Solomos v Transport Accident Commission
[2014] VCC 1085
•8 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03337
| MARY SOLOMOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 July 2014 | |
DATE OF JUDGMENT: | 8 July 2014 | |
CASE MAY BE CITED AS: | Solomos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1085 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – injury to the spine – Chronic Adjustment Disorder with Depressed and Anxious Mood or a Chronic Pain Disorder or Pain Syndrome
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Turner v Love (1995) 21 MVR 314; Hunter v Transport Accident Commission [2005] VSCA 1; Elias v Transport Accident Commission [2013] VSCA 342
Judgment: Leave granted to bring proceedings to recover damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Ms J Frederico | Nowicki Carbone |
| For the Defendant | Mr G Lewis QC with Mr A Newman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This application for leave pursuant to s93(4) of the Transport Accident 1986 (“the Act”) relies on a paragraph (a) injury to the spine at both the cervical and low back levels. It is the impairment of the spine that is the relevant body part.[1] The plaintiff also relies on a paragraph (c) psychiatric injury described as a Chronic Adjustment Disorder with Depressed and Anxious Mood or a Chronic Pain Disorder or Pain Syndrome. The Post-Traumatic Stress Disorder referred to in the papers is not relied on.[2]
[1]Transcript (“T”) T3
[2]T4 and T28
2 The plaintiff had suffered from a number of health issues before the transport accident on 2 December 2008. In particular, she had an ongoing low-back problem that required fairly regular attendances on her local doctor, Dr Ng, for painkillers that were usually Panadeine Forte. It had required more extensive treatment in 2003 and in 2006.[3] This included referral to Dr Alex Stockman, rheumatologist, in 2003. Radiology and bone scans took place.[4] She also saw a neurosurgeon in 2006.[5] In the end, I accept the pre-existing condition of the low back was relatively controlled, though ongoing. More importantly, it was not causing any real impairment in terms of work or activities. The pain she had was such that she could cope with it in her daily life.
[3]Exhibit 2
[4]Plaintiff’s Court Book (“PCB”) 84
[5]PCB 22
3 The records of her general practitioner show these visits in the years prior for low back complaints were principally to obtain prescriptions and the last scripts pre accident seem to have been in June and then 2 October 2008.
4 The plaintiff’s affidavit indicated this condition had resolved and did not tend to affect her leading up to the accident.[6] I largely accept that evidence. On the probabilities, there was not complete resolution in terms of pain but there was resolution in the sense of no significant consequences impacting on her life. The unchallenged affidavit evidence of her friend of twenty five years supports my finding that the pre-existing low back condition did not impede her socially, around the house or in any relevant way from leading a very active life. It is also worth noting that the friend, while obviously not responsible for disentangling, only refers to the spine in regards to complaints.[7]
[6]PCB 22
[7]PCB 39-41
5 The plaintiff also suffered from some chest pain in the past. She had unfortunately been involved in a very frightening incident in 2005 at work at a service station. She was held up at knifepoint when on her own. She needed a short burst of psychiatric help following this for the understandable anxiety and concerns, but her condition settled in time and was not causing any problems for her at the time of the accident. It is not entirely clear, but the psychiatric treatment was probably only for a month or so.[8]
[8]PCB 22
6 The plaintiff is aged fifty. The transport accident was a very violent one. Another car collided with her car and she was conveyed to the Royal Melbourne Hospital by ambulance and admitted overnight with multiple injuries. The ambulance records describe it as “a major trauma”.[9] The forces even buckled an engine mount. The ambulance officers reported that the plaintiff impacted her sternum on the steering wheel and struck her face on the dash. She was immediately aware of neck pain.[10] On any view, her chest, face and upper spine were the focus of treatment and were very forcibly thrown against the cabin parts. The extensive hospital records show a fractured sternum, damage to seven or eight teeth, neck and arm pain and leg symptoms, amongst other injuries. Five teeth were fractured.[11] Four teeth were in fact missing.[12] Not surprisingly, given the type of collision, her affidavit described no less than six injuries or really seven if each arm is counted.[13]
[9]PCB 52
[10]PCB 53
[11]PCB 24
[12]PCB 82
[13]PCB 23
7 Several days later, the plaintiff attended her local doctor, Dr Ng, and treatment continued through his clinic. She was bruised in many areas of her body when he saw her on 5 December 2008.[14] The Royal Melbourne Hospital Outpatient Clinic and Pain Clinic have been the principal place of treatment over the whole time. She was also referred to Dr Clayton Thomas at the Melbourne Pain Group due to spinal and wrist pain.[15]
[14]PCB 24
[15]PCB 23-25
8 Treatment has been very active, in particular in the neck region, and continues to the present time. Her general practitioner, chiropractor and Dr Peter Courtney at the Royal Melbourne Pain Clinic are still treating her. Also she has kept up gymnasium attendances until very recently.[16] She has been on a good deal of medication since the accident and that continues, as does chiropractic treatment twice per week.[17]
[16]PCB 32-37
[17]T63
9 The issues for determination were said to be that, with respect to the spinal impairment, the low back injuries have not been disentangled from the pre-accident condition. The spinal impairment, encompassing the neck and low back, are argued by the defendant as not “serious” in any event. In terms of the paragraph (c) claim, the defendant’s argument is that it is not “severe” under the Act.[18]
[18]T33-35
10 In final submissions, the defendant’s principal argument was that the low-back condition involved a before/after analysis that the plaintiff had not proved on the evidence.[19] In addition, the plaintiff had not adequately disentangled the consequences of the bilateral wrist injuries from the spinal impairment. Thus, the plaintiff had not proved the impairment of the spine of itself attributed to consequences that were “very considerable”.[20]
[19]Petkovski v Galletti [1994] 1 VR 436
[20]T90-95
11 The plaintiff in the end conceded the only relevance of the paragraph (c) claim was if the Chronic Pain Syndrome some doctors spoke of was non organic. The Adjustment Disorder with Anxiety and Depression was abandoned as not amounting to a serious mental or behavioural disorder.[21]
[21]T157
12 There is no doubt on all the evidence in this case that the plaintiff has suffered injuries to a number of different parts of the body. There is also no doubt in a serious transport accident of this type where the forces were severe enough to fracture her chest and knock out multiple teeth, that a lay person will speak of “pain” in an inclusive sense. She suffered leg injuries with scarring that troubles her but they are just one of her residual concerns following the collision.[22] Some aggregation of injuries by the plaintiff in these circumstances is virtually inevitable, both in their description to the Court by way of affidavits as well as to doctors. This applies to doctors treating her and listening to complaints as well as medico-legal examiners. Such has happened here.
[22]PCB 26
13 The Court of course is charged with a different task of evaluating whether or not the consequences attributable to a single identifiable impaired body function meet the test of being “at least very considerable”. Here it is the function of the spine. In other words, the consequences properly referable to the spinal injury need to be evaluated[23] and in this application that encompasses injury to the lumbar spine or low back that was the site of pain and analgesics up to the accident. Thus, it is an aggravation at that level to be judged. It encompasses injury to the cervical spine or neck which is a “fresh” injury, in the sense that the evidence does not disclose it ever being injured before.
[23]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraphs 2, 24 and 25
14 Assistance in this task can be gained from the nature of the accident. The upper torso and spine were subjected to violent forces. The neck was a focus from the time of the ambulance officers’ involvement. The treatment history since, over the last five and a half years, has been obviously directed to spinal injuries and cervico headaches. These factors need to be borne in mind in assessing the evidence that is often aggregating injuries when “pain” for example is referred to.
15 The plaintiff alone gave oral evidence. Apart from her affidavit statements about the low back having resolved there was no real attack on credit. She was frank in her evidence. For example her answers about wrist and finger pain still affecting sleep, work and driving were honest and against interest in a disentangling case.[24] Similarly, her evidence about her low back prior to the accident requiring light duties and needing help at work were forthright responses that did not advance her case in terms of a before/after analysis of the lower spine condition.[25] I had the advantage of hearing her evidence and I accept her as reliable and honest.
[24]T57-59
[25]T53-54
16 Her affidavit evidence shifted in focus from injury to injury, as with time, certain injuries, their pain and treatment occupied her attention more than others. For example in 2009, she needed extensive dental treatment.[26] Her sternum was the first injury she listed in December 2008.[27] Then, in 2010 and 2011, she was seeing practitioners with the focus on carpal tunnel problems in the wrists. The right was operated on at the Freemason’s Hospital in 2010 and the left in 2011.[28] These operations helped but problems still remain.[29] She needed psychiatric help in mid 2012 when there was a re referral to Dr Chau, who she saw for help following the knifepoint robbery in 2005.[30] His treatment was over about eighteen months. She stopped taking antidepressants. Dr Chau last saw her about eight months ago.[31]
[26]PCB 24
[27]PCB 23-24
[28]PCB 24
[29]T57
[30]PCB 24
[31]PCB 24, 102-3
17 A contrast in treatment is seen when both the ongoing extent and invasive nature of the treatment focussed on the cervical spine, cervico headaches and the low back in recent times are examined against past treatment.
18 I must judge consequences now, many years after the accident. Her affidavit last year has much more focus on the impairment of the spine than her wrist injuries or psychiatric problems.[32] Clear examples, which I accept, of consequences that are attributable to the organic spinal impairment include sitting or standing for too long that cause her low back and neck to become stiff and painful. The movies, at dinner or at work are examples.[33] Walking long distances is also relevant to the lower back. Pressure on her neck from lifting heavy items, sitting and leaning over when working as a nail beautician and not wearing high heels are also are consequences of the spinal impairment not of her wrists.[34] I accept her evidence when she said pain was worse at night from pain in this order of injuries “…neck, lower back and arms”. That reflects on the probabilities that spinal pain is predominant.[35]
[32]PCB 25-26
[33]PCB 26
[34]PCB 26-27
[35]PCB 28
19 The plaintiff’s up to date affidavits give a clear picture in relation to the prominence of her constant neck pain. I accept her evidence. It is central to my ultimate findings in this case.
“It is present all the time but varies in intensity. It is a burning and stabbing type of pain which throbs like a pulse in the back of my neck. I am restricted in all my neck movements and I have difficulty twisting my neck and looking up and down. The pain in my neck interferes with my sleep as I find it difficult to get comfortable”.[36]
[36]PCB 32, paragraph 5
20 This is consistent with the treatment in more recent times centering on the spine and particularly the neck. Dr Peter Courtney at the Royal Melbourne Pain Management Services Clinic is still giving her invasive injection treatment, as many as “nineteen jabs in a treatment”. I accept:
“This treatment is really awful and difficult but it helps me as it gives me some relief for my pain and eases the restriction of movement in my neck. It also releases the blocking feeling in my neck and reduces my headaches for a time. I believe that I will continue to be treated by Dr Courtney with these injections”.[37]
[37]PCB 32-33
21 The headaches she related to her neck pain. That is consistent with the extensive Royal Melbourne Hospital references to the cervicogenic nature of her headaches.
22 Judging this case now, I find that while she still has teeth symptoms, leg scars, hand and wrist symptoms in spite of surgery, it is her neck that is the real disabling impairment. To a lesser extent, the aggravated aspect of the low back adds to the spinal impairment also. Dr Courtney treats it also with multiple injections.[38] It is her organic neck injury that most of the consequences are essentially attributable to. Spinal pain I accept limits swimming and dancing, vacuuming, mopping and cleaning for example.[39] Cycling I also accept is limited by her spine in the main.[40]
[38]PCB 33
[39]PCB 22-23
[40]PCB 27
23 I accept it is her neck and back symptoms that lead to the chiropractic treatment that is still ongoing.[41] Increased medications of Panadeine Forte compared to what she used to take for her low back as well as Lyrica point to pain requiring analgesics above the levels she needed pre accident.[42] The pharmacological records indicate the increase in the frequency of painkillers post accident with eight prescriptions in 2011and seven in 2012. The records are incomplete for 2013. In 2008, up to the December transport accident, there were only three prescriptions.[43]
[41]PCB 34, T63
[42]PCB 34, Exhibit 2
[43]Exhibit 2, page 33
24 I accept her latest affidavit evidence that her hands are not too bad, she is embarrassed about her injured chest and her teeth still have problems.[44] I find the real consequences impacting on her daily personal life, social life and around the home are essentially attributable to her spine and in particular her neck.[45] She has regularly attended a gymnasium which, on the probabilities, is for spinal conditioning. It is not for her wrists or teeth.[46]
[44]PCB 35
[45]PCB 36-37
[46]PCB 37
25 Dealing with the radiological evidence, there was none with respect to the neck pre accident as there were no symptoms or treatment in that area. The low back was the subject of radiological investigation. A CT scan this month in regard to the lumbar spine spoke of disc protrusions at L5-S1, stenosis at L4-5 that is moderate to severe and there is possible L5 nerve root involvement.[47] An MRI scan in 2012 noted disc protrusion and indentation of the L5 nerve root at the level of L4-5 and L5-S1.[48] By contrast the last investigation pre accident was in June 2006, and where it noted bulge at these two levels, there was no mention of protrusion nor mention of indentations of the nerve root.[49] On the probabilities this evidence is consistent with an aggravation of pathology in the lumbar spine following the transport accident.
[47]PCB 51A
[48]PCB 49-50
[49]PCB 47
26 Of the treating doctors, Dr Alex Stockman, rheumatologist, saw her in 2003 for her lumbar back. Radiology was normal. His only report said he was unclear what caused the pain.[50]
[50]PCB 84
27 The general practitioner, Dr Ng, provided a number of reports but the last one basically repeated the earlier ones. His clinic had been her local doctor practice before and after the transport accident. He obviously described her multiple injuries, physical and mental, for which, together with the Royal Melbourne Hospital Clinics, he was charged with treating.[51] By 2013, he had started to sift them out in some order as time passed. Five years after the accident, he had the cervical spine disc pathology in the upper and lower spine first in the list of her problems. He deferred in a way to the hospital treatment of Dr P Courtney.[52]
[51]PCB 112
[52]PCB 122
28 In May this year, when this very current report addressed years of multiple attendances that must number dozens, it is the disc pathology in the spine he referred to first in his summary. He described a prolapse at C5-6, as well as a protrusion at L4-5.[53] This doctor has had to deal with a whole litany of trauma injuries the transport accident caused but on a fair reading of all the material it assists the task of disentangling, in that the spinal symptoms are now the predominant problem by June 2014.
[53]PCB 135
29 It seems he referred her to Mr I Cunningham, orthopaedic surgeon, in August 2012 for the low back only. The surgeon took a history of “many years of back pain” from a time prior to the accident.[54] He saw her three times, the last being in April 2013. He concluded the transport accident worsened her right leg pain due to possible disc pathology at L4-5 and L5-S1. He had not seen her for some time but thought “…she would be back to her pre-injury level by now”.[55] I accept this report as indicating her pre-existing low back condition was aggravated in the transport accident. It worsened leg pain. I also accept that while he expected improvement, he has not seen the plaintiff now for some fifteen months. On the evidence, her low-back condition has not improved to the extent he hoped.
[54]PCB 137
[55]PCB 138
30 Dr Clayton Thomas saw the plaintiff for treatment in 2011, 2012 and 2014. He thought her primary problem was headaches that were cervicogenic which were daily and frequent.[56] He was also dealing with pain from her other injuries, including the carpal tunnel, so his two reports really aggregated her unfortunate situation. He thought she had a widespread pain syndrome requiring Lyrica, even with its possible side effects. Her condition was stable apart from her neck and low-back certainly continuing to be relevant to her overall pain picture. He thought she needed pain management as well as medication and noted she was having chiropractic treatment twice per week.[57] That pain management in fact continues with Dr P Courtney.
[56]PCB 96
[57]PCB 97
31 A very current chiropractic report of May 2014 from Dr M Ferrar commenced with a long list under “Chief Complaint” with the clear references “The patient has a lengthy history of moderate constant pain in the middle neck” with radiation down the arms. There was also moderate constant pain in the low-back.[58] A lengthy examination summary started with the cervical spine. She was progressing “along a chronic course”.[59] Spinal injections were recommended to continue, along with manual therapy, soft-tissue therapy, self-management strategies and home-based care.[60] On any view, this report was dealing with the spine, particularly the neck, as the primary injury causing pain and other problems. She is still seeing the chiropractor twice a week on Mondays and Thursdays.[61] I accept the report supports my finding the plaintiff has constant pain in the spine, particularly her neck, that requires very regular treatment years after the accident.
[58]PCB 141
[59]PCB 142
[60]PCB 143
[61]T63
32 The Royal Melbourne Hospital notes are extensive. They point to the neck as the probable cause of her constant pain and disability. Before dealing with the actual reports, the notes are worthy of the following conclusions being reached. At least from about March 2012 up to the present time, there have been multiple invasive procedures by way of injections of steroid and local anaesthetic and blocks, too numerous to count, she has undergone for spinal pain.[62] Chronic spinal pain is referred to.[63] Radiofrequency denervation for back pain has been recorded.[64] When the actual reports and letters from the hospital are examined, it becomes clear the main nature and the direction of this ongoing treatment is in regard to the neck. She is booked to see Dr Courtney for another round in August.
[62]PCB 77-80, T71
[63]PCB 81
[64]PCB 76
33 Dr P Courtney, rehabilitation services specialist, in June 2012, clearly described injections that were directed to her neck and occipital nerves. He alluded to a C5-6 prolapse and foraminal stenosis.[65] A Dr S Li, physician, from the hospital, wrote in September 2012 about pain being treated at the Pain Clinic in 2012 and the triggerpoints he referred to are in the upper spine. He pointed to neck pathology at C5-6.[66] A recent separate handwritten hospital note of 16 May 2014, recorded “mechanical back pain” as the principal diagnosis with a follow up in the Pain Clinic referred to. No other injuries were listed.[67]
[65]PCB 88
[66]PCB 89-91
[67]PCB 153-154
34 The final hospital report from doctors other than Dr Courtney was from Dr L Selleck on 27 May 2014. It listed the multiple injuries but, importantly, the necessary focus was obviously on neck pain and occipital headache pain.[68] Occipital nerves had been blocked and triggerpoints on the right and left had been injected with anaesthetic and she was booked in for more denervation. In the witness box the plaintiff demonstrated with her hands how the injections and blocks were done on both sides of her neck, as well as into her head.[69] Again, this report is consistent with my finding that at the current time, the plaintiff’s major problem, her site of pain and need for continuing invasive treatment is her neck.
[68]PCB 93
[69]T75-77
35 Dr P Courtney reported on numerous occasions, as well as being mentioned in the hospital notes.[70] He recorded how she was sent from the Plastic Surgery Unit at the Royal Melbourne over to the Pain Clinic in March 2012. It was bilateral arm pain and neck pain at that stage.[71] On the same day, he examined her and the first note recorded was residual movement and tenderness in the cervical spine as well as arm symptoms. He started injection treatment.[72]
[70]PCB 147-154C
[71]PCB 147
[72]PCB 148
36 In September 2012, all treatment was to the neck.[73] By December 2012, he noted improvements in respect to her headaches and neck pain from injections and nerve blocks. The first note appeared of an injection in the low-back region by way of the right sacroiliac joint being recorded. The neck was the obvious predominant focus of attention on pain relief.[74] In July 2013, in a very short letter, she had not responded well to radiofrequency denervation in the low back although in 2014, that response was a little better.[75]
[73]PCB 151
[74]PCB 149
[75]PCB 150 and 152
37 September 2013 saw Dr Courtney report on headaches increasing again but some reduction in back pain. Once again, he injected her greater right occipital nerve and also administered injections into her sternocleidomastoid muscle, as well as injecting the sacroiliac area.[76] By December 2013, the occipital nerve blocks were wearing off so they were repeated together with more injections in the neck. The low-back was also injected again.[77]
[76]PCB 154A-AA
[77]PCB 154B
38 His final report in March 2014 reaffirmed the ongoing neck blocks and still more injections into the sternocleidomastoid muscles.[78] He really concluded, rather pessimistically:
“Given that she is now getting more pain in the left side and when she had radiofrequency last year it was on the right side, I have discussed the possibility of performing a bilateral radiofrequency denervation and this will be done when possible”.[79]
[78]PCB 154C
[79]PCB 154C
39 In my opinion, the enormous amount of treatment the plaintiff has had and is continuing to have to the spine, but principally in the neck region, supports my finding she is suffering very severe constant neck and occipital pain attributable to the accident. On the probabilities, this is a very considerable consequence of itself. It comes with pain from other injuries, but standing alone, the amount of invasive and painful treatment at the Pain Clinic of a major public hospital is clear evidence of the severity of her neck symptoms. Logically, treatment on all the evidence can be an indication of the severity of the pain and of very considerable consequences not only in psychiatric cases but in a physical case.[80]
[80]Turner v Love (1995) 21 MVR 314; Hunter v Transport Accident Commission [2005] VSCA 1; Elias v Transport Accident Commission [2013] VSCA 342
40 While the plaintiff has been able to work on lighter duties until a change of ownership saw her retrenched last year, she has done so with the aid of medication, extensive ongoing treatment at Royal Melbourne Hospital Pain Clinic and by bravely putting up with very considerable spinal pain especially in the neck with its attendant cervicogenic headaches.
41 The medico-legal reports for the plaintiff start with Mr David Brownbill, neurosurgeon, in 2012. He had a history of low-back and leg pain prior to the accident and recorded she had made a full recovery.[81] He also had the CT scan of the neck in 2006.[82] As already stated, I accept she still needed painkillers for low back pain but that pre-existing condition was not causing any consequences apart from the need to control her pain, which she was doing. Dr Brownbill recorded neck pain and then headaches at the top of her list of symptoms.[83] This is consistent with how I found the evidence of her situation now.
[81]PCB 188
[82]PCB 191
[83]PCB 190
42 Dr Brownbill concluded her previously asymptomatic neck had degenerative changes which the accident had aggravated. She also had aggravation of pre-existing low back degeneration and he noted, incorrectly, that she did not have any ongoing pain in the low back at the time of the accident.[84] He gave AMA percentage permanent impairments for injury at both spinal levels.
[84]PCB 192-193
43 His April 2014 report noted her going to the gymnasium two to three times per week and a chiropractor twice per week. Her neck maintained its position as the first in the list of her specific symptoms as well as at examination. He concluded again she had injured both levels of the spine and the position was stabilised.[85]
[85]PCB 198-198AA
44 Dr Peter Blombery, consultant physician, reported in August 2013. The thrust of his examination and report seemed to be a consideration of the hand and arm symptoms in the context of the sensitised nerve pathways. Chronic Regional Pain Syndrome (CRPS) Type 1 was present but was not very prominent.[86] Interestingly, he concluded under the heading of “Diagnosis of Injuries Received” that she had suffered asymptomatic cervical and lumbar degeneration that had been made symptomatic. I do not accept his opinion is properly founded in regard to the lumbar spine as he did not have the history of previous back pain and treatment. I do accept his opinion in relation to the cervical spine.
[86]PCB 204
45 As to consequences, he really aggregated the injuries and put them all together in describing their impact on her life at work, socially and domestically. He did not specifically disentangle the neck on its own from the low back or from the general list of her various injuries. His diagnosis still lent some support to my finding that neck pain is the prominent feature of the pain this plaintiff suffers.
46 Mr Garry Grossbard, orthopaedic surgeon, reported in May 2014. He also took the complaints in the order of her neck as the first, followed by her headaches. Arm symptoms and then the low back followed.[87] Clinically it was the neck he examined first.[88] He concluded she had suffered neck and lumbar spine injuries in that order. He then proceeded to record the bilateral carpal tunnel problems he said had been successfully treated by surgery without any ongoing significant pain.[89] The conditions were stable and he gave percentage permanent impairments of the neck and low back.
[87]PCB 209
[88]PCB 210
[89]PCB 210
47 Mr Grossbard did not have any history of previous low back symptoms. However, again, I accept he considered her neck injury the major cause of her pain. It was the first in line. The low back also caused pain on his report but it had the pre-existing history that he had not been given. His opinion with respect to the low back is thus flawed in that sense but not as to the neck.
48 The defendant’s doctors included Dr Kevin Fraser, rheumatologist, in 2014. He thought there were no ongoing transport accident related symptoms.[90] He was very critical of her ongoing treatment as she had recovered from her soft-tissue injuries.[91] He thought it had become a non-organic situation. I do not accept Dr Fraser’s opinion.
[90]Defendant’s Court Book (“DCB”) 15
[91]DCB 16
49 Precisely when did he come to the conclusion that the soft-tissue spinal injuries suddenly resolved? He does not logically give a path of reasoning. Why is it a woman who has survived a life-threatening knifepoint attack when alone at work at night and the resultant psychiatric insult has now become a captive of psychiatric sequelae following a motorcar accident? Does Dr Fraser say at the Royal Melbourne Hospital Pain Clinic, Dr Courtney, Dr Li and Dr Selleck are incompetent? Or are they just giving her multiple injections and blocks directed to a physical spinal injury that is not there? Are they treating her just for the sake of treating her?
50 It needs to be said that it is almost always the problem in this jurisdiction that the Court is left with trying to understand and make findings on numerous medical reports without hearing from those doctors. In this case, I have not heard from any doctor.
51 Dr Fraser is really on his own in his views in this case that involves at least ten medical practitioners. His opinions are not clearly set out nor logically easy to follow. I reject his opinions as improbable after considering all the material and bearing in mind it is based on one attendance only. Dr Ng for example, and Dr Courtney have seen her on multiple occasions over a number of years. They have a considerable advantage over Dr Fraser.
52 Mr Paul Kierce, orthopaedic surgeon, also saw the plaintiff only once in 2014. He took a history of low back problems prior to the accident, including treatment for it and he also had the local doctor’s notes.[92]
[92]DCB 20; Exhibit 2
53 Consistently, complaints that he listed in detail start with the neck, radiating up into the head.[93] He accepted she may have suffered an exacerbation of pre-existing cervical spondylosis but it would have resolved after several months.[94] Nowhere does he explain why. He seemed hamstrung to some extent by not having all the radiology.[95] He impliedly seemed to accept the fracture of the sternum was still causing problems. I do not need evidence to tell me the chest and upper spine are so closely aligned that the forces in a collision such as this must have involved both parts of the body. He thought there was no injury relating to the above accident.[96]
[93]DCB 23
[94]DCB 27
[95]DCB 27
[96]DCB 30
54 As best his reasoning can be followed in the absence of hearing from him, he seemed to conclude it was a Chronic Pain Syndrome or some non-organic condition she was suffering from now. I find this improbable. She returned to work after the terrifying knifepoint incident in 2005 after only a very short time off.[97] She also returned to work, working 40 to 45 hours a week after the transport accident. She worked on in spite of a lot of symptoms for various injuries and while undergoing a lot of different treatment for those injuries until she was made redundant in 2013. On the evidence, she would have taken another job offered to her in a Caltex service station but it was in Yarra Glen. She lives in St Albans. The travel would not have made it worthwhile.[98]
[97]PCB 22; T59
[98]T68
55 She is a woman who worked on with low back symptoms for years and just kept going full time.[99] The probabilities are that all these non-controversial facts are inconsistent with a woman who Mr Kierce thought has really been so overcome by some psychiatric condition that she keeps having multiple injections stuck into her and nerve blocks conducted.
[99]T52-55, T71
56 On all the evidence in this case, I find that there is a substantial organic basis for constant neck pain, as well as pain radiating up into her head ending up as headaches. Absent all other pain she suffers, this is a very considerable consequence. I find she undergoes, every three months, painful and frightening invasive treatment at the Royal Melbourne Hospital Pain Clinic.[100] All that treatment gives is temporary relief for some weeks or a month or two and then she is back again. There is no ultimate resolution of the pain. Next month she sees Dr Courtney again for such treatment.[101] In addition, she needs not only Panadeine Forte that she took for years for her stable low-back condition but is now on the stronger Lyrica.[102] It is so strong that instead of taking it three times per day, she takes it at night.[103] On the probabilities, this treatment is attributable to her neck and occipital pain. Her neck pain on its own is a very considerable long-term consequence of the impairment.
[100]T75-77, T79
[101]T75
[102]T74
[103]T76
57 To that consequence of neck pain she has unfortunately had the addition of an aggravation of her low back condition that was “pretty good” at the time of the accident.[104] It is no longer “pretty good”. Indeed it is such that it is also the site of regular needles being injected every few months to assist pain at a major public hospital. It has added further to the neck pain to make the impairment of the spine, at two levels, such as to cause long-term constant pain that is a very considerable consequence.
[104]T74
58 Save for one comment, there is no need to consider whether or not the plaintiff has discharged the onus with respect to the paragraph (c) application. If I am wrong and her ongoing spinal pain is not substantially organic in origin and the product of a Chronic Pain Syndrome, then the pain amounts to a “severe” long-term consequence of the accident.
59 For the reasons described I grant leave to bring proceedings to recover damages.
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