Scarpa v Transport Accident Commission
[2013] VCC 828
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02699
| GIOVANNA SCARPA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 20 and 21 May 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Scarpa v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 828 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – injury to lumbar spine – causation – multiple injuries – “serious injury”, paragraph (a)
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Petkovski v Galletti (1994) 1 VR 436.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Hounslow & Associates |
| For the Defendant | Ms J Dixon SC with Ms N Wolski | Norton Rose Australia |
HIS HONOUR:
1 On 10 October 2003, the plaintiff was the driver of a vehicle which collided with a vehicle insured by the defendant at Herald Street, Cheltenham, in the State of Victoria. In this accident (“the 2003 accident”), she either caused or aggravated pre-existing injuries to her lumbar spine. The 2003 accident was her second transport accident, the previous one having occurred in 1984 (“the 1984 accident”), and a third transport accident occurred on 7 November 2006 (“the 2006 accident”). Further, the plaintiff suffered a fall at her church on 15 January 2001 (“the 2001 injury”). At least in the three latter injuries, the plaintiff suffered some injury to her lumbar spine.
2 The plaintiff sought leave in the County Court to bring proceedings for common law damages on the ground that the injury or the aggravation caused by the 2003 accident to the pre-existing injuries to her lumbar spine (“the physical injury”) was itself a “serious injury” within the meaning of s93(17)(a) of the Transport Accident Act 1986 (“the Act”); alternatively, the physical injury was causally related to a severe long-term mental or severe long-term behavioural disturbance or disorder pursuant to s93(17)(c) of the Act.
3 The first question raised by this application for leave is whether the increased pain and suffering consequences of the physical injury are sufficient to meet the threshold of a “serious injury”. The case presented by the plaintiff relied substantially upon a comparison between the degree of impairment she suffered before the 2003 accident (as a result of the two previous accidents, or otherwise) and the degree of impairment she suffered after the 2003 accident, given that there was also a third motor vehicle accident on 17 November 2006. Could it be concluded that the discrete degree of impairment to the lumbar spine suffered as a result of the 2003 accident have pain and suffering consequences that were at least “very considerable” and more than “significant” or “marked”?
4 The second question is whether the physical injury was causally related to a severe long-term mental or severe long-term behaviour disturbance or disorder which had its genesis, it was submitted, from about December 2003.
Legislative framework
5 By reason of s93(1) of the Act, the plaintiff cannot recover any damages in respect of injury as a result of a transport accident except in accordance with the section. Section 93(4)(d) provides that if the Transport Accident Commission (“the TAC”) has determined the degree of impairment to be less than 30 per cent, a person who has been injured in a transport accident may not bring proceedings for the recovery of damages (with certain presently irrelevant exceptions) unless a court gives leave to bring the proceedings. According to s93(6), a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
6 Section 93(17) contains the definition for “serious injury” which relevantly includes:
“(a)serious long-term impairment or loss of a body function;
…
(c) severe long term mental or severe long term behavioural disturbance or disorder.”
7 In Humphries v Poljak,[1] Crocket and Southwell JJ[2] identified the test to be applied with respect to a claim of “serious injury” under paragraph (a) of the definition:[3]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[1](1992) 2 VR 129
[2]McGarvie J was in dissent on this point: (ibid) 166-7. See also Mobilio v Balliotis [1998] 3 VR 833, 834, 844-5, 854, 860
[3](supra) at 140
8 The plaintiff based her claim on pain and suffering consequences alone.
9 In the context of aggravation to a pre-existing injury, Southwell and Teague JJ in Petkovski v Galletti[4] made it plain that the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury. In referring to the submissions that had been rejected by the trial judge below in that case, they said:[5]
[4](1994) 1 VR 436
[5](supra) at 443 (emphasis added). Brooking J stated that he agreed with Southwell and Teague JJ that the appeal should fail, for substantially the reasons they had given
“The question of the relevance of the existence of a pre-existing degenerative condition in the applicant’s spine was raised both in the court below and in this court. It was submitted in both courts for the respondent 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 the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.
The learned County Court judge rejected this principal submission of the respondent. ... He said: ‘In my opinion, the Act simply requires me as an assessing judge to be “affirmatively satisfied” that the applicant as at the date of the application is suffering from a “serious injury” within the meaning of the Act.’
...
[I]t is clear that the submission for the respondent ought not to have been rejected by the judge ... We are of that opinion for these reasons. One should commence with the acknowledgement that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long-established principle.”
10 The error committed by the trial judge in Petkovski was explained in this way:[6]
“[L]et it be assumed that a claimant was at the time of the relevant accident already suffering from a ‘serious injury’; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims.”
[6](supra) at 444
11 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must itself involve serious long-term impairment (or loss) of a body function.[7] At the stage of the application for leave under s93(4) of the Act, in connection with an aggravation injury, it is important to recognise that:[8]
“The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”
(my emphasis).
[7]Petkovski (supra) at 443
[8]Petkovski (supra) at 444
The 2003 accident and the previous accidents
(a) The 1984 accident
12 The plaintiff swore that she suffered injuries to her chest and whiplash injuries to her cervical spine as a result of this accident. She also developed psychological reaction, for which she sought treatment. She was hospitalised at the Linacre Hospital for two weeks. She suffered from occipital headaches, clicking of the jaw, pain in the neck, upper back and relevantly “at times to [her] lower back”.[9] She swore that the long-term physical sequelae was pain in the neck and some ongoing pain in the left arm and left shoulder.[10]
[9]Exhibit D, affidavit of 15 November 2011, paragraph 3
[10]Exhibit D, affidavit of 15 November 2011, paragraph 3
13 The plaintiff also developed some “severe psychological symptoms” as a result of this accident. She was hospitalised in Larundel Hospital on or about 20 April 1987, where she remained for about two months, before being discharged. She was seen by a number of psychiatrists, including Dr Peter Evans and Dr Norman Rose. Later, she was referred to the Melbourne Pain Program in early 1988, where she saw Dr Leonard Rose, and she was admitted for approximately six weeks.
14 In approximately July 1985, the plaintiff was treated by psychiatrist, Dr Peter Evans. In his report dated 13 January 1987,[11] he noted a history of “... widespread symptoms including headaches, neck pain, shoulder pain and numbness and weakness on the left side of her body” following the 1984 accident. He stated, “Thorough investigations failed to reveal any organic disorder”. It was his opinion at that time that the plaintiff was suffering from a Chronic Pain Disorder of predominantly psychological origin. Although her condition had been triggered by the accident, he thought the primary cause lay in her histrionic personality and her unhappy domestic situation, which ante-dated the motor vehicle accident.
[11]Exhibit 15, DCB 2b
15 Dr N R Rose, psychiatrist, commenced treating the plaintiff in 1987 regarding the psychiatric condition and Chronic Pain Syndrome which followed the 1984 accident. He took a history that the plaintiff developed severe pain in her neck, her back and her shoulder, and that thereafter, she developed pain in the back of the head, the jaw and the left shoulder, radiating into the left arm and fingers.[12] He further recorded that she became progressively more psychotic and had to be admitted to Larundel Psychiatric Hospital. He considered that the hysterical factors were apparently not present before the accident and he therefore assumed that they were in fact precipitated by the pain resulting from that accident. In early 1988, he referred the plaintiff to Dr Brendan Holwill for admission to the Melbourne Clinic Pain Management Program and apparently both doctors concurred that the plaintiff was suffering from grossly abnormal illness behaviour with a final diagnosis of psychogenic pain disorder and associated hysterical personality disorder.
[12]Exhibit 16
16 In February 1996, the plaintiff attended surgeon, Mr P Moran, who arranged for a CT scan of the lumbosacral spine. The plaintiff, herself, cannot remember this attendance. The radiologist’s conclusion was, “Multilevel bilateral facet joint degeneration. No disc bulge or herniation is seen. The central canal is of adequate dimensions throughout.”[13]
[13]Exhibit 31
17 The plaintiff also underwent surgery at St Vincent’s Hospital in Melbourne in about 1993 by Dr John Gurry, apparently to release the subclavian artery in her chest which had been compressed as a result of the 1984 accident. She described that surgery as “very successful”.[14] She was also admitted to The Alfred Hospital in about 1996 for tests for her heart. Afterwards she travelled to Sydney for treatment with specialists and she states that thereafter she fully recovered. She further swore that although she did have some ongoing symptoms from time-to-time, she was able to cope reasonably well. She was independent and able to drive as she wanted. She swore that she loved listening to music, which was a great joy to her. She enjoyed socialising with her family and friends, cooking and shopping. She did not need to see any psychologist or psychiatrist.[15]
[14]Exhibit D, affidavit of 15 November 2011, paragraph 7
[15]Exhibit D, affidavit of 15 November 2011, paragraph 8
(b) The 2001 accident
18 The plaintiff suffered a fall at her church on or about 21 January 2001. She had intended to have a spiritual healing session. There was a church member standing behind her and he was supposed to catch her as she fell back. Apparently he walked away, leaving her to fall to the ground, hitting a chair with her head on the way down. She swore she aggravated her previous neck injury and was also concussed but alleged that she had recovered from the effects of that injury by the time of her transport accident in October 2003. She stated she did not require any psychological treatment at this time. The plaintiff also revealed she had an episode of low-back pain in June 2001 and went to hospital, “but again [her] condition substantially resolved and she was able to lead a normal life”.[16]
[16]Exhibit D, affidavit of 15 November 2011, paragraph 9
19 In June 2001, the plaintiff’s general practitioner has made a note:
“Minor disc protrusion L4/5 and L5/S1 on CT … Now a lot better. Discharge from hospital two days ago.”[17]
[17]Exhibit 24
20 On 25 June 2001, in a separate Exhibit, the plaintiff’s general practitioner has made a computerised entry as follows:
“Severe left sciatica for two days. Not taken any analgesia because everything made her very sick. Lives alone and not able to cope. On examination there was a marked left limp due to pain.”[18]
[18]Exhibit 25
21 In the same Exhibit, on 3 July 2001, Dr Tracey Molloy recorded:
“Ended up in hospital low back pain/sciatica. Couldn’t walk ended up in seph. Had CT scan … Claims that her back was bad after the fall but that she didn’t mention it because the pain in the neck was so severe … Neck seems better – moving better. Claims pain in back was worse than any other pain.”
22 Thereafter, Dr Molloy saw the plaintiff again on 4 July 2001. She prescribed Cipramil (an anti-depressant) and Vioxx. The history was recorded as follows:
“Is thinking of going to Grey Sisters for a rest, has been there before. Saw me on 23 June. Took one MS Contin tablet – it was next morning that her back was bad. Ended up in hospital. Hasn’t taken any more MS Contin since. Has appointment to see Dr Hunt on 20 July.”[19]
[19]Exhibit 25
23 Dr Molloy had previously referred the plaintiff to neurologist, Dr Hilary Hunt, at Epworth Hospital on 30 January 2001 with a history that following the 2001 accident:
“She also injured her lower back which is now causing a lot of pain. X‑rays have been normal. I would appreciate your opinion and treatment.”[20]
[20]Exhibit 13
24 In this period from January to July 2001, Dr Molloy considered that by 12 May 2001, the plaintiff was clinically depressed and suicidal. She was counselled and once more encouraged to take anti-depressants. Dr Molloy considered that the plaintiff had sustained a significant head injury on 21 January 2001 which had resulted in significant ongoing problems.[21]
[21]Exhibit 13, 16 May 2001
25 Dr Hilary Hunt, for her own part, saw the plaintiff on 18 May 2001 and recorded there had been a major setback, predominantly as a consequence of her not having easy access to physiotherapy and ongoing support for her troublesome post-concussion syndrome. It was Dr Hunt’s understanding that the insurance company would not commit to payment of her account and the plaintiff herself was not in a financial position to meet the bills. She was referred to the Caulfield Pain Management Clinic. On examination:
“Her range of neck movement is quite reasonable, she describes pain involving the left side of her jaw and neck and when she attended today her effect was quite flat, indeed she seemed miserable.”[22]
[22]Exhibit 14, report of 18 May 2001
26 Thereafter, Dr Hunt saw the plaintiff on 20 July 2001. She gave a history of her attendance at the South Eastern Hospital because, “she developed acute neck pain following the physiotherapy session”. It was Dr Hunt’s understanding that she had been admitted to the hospital “for a problem of neck pain” and “inability to walk”. Dr Hunt thought that the plaintiff had a “lack of commitment to get well”.[23]
[23]Exhibit 14, report of 20 July 2001
27 Between 24 July 2001 and 16 September 2003, the plaintiff saw her general practitioner, Dr Molloy, or one of her partners, including Dr Leber, for some fifty one consultations. In this period, she was consistently prescribed Mogadon, Panamax and Valium. The histories taken in this period are for a multitude of complaints to various parts of the body, but not specifically the lumbar spine. There are specific references to the cervical spine on 18 September 2001, 3 June 2002, 8 April 2003 and 5 June 2003. The closest reference to a back injury is 14 October 2002, when the history is one of musculoskeletal pain for a number of years. Certainly from at least July 2003, there is no mention of any musculoskeletal pain except for worsening severe pain in her wrists and hands on 21 July 2003.
The 2003 accident
28 In her first affidavit,[24] the plaintiff swore that after the collision in question she immediately felt pain in her chest, back, abdomen and pelvis and felt very stiff and sore. She saw her general practitioner, Dr Leber, on the same day. X‑rays were arranged for her neck and back and anti-inflammatory medication was prescribed. Thereafter, the plaintiff stated she was referred to orthopaedic surgeon, Mr Peter Wilde, because of constant pain in her lower back radiating into her left leg and into her foot. This occurred on 3 August 2004.[25] She swore she had not had severe symptoms like this before and she was unable to cope with the pain and was thus taking Di-Gesic, Mogadon and Valium.
[24]Exhibit D, affidavit of 15 November 2011, paragraph 10
[25]Exhibit D, affidavit of 15 November 2011, paragraph 12
29 Following an MRI scan taken on 9 September 2004, the plaintiff was told by Mr Wilde that she had an “annular tear at the L4-5 disc that was causing the symptoms into [her] lower back and left leg”.[26] She was referred to Mr Michael Wing, physiotherapist, and also for a hydrotherapy program. She was also referred to an orthotist to be fitted with a back brace.[27]
[26]Exhibit D, affidavit of 15 November 2011, paragraph 1
[27]Exhibit D, affidavit of 15 November 2011, paragraph 14
30 Thereafter, she stated:
“I was learning to live with my pain and symptoms.”[28]
[28]Exhibit D, affidavit of 15 November 2011, paragraph 17
31 She continued to wear her back brace and attend for hydrotherapy and that was of some assistance. Driving a motor vehicle was restricted to local areas. She tried acupuncture, which did not help much. She stated she was:
“… restricted in house work, shopping and walking. My daughter had to help me.”[29]
[29]Exhibit D, affidavit of 15 November 2011, paragraph 17
32 Before the 2003 accident, the plaintiff swore she would take approximately two Di-Gesic every second day but after the accident, it was closer to six Di‑Gesic a day.[30]
[30]Transcript (“T”)127, L8
33 Further, the TAC provided her with a “pickup stick” soon after the 2003 accident. The plaintiff said:
“That’s my best friend. It is needed because I am unable to dry myself, dress myself and I cannot bend or pick up things on the floor.”[31]
[31]T129
34 The plaintiff has had constant and consistent treatment from the Cheltenham Medical Centre, first from Dr T Malloy,[32] and thereafter from Dr D Leber.[33] Dr Malloy has certified in her report dated 23 March 2004,[34] that the plaintiff had been a patient at the practice for many years before attending on the same day as the transport accident, being 10 October 2003. Complaints of low-back pain radiating to the right groin commenced from 11 October 2003 and persisted thereafter whilst under her care. As at 18 March 2004, Dr Molloy recorded that the plaintiff continued to have problems with the low back and was unable to undertake her housework and was finding it difficult to cope. Relevantly, Dr Malloy reported:
“[The plaintiff] has a number of medical problems for which she has received treatment over the years. She had a fall and sustained a neck injury. This caused her problem for some time but according to the patient had completely settled prior to this car accident. I believe she had a car accident in 1984 but I am unable to comment on this. She had a left rib resection in 1992 – again I cannot comment on this. She has had a hysterectomy and a cholecystectomy in the past. … As far as I am aware [the plaintiff] was not receiving any help with her domestic services prior to the car accident. She claims that she cannot currently undertake her usual duties due to the severity of her pain.”[35]
[32]Exhibit H
[33]Exhibit J
[34]Exhibit H
[35]Exhibit H, page 2
35 Thereafter, the plaintiff came under the care of Dr D Leber at the same practice. He tendered in evidence eight reports from 9 February 2004 until 14 April 2013. He attended to give evidence and was cross-examined. The tenor of his evidence was summed up in his report dated 14 April 2013.[36] He confirmed that the plaintiff was suffering from neck pain, thoracic back pain, lumbar back pain, pelvic pain, pain in both shoulders, headaches and depression. Currently he is prescribing Panadeine Forte, Mogadon, Mobic, valium and Panadol Osteo. He confirmed that the plaintiff’s psychiatrist was prescribing Zoloft. His most relevant evidence, however, was contained in his report to the following effect:
“(3) Her back pain has been unremitting since her accident in 2003.
(4)This condition alone would seriously restrict Mrs Scarpa’s domestic, social and recreational life.
(5)I consider her condition is now permanent.”
[36]Exhibit J, PCB 75
36 Further, in the physiotherapy treatment notification plan addressed to the Transport Accident Commission on 19 May 2004, the physiotherapist, Mr J C Snowsill, confirmed that he was treating a number of conditions following the transport accident.[37] Relevantly, he certified as follows:
“Cervical spine – Significantly improved.
Thoracic spine – Significantly improved.
Lumbar spine – probable disc injury → main residual problem.”
[37]Exhibit 8
37 Earlier, in December 2003, the plaintiff had been treated at the Cheltenham Physiotherapy Clinic. At that time, she was treated for both neck and back symptoms, and the physiotherapist recorded that there was mild muscle spasm through both cervical and lumbar regions.[38]
[38]Exhibit Q
38 In his report dated 4 November 2005, Dr Leber recorded:
“… it is likely that she suffered a disc injury in the motor vehicle accident on 10/10/2003 and this is probably the cause of her pain.”[39]
[39]Exhibit J, PCB 63
39 Further, he stated:
“As her symptoms have persisted for two years after the motor vehicle accident, it is likely that her symptoms are long-term and possibly permanent. If her lower back pain does improve, it is likely she will suffer exacerbations of pain in the future.”[40]
[40]Exhibit J, PCB 63
40 Further on, he stated:
“Ms Scarpa still suffers from low back pain, anxiety, depression and sleep disturbance.”[41]
[41]Exhibit J, PCB 64
41 Further on, he stated:
“Mrs Scarpa’s recreational and social activities have been severely effected (sic) by her injuries. She avoids travelling long distances in a motor car due to her back pain. Her depression and anxiety have reduced her enjoyment of life.”[42]
[42]Exhibit J, PCB 64
42 It would appear, based on the clinical treatment after the 2003 accident, that the plaintiff was suffering from ongoing sequelae to the lumbar spine, as described above, compared to a largely asymptomatic lumbar spine, at least for some months prior to the 2003 accident.
43 The plaintiff swore that she also had an epidural injection for low-back pain in about March 2006 and that by September 2006, she was still attending her general practitioner for constant back pain.[43]
[43]Exhibit D, affidavit of 15 November 2011, paragraph 19
The 2006 accident
44 On 7 November 2006, the plaintiff was involved in another motor vehicle accident when a vehicle collided with the rear of her stationary motor vehicle. She was taken by ambulance to the Monash Medical Centre, where she was observed for approximately four hours. Once again, she attended her general practitioner, Dr Leber, on 8 November 2006. On 15 May 2007, he reported as follows:
“[1] Mrs Scarpa suffered neck pain, upper back pain, lower back pain, left shoulder pain, headaches, depression and anxiety as a result of her injuries on 07/11/2006. The most severe of these injuries is her neck pain and her depression.
These injuries are an aggravation of the injuries she suffered in her two previous accidents in 1984 and 10/10/2003. Prior to her accident on 07/11/2006 she had been treated for back pain, depression and anxiety caused by her car accident in 2003. After her accident on 07/11/2006, her neck pain and her depression became much worse.
[2] Mrs Scarpa is still severely affected by her neck pain, back pain and depression. Her pain dominates her life and causes constant misery. Her depression severely limits her enjoyment of life.
…
[5] Mrs Scarpa was suffering from pre-existing back pain and depression related to her car accident in 2003. These pre-existing conditions impact on her recovery from her accident on 07/11/2006. Her depression and neck pain have become worse since her accident on 07/11/2006.
[6] These pre-existing conditions have been aggravated by her accident on 07/11/2006 and have not resolved to their pre-accident level.
[7] With musculoskeletal injuries involving the spine and shoulders, there is always a component of the symptoms which is due to degeneration. This is difficult to quantify, but in a person over sixty years old, degeneration would be expected to contribute to the symptoms.
[8] Prior to her accident on 07/11/2006 Mrs Scarpa was on Zoloft 150mg mane, Valium 5mg p.r,n,, Mogadon 5mg p.r.n. and Digesic tablets p.r.n.
…
[14] Mrs Scarpa has developed chronic pain, depression and anxiety as a result of her accident on 07/11/2006.
…
[17] Mrs Scarpa has great difficulty performing domestic household tasks, particularly cleaning her home. Her neck pain, back pain and shoulder pain limit her ability to perform domestic household tasks independently. These restrictions are related to her car accidents [07/11/2006 and 10/10.2003].
Before her car accident on 07/11/2006, her ability to perform these tasks was limited by the injuries she suffered in her car accident on 10/10/2003.
…
I believe she would be more independent in performing required tasks if she was better able to manage her pain. I believe she would benefit from treatment in a multidisciplinary pain management clinic.
… .”[44]
[44]Exhibit J, PCB 65-66
45 Thereafter, the clinical progress according to the plaintiff’s general practitioner is perhaps best summed up by the letter from her general practitioner, Dr Leber, to Dr Murray Taverner on 13 April 2008.[45] Dr Leber reported as follows:
[45]Exhibit J, PCB 70
“Thank you for seeing Mrs. Giovanna Scarpa.
She is an unfortunate woman who has had car accidents in 1984, 10/10/2003 and 7/11/2006.
She had a lot of low back pain after her 2003 accident, and has had a lot of neck pain since her 2006 accident.
She has seen various therapists.
She saw Mr Peter Wilde, who suggested she see you.
Would you please assess and advise further management.”[46]
[46]Exhibit J, PCB 70
46 Further, on 5 September 2008, Dr Taverner reported to the plaintiff’s solicitors, inter alia:
“The pain in both shoulders arose out of the car accident on 7/11/2006.”[47]
[47]Exhibit J, PCB 74
47 On 14 April 2013, De Leber reported to the plaintiff’s solicitors as follows:
“(1)Mrs Scarpa is suffering from neck pain, thoracic back pain, lumbar back pain, pelvic pain, pain in both shoulders, headaches and depression.
(2)The medications I am prescribing are Panadeine Forte 500mg/30mg, Mogadon 5mg, Mobic 7.5 mg, Somac 40mg, Valium 5mg, Atacand Plus 32mg/12.5mg and Panadol Osteo 665mg. Her psychiatrist has prescribed Zoloft.
(3)Her back pain has been unremitting since her accident in 2003.
(4)This condition alone would seriously restrict Mrs Scarpa’s domestic, social and recreational life.
(5)I consider her condition is now permanent.”[48]
[48]Exhibit J, PCB 75
48 Thus, according to the clinical picture as assessed by the treating general practitioner, Dr Leber, the progress of the back condition would be as follows:
(a) There has been unremitting back pain since the 2003 accident until the present time.
(b) Following the 2003 accident, the plaintiff was being prescribed, inter alia, Digesic tablets and Zoloft with respect to the back pain.
(c) The condition of her lumbar spine was aggravated by the 2006 accident and possibly has not resolved to its pre-2006 accident level.
(d) The pre-existing lumbar condition has impacted on the plaintiff’s recovery from the 2006 accident.
(e) The impairment to the plaintiff’s lumbar spine as at April 2013 is probably due to the 2003 accident primarily up until the 2006 accident and thereafter, materially contributed to by both the 2003 accident and the 2006 accident.
49 On this scenario, thus evolving, the question would be whether the plaintiff is only entitled to be compensated for the level of impairment with respect to the lumbar spine that existed prior to the 2006 accident without the amplification that existed after that accident (“the first scenario”); alternatively, is the plaintiff entitled to be compensated by comparing the current state of the lumbar spine in comparison to the state of the spine prior to the 2003 accident, on the basis that the condition of the spine between the 2006 accident and the present has been materially contributed to by both the 2003 accident and the 2006 accident? (“the second scenario”).
50 With respect to the first scenario, the plaintiff was referred by Dr Leber to orthopaedic surgeon, Mr Peter Wilde, who first saw the plaintiff on 3 August 2004.[49] Mr Wilde took a history that prior to the 2003 accident, the plaintiff did not complain of back symptoms. She told the surgeon that since the accident, she had difficulty walking and sitting and she could not do housework but could drive a car a bit, but this made her pain worse. The TAC had supplied her home help for two hours per day. Mr Wilde thought “the pain had a mechanical quality to it, in that bending, lifting and twisting made the pain worse whereas lying down eased the symptoms”. Her current medications were Di-Gesic, Mogadon and valium.
[49]Exhibit L, report of 6 October 2005
51 On physical examination, Mr Wilde noted:
“… a pleasant, sincere woman who stood with a normal spinal posture and who did not exaggerate the physical findings. … Lumbar spinal motion was significantly diminished because of pain. … Neurological examination of the lower limbs revealed a positive left straight leg-raising test, slightly restricted at 50 degrees but seemed negative on the right. … .”[50]
[50]Exhibit J, PCB 80
52 An MRI scan of the lumbar spine taken on 9 September 2004 demonstrated mild multi-level degenerative disc disease together with a small left posterolateral annular fissure being seen in association with a minor disc bulge at L4-5. Further, a minor disc bulge was seen at L3-4 with a mild right paracentral protrusion noted at L2-3.
53 A further MRI scan was taken on 7 October 2004. The scan demonstrated an annular fissure at L4-5 with a minor disc bulge at L3-4. Mr Wilde explained to the plaintiff that he considered that it was the annular tear of the L4-5 disc that was causing her symptoms “but there was no easy solution to fix the situation”.
54 By 4 March 2004, although the plaintiff had reported feeling better by about 50 per cent, Mr Wilde recorded:
“Unfortunately her back pain and stiffness continue to be a problem and she still took Digesic regularly.”
55 Mr Wilde referred the plaintiff to an orthotist to be fitted with a back brace to help relieve her pain and he prescribed her to walk for twenty minutes every day.
56 Prior to the 2006 accident, Mr Wilde was of the view that the plaintiff presented with a chronic lumbar spinal condition. He considered the diagnosis was one of mechanical lumbar back pain secondary to internal disc disruption. He considered that the injury as described had been significantly contributed to by the 2003 accident on the basis that she did not suffer with those symptoms prior her injury. He considered there was a degree of asymptomatic degenerative disc disease prior to the injury; however, the (2003 accident) caused further internal disc derangement, thus precipitating symptoms.[51] Mr Wilde considered the prognosis to be guarded and he expected that she would always suffer with low-grade symptoms of chronic lumbar pain and stiffness. He thought she would have to modify personal and work activities to accommodate her symptoms to avoid further deterioration. He considered the ongoing treatment for the plaintiff would be short bursts of physiotherapy treatment for flare-ups or exacerbations of symptoms which will occur from time to time, perhaps twice per year.
[51]Exhibit L, report of 6 October 2005, PCB 82
57 Relevantly, Mr Wilde considered that the effect the injuries would have on her recreational and social activities were such that she cannot do housework and driving a car, even for short distances, caused extra pain. He considered that her symptoms were subject to exacerbations, such that she would be rendered incapable of doing most physical activities, and that these fluctuating situations may occur perhaps twice per year and will continue into the future. He thought that she continued to require physical therapy treatment in the form of physiotherapy for acute attacks/exacerbations of her symptoms.
58 In a follow-up report dated 14 February 2006,[52] Mr Wilde noted ongoing back and bilateral leg pain. He reported the plaintiff was having increasing difficulty standing and walking and he attributed this to the disc bulge/prolapse at L4-5 producing early stenosis. He recommended a trial of a lumbar epidural injection. He also noted that she was continuing to attend physiotherapy, which she was self funding, but felt that it was helpful.
[52]Exhibit L, report of 14 February 2006, PCB 86
59 On 8 May 2006, Mr Wilde reported that the epidural injection had been unhelpful. He told the plaintiff that she must learn to cope with her symptoms and “not be so concerned about the medico-legal aspects of her TAC injury”. Mr Wilde was not cross-examined on his report and I do not infer that his comment about the plaintiff being concerned about the medico-legal aspects of the TAC injury as detracting from his physical examination, diagnosis and opinions.
60 In my view, the clinical progress as demonstrated by both the treating general practitioner and the treating orthopaedic surgeon would justify a prima facie finding of serious injury with respect to the 2003 accident, with respect to the consequences existing prior to the 2006 accident.
61 On 19 March 2007, Mr Wilde reviewed the plaintiff and took a history with respect to the 2006 accident. She claimed to have injured her neck, shoulders, thoracic spine and lumbar spine. On the relevant date, she was complaining mostly of neck and low-back pain. He noted:
“Physical examination demonstrated good posture, stiffness and soreness in the neck and low back without objective clinical signs of radiculopathy. … .”[53]
[53]Exhibit J, report of 19 March 2007, PCB 88
62 Mr Wilde noted complaints of numbness across the left pectoral region anteriorly over the chest wall and also across her back. He recorded that the areas of numbness did not have an anatomical basis to them. At this time, he felt the most appropriate course for her was to attend for pain management and the most convenient centre was at Frankston with Dr Murray Taverner. At this point in time, he recorded he had nothing useful that he could further recommend for the plaintiff. Apparently he did not see her again.
63 There appears to be no doubt that the 2006 accident caused long-term sequelae to the cervical spine and left shoulder, at least. The plaintiff underwent physiotherapy treatment to the neck and shoulder, for example, on 31 January 2008. On 18 March 2008, an ultrasound of the left shoulder showed lateral supraspinatus tendonitis and also early bursitis.[54]
[54]Exhibit 11
64 On 16 July 2008, an orthopaedic surgeon, Mr Martin Richardson, injected the left shoulder.[55] Further, an MRI scan of the right shoulder on 18 July 2008 showed a near full-thickness tear of the subscapularis tendon.[56] Ultimately, there was right shoulder surgery performed by Mr Martin Richardson at Epworth Hospital on 6 November 2009.[57]
[55]Exhibit G
[56]Exhibit 12
[57]Exhibit G
65 There is no doubt that these conditions caused pain and suffering and restriction of movement for the plaintiff, necessitating the medication also prescribed for the lumbar spine.
66 Insofar as the 2006 accident caused long-term problems to the plaintiff’s shoulders and cervical spine, and perhaps amplification of the pain in the lumbar spine, I do not conclude that the tenor of the plaintiff’s evidence is to the effect that the consequences of the 2003 accident, as existing just prior to the 2006 accident, would have amounted to recovery or amelioration at the present time, but for the 2006 accident. No doubt the plaintiff’s life was made more miserable by virtue of the constellation of symptoms that she was suffering after the 2006 accident as a result of that accident, but the rendering of her life more miserable does not disentitle her to the physical consequences that pertained prior to the 2006 accident and still pertained today.
67 Accordingly, on the analysis of the situation that exists pursuant to the first scenario above, it would appear to me there is a prima facie case of serious injury with respect to the physical consequences of injury suffered as a result of the 2003 accident by way of rendering symptomatic underlying degenerative changes in the lumbar spine, together with furthering of discal injury at the level of L4-5 such that those consequences are permanent despite the 2006 accident and can be measured as “very considerable” and more than “significant” or “marked”, on a prima facie basis.
The Defendant’s case
68 The defendant, for its part, submits that despite the evidence from the treating practitioners referred to above, the plaintiff has nonetheless failed to prove her case, primarily based on an inaccurate history of previous injury and because of the plaintiff’s own lack of creditworthiness due to selective recall. In particular, Counsel for the defendant submits that the 1984 accident probably produced a neck injury, resulting in chronic disability and a loss of income earning capacity. The plaintiff had been on a Disability Pension from about this time onwards.
69 Further, the plaintiff points to x-ray and CT investigations taken on 29 January 1996 and 16 February 1996 which have not been satisfactorily explained by the relevant experts. Counsel submits that the mere taking of the investigations must have meant that the lumbar spine was symptomatic at the dates referred to.[58]
[58]See Exhibits 30 and 31
70 Further, the defendant submits that the plaintiff has suffered from long-term psychiatric injury which is clearly colouring her symptoms, and ongoing complaints, and cannot be considered to be part of the physical injury as sought. These submissions are not to be dismissed lightly.
71 Only one surgeon saw the plaintiff on behalf of the defendant prior to the 2006 accident, being Mr Jonathan Rush, who saw her on 11 March 2005.[59] He took a history of the 1984 accident causing ongoing neck symptoms with left arm pain and sensory changes. Further, since this accident, she had some mild ongoing neck pain and some mild low-back pain but it had never been a major issue.
[59]Exhibit 18
72 On physical examination, Mr Rush noted:
“… she was a pleasant 59-year old, woman in no obvious distress. …
Examination of the lumbar spine revealed some tenderness in the lumbo-sacral region and some painful restriction of movements … [on] flexion … extension … [and] lateral flexion. … Straight leg raising was limited on the right side to 60o and on the left side to 40o by pain the back. … .”[60]
[60]Exhibit 18, DCB 8
73 Further, an MRI scan performed on 9 September 2004 showed:
“… evidence of very mild multi-level disc degenerative disease with an annul[ar] fissure, the posterior annulus at the L4/5 level, some bulging of the L3/4 disc and a very mild prolapse on the right side at the L2/3 level. The precise clinical significance of these findings is unclear.”[61]
[61]Exhibit 18, DCB 9
74 Mr Rush’s diagnosis was one of soft-tissue injury of the lumbar spine with some evidence of degenerative disease involving the discs and facet joints as a result of the 2003 accident. He noted that the plaintiff did have a past history of some mild neck pain and low-back pain which he said was of a very minimal degree for the past few years before the accident and he would therefore regard her present symptoms as being basically accident-related.[62]
[62]Exhibit 18, DCB 9
75 Further, he stated:
“… I do not believe that the history of very minimal back pain prior to the accident in any way influenced the course of the current injury, except that it was clear that she did have some underlying degenerative disease of the spine.”[63]
[63]Exhibit 18, DCB 10
76 Further, he stated that the injury in question did influence the course of the pre-existing injury or disease, in that –
“… there has been some aggravation of long-standing disc degenerative disease particularly in the lumbar spine and to a lesser extent in the cervical spine.”[64]
[64]Exhibit 18, DCB 10
77 Further on, he stated:
“I do not believe that the patient’s extremely mild pre-existing pain is influencing the current symptoms to any significant extent, except to denote that the patient did have some evidence of mild previous degenerative disease of both the cervical and lumbar spines.”[65]
[65]Exhibit 18, DCB 10-11
78 As to the physical consequences then pertaining, Mr Rush recited:
“1I believe that the patient’s ongoing back pain is interfering with her ability to carry out personal and full housekeeping services.
2Mrs Scarpa is physically not able to complete all home duties.
3The patient would have difficulty in doing heavy work such as vacuuming or mopping but should cope with lighter work such as a small amount of washing that is required for a person living on her own, as well as cooking, dusting etc.
4I believe that the patient’s current symptoms are preventing her from independently completing her home duties rather than just stating that it is age-related or constitutional factors.
5As far as I could determine, the patient would have been able to complete most, if not all, of her home duties independently prior to the accident.
6I believe there is as need for housekeeping services due to ongoing accident related symptoms.
… .”[66]
[66]Exhibit 18, DCB 11-12
79 I consider that the opinion of Mr Rush is by and large corroborative of the plaintiff’s case as per the first scenario above.
80 The remainder of the defendant’s medical practitioners have examined the plaintiff post the 2006 accident.
81 The plaintiff tendered in evidence the reports of Dr Tony Kostos, rheumatologist, dated 4 August 2008 and 1 September 2008.[67] He assessed the plaintiff on 30 July 2008 with respect to the 2006 accident. His ultimate diagnosis was that the plaintiff was suffering from a Chronic Pain Syndrome as a result of all the symptoms she was complaining of. He further stated that he could not find any evidence of an objective physical abnormality and he could not relate any of her problems to the 2006 accident or the 2003 accident. He considered that the prognosis was poor because, in effect, the plaintiff believed she was injured and she was seeing doctors “who perpetuate this myth … ”.[68]
[67]Exhibit 19
[68]Exhibit 19, DCB 18
82 In his second report, Dr Kostos was asked to comment on the report of Dr J King, psychiatrist, dated 18 August 2008. He noted that Dr King diagnosed the plaintiff as having a Post-Traumatic Disorder, a Major Depressive Disorder and a Pain Disorder. He also recited the opinion that these conditions had been present since the 1980s, with the diagnosis of “compensation neurosis in 1986” and a “histrionic personality in 1987”. He then reported:
“On this basis it would appear as though this woman has a long history of a chronic pain syndrome that has existed since the mid 1980’s and therefore it is unlikely that she has had any definitive injury in her lumbar spine which can be identified clinically.”[69]
[69]Exhibit 19, DCB 20
83 Dr Kostos has not, apparently, considered the possibility of there co-existing a Chronic Pain Syndrome which is apparently psychologically-based, with that of an underlying physical injury from say the 2003 accident. However, he has made the following comments:
“As she claims that she didn’t have spinal pain prior to the 2003 accident I can only assume that she didn’t have impairment in her spine at that time.”[70]
[70]Exhibit 19, DCB 20
84 Further his history records that following the 2006 accident, the plaintiff saw Dr Leber the next day. Dr Leber stated:
“… At this stage she was complaining of pain in her neck, shoulders and arms, her anterior chest wall and her lower back, but she added that she was having ongoing lower back problems since a previous motor car accident in 2003.[71]
[71]Exhibit 19, DCB 15
85 Later he records that the plaintiff’s current complaints were to the effect:
“Overall she feels that her neck and shoulder pain has been deteriorating, although there haven’t been any changes in her lower back problem.
…
At the time of the [2006] accident, she was taking Di-Gesic, Mogadon, Valium and Zoloft.
…
She saw Mr Wilde for the first time after this [2003] accident. He had an MRI scan performed and she claims that she was told she had a ‘tear’. She was advised to wear a backbrace and was sent for hydrotherapy. She felt that her condition was improving, but the November 2006 accident aggravated all of her problems.”[72]
[72]Exhibit 19, DCB 15-16
86 An MRI scan of the lumbar spine taken on 9 September 2004 concluded:
“Mild multilevel degenerative disc disease. A small left postero-lateral annular fissure is seen in association with a minor disc bulge at L4/5. A minor disc bulge is also seen at L3/4 with a mild right para-central protrusion noted at L32/3. There is no evidence of neural impingement within the range of the study.”[73]
[73]Exhibit 19, DCB 17
87 Thus, Dr Kostos made a diagnosis of Chronic Pain Syndrome but without indicating whether the MRI findings and the histories given both with respect to the symptoms and the opinion of Mr Wilde could be consistent with an underlying physical basis to the symptoms.
88 The plaintiff was also examined by Mr Michael Shannon, orthopaedic surgeon, on behalf of the defendant on 6 April 2009 and 2 April 2013.[74] On the first occasion, the examination was with respect to the 2006 accident, whereas the second examination was in respect of both the 2003 accident and the 2006 accident.
[74]Exhibit 21
89 With respect to the 2003 accident, Mr Shannon noted the complaints of back pain which ensued and for which the plaintiff was prescribed medication, physiotherapy and acupuncture. He also notes the plaintiff was referred to Mr Wilde, who fitted her with a brace, which she was still wearing, and she had some hydrotherapy. He noted she was still under treatment for her back injury at the time of the second accident and she confirmed that the only injury sustained in the 2003 accident was to her back.
90 With respect to the 2006 accident, Mr Shannon noted ongoing complaints of pain in the anterior chest wall, the back of her neck and in both shoulder blades. She told him that she had not injured her back in the 2006 accident and that her back was no worse following this accident. She did provide a past history of an accident in 1984 in which she sustained injuries to her neck and back.
91 On examination of the low back, Mr Shannon found:
“… apparent significant restriction of flexion and extension, but other movements are relatively normal.”
92 Mr Shannon recited that –
“An MRI scan of the lumbar spine arranged by Mr Wilde in September 2004 is reported to show mild multi-level degenerative disc disease with a left posterolateral annular fissure and a disc bulge at L4-5 and minor disc bulging at L2-3 and L3-4 but no evidence of neural impingement.[75]
[75]Exhibit 21, DCB 46
93 In his Opinion section, Mr Shannon was of the view that the 2003 accident resulted in soft-tissue injuries to her low back which further resulted in aggravation of pre-existing degenerative change in the lumbar spine.[76] He stated further:
“Essentially the problem is one of mechanical back pain aggravated by the accident.
I am unable to exclude that the aggravation continues to some degree.”[77]
[76]Exhibit 21, DCB 47
[77]Exhibit 21, DCB 48
94 Further, he stated:
“I think that it is likely that the accident in 2003 has had a permanent influence on her back condition.
…
There are multiple other factors and injuries impeding on her condition and it would be my view that the pre-existing injuries are the primary cause of her neck problems, but that the accident in 2003 is still contributing to her back problems.”[78]
[78]Exhibit 21, DCB 49
95 In my view, this opinion is also corroborative of the first scenario referred to above.
96 The defendant has also had the plaintiff assessed by Dr Geoffrey Littlejohn, rheumatologist, on 12 August 2010 and 19 March 2013.[79] The history that he took on the first occasion was largely relevant in the following regard:
[79]Exhibit 23
· First, the lumbar spine was virtually asymptomatic prior to the 2003 accident.
· Secondly, she did not fully recover from that accident prior to the 2006 accident but her neck was “getting better” towards the time of the latter accident.
· Thirdly, as a consequence of the 2003 accident, she had particular problems with low-back pain and had seen Mr Peter Wilde, orthopaedic surgeon. She had also had MRI scans and was treated with bracing, physiotherapy and hydrotherapy.
· Fourthly, she was having treatment along these lines for the lumbar spine, at the time of the 2006 accident.
· Fifthly, subsequent to the 2006 accident, she had increasing pain in her neck and low back.
· Finally, she had had low-back pain from the 2003 accident and this had continued right through until currently. At the time of the first consultation, she was taking Di-Gesic, six to eight per day, Mobic, 7.5 milligrams per day and Endone, 5 milligrams, half to one as required, up to three a day. As well, she was taking medication for depression.
97 Dr Littlejohn considered that lumbar spine MRI scans taken on 29 January 2008 and 9 September 2004 showed similar findings.
98 On examination of the lumbar spine, he found abnormal tenderness in the low back and buttock region.
99 Dr Littlejohn noted that the MRI scan of 9 September 2004 showed:
“… ‘very mild multi-level disc degenerative disease with annular fissure, posterior annulus at the L4/5 level, some bulging of the L3/4 disc and a very mild prolapse on the right side of L2/3.”[80]
[80]DCB 60
100 He also noted a report from the Monash Medical Centre following the 2006 accident describing a:
“… ‘low speed MCA [motorcar accident] today … hit from behind by a vehicle – were stopping at red signal. Had mild trauma to sternum and upper chest. Stable on arrival with mild chest pain … tender over upper sternum, no other injuries seen’.”[81]
[81]DCB 61
101 In Dr Littlejohn’s opinion, the plaintiff presented with clinical features of a Chronic Pain Syndrome. He then stated:
“She also has imaging abnormalities of degenerative disease in the cervical and lumbar spine and also imaging changes of degenerative disease in both shoulder girdles.”[82]
[82]DCB 61
102 Dr Littlejohn does not appear to opine as to whether the degenerative disease in the lumbar spine itself is a source of symptoms. However, he considered that the symptoms in the lumbar spine, together with elsewhere, fitted the “diagnostic criteria for fibromyalgia syndrome”. He stated:
“This diagnosis implies there is abnormality and pain pathways causing amplification of sensory perception in the body which is translated into pain. This process occurs in the spinal cord and brain and is influenced by psychological factors.”[83]
[83]DCB 62
103 Dr Littlejohn then went on to state:
“I believe she had pre-existing degenerative change in the … lumbar spines …, as well as other … joints.”[84]
[84]DCB 62
104 Thereafter, Dr Littlejohn reported:
“In addition, I do not think she has intrinsic physical spinal cause which is causing her problem of pain in the above discussed areas. Rather, I believe she has pain amplification due to a significant functional change in her pain pathways.
Her pain syndrome is severe but influenced by central processes rather than changes in peripheral tissues.
The anatomy of her spine … is, in my opinion, age related and constitutional and has not been caused by her motor vehicle accident.”[85]
[85]DCB 62-63
105 Assuming that Dr Littlejohn is referring to the degenerative changes described above, he does not comment as to whether they had been aggravated or rendered symptomatic by the 2003 accident. However, he has stated:
“Mrs Scarpa had persisting lumbar pain after a motor vehicle accident on the 10th October 2003. Following the accident of 7th November, 2006, she has had persisting pain in other regions as well.”[86]
[86]DCB 63
106 Whether this “abnormality in pain pathways causing amplification of sensory perception in the body which is translated into pain”, which process occurs in the spinal cord, can be said to be a physical injury as distinct from a psychological injury, does not seem to be fully explored by Dr Littlejohn. Further, whether those pain pathways are somehow causally related to the degenerative changes in the spine is also not clear, whether constitutional or aggravated.
107 In his second report of 19 March 2013,[87] Dr Littlejohn obtains a relevant history to the effect that the plaintiff felt she did not fully recover from the 2003 accident prior to the 2006 accident. Secondly, she said that in regard to the 2003 accident, she had particular problems in her low back and stated that she could not move easily or bend her back since that accident, and felt that she had a “permanent injury” from that accident.
[87]DCB 65
108 Further, the history included a claim that the 2006 accident led to “aggravation of everything” but in particular, new problems occurred around the neck and shoulder girdle area. She also claimed that she was “mentally worse since 2006”.[88]
[88]DCB 66
109 The current situation was reported as suffering from pain mainly in the low back which was the worst pain area and such pain was present every day:
“It varies in severity, worse if she is active. It can fluctuate quite a lot ranging from between 5 out of 10 where 10 is the most severe pain imaginable, at its best, to 10 out of 10 where it is at its worst. If it is 10 out of 10 she needs to go to bed and take medication.”[89]
[89]DCB 67
110 As at 19 March 2013, she was taking Panadol, two to four per day as required and Panadeine Forte, varying according to need. She was also taking Mobic as required.
111 On examination, Dr Littlejohn noted:
“… Her mood appeared normal and there was no abnormal pain behaviour.”[90]
[90]DCB 69
112 The range of motion of the thoracolumbar spine was diminished in all six dimensions by about 30 per cent over that expected for her age and body shape.[91]
[91]DCB 69
113 Further:
“She had significant tenderness on palpation of the low back and buttocks but less tenderness in other parts of the body. I was unsure if she was reporting her full pain report with the gentle palpation, and I thought it might be a little more tender than she admitted to.”[92]
[92]DCB 70
114 In this report, Dr Littlejohn reports:
“In the first accident 10th October, 2003, she developed pain in the low back. I think that pain related to her chronic pain syndrome as it particularly pertained to that region of the body. I don’t think there was any aggravation or exacerbation of pain from her mild degenerative change in the region of the lumbar spine due to tissue damage from that accident.”[93]
[93]DCB 72
115 Although Dr Littlejohn goes on to say that he did not believe that the degenerative changes had been caused by her motor vehicle accident, he does not directly address whether they may have been aggravated or rendered symptomatic. He does state however:
“I think it likely that the first accident on the 10th October, 2003, did initiate some of the amplified pain which characterises her chronic pain syndrome. …
… the ‘first’ accident on the 10th October, 2003, likely did play a role in the fibromyalgia as it currently presents.”[94]
[94]DCB 73
116 It would appear to me that Dr Littlejohn’s diagnosis of fibromyalgia includes psychosocial factors which in turn includes her intrinsic personality, her emotional response to the injury and other life factors occurring which all contribute to the condition.[95]
[95]See DCB 74, paragraph 12
117 Doing the best I can, I consider that Dr Littlejohn’s opinion is at least consistent with the proposition that the 2003 accident led to a physical injury as described by the various doctors, particularly Dr Leber, Mr Wilde, Mr Rush and Mr Shannon, and that the effects of that physical injury are continuing today.
118 Many of the medical practitioners found the plaintiff to be straightforward in her presentation and not exhibiting abnormal illness behaviour as referred to above. For my own part, in observing the plaintiff in cross-examination, I do consider that overall, the plaintiff was doing her best to tell the truth even if there was a desire, conscious or unconscious, to make sure that I understood it was her low-back pain that had continued unabated since the 2003 accident. On balance, I consider that the evidence that the plaintiff gave and the histories presented to the medical practitioners referred to above overall support the plaintiff’s submission that the 2003 accident caused physical discal injury, the consequences of which have remained unabated until the present time and are likely to do so into the future. There is no doubt that the plaintiff’s ability to relate an accurate history of her symptoms is partially related to the number of injuries that she has suffered in the past and the complicating issues of a Major Depressive Disorder, as has been alluded to by the practitioners referred to above.
Severe Mental Disorder
119 On 20 October 2003, Dr Leber referred the plaintiff to Ms Sharyn Groch, counselling and forensic psychologist, for psychological assessment and management. Ms Groch took the following history:
“… Giovanna had been involved in an MVA some ten days earlier and was experiencing emotional difficulties as a result of her trauma. She had withdrawn from all social contact, was feeling lethargic and overwhelmed, experiencing flashbacks of the accident, sleeping poorly, unwilling to drive again and suffering anxiety symptoms.”[96]
[96]Exhibit G, PCB 56
120 The plaintiff was seen by Ms Groch on 24 November 2003, 8 December 2003, 5 January 2004 and 4 February 2004.
121 Ms Groch then reported that the plaintiff had:
“… dramatically improved emotionally with supportive psychotherapy … .”[97]
[97]Exhibit G, PCB 56
122 Thereafter, the plaintiff was treated by her general practitioner with Zoloft for depressive symptoms, until he referred her to Dr Melvin Pinto, psychiatrist, on 3 March 2006. Dr Pinto has been treating the plaintiff regularly up until the present time and he has diagnosed her with severe depression with persistent and chronic suicidal ideation and with features of Post-Traumatic Stress Disorder. In his report of 26 April 2013, Dr Pinto records:
“At present Ms. Scarpa is seen frequently at approximately two weekly intervals because of concerns of her mental state. She may need intervention by Crisis Services and admission to hospital at times of exacerbation of illness. It is likely she will need ongoing and continued psychiatric care.”[98]
[98]Exhibit N, PCB 111
123 Further on, he stated:
“Ms. Scarpa’s psychiatric illness affects all areas of her life, including domestic, social, and recreational life to a severe extent.
… and will affect her life into the foreseeable future.”[99]
[99]Exhibit N, PCB 112
124 Dr Pinto has been treating the plaintiff consistently since 2006 and over that period has had the opportunity to tease out the various ingredients leading to the current psychiatric state. His history taking has evolved in the following manner:
“Ms. Scarpa reported that her problems had commenced after two traffic accidents one in 1984 and the other in 2003. She was disabled after the 1984 accident and has been on a disability pension as a result since 1989. Her current problems commenced (also an exacerbation of previous problems from the first accident) following the second accident which she suffered on 10.10.2003.[100]
…
Following the [2004] accident, Ms. Scarpa appears to have had psychiatric treatment. However I was unable to obtain clear details of her diagnosis and treatment. She had then seen a psychiatrist, Dr. Norm Ross, and had also been treated at Laurendel (sic) Hospital as an inpatient for six weeks in 1987, under the care of Professor Graham Burrows. … Ms. Scarpa did not report any history of psychiatric illness preceding her car accident in 1994.[101]
…
… I have [now] been made aware of other information, which have or would have had a serious effect on Ms. Scarpa’s life.
In 1996 she had suffered a catastrophic injury during a cardiac investigation for ‘palpitations’. She had a penetrating injury to the heart which had led to cardiac arrest and tamponade (bleeding into the pericardial sac). She was told that this complication occurred in one in a million. Since this happened she was on a pension. Previous to this, in 1996, she had a rib resection surgery.
In family history, Ms. Scarpa’s grown up children have all suffered personal problems, and substance abuse and psychiatric problems, including her son, who has been diagnosed to suffer from Schizophrenia.”[102]
[100]Exhibit N, PCB 96
[101]Exhibit N, PCB 98-98
[102]Exhibit N, PCB 104
125 On referral in 2006 from the general practitioner, Dr Leber, the plaintiff was said to be:
“… suffering from ‘anxiety and depression’ and ‘chronic back pain’ which had followed ‘a large number of soft tissue injuries’ following a car accident in 2003.[103]
At first presentation, Ms. Scarpa reported that she had become depressed since the car accident in October, in 2003. She was on the antidepressant Zoloft (100 mg mane) started by her G.P; this medication had helped her but her depression continued to be worsened by the severe pain she suffered from. … ”.[104]
[103]Exhibit N, PCB 95
[104]Exhibit N, PCB 96
126 Prior to the 2006 accident, she reported:
“… She had no enjoyment in life. She did not like to meet people and isolated herself. She was not coping. She had no energy … ‘the pain drains me’ … and she kept pushing herself. She found it hard to concentrate and her memory was ‘not very good’. Her sleep was poor and she only got a couple of hours sleep at night, and that too with a hypnotic’ (Niitrazepam 5 – 7.5mg nocte). The pain affected her sleep and when the pain was bad, she did not sleep at all. She ‘could not face the day without sleep’. She did not have problems with her appetite and always felt she had to lose weight. She did not feel bad about herself. … ‘I am a very honest person’. She had thoughts there was no point living … ‘when things got too bad’, but she ‘will not kill myself … that’s not me … will fight for my life’.
She was persistently in pain as described before, from her back and left leg. The pain affected all aspects of her life. … .”[105]
[105]Exhibit N, PCB 97
127 Thus, prior to the 2006 accident, Dr Pinto diagnosed the plaintiff:
“… to suffer from a Major Depression and a Chronic Pain Disorder. These disorders appear to have had their onset as a result of the traffic accident Ms. Scarpa had suffered in October 2003. She may have been more prone to such disorders as a result of the previous psychiatric illness she had suffered from following the road traffic accident in 1984. However, it is unlikely that she would have suffered from the Major Depression and Chronic Pain Disorder she suffered from presently, if she had not suffered from the motor vehicle accident in 2003.”[106]
[106]Exhibit N, PCB 100
128 It would appear clear from Dr Pinto’s analyses that the psychiatric state that existed prior to the 2006 accident also continued thereafter but was exacerbated by the 2006 accident and further, by a 2008 incident where the plaintiff’s car was written off due to a collision with another vehicle, but fortunately her vehicle was unattended.
129 The first question therefore becomes whether the mental disorder suffered by the plaintiff prior to the 2006 accident, and significantly contributed to by the 2003 accident, can meet the criterion of “severe” and whether it remains unabated to the present time (“the first scenario”); alternatively, has the aggravated state after the 2006 accident and the 2008 incident been materially contributed to by the 2003 accident such that the aggravated state is also compensable (“the second scenario”).
130 Certainly, Dr Pinto considers that the causative link is made out with respect to the second scenario. In his latest report of 26 April 2013, he states:
“I saw Ms. Scarpa initially on 03. 03. 2006. The commencement of the antidepressant Zoloft in December 2003 suggests that her G.P. Dr. Danny Leber diagnosed her to suffer from a depressive disorder, following the first transport accident. It would be reasonable to assume that the depressive illness, i.e. the psychological injury, occurred as a result of the first transport accident, and has since continued with recurrent exacerbations as described in the reports, needing CATT interventions and hospital inpatient treatment.
As there was no significant improvement in Ms. Scarpa’s mental state, attempts were made to increase the dosage of Zoloft, but Ms. Scarpa was uncomfortable with doses higher that Zoloft 150 mg/day. Further attempts to change to other antidepressants were also unsuccessful due to the occurrence of side effects. Hence treatment was continued with Zoloft in a dosage of 150 mg / day.”[107]
[107]Exhibit N, PCB 112
131 In his report dated 25 September 2008, Dr Pinto recorded as follows:
“… At the time she first saw me in March 2006, she was showing features of a Major depression and was already under treatment for same with the antidepressant Zoloft. The accident she suffered in November 2006 certainly led to the exacerbation of her illnesses and contributed to their perpetuation. Ms. Scarpa reported that she had not seen a psychiatrist or psychologist for treatment after seeing Dr. Norman Rose … Dr. Brendan Howill, and Dr. Peter Evans in the 1980s. Since then this lady was able to manage her every day affairs and lead her life and did not need psychiatric treatment. My conclusion that her current psychiatric illnesses were caused by the car accidents, first in 2003 and 2006, are based on the above reasons. It is likely that previous events in her life could have led to the persistence of residual psychiatric features and would have increased her susceptibility to the current psychiatric illnesses.
I have noted the previous psychiatric reports of Drs. Norman Rose and Peter Evans describing diagnoses of a Chronic Pain Syndrome and a Histrionic Personality Disorder.”[108]
[108]Exhibit N, PCB 105
132 Although not cross-examined in this proceeding, it would appear to me that the mental disorder the plaintiff was suffering prior to the 2006 accident could be described as “severe” in terms of the legislation and would be compensable with respect to the first scenario above. If the condition was also compensable pursuant to the second scenario, the fact that the condition was rendered more severe would clearly also render the aggravated condition compensable as well according to the analyses conducted by Dr Pinto.
133 The plaintiff has also been examined by Dr John King, psychiatrist, on 18 August 2008 and 2 April 2013. On the first occasion he was asked to evaluate the consequences of the 2006 accident. He took a history of the 1984 accident, the 2003 accident and the 2006 accident. Uniquely, he had a history that the low-back pain was a consequence of the 2006 accident, whereas the neck and shoulder pain were consequences from the 2003 accident. In any event, he considered that the plaintiff had been psychiatrically ill for many years and now had established psychiatric illness to wit: PTSD, Major Depressive Disorder and Pain Disorder.[109] Further, the psychiatric illness seemed to him to have been worsened by the 2006 accident. He considered she had an overall total psychiatric impairment of 25 per cent, of which there had been a 10 per cent contribution from the 1984 accident and the 2003 accident. At that stage, he considered the prognosis to be very poor and there is no doubt that on his lifestyle evaluation,[110] the condition as it then existed would certainly be considered “severe”.
[109]Exhibit 20, DCB 25
[110]Exhibit 20, DCB 27
134 Upon receiving further information by way of a report from Dr Kostos dated 4 August 2008,[111] Dr King changed his psychiatric impairment to 20 per cent overall, with apparently some contribution from the 2003 accident, the extent of which I find a little hard to follow.[112]
[111]Exhibit 19
[112]Exhibit 19, DCB 30
135 In any event, Dr King re-assessed the plaintiff on 2 April 2013, once again with respect to the 2006 accident. He noted that her current psychiatric state had deteriorated and that she now only had a good day rarely. She reported to him that she would prefer to be dead than being further assessed. Interestingly, she gave a history that when she passed the site of the 2003 accident she was very distressed and tearful.[113]
[113]Exhibit 19, DCB 33
136 Further, Dr King noted a history that the plaintiff had had three psychiatric admissions to St John of God Hospital in 2012 compared to Dr Pinto’s notes confirming two admissions in 2011 for Chronic Depression and suicidality. He altered his diagnosis as follows:
“… It seems very clear that predisposing her to develop Depression and PTSD symptoms, and also the symptoms of Pain Disorder, is an established personality disorder, probably reasonably called Histrionic Personality Disorder.
Hence my psychiatric diagnoses are:
· Chronic Major Depressive Disorder including many features of PTSD.
· Histrionic Personality Disorder
· Pain Disorder.”[114]
[114]Exhibit 19, DCB 34
137 Dr King considered that the prognosis was very poor and her psychiatric state would not improve, and that she “will not recover”.[115]
[115]Exhibit 19, DCB 35
138 Dr King further reported:
“… The patient’s psychiatric illnesses have been caused by both accidents [i.e. 2003 and 2006], with the larger affect caused by the 7/11/06 accident as recorded by the apportionment of impairment in my Evaluation of Psychiatric Impairment of 29/08/08.
… Predisposing the patient to develop these symptoms, is a difficult unusual personality (Histrionic Personality Disorder) where she has developed chronic and incapacitating pain and psychiatric symptoms precipitated by these and other accidents.”[116]
[116]Exhibit 19, DCB 35
139 Further on, Dr King recited:
“… The patient is currently receiving supportive interviews from psychiatrist Dr. Pinto each 2-4 weeks, is on antidepressants Zoloft 150 mg, and is on an unusually long standing combination of two benzodiazepines – Valium and Mogadon – which is probably not good psychiatric practice but I expect the patient clings to these medications tenaciously. The treatment provided is unlikely to lead to any improvement, but hopefully may prevent further deterioration.”[117]
[117]Exhibit 19, DCB 35
140 I would consider that the effect of these reports is probably to the extent that the current condition satisfies the criterion of the second scenario above and is perhaps unclear as to that pertaining pursuant to the first scenario. In any event, I do not believe that Dr King’s reports contradict the assessment pursuant to the first scenario, which is supported by Dr Pinto, as referred to above.
141 In all the circumstances, I consider that the plaintiff has proved on balance that she is suffering from a severe long term mental or severe long term behavioural disturbance or disorder as a result of the 2003 accident pursuant to s93(17) of the Act and leave will be granted to issue proceedings in respect thereto.
142 I will hear the parties as to consequential orders and costs.
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