinion on causation. For reasons set out above I consider reliance on these two matters is not supported by the facts I have found. As a result I do not accept his opinion.
81Similar to Dr Aliashkevich, neither Dr Mittal or Dr Akhil have considered the pre-existing medical history of the plaintiff. That fact also significantly detracts from an acceptance of their opinion.
82I would note also, in passing, that Mr Chehata’s opinion from an orthopaedic point of view, called in aid by the plaintiff, does not support the link between the motor vehicle accident and any neck pathology.[87]
[87]PCB 137
83At this stage, I mention only in passing my assessment of the plaintiff’s reliability. This case is not determined on the basis of the plaintiff’s reliability or credit. She gave evidence in a straightforward manner. She accepted matters from medical notes readily when they were put to her and conceded that given the time since the accident, her memory as to the sequence of events was difficult.[88] I considered that she answered questions as best she could, though I have determined that some of her affidavit evidence was incorrect. On an assessment of the whole of the evidence, I do not find that her evidence was unreliable generally and I accept it.
[88]T14
84It might be said that in coming to these conclusions on causation I have had to make findings without the benefit of fully contested evidence where each doctor’s opinion is tested by cross-examination. In a hearing such as this, which is a “gateway” to common law rights, such analysis as conducted above could be seen as somewhat speculative and lead to harsh results where a plaintiff’s rights are curtailed. While I am aware of what the Court of Appeal said in Findlay, the test before me remains that the plaintiff must prove, on the balance of probabilities, that the motor vehicle accident was a material cause of her claimed injuries (or here, one or both of them).[89]
[89]Findlay v Transport Accident Commission [2025] VSCA 126 at [32]
85For the reasons I have set out above, I do not consider that she has discharged her burden. It is thus unnecessary for me to consider in greater detail the opinions of Dr Vidovich or AP Laidlaw, which the defendant called in aid in respect of its case on both injuries. I do not consider it necessary to delve into those opinions given that I do not accept that the plaintiff has discharged her burden of proving that the TOS and the aggravation of cervical spondylosis (or either of them considered individually) are materially caused by the motor vehicle accident.
86For the above reasons, I will dismiss the plaintiff’s application in respect of both the:
(a) thoracic outlet syndrome case;
(b) the aggravation of cervical spondylosis case.
Annexure 1
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