Sikovski v Transport Accident Commission
[2017] VCC 763
•16 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06210
| MARY SIKOVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 March 2017 | |
DATE OF JUDGMENT: | 16 June 2017 | |
CASE MAY BE CITED AS: | Sikovski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 763 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – aggravation of pre-existing psychiatric condition
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis (1998) 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti (1994) 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Dordev v Cowan & Ors [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Ms N Wolski | Slater & Gordon Ltd |
| For the Defendant | Mr G A Lewis QC with Mr P V Bourke | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 4 January 2010 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) and paragraph (c) of the definition of “serious injury” to be found in s93(17) of the Act. There:
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder
4 The loss of body function relied upon in this application is the whole of the spine.
5 As to the plaintiff’s mental or behavioural disturbance disorder, the plaintiff’s case is that she suffered an aggravation of her pre-existing psychiatric condition as a result of the transport accident and now suffers from a severe permanent mental behavioural disturbance or disorder.
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon seven affidavits: four sworn by the plaintiff on 21 November 2012, 27 May 2015, 7 April 2016 and 2 March 2017. In addition, the plaintiff relied upon three affidavits sworn by her husband, Mr Peter Sikovski, sworn 5 June 2015, 7 April 2016 and 2 March 2017.
8 The plaintiff and her husband were cross-examined in Court. I have not summarised their evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. In the tendered evidence, not only were there the affidavits, medical reports and other evidence relating to the transport accident proceeding, but there were also affidavits and medical reports relating to a County Court proceeding[1] involving the plaintiff’s prior work injury, which commenced in 2007.
[1]Case No CI-07-01745
9 I have read all of the tendered material.
Relevant legal principles
10 The Court must not give leave to issue proceedings at common law unless it is satisfied, on the balance of probabilities, that:
(a)the injury suffered by the plaintiff was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[2] where the majority of the Court of Appeal said:
“… we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long term’ is not an expression likely to give rise to difficulty. 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 to be 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’? … .”[3]
[2][1992] 2 VR 129
[3] at 140
12 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[4]
[4]Richards & Anor v Wylie (2000) 1 VR 79
13 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[5]
[5] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
14 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[6]
[6]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 833
15 The judgment of the Court of Appeal in Mobilio v Balliotis[7] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[8] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[9]
[7]Ibid
[8](1995) 21 MVR 314
[9]Mobilio v Balliotis (ibid) at 846
16 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[10]
[10](Supra). See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
17 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[11]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[11][1998] 1 VR 702
18 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[12]
[12](Supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]
19 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[13] where there is a pre-existing condition, an analysis has to be made to see whether the additional impairment resulting was “serious”.
[13](Supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
20 Where the claimant has an injury with numerous consequences, he or she must establish at the time of applying for leave that the injury which has been caused by or is the result of the accident is a serious injury.
21 In Peak Engineering & Anor v McKenzie,[14] the Court of Appeal said:
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make finding about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no disentangling is necessary.”
[14][2014] VSCA 67 at paragraphs [24] and [25]
22 In Papamanos v Commonwealth Bank of Australia,[15] the Court of Appeal said:
“In considering the appellant’s application based upon physical consequences (the paragraph (a) part of the appellants application), the Court was required to disregard any psychological or psychiatric consequences of the appellant’s alleged physical injury. Similarly, in considering the appellant’s application based upon an alleged mental or behavioural disturbance or disorder (the paragraph (c) part of the appellant’s application), the Court was required to disregard any physical consequences of the mental or behavioural disorder. In the circumstances, the application before the judge raised the question of whether it was necessary (and if so then to what extent it was necessary) to disentangle physically based consequences from the psychologically based consequences.”[16]
[15][2014] VSCA 167
[16]At paragraph 21
The issues
23 Counsel for the defendant informed the Court that the following issues were relevant to the plaintiff’s application:
· The credibility of the plaintiff, which impacted upon the plaintiff’s reliability as an accurate and honest historian; and
· The plaintiff suffered both physical and psychiatric conditions prior to the transport accident, such that she does not meet the relevant narrative test under the definition of “serious injury” in sub-paragraph (a) or (c) of the Act.
The Plaintiff’s evidence
24 The plaintiff is forty-three years of age and married to Peter Sikovski, who gave evidence on the plaintiff’s behalf in Court. She has a son aged thirteen years. She was born in Melbourne but her parents returned to Macedonia when she was nine months old. The plaintiff completed her schooling in Macedonia and returned to Australia in February 1993, aged twenty years old. She studied English and commenced manual work in September 1993.
25 The plaintiff gave her evidence in Court without the assistance of an interpreter. She was able to read her affidavit but her understanding of English was limited to basic English. In July 2008, she swore an affidavit in relation to her work injury and deposed that she had limited spoken English, non-existent written English and no computer skills. I accept that the plaintiff had a limited English vocabulary and that her employment was manual work.
Prior work injury
26 It was not in issue between the parties that the plaintiff suffered a work injury in October 2003 when performing manual work as a machine operator for Sutton Tools, which is a tool manufacturing factory. The plaintiff injured her lower back and suffered pain in her shoulders, mainly the right shoulder.[17] In January 2004, the plaintiff returned to part-time work. In March 2004, the evidence is that she stopped work because of the pain. In about 2005, she developed depression as a result of the work injury, for which she received treatment from a psychiatrist on a monthly basis and who prescribed medication. I accept that the plaintiff had a pre-existing condition in relation to her lumbar spine and a psychiatric condition.
[17]Defendant’s Court Book (“DCB”) 17, paragraph [19]
Transport accident injury
27 It was accepted by both counsel that the spine, as a body part, was suffering an impairment as at the date of the transport accident. The plaintiff’s evidence was that, as a result of the transport accident, the impairment to the spine worsened by reason of:
(a) the involvement of the neck; and
(b) an aggravation of the low-back condition.
28 The plaintiff’s case appeared to be that, prior to the transport accident, there was gradual improvement in the lumbar spine condition with ongoing conservative treatment. Consequently, as a result of the transport accident, there has been a deterioration in the level of symptoms of the lumbar spine. It was submitted that the more severe spinal pain is in the cervical spine, which was not affected by the work injury and is in part associated with the headache condition that has developed.[18]
[18]Transcript (“T”) 3, Line (“L”) 3-6
29 In relation to the plaintiff’s mental and behavioural disturbance, it was accepted by both counsel that the plaintiff had a psychiatric condition at the time of the transport accident. The plaintiff’s evidence was that her pre-existing psychiatric condition was improving. The plaintiff’s case is that the psychiatric condition was aggravated by the transport accident to the extent that the additional impairment resulting from the transport accident is now “severe”. Counsel for the plaintiff submitted that the headaches are in part associated with the psychiatric condition.[19]
[19]T3, L6-8
Credit issues
30 Of central importance is the credibility of the plaintiff as a witness and as an historian of her symptoms to medical practitioners. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[20] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such witness is not reliable”.[21]
[20]For example Mobilio v Balliotis (supra); Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [46]
[21]Dordev v Cowan & Ors [2006] VSCA 254
31 In Franklin v Ubaldi Foods Pty Ltd,[22] Ashely JA said:
“Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, … it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”[23]
[22][2005] VSCA 317
[23]Franklin v Ubaldi Foods Pty Ltd (supra) at paragraph [5]
32 Counsel for the defendant submitted that the plaintiff was not a reliable and credible witness for the following reasons:
(a)The plaintiff misled medical witnesses as to her pre-existing condition at the time of the transport accident, in particular Mr D’Urso, Mr Timms and Mr Dickens, who examined her in relation to the transport accident;
(b)The plaintiff gave inconsistent histories about the level of pain she suffered and treatment undertaken prior to the transport accident; and
(c)The plaintiff overstated the extent of the work she performed at the time of the transport accident.
33 I will address each issue raised in turn.
(a) Misled medical witnesses
34 In his report dated 30 January 2013, under the sub-heading “Medical History”, Mr D’Urso, neurosurgeon, stated that the plaintiff had a history of a caesarean section, listed her medication at the time of the examination and said that she had no allergies and that she did not smoke or take alcohol. Mr D’Urso did not refer to the plaintiff’s prior work-related injury and her subsequent medical treatment.
35 In cross-examination, the plaintiff said she did not disclose to Mr D’Urso that she had consulted Mr Brian Barrett, orthopaedic surgeon, on five occasions and the treatment she had received as a result of the work injury, because she was improving and did not think it was relevant.[24] However, I note that Mr D’Urso was provided with a report of the plaintiff’s general practitioner of 27 May 2011, which referred to the plaintiff’s history of work-related chronic back pain since August 2003 and her Post-Traumatic Stress Disorder. Mr D’Urso was provided with a copy of the same letter again in April 2015. In February 2016, he was provided with further material, in particular, a report of Dr Wahr, treating physician, dated 21 October 2008, which referred to the work injury. Mr D’Urso failed to address the plaintiff’s previous work injury and treatment in any of his reports tendered, of which there were five.
[24]T27
36 The plaintiff was referred by her general practitioner to Mr Craig Timms, neurosurgeon, in February 2011. In a report dated October 2013, Mr Timms stated that the plaintiff suffered from no chronic medical condition. He said that she had no history of any pre-existing injury nor underlying condition that is likely to lead to her current set of symptoms.[25] In a letter dated December 2013, Mr Timms reported that the plaintiff did disclose a history of back injury that occurred thirteen years ago, which settled with time, rest and analgesia, and fully resolved.
[25]PCB 84
37 The plaintiff conceded in Court that she did not disclose to Mr Timms her consultations with Mr Barrett in relation to the work injury and that she was receiving physiotherapy treatment for her low back at the end of 2008. She said she was improving and did not think it was related.[26] Counsel for the plaintiff submitted that the fact that Mr Timms knew there was a previous injury meant that his opinion should not be attacked.[27]
[26]T29, L29 – T30, L6
[27]T134
38 The plaintiff was medically examined by Mr Dickens, orthopaedic surgeon, at the request of the defendant’s solicitor. Mr Dickens was aware the plaintiff had a worker’s compensation claim for lower back pain and depression in the year 2003. In his report dated 20 August 2013, he stated that the plaintiff informed him that at the time of the transport accident, her back problem “had completely settled and she had no low back symptoms”.[28] In his second report of March 2015, the plaintiff reported that by the end of 2004-2005, she was not taking painkillers and received no further treatment for her low-back pain from 2004 until the transport accident.
[28]DCB 88
39 In cross-examination, the plaintiff said she could not remember what she said to Mr Dickens.[29] Further, she said:
“I can’t remember what I told him because it’s many years and also I would like to let you know this report and this date was in his place and he had a group of kids and group of family which were running and talking loud and he went a couple of times outside and he didn’t concentrate on me. He was running this appointment from his house which is the house was full of kids and adults.”[30]
[29]T69, L11
[30]T33, L22-28
40 She also said, “sometimes the back can settle but start again”.[31]
[31]T69
41 Taking into account the above evidence, I accept the plaintiff did not disclose the extent of her work injury and subsequent treatment to Mr D’Urso. However, given the material supplied to him by the plaintiff’s solicitors, I accept that Mr D’Urso should have known. The plaintiff disclosed to Mr Timms a back injury that had occurred thirteen years ago, which she said had fully resolved. She did not disclose to Mr Timms her consultations with Mr Barrett and that she was receiving physiotherapy in late 2008. She understated the level of physical injury she was suffering at the time of the transport accident, which she reported to Mr Dickens.
(b) Inconsistent histories as to pain/treatment
42 The plaintiff made statements to medical witnesses and to the Transport Accident Commission that her back pain and consequent treatment had ceased well before the transport accident. However, the evidence is that the plaintiff was reporting back pain to Dr Wahr from October to December 2008[32] and March, April, July and December 2009.[33] In cross-examination, she agreed that in 2009, she was suffering back pain for which she was taking medication of Panadeine Forte and Tramadol, which she said was very strong.[34]
[32]T53
[33]DCB 153-158
[34]T554 and T555
43 On 5 March 2012, in a statement in support of an application pursuant to the TAC Impairment Benefits Protocol, the plaintiff said:
“THAT in 2003 I was injured at work while lifting. I injured my lower back. This back pain stopped well before my transport accident.”[35]
[35]DCB 30.4
44 In cross-examination, the plaintiff said that she made the statement because she was improving but conceded the back pain had not stopped at this time.
45 In relation to the Transport Accident Commission claim, in November 2011, the plaintiff completed a statement in support of her application for pre-issue review, known as “the plaintiff’s statement”. She asserted that she received physiotherapy treatment for her work-related injury with Mr Carmine Vinci; however, did not receive physiotherapy treatment for some years prior to the transport accident.[36]
[36]DCB 30.2
46 In December 2008, Mr Vinci, physiotherapist, reported the plaintiff received intermittent physiotherapy following the work injury.[37] In a letter to the Accident Compensation Conciliation Service, Mr Vinci said the plaintiff was reporting ongoing back pain. He recommended the reinstatement of physiotherapy in the order of three to four treatments per month for the next twelve months. The plaintiff also agreed that she attended a chiropractor in 2009 and was prescribed Toradol by her general practitioner at that time.
[37]DCB 66
47 As to treatment, the plaintiff agreed in Court that she had seen Mr Steve Glockus, physiotherapist, in April and May 2009.[38] In May 2009, Mr Glockus prepared a physiotherapy management plan and reported that the plaintiff had “severe chronic low back pain prevents return to work”.[39]
[38]T38, L29-31
[39]DCB 105-106
48 In 2009, the plaintiff was reporting to Dr Wahr symptoms of lumbar and shoulder pain up until the transport accident.[40] In April 2009, she was receiving physiotherapy treatment, and a physiotherapy management plan recorded severe chronic back pain preventing a return to work.[41] In December 2009, there was a reference to chiropractic treatment[42] and being prescribed Tramadol for pain by a general practitioner.[43] I accept that these records are inconsistent with the history of resolution of the medical problems before the transport accident and with the plaintiff’s evidence that she worked regularly prior to the transport accident.
[40]Medical records of Dr Wahr, DCB 153-158
[41]DCB 105
[42]DCB 158
[43]DCB 158
49 I accept that the independent medical evidence was that the plaintiff was complaining of back pain throughout 2009 and up until the time of the transport accident for which she was receiving treatment. I reject the plaintiff’s assertion that her physical work-related injuries and consequent pain resolved well before or at the time of the transport accident.
(c) Work at the time of the transport accident
50 At the time of the transport accident, the plaintiff’s evidence was that she had returned to full-time work in her husband’s earthmoving business, known as P & M Transline. She said that she and her husband were partners in the business.[44] She described her work duties as answering the telephone and assisting with bookwork from home. This evidence was consistent with the plaintiff’s Transport Accident Commission Claim Form dated 29 January 2010.[45]
[44]DCB 4 and 7
[45]DCB 7
51 In cross-examination, the plaintiff agreed that she started answering the telephone for the business in 2004. She was required to be available eight hours per day.[46] On another occasion, she said if she was not feeling well, she would not answer the telephone. She gave evidence that on some days, she did not receive any calls. On some days, she would receive three calls.[47] She would provide the caller with her husband’s mobile telephone number.[48] The plaintiff said that she commenced performing bookwork in the business in October 2009. She also reported to Dr Strauss, Mr D’Urso and Mr Dickens that she was able to perform work as a bookkeeper for the family business prior to the transport accident.
[46]T50, L11-13
[47]T74, L12-14
[48]T74, L17-18
52 Counsel for the defendant submitted that the assertion that the plaintiff was in full-time employment at the time of the transport accident was improbable based on the evidence and for the following reasons.
53 First, in the plaintiff’s affidavit sworn 2 July 2008, in relation to her work injury proceedings, the plaintiff’s evidence was different to that which she gave in the current proceeding. Relevantly, she deposed that:
(a) She was listed as a partner in her husband’s earthmoving business but she did not, and had never, performed any work for that business;[49] and
(b) She had “limited spoken English, non-existent written English and no computer skills”. Further, that she had a lack of physical capacity that would prevent her from performing manual work, which is all that she had trained in.[50]
[49]DCB 29, paragraph [17]
[50]Plaintiff's affidavit of July 2008, PCB 26-28
54 Secondly, the medical evidence was that the plaintiff had no work capacity in relation to the work injury.
· In February 2006, Dr Chong, psychiatrist, reported that the plaintiff said she did not do any work.[51]
[51]DCB 33
· In April 2007, Mr Dooley, orthopaedic surgeon, reported that the plaintiff had ceased work in 2004 and had not returned to any form of work thereafter.[52]
[52]DCB 40
· In June 2008, Mr Barrett, orthopaedic surgeon, opined that the plaintiff had no capacity to return to either pre-injury duties or any other lighter work due to the severity of her injuries.[53]
[53]DCB 47
· In October 2008, in a letter to the Accident Compensation Conciliation Service, Dr Wahr said she had an agitated depression reaction following her work injury for which she has no current work capacity.[54] Further, Dr Wahr’s records for the period 13 October 2008 to 18 February 2010 make no reference to the plaintiff working.[55]
· In May 2009, eight months prior to the transport accident, a physiotherapy management plan stated that “severe chronic low back pain prevents a return to work”.[56]
[54]DCB 63
[55]DCB 153-158
[56]DCB 105
55 Thirdly, in cross-examination, Mr Sikovski, the plaintiff’s husband, gave conflicting evidence as to the plaintiff’s work history. He said that, at the time of the transport accident, “She was doing a bit of work on the books when I’m not at home”.[57] He described it as “very minor work”, which involved writing invoices and answering the telephone.[58] He agreed that, in 2008, the plaintiff did not have the capacity to write out invoices. Further, she only had to answer the telephone on the occasions that he was unable to be contacted. However, in re-examination, Mr Sikovski said the plaintiff was now no longer capable of answering the telephone and writing invoices in the business as she did prior to the transport accident.[59]
[57]T85, L20-21
[58]T85, L22-23
[59]T90
56 Taking into account the evidence, there are some significant inconsistencies in what the plaintiff reported to medical witnesses and the evidence she gave in her affidavits as to the level of work she performed prior to the transport accident. I accept the plaintiff overstated the extent of the work she performed at the time of the transport accident to the medical witnesses and in her affidavits.
57 Counsel for the plaintiff submitted that the plaintiff was a witness of credit and that clinical notes very often do not reflect the full history of what was conveyed to the medical witnesses. Further, counsel relied on the concession made by the defendant that the plaintiff was under surveillance for a period of 36.5 hours over four days in November 2014 and totalling 17 hours and 16.5 hours over five days in February 2016.[60] The defendant did not show the surveillance. I can infer that the surveillance did not assist the defendant.
[60]T120
58 In considering the credit of the plaintiff, I must consider the evidence as a whole.
59 While the plaintiff gave her evidence without the assistance of an interpreter, I note that English is not her first language. There was some evidence in her affidavits which was not challenged by counsel for the defendant. I accept that she downplayed and understated her pre-existing physical and psychiatric conditions at the time of the transport accident to medical witnesses. I accept that she overstated the extent of the work she performed at the time of the transport accident to medical witnesses. I take this into account when I consider the opinions expressed by those witnesses. For the foregoing reasons, I do not find the plaintiff to be a reliable witness. Accordingly, where there is a conflict between the objective evidence and the plaintiff’s evidence, I am more inclined to accept the objective evidence.
Analysis of the evidence
60 It was not in dispute between the parties that the plaintiff was involved in a transport accident from which she suffered a physical and mental condition. I will now consider whether the plaintiff qualifies for a “serious injury” within the meaning of the Act.
Mental condition
(a) Pre-existing mental condition
61 It was not in dispute between the parties that the plaintiff suffered a mental condition following her work injury in 2003 and received subsequent treatment.
62 Since 2005, the plaintiff had been treated by a psychiatrist, Dr Wahr, on a monthly basis. In October 2008, Dr Wahr reported to the Accident Compensation Conciliation Service that the plaintiff’s current problems were depression, anxiety, reduced short-term memory, reduced concentration, lack of sexual interest, sleeping problems and irritability. He said her condition had “evened out and has stabilised at her current level of impairment”.[61] He diagnosed the plaintiff as suffering from an agitative depressive reaction with an impairment of 25 per cent, which was work related. He said she had no work capacity, which is likely to continue indefinitely. Further, she required ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy on a monthly basis and monitoring of psychotropic medication.[62] He had prescribed medication of 30-miligram tablets of Avanza, one at night, and Xanax, 1‑milligram tablet, half in the morning and one at night.
[61]PCB 55
[62]PCB 56
63 The medical records of Dr Wahr for the period 13 October 2008 to 18 February 2010 were before the Court. The records confirm that the plaintiff consulted Dr Wahr monthly between October 2008 and 27 July 2009 and again on 21 December 2009, and he last prescribed antidepressant medication in June 2009 in the same dosage as previously. Dr Wahr’s records confirm that, between August and November 2009, the plaintiff did not receive psychiatric treatment. When the plaintiff consulted him in December 2009, she reported her depression “comes and goes”. Dr Wahr recommended she continue with her medication. The plaintiff was receiving monthly psychiatric treatment and medication for her work-related injury up until July 2009.
64 In August 2012, Dr Wahr reported to the plaintiff’s solicitor, in relation to the transport accident proceeding, that the plaintiff gradually improved following her work injury but worsened as a result of the transport accident.
65 I can infer that, immediately prior to the transport accident, the plaintiff’s mental condition was improving, which is consistent with Dr Wahr’s report to the plaintiff’s solicitors in August 2012 in relation to the transport accident.
(b) Post transport accident mental condition
66 The plaintiff’s claim is that she has suffered an aggravation of her pre-existing psychiatric condition as a result of the transport accident.
67 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ, in Petkovski v Galletti,[63] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:
“… 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 … .” [64]
[63]Supra
[64](Supra) at 443
68 Where the injury for which compensation claimed is an aggravation injury, the additional impairment must itself involve a permanent severe mental or permanent severe behavioural disturbance or disorder.
69 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident was “severe”.
70 The assessment that I must make of the plaintiff must be undertaken at the time of the hearing. Accordingly, I will be assisted by the up-to-date medical evidence relating to the plaintiff’s mental condition from Dr Wahr, Dr Entwisle, Dr Strauss and Dr Crump.
71 In February 2010, Dr Wahr’s records confirm that when the plaintiff reported the transport accident, he prescribed the same medication in the same dosage as prior to the transport accident.
72 In a letter to the plaintiff’s solicitor dated August 2012, Dr Wahr said that the plaintiff’s agitated depression, which had gradually improved following her work injury, had become worse following the transport accident.[65] In July 2012, Dr Wahr recorded prescribing Effexor SR 150, two at night, and Serenace 0.5 milligram, one at night and one as required. At that time, he said her condition constituted an impairment of 35 per cent, of which 15 per cent was pre-existing and 20 per cent related to the transport accident. He said the plaintiff had no work capacity and required ongoing psychiatric treatment.
[65]DCB 57-59
73 In September 2014, Dr Wahr wrote to QBE Workers’ Compensation and said he was prescribing Zoloft 50-milligram, one twice a day, and requesting QBE pay for the medication “as it is for a work related condition”.[66]
[66]DCB 64.1
74 In a further letter to the plaintiff’s solicitor dated July 2015, Dr Wahr assessed the plaintiff’s agitated depression as constituting an impairment of 35 per cent of which 10 per cent related to the work injury and 25 per cent related to the transport accident. He did not give a reason for the change in his impairment level attributable to the transport accident from 20 per cent in July 2012 to 25 per cent in July 2015.[67]
[67]DCB 63-68
75 In February 2016, Dr Wahr reported that the plaintiff’s agitated depression had now reached a plateau, constituting an impairment of 30 per cent. There was no apportionment between the plaintiff’s work injury and her transport accident. There was no explanation given by Dr Wahr as to the change in the assessments of the pre-transport accident level of psychiatric impairment. I can assume there was a trend toward improvement.[68]
[68]DCB 69-71
76 In March 2017, Dr Wahr reported that, in 2005, the plaintiff was referred to him following a work injury. She had agitated depression, which he treated. The plaintiff’s psychiatric condition had improved but had not fully resolved. This was reinforced by Dr Entwisle, who, in 2010, reported that the plaintiff’s medication had been reduced at the time of the transport accident.[69] Dr Wahr said the plaintiff’s current condition showed significant aspects of chronicity about it. He was prescribing Zoloft, 100-milligram, one tablet in the morning, Serenace, 1.5-milligram, half three times a day and one at night, Ativan, 1‑miligram tablet at night, and Serc, one daily.
[69]DCB 69
77 In May 2015, the plaintiff was medically examined by Dr Timothy Entwisle, psychiatrist, at the request of the defendant. In 2010, Dr Entwisle found the plaintiff to have an Adjustment Disorder with Depressed Mood in remission and traffic phobia. He said the symptoms related to the work injury. In respect to the traffic phobia, he reported that the plaintiff “drove across town to the appointment in 7 October 2010”. In 2015, it was his view that her current presentation is florid and illness belief entrenched. He said he had significant reservations as to the alleged injuries and disabilities being consistent with the manner in which the accident was alleged to have occurred. He said her pre-existing psychiatric condition in the past accounts for her current symptoms. He said her symptoms of anxiety were relatively minor when he first examined her and had increased for reasons which do not appear related to the transport accident itself. He thought her symptoms would increase in the current medico-legal environment. He said her total preoccupation with her symptoms does impact upon her capacity to work. His prognosis is for her symptoms to continue at present.
78 Dr Nigel Strauss, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitors in 2011, 2012 and July 2016. In 2011 and 2012, Dr Strauss said the plaintiff suffers a psychiatric impairment, which he assessed at 18 per cent, 6 per cent unrelated to the transport accident and 12 per cent related to the transport accident. In 2016, he said the plaintiff presented with a Pain Disorder or a Somatic Symptom Disorder, in that much of her physical symptomatology is psychologically based on an unconscious level. He said, apart from the Pain Disorder, she suffers from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and evident traumatisation. He said her prognosis must be guarded, she would continue to suffer from significant psychiatric symptoms indefinitely and he doubted whether she would return to work in the foreseeable future. He said her current psychiatric problems are a result of both her industrial accident and transport accident.
79 A further issue is to what extent is the physical presentation driven by non-organic factors, which was referred to by Mr Dickens and Mr O’Brien, both orthopaedic surgeons. As to that submission, I am more influenced by what Dr Strauss, psychiatrist, said on that aspect. He said the plaintiff presents as:
“… someone with a pain disorder or a somatic symptom disorder in that much of her physical symptomatology is psychologically based on an unconscious level. I do not believe however that this woman is deliberately or consciously over exaggerating her problems and there is no apparent evidence of this.”[70]
[70]PCB 129
80 Following the transport accident, the plaintiff reported symptoms of a feeling of disequilibrium, imbalance and vertigo, and was referred to Dr Nicholas Crump, neurologist and neurophysiologist. He obtained a history that her symptoms began in July 2013 when she had been unwell with upper respiratory tract symptoms of a running nose, frontal headaches and some fevers. He diagnosed peripheral vestibulopathy, most likely post viral, with some elements that may have been superimposed benign positional vertigo.
81 Dr Crump reviewed the plaintiff in November 2010 and in March, May, June, September and December 2011. In a report of March 2011, he said when reviewed in November 2010, her likely viral infection had largely settled. She developed a sudden recurrence in February 2011 in an unusual fashion. In March 2016, based on his examination of the plaintiff in 2011, he reported to her solicitors that, although he was a neurologist, he thought that her symptoms of feelings of imbalance with occasional vertigo were increasingly associated with non-specific headaches and increasing anxiety symptoms. It was his impression her symptoms were related to anxiety that developed in the aftermath of the transport accident. However, he noted he was not a psychiatrist or psychologist and thought more contemporaneous information from appropriate specialists should be sought.
82 I note that in May 2015, Dr Entwisle opined that the plaintiff’s symptoms of anxiety, vertigo and nausea did not relate to the transport accident. Further, her presentation raised serious questions as to the accident-relatedness of those symptoms. She did not describe the symptoms at the time of Dr Entwisle’s original assessment.
83 Accordingly, as Dr Entwisle was the only psychiatrist to consider the plaintiff’s symptoms of vertigo and nausea, I favour his opinion to that of Dr Crump. Dr Crump was a neurologist who examined the plaintiff in 2011 and concluded the complaints were not neurological in nature. In 2016, he provided an opinion without current examination and expressed an opinion outside of his expertise.
84 Counsel for the plaintiff submitted that, as time progressed, the work-related depression went into the background and the transport accident factors assumed greater importance. This was the view of Dr Wahr as at July 2015, and Dr Strauss.
85 Given the state of the medical evidence, I accept that the plaintiff’s current psychiatric problems are the result of both her work injury and her transport accident and, given the apportionments expressed by Dr Wahr and Dr Strauss, I accept that the greater contribution is more likely to be as a result of the transport accident. This is consistent with the opinions of Dr Wahr and, to a lesser degree, to that of Dr Strauss. The views of Dr Wahr and Dr Strauss are that her prognosis is guarded. Dr Wahr said her condition shows significant aspects of chronicity about it. Dr Strauss said she will continue to suffer from significant psychiatric symptoms indefinitely.
86 The issue for me to determine is the extent to which the plaintiff’s current medical condition is related to the transport accident, then analyse the extent of the impairment of the mental condition before and after the relevant injury, then I must determine whether the extent of the additional impairment is “severe”.
87 In closing submissions, counsel for the defendant submitted that the psychiatric evidence does not assist me in determining the extent of the aggravation, if any, to the plaintiff’s psychiatric condition, which is attributable to the transport accident. I do not accept that submission. There is medical evidence of the plaintiff’s mental and behavioural condition as at the time of transport accident. There is evidence expressed by medical witnesses of the role that the pre-existing psychiatric condition plays in the plaintiff’s current presentation.
88 In my view, it is useful to make a brief comparison of the plaintiff at the time of the transport accident and the consequences the plaintiff claims to have suffered as a result of the transport accident.
89 At the time of the transport accident, the evidence is that the plaintiff:
· consulted with her psychiatrist, Dr Wahr, monthly until the end of July 2009. She consulted her psychiatrist in December 2009, which was the month prior to the transport accident. She reported the depression “comes and goes”;
· was prescribed Avanza, 30-milligram, and Xanax, 1-milligram tablet, half in the morning and one at night;
· worked in a very limited capacity by answering the telephone and performing bookwork for her husband’s business;
· felt her social life had suffered because she felt unhappy about the way she was, and did not feel like spending time with people and making conversation;
· reported sleep problems;[71]
[71]The plaintiff reported sleep problems to her psychiatrist and in relation to her physical injury. I have weighed sleep problems at the low end of the scale in relation to the mental injury as her complaints of sleep were related to the physical injury.
· reduced concentration and reduced short-term memory;
· loss of sexual interest;
· reported irritability and being easily upset.
90 Currently, the plaintiff asserts the following as consequences that she suffers as a result of the transport accident:
· Consults with Dr Wahr monthly.
· Takes 100 milligram of Zoloft per day;[72] Ativan, 1-milligram tablet at night, Serenace, 1.5-milligram tablet, half three times a day and one at night.
[72]In September 2014, Dr Wahr considered the plaintiff’s need for Zoloft was work related, DCB 64.1
· Reported to Dr Strauss that she has occasional panic attacks but she can now control her anxiety better.[73] She told the Court and Dr Wahr the panic attacks are “softer” and she can manage the condition with medication.[74]
[73]PCB 127
[74]T81 – T82, L21. The evidence is that the plaintiff has called the ambulance on approximately four occasions as a result of panic attacks. The last record was in February 2016. The plaintiff’s evidence is that calling an ambulance alarms her son. She reported to Dr Strauss that she has the occasional panic attack but she can control her anxiety better.
· Remains unemployed after the transport accident.
· Reported to Dr Strauss being limited in what she can do around the home.
· Reported night voices, dreams, which she now has on three or four occasions per month.[75] However, she reported to Mr Strauss “occasional dreams” and no flashbacks. She denied auditory hallucinations.
[75]T83
· Reported to Dr Strauss that generally, her memory and concentration are adequate but sometimes she is forgetful and leaves the stove on;
· Reported that she is easily angered and upset but tries to control her temper. Occasionally, she punches the wall in frustration;
· She sleeps well at times and poorly at other times;
· She reported that she has sexual relations rarely;
· In November 2012, the plaintiff last reported headaches to Dr Wahr.[76] Her general practitioner referred to headaches. No psychiatrist relates the headaches to her psychiatric condition and Dr Strauss lists headaches under her physical symptoms in his most recent report.
[76]PCB 64
91 Accordingly, as there is no psychiatric evidence linking headaches to the plaintiff’s mental condition, I do not take the headaches into account as a consequence of the mental condition.
92 Dr Strauss said her ability to engage in social and domestic and recreational activities will remain permanently reduced.[77]
[77]PCB 129
93 Dr Wahr said her condition has improved with psychiatric treatment and psychotropic medication but her condition shows significant aspects of chronicity about it. As to the future, she requires psychiatric psychotherapy and monitoring of psychotropic medication for the rest of her life.
94 Dr Strauss said the plaintiff requires psychiatric treatment monthly and she should continue with her medication.
95 Both Dr Wahr and Dr Strauss accepted that the plaintiff has no capacity for work now or into the foreseeable future. This was the view of Dr Wahr following her work injury. Based on the evidence of the plaintiff and her husband, I accept that the plaintiff was able to perform very limited work in her husband’s business prior to the transport accident. I accept that, at the time of the transport accident, the plaintiff had a very limited work capacity, which involved writing invoices and answering the telephone on occasions when her husband was unavailable. I accept that as a consequence of the transport accident, the plaintiff has lost the capacity to continue her very limited work in the business. However, I accept this is a consequence at the low end of the range.
96 Dr Strauss said her current presentation is a result of both her transport accident injury and her work-related injury. Although, I note in 2011 and 2012, he said, of the 18 per cent psychiatric impairment, that 12 per cent was related to the transport accident.
97 In 2015, Dr Wahr said the plaintiff suffered an agitated depression constituting an impairment of 35 per cent, of which 10 per cent related to her work claim. By February 2016, he said the impairment was 30 per cent but without attributing percentages to the work injury or transport accident injury.
98 Based on Dr Strauss and Dr Wahr’s opinion, I accept a greater proportion of the plaintiff’s impairment is attributable to the transport accident.
99 I accept that, as a result of the transport accident, she now needs to consult her psychiatrist monthly. Prior to the transport accident, she had reduced her attendances from monthly attendances to “as required”. She is now prescribed stronger medication than prior to the transport accident. Currently, she cannot work in the very limited capacity in which she worked prior to the transport accident. Further, she now suffers panic attacks but which she can control with medication. She will require treatment monthly and medication. Dr Wahr said her treatment will be for the rest of her life. Dr Strauss did not express a view as to the extent of the plaintiff’s treatment.
100 In my view, the additional consequences attributable to the transport accident cannot be described as “severe”.
101 Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of a mental and behavioural disorder. I take the view that the additional consequences to the plaintiff, as a result of the transport accident, are at the middle of the range. On the evidence, the plaintiff was suffering from similar consequences prior to and at the time of the transport accident. I accept there has been an increase in the nature of her medication. I also take into account that her current consequences are more attributable to the transport accident. However, the word “severe” in the definition of the Act has been said to be a word of “stronger force” than the word “serious”. The evidence does not disclose additional symptoms and consequences seen in mental disturbances at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment of medication or symptoms, including suicidal ideation or attempts and psychotic symptoms.[78]
[78]As stated by Judge O’Neill in Papamanos v Commonwealth Bank of Australia [2013] VCC 1491, and adopted by the Court of Appeal
102 Taking all of the evidence into account, I am not satisfied that the plaintiff has established that the consequences of her mental and behavioural disorders could be reasonably described as more than “serious” to the extent of being “severe” as defined in s93(7)(c) of the Act. In my experience, the consequences to this plaintiff do not meet the test of “severe”. I accept that the plaintiff’s pre-existing mental and behavioural condition has worsened as a result of the transport accident. However, the current evidence of the plaintiff’s psychiatrist is that her condition is improving. I accept the injury has had consequences to her which are “significant” or “marked”. I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
103 Accordingly, I dismiss the plaintiff’s application in respect to the mental or behavioural disturbance or disorder.
104 I will now consider the physical injury to the plaintiff.
The physical injury
105 It was accepted that the spine, as a body part, was suffering an impairment as at the date of the transport accident, and on the plaintiff’s case, as a result of the transport accident, that impairment has become worse by reason of two factors:
(a) an aggravation of the lower back condition; and
(b) the involvement of the neck.
106 It was accepted between the parties that the plaintiff suffered a workplace injury to the lumbar spine in 2003.
The low-back condition
(a) The pre-existing low-back condition
107 As at June 2008, the medical evidence of the plaintiff’s work injury was expressed by Mr Brian Barrett, orthopaedic surgeon. Mr Barrett said the plaintiff complained of lower back pain, which radiates out into both buttock areas, and pain radiating into both legs, particularly the left leg, down the posterior thighs to the calf, foot and toes, associated with pins and needles and numbness in the left toes. He reported that the symptoms were aggravated by prolonged walking, bending, lifting, and any particular fast movements, and by prolonged car driving. She reported difficulty with heavy housework and was assisted by her husband with vacuum cleaning, mopping and heavy shopping. He said the plaintiff had no capacity to return to either pre-injury duties or any other lighter work, due to the severity of her symptoms and disability. He said her prognosis was poor and that she would continue to suffer marked restrictions in her domestic, social and recreational pursuits.
108 In November 2006, the plaintiff said she could no longer attend the gym due to her injured back.
109 In July 2008, the plaintiff swore an affidavit for the purposes of her work injury claim.[79] She said she suffered daily constant pain in her lower back. The pain goes down into her legs, her left leg is worse and she experienced numbness and tingling all the way into her left foot. Further, she said her medication was Panadeine Forte, Voltaren and Valium daily. She took approximately three or four Panadeine Forte, but on the worse days, she will need to take up to six for the day. She reported that the Valium assists in sleep at night. On her good days, there was little she could do around the house. On bad days, she could do nothing but lay down. She reported difficulty standing, sitting and walking for long periods of time. She said she had trouble driving for more than about twenty minutes at a time. She said she did little housework and her husband was required to clean, wash and do much of the cooking. She said that in February 2007, she had an injection in her shoulder and that she had received acupuncture treatment.
[79]DCB 26
110 I accept that, as at mid-2008, the plaintiff had suffered a work injury affecting her low back, with pain radiating into both buttocks and radiating into both legs. Mr Barrett said she had no capacity to return to pre-injury work or lighter work. Her prognosis was poor and she would continue to suffer marked restrictions in her domestic, social and recreational activities.
111 I refer to my findings in paragraph 49. I accept the evidence is that, prior to the transport accident and throughout 2009, the plaintiff was reporting low-back pain up until the transport accident and consequences at the high end of the range.
(b) The medical evidence following the transport accident
112 In May 2011, Dr Chris Gorgioski, general practitioner, reported that the plaintiff had a past history of chronic lower back pain. He said she had pre-existing lumbar spine disc pathology, which was aggravated by her transport accident. He said it was difficult to say which percentage was caused by the transport accident and which was caused by the prior workplace injury. He said she suffered a soft tissue injury to her neck and shoulders as a result of the transport accident. She complained of attacks of tremors, poor balance, headaches and numbness of her tongue, which he could not relate to the transport accident.
113 In 2013, he said her fitness to do her bookkeeping work was due to her forgetfulness, insomnia and depression.
114 In 2016, he said the plaintiff reported constant neck pain, which she did not have before the transport accident. She cannot go to the gym or swim, is not socialising, cannot concentrate and has poor memory.
115 In an affidavit sworn 5 March 2012 in relation to this application,[80] the plaintiff said she injured her lower back at work while lifting in 2003. She swore the back pain stopped well before her transport accident.
[80]DCB 30.4
116 I refer to my earlier findings in paragraph 49 and conclude that the independent evidence was that the plaintiff was complaining of low-back pain and receiving treatment for that pain in the form of consultations with her general practitioner who was providing medication, and her physiotherapist, up until the time of the transport accident. I accept that she suffered consequences at the high end of the range.
(c) The current medical evidence
117 Following the transport accident, a number of medical witnesses examined the plaintiff. The evidence of Mr Timms, neurosurgeon, and Mr O’Brien, orthopaedic surgeon, was of limited assistance because their reports were not current and Mr Timms had an inaccurate history of the plaintiff’s work injury. Mr O’Brien obtained no history of the plaintiff’s pre-accident work-related injury.
118 The more current evidence was that of Mr Dickens, orthopaedic surgeon, Mr D’Urso, neurosurgeon and Dr Gorgioski, general practitioner.
119 In August 2013 and March 2015, Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the defendant. The plaintiff reported to him that, ten or twelve years ago, she had a work injury to the lumbosacral spine from which she completely recovered by the time of the transport accident. She reported that she was having no further treatment for her low-back injury from 2004. Mr Dickens said the plaintiff suffered soft tissue injuries to the lumbar spine and cervical spine in the transport accident.
120 In relation to the lumbar spine, Mr Dickens said it is likely there was preceding pathology, which had been aggravated by the transport accident. In relation to the cervical spine, he said the plaintiff suffered a soft tissue injury to the cervical spine in the presence of preceding degenerative pathology at C6-7 level, without radiculopathy. He concluded that the injuries are consistent with the transport accident. He said, from the documentation he was provided with, the plaintiff had significant lumbosacral problems up to 2008 and possibly even at the time of the transport accident. He said she certainly had established chronic back pain, and that the accident would have only had a temporary impact on the natural history of the condition. He said the ongoing symptoms reflected the natural history of the pathology in the lumbosacral spine.
121 Mr D’Urso examined the plaintiff in January 2013, February 2014, April 2015 and February 2016. In February 2016, Mr D’Urso said the investigations on the MRI demonstrated a C4-5 disc prolapse with foraminal left C5 nerve root impingement, lesser foraminal stenosis was noted on the right side. A broad-based prolapse was present at L4-5 with degenerative findings and some subarticular stenosis, a little worse on the left than the right. Minor impingement of the left L5 nerve root was noted. While Mr D’Urso was provided with reports of the plaintiff’s general practitioner, he did not refer to the previous pre-existing work-related injury, namely the lumbar spine injury. However, I accept that he acknowledged a worsening of symptoms following the transport accident.
122 However, in his most recent report of May 2016, Mr D’Urso stated that he was provided with reports of Dr Gorgioski and Mr Barrett of June and July 2004 respectively. He concluded that there was evidence of a degenerative disc disease at the C6-7 without neural impingement. He accepted that the transport accident aggravated an underlying condition of the cervical spine and, to a lesser extent, the lumbar spine. He said the plaintiff’s current disability has a moderate effect on her social, domestic and recreational spheres. She does not have the capacity to perform any type of recreational sporting activity. She has limited capacity to perform domestic cleaning and gardening activities. Her ability to socialise has been affected to a moderate degree.
123 In 2017, Dr Gorgioski said the plaintiff aggravated the lumbar spine following the transport accident. She had a past history of chronic lower back pain. Immediately following the transport accident, he could not make an assessment of the contribution of the transport accident.[81] He said she still complains of headaches and neck pains. Her neck pain is aggravated by movement and position of the neck. She complains of dizziness. She drives short distances, taking her son to school. She does some light housework. Dr Gorgioski said the plaintiff is treated with physiotherapy and medication of Lyrica, 75-milligrams, Tramal, 60-milligrams two to three times a day, Panadeine Forte and Stemetil.
[81]In May 2011
(a) an aggravation of the lower back condition
124 Given the state of the evidence, I accept the degree of aggravation of the lumbar symptoms due to the transport accident on one view cannot be properly estimated,[82] on another view only had a temporary impact,[83] and, at best, the aggravation is at a low level.[84]
[82]Dr Gorgioski
[83]Mr Dickens
[84]Mr D’Urso
(b) the involvement of the neck
125 I shall now consider the position of the cervical spine.
126 It was accepted that the plaintiff had not reported injury to her neck prior to the transport accident.
127 In his report of March 2015, Mr Dickens said the plaintiff suffered a soft tissue injury to the cervical spine with pre-existing degenerative pathology at the C6‑7 level which was aggravated by the transport accident. Mr D’Urso said the transport accident aggravated an underlying degenerative condition of the cervical spine. In March 2017, Dr Gorgioski said she suffered a whiplash injury to her cervical spine and vertigo. I accept that, as a result of the transport accident, the plaintiff suffered an injury to her spine in the form of an aggravation of an underlying degenerative condition of the cervical spine.
128 The plaintiff reported neck pain radiating into her shoulders and shoulder blades. I accept that the plaintiff reported pain in her shoulder prior to the transport accident, more particularly the right shoulder, which she did not report to Mr Dickens or Mr D’Urso. In July 2008, the plaintiff swore an affidavit in her work injury proceeding in which she said she was referred to an orthopaedic surgeon in relation to her shoulder. She received an injection in the shoulder which provided relief for one month. The plaintiff admitted that she had complained of shoulder pain prior to the accident and when cross-examined on this aspect, said she did not think it was important.[85] The plaintiff’s evidence in Court was that, currently, the pain is in her neck, which can extend into the shoulder and arms.[86]
[85]T46 and T49, L20
[86]T46, L23-26 and T49, L10-13
129 Accordingly, due to the state of the evidence, I accept that the spine, as a body part, was suffering an impairment as at the date of the transport accident. I accept that, as a result of the transport accident, the impairment has become worse by reason of the involvement of the neck and, at best, to a very minor degree, an aggravation of the lower back.
130 I will now consider the consequences to the plaintiff’s spine as a result of the transport accident. In doing so, I apply the principle in Petkovski v Galletti.[87]
[87](1994) 1 VR 436
Pain
131 Prior to the transport accident, the plaintiff was reporting constant pain in the lower back.
132 In 2015, she reported to Mr Dickens cervical spine pain at 5 out of 10 with medication and 10 out of 10 without medication. In May 2016, the plaintiff reported constant neck pain to Dr Gorgioski. In February 2016, she reported to Mr D’Urso neck pain as 7.5 out of 10 and lumbar pain as 7.5 out of 10. She described pain in her upper arms bilaterally, as well as pain in her legs. However, the pain in the legs was reported prior to the transport accident.
133 I accept the level of pain attributable to the transport accident is in large part limited to pain the plaintiff reports due to the cervical spine. I accept that the plaintiff is reporting pain at a high level. Further, the pain the plaintiff suffers is to be informed by the level of medication the plaintiff now takes and the treatment she receives as a result of the transport accident. Accordingly, I will consider the evidence as to treatment and medication.
Treatment
134 Prior to the transport accident in July 2008, the evidence is that the plaintiff was consulting her general practitioner every couple of weeks, who prescribed her medication for her low-back condition. She was taking Panadeine Forte, Voltaren and Valium daily. She was taking approximately three or four Panadeine Forte but, on the worst days she needed up to six per day. In December 2009, she reported being prescribed Toradol for her back pain.[88]
[88]DCB 158
135 Currently, the plaintiff consults her general practitioner approximately twice a month for prescriptions. She is now prescribed Tramal, 50 milligrams, which she uses between three and six tablets per day depending on her level of neck and lower back pain. She takes Lyrica, 25 milligrams twice per day, and is prescribed Nexium to control stomach pain and reflux. She uses Panadeine Forte as required. The medication the plaintiff is taking is for both the neck and lumbar spine. In view of my finding that the spine has become worse by reason of the neck, I take into account the fact that current medication is for both the neck and low back.
136 As to treatment, Mr Dickens suggested the plaintiff need only receive treatment from her general practitioner every two to three months for the purpose of receiving medication. Mr D’Urso said her treatment should consistent of anti-inflammatory and analgesic medication under the supervision of her general practitioner. He recommended a program of self maintenance, core exercise and hydrotherapy exercise under the supervision of a physical therapist would be appropriate. The report of Mr Vinci, physiotherapist, said that, since the termination by the Transport Accident Commission of physiotherapy, the plaintiff has attended on an intermittent basis.[89] Currently, the plaintiff is receiving physiotherapy treatment for both her neck and lower back. Mr Dickens thought there was no place for physiotherapy treatment. This is inconsistent with the opinion of Mr D’Urso.
[89]PCB 39.2
137 I accept that, prior to the transport accident, the plaintiff’s medication regime could be described as moderate. Following the transport accident, I accept that the medication regime is at the higher end of the range. Taking into account the views expressed by the medical witnesses as to treatment, I accept that the plaintiff’s current treatment is similar to the treatment prior to the transport accident.
Headaches
138 The plaintiff says she now suffers headaches, which is a consequence which I can take into account. In February 2014, the plaintiff reported chronic headaches to Mr D’Urso. In April 2015, Mr D’Urso said the plaintiff suffers from occipitocervical headaches as a result of the transport accident. In the plaintiff’s affidavit, she deposes she suffers constant headaches. Dr Gorgioski reported headaches. The plaintiff did not report headaches prior to the transport accident. Accordingly, I accept that the headaches are a consequence of the transport accident. I consider the headaches the plaintiff now reports are constant and in the high end of the range
Recreation and daily activities
139 Prior to the transport accident, in June 2008, the evidence expressed by Mr Barrett, orthopaedic surgeon, was that she continued to suffer marked restrictions in her domestic, social and recreational pursuits. Those restrictions were required to keep her symptoms and disability at a minimum. This is consistent with what the plaintiff reported at that time in her affidavits.
140 In 2017, Mr D’Urso said that the plaintiff’s disability has a moderate effect on her social, domestic and recreational sphere. She does not have the capacity to perform any type of recreational or sporting activity and has limited capacity to perform domestic, cleaning or gardening activities.
141 In May 2016, Dr Gorgioski said the plaintiff reported she had stopped heavy cleaning duties such as vacuuming and did not go to the gym or swimming.
142 Mr Dickens said that he did not consider there were major physical impediments to the plaintiff’s capacity to undertake activities of daily living.
143 I accept that the current view is that there are moderate restrictions imposed upon the plaintiff’s recreational and daily activities.
144 Taking into account the pre-injury restrictions referred to by Mr Barrett compared to the moderate restrictions imposed by Mr D’Urso and Mr Dickens, I consider that any additional consequence to recreational and daily activities that the plaintiff has suffered as a result of the transport accident is at the low end of the range.
Work
145 The evidence is that, prior to the transport accident, the plaintiff reported returning to work for her husband performing bookkeeping work and answering the telephone. The evidence is that the work the plaintiff performed was intermittent. On the plaintiff’s own evidence, the work she performed for her husband could only be described as light work.
146 The plaintiff’s evidence was that, as a result of the transport accident and her injuries, she found work was too tiring and painful, and she had to reduce her activity. Her memory and concentration were affected by the transport accident. Because of the spinal pain, she could not cope with her work.[90]
[90]PCB 11 and 17
147 In re-examination, the plaintiff said that, as a result of the transport accident, she could not do the bookwork because her neck and vertigo affected her ability to read[91] and her back pain affected her ability to sit.
[91]T76, L29 – T77, L21
148 The evidence is that Mr Dickens thought, physically, she could continue working in her role as a bookkeeper in her husband’s business. In February 2016, Mr D’Urso thought that she might have some capacity for part-time light employment.
149 Accordingly, I am not satisfied that this is a consequence that I can take into account.
Sleep
150 The evidence is that the plaintiff reported sleep disturbance as a result of her work-related injury. In her affidavit sworn in 2008, she deposed:
“I have trouble sleeping although the Valium does assist with that somewhat. I have pain in my right shoulder if I lie on that side and often if I lie in one position for too longer, I get numbness in my leg and foot. I can’t seem to find a comfortable position to lie in.”[92]
[92]DCB 28
151 Currently, the plaintiff said she wakes most nights for approximately two hours, usually because of neck pain, headaches and referred pain to her arms. The plaintiff reported sleep disturbance to psychiatrists, Dr Strauss and Dr Wahr. However, Dr Wahr reported:
· “sleeping was off and on but not too bad”[93]
[93]PCB 73
· “not much”[94]
[94]PCB 74
· “sometimes she had problems sleeping”[95]
[95]PCB 74
· “sleeping was ‘up and down’”[96]
· “sleeping was ‘not too bad’.”[97]
[96]PCB 75
[97]PCB 76
152 I accept that as a consequence of the transport accident, the plaintiff has suffered sleep disturbance attributable in large part to her neck condition and headaches. I accept that this is a consequence which I can take into account. Given the fact that the plaintiff has reported sleep disturbance to her psychiatrist, I accept that in part the sleep disturbance is related to the neck and, accordingly, I take this into account.
Conclusion
153 Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of a physical nature relating to her spine. However, I am not satisfied that she satisfies the test as set out in the Act. What was in issue was the consequences of the plaintiff’s injuries and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable” when compared with other cases in the range.
154 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[98]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”[99]
[98]Supra
[99](ibid) at paragraph [2]
155 Section 93 was intended to restrict the availability of common law damages to workers whose injuries were of a “very considerable” magnitude.
156 I am satisfied that the plaintiff now suffers neck pain, sleep disturbance and headaches. She has moderate difficulties in performing household tasks but that was also the situation before the transport accident. The plaintiff is receiving minimal treatment but now requires significant analgesic medication.
157 Although the plaintiff’s neck injury has had an effect on her life, taking all of the evidence into account, I am not persuaded, on the balance of probabilities and in light of the evidence as a whole, that the consequences to the plaintiff satisfies the test. I accept the plaintiff suffered an injury to her neck in 2004. I accept that the injury has had consequences to her which are considerable but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
158 Accordingly, I dismiss the application.
159 I will now hear the parties on costs.
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