Stojanovski v Transport Accident Commission
[2016] VCC 996
•27 July 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05269
| MONICA STOJANOVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 25 January 2016 | |
DATE OF JUDGMENT: | 27 July 2016 (Revised) | |
CASE MAY BE CITED AS: | Stojanovski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 996 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – nature and extent of injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment:Leave granted to the plaintiff to issue proceedings seeking damages at common law arising out of a motor vehicle accident which occurred on 30 July 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr P V Bourke | Slater and Gordon Ltd |
| For the Defendant | Ms A M Magee QC with Ms V Nadj | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 28 October 2014, Monica Stojanovski (“the plaintiff”), seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended, (“the Act”), to bring common law proceedings to recover damages for spinal injury (“the injury”) suffered by her arising out of a transport accident which occurred on 30 July 2012.
2 The plaintiff tendered in evidence two affidavits and was cross-examined. She also tendered two affidavits sworn by her husband, Robert Stojanovski. The parties also tendered various other documents, all of which I have read.
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section … serious injury means –
(a) serious long-term impairment of loss of a body function … .”
5 The plaintiff originally brought a claim also under paragraph (c), but it was abandoned prior to hearing.
6 The part of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident was “the spine”. The plaintiff relies predominantly on the cervical level.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that “the injury” suffered by her was the result of the transport accident.
8 The requirements of the test are set out in the seminal decision of Humphries & Anor v Poljak,[2] wherein a majority of the Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A “functional overlay” will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, 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”?”
[2][1992] 2 VR 129
9 “Serious injury” as defined in subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment; however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
10 Senior counsel for the defendant informed the court that “the main issue is whether there is an organic basis for the plaintiff’s continuing complaints of pain. ...if the pain is psychologically driven, then under Richards v Wylie[4] you cannot use that psychologically driven pain to lift a sub-paragraph (a) claim into the realms of serious injury.”[5]
[4]Supra
[5]Transcript (“T”) 3, Line (“L”) 27 to T4, L5
11 Alternatively, it was argued that if the ongoing consequences did have a predominant organic base, there was no issue in relation to the plaintiff being involved in a transport accident and suffering a degree of soft tissue injury to her spine on account thereof. The main issue in the case was whether the plaintiff was able to prove the impairment to the necessary threshold as defined in Humphries v Poljak,[6] or more colloquially known as a “range case”.
[6]Supra
Identifying the injury
12 The plaintiff’s case is that she has suffered a chronic soft tissue trauma to the spine, principally the cervical spine, with consequences relating to pecuniary disadvantage and/or pain and suffering enduring to the present time and will continue to do so into the future. It is conceded that there is also a psychological reaction, but it is submitted that the predominant driver is an organic injury. As to this proposition, the defendant adduced evidence from orthopaedic surgeon Mr Paul Kierce, who examined the plaintiff on 19 August 2014 and 21 July 2015. In both reports[7] Mr Kierce opined the plaintiff had suffered:
“... an abnormal psychogenic reaction to a soft tissue injury to her cervical spine. There is no objective evidence that she has suffered any ongoing significant physical injury.”[8]
[7]Exhibit 5
[8]Exhibit 5, report dated 19 August 2014, Defendant’s Court Book (“DCB”) page 3
13 In his second report, he provided a similar summary, and added:
“From the purely physical viewpoint she has recovered from that soft tissue injury but it has caused a significant psychological impact on her.”[9]
[9]Exhibit 5, report dated 21 July 2015, DCB 18
14 The defendant provided some medical corroboration for this opinion from Mr Garry Grossbard, orthopaedic surgeon, in a report dated 15 August 2013.[10] This report had been commissioned by the plaintiff’s solicitors but tendered in evidence by the defendant. It was Mr Grossbard’s opinion as follows:
“This lady has suffered a soft tissue injury to her cervical spine as a result of the motor accident described as occurring on the 30th July 2012. Whilst there may have been a moderate degree of soft tissue injury at the time, I believe this lady has been significantly over-treated and to be having four sessions of therapy each week one year following a soft tissue injury is somewhat disturbing. At the end of the day, I do not believe this extensive treatment is going to make any significant difference to this lady’s recovery but, rather, will prolong it by creating a degree of introspection and focus on her injury.
As suggested by Dr Bruce Hocking, I believe there is some form of Adjustment Disorder and this may be associated with a degree of depression. I am, however, not a specialist in the area of psychiatry.
The natural history of this condition is to improve. It is only 12 months since this lady’s injury which has been constant[ly] reinforced by her treatment. I would therefore suggest the condition has not stabilised or substantially stabilised. Unfortunately, the longer the situation of over-treatment goes on, the worse the prognosis is likely to be.”[11]
[10]Exhibit 7
[11]Exhibit 7, DCB 39.3
15 This opinion is not as strong as that of Mr Kierce, in that it seems reasonable to infer that the consequences of the soft tissue injury to the cervical spine had been prolonged by a degree of over-treatment, which does not appear to me to break the chain of causation, by itself, with respect to the organic consequences of the injury. True it is that Mr Grossbard opines that this over-treatment would create a degree of introspection and focus on the injury and lead to “some form of adjustment disorder”, but neither of these observations lead to the inference that the complaints are not organically based.
16 The defendant also had the plaintiff examined by consultant psychiatrist, Associate Professor Peter Doherty, on 8 July 2015, who in turn, reported on 4 September 2015.[12] He took what appears to be a detailed and relevant history. He was told:
“[T]he worst symptom following the transport accident has been pain.”[13]
[12]Exhibit 6
[13]Exhibit 6, DCB 30
17 As far as the psychiatric examination was concerned, he noted:
“She was emotionally reactive and smiled at times. There were no obvious pain-related behaviours during the course of the interview and psychiatric examination. She related easily and comfortably and was settled without agitation. There was good eye contact and rapport could easily be established. There was no distress, perturbation, tears, anguish or agitation demonstrated or evident during the course of the examination. When talking about her situation her eyes welled up but there were no tears. There was good eye contact. There were no abnormal movements.
... I considered the plaintiff’s insight and judgment was unimpaired by any psychiatric condition.”[14]
[14]Exhibit 6, DCB 33
18 Under his ‘Diagnosis’ section, he stated:
“I gave consideration as to whether or not there is a current psychiatric diagnosis in the plaintiff’s case.
In my opinion, based on my assessment of the plaintiff, the history taken, the findings on mental state examination and a review of the supplied documents, the appropriate psychiatric diagnosis is that of a chronic pain disorder (DSM4) and/or a somatic symptom disorder with predominant pain (DSM5). There is also an adjustment disorder with depressed and anxious mood.”[15]
[15]Exhibit 6, DCB 33
19 He further opined:
“With regard to the pain-related psychiatric diagnosis, the plaintiff reports persistent focus on pain, excessive worry about it, and the pain symptoms significantly interfere with her daily activities and she has inordinate concern about pain. Her functional capacity is disproportionately impaired when the known physical injury is considered.”[16]
[16]Exhibit 6, DCB 34
20 Associate Professor Doherty does not descend to define what the “known physical injury” is, but the medical reports he had been provided with for the purposes of his opinion were those produced by the plaintiff’s medical practitioners and did not include Mr Kierce or Mr Grossbard.[17] In any event, he noted that the current medication profile consisted of:
[17]Exhibit 6, DCB 27
“· Panadol, six or seven a day
· Panadeine, three or four a day
· Panadeine Forte, three a week
· Diazepam (Valium) 5mg, at night
· Mobic 15mg, as required· Somac 20mg, morning.”
21 In my opinion, his report does not lead to the overall inference that the chronic pain does not have an organic basis, despite his observation that she has an “inordinate concern about pain”.[18] In any event, he also diagnoses an Adjustment Disorder with Depressed and Anxious Mood, and some features of traumatisation are present. His prognosis for the Chronic Pain Disorder is fair, and the prognosis for the Adjustment Disorder:
“... is better and it is an adjustment disorder so it should fade with time and it appears to have done so. The plaintiff is not taking anti-depressant medication though she continues attending a psychologist.”[19]
[18]Exhibit 6, DCB 34
[19]Exhibit 6, DCB 34
22 None of the medical practitioners have called into question the plaintiff’s genuine experience of pain. Accordingly, it would appear that the first task is to decide whether the dominant cause of the plaintiff’s pain falls to be determined by reference to the criteria in paragraph (a) or (c).[20]
[20]Richards v Wylie (supra) per Chernov JA at paragraph 28
The Plaintiff’s medical treatment
23 A profile of the medical treatment undergone by the plaintiff would tend to suggest that the focus has been on the physical or organic aspects of a chronic soft tissue injury. The plaintiff has regularly seen her general practitioner since the transport accident, with her principal general practitioner being Dr Georgina Webb of Pound Road Medical Centre, Narre Warren South. Dr Webb provided reports to the Court[21] and was cross-examined and re‑examined on same. I will return to her evidence later.
[21]Exhibit F
24 Further, the plaintiff has had fairly constant physiotherapy treatment since the transport accident. She was initially referred to Paul Gadd at Integrated Care Physiotherapy, Narre Warren South, in about August 2012, with consultations between two and three times per week. She also underwent hydrotherapy.[22] She was also referred by her physiotherapist to Ms Dennise Smith at the Melbourne Whiplash Centre in about April 2013. Ms Smith has reported to the court on five different occasions between 6 August 2013 and 10 July 2014.[23]
[22]Exhibit A, plaintiff’s affidavit 21 March 2014, Plaintiff’s Court Book (“PCB”) page 9
[23]Exhibit G
25 In about July 2014, Dr Webb referred the plaintiff to specialist anaesthetist, Dr John Monagle, who had her admitted to the St John of God Hospital, Berwick, for five days of Ketamine infusion in early 2015, and later on at the same hospital on 8 September 2015.
26 At the time of swearing her first affidavit, her prescribed medication included Mobic, 15 milligrams once to twice a day; Naprosyn, 1000 milligrams once to twice a day; and Panadol Rapid and Panadeine Forte, up to six tablets a day combined.[24] At the time of swearing her second affidavit on 7 October 2015, the plaintiff swore:
“I continue to take medications based on my level of pain. I have tried to reduce taking them as much as possible and the Ketamine has helped me with this to some extent, but having started work again, I am again taking more medication, although I still try other things like hot showers and heat packs first. I use Valium 5mg, Celebrex 200mg or Naprosyn 1000mg and Panadeine Forte at night. I probably take the Valium about 3–4 times per week. I tend to rotate the Celebrex and Naprosyn prescriptions. ... I always carry normal Panadol or Panadeine in my bag during the day and take them every 4–5 hours during the day.”[25]
[24]Exhibit A, affidavit sworn 21 March 2014, paragraph 26
[25]Plaintiff’s affidavit sworn 7 October 2014, PCB 18–19
27 In my opinion, the prescription of medications such as Mobic, Naprosyn and Panadol tends towards there being an organic basis for the ongoing pain.
28 In any event, the treating general practitioner, Dr Webb, was the only medical witness to be cross-examined. She first saw the plaintiff in relation to this accident on 15 August 2012. She viewed the x‑rays and CT scans, and confirmed that there was no abnormality shown on radiology. She agreed with senior counsel for the defendant that it was a whiplash injury consisting of a soft tissue injury to the cervical spine.[26]
[26]T85, L11–26
29 Further, Dr Webb agreed with the diagnosis of whiplash and subsequent Chronic Pain Syndrome. She explained further:
A:“[I]t’s common when you have whiplash and it’s an injury to the spine, because spine, that you often get pain in the muscles, particularly the trapezius muscle which extends down and exerts onto the shoulder.
Q: So there may be referred pain into the shoulders?---
A: That’s right.
Q: But there’s no separate shoulder injury?---
A: That’s correct.
Q:And you do not diagnose, or did not diagnose any separate injury to the lumbar spine, did you?---
A:No.
Q:Thank you. As the matter progresses, or progressed in July 2014, you wrote to say that the progress was slower than you had hoped?---
A:That’s right.”[27]
[27]T86, L16–27
30 Later, she was cross-examined:
Q:“When she attended yesterday [20 January 2016] she was feeling a bit down and was very anxious about the court case?---
A:That’s correct, yes.
Q:She was still working?---
A:Yes.
Q:But had missed a week at work due to a flare-up of pain across the neck and her head?---
A:Yes.
Q:All right. What caused the flare-up of pain across the neck and the head?---
A:Sometimes these flare-ups can happen with no obvious cause.
Q:All right?---
A:And as far as I know there wasn’t a particular cause except prolonged standing at work.
Q:Well, could anxiety and stress cause that sort of flare-up?---
A:It can, yes.
Q:And in a lady who has a chronic pain syndrome and is facing a court case, that can be a reason why someone might feel that the pain is more exacerbated, when she’s anxious?---
A:Yes, that’s true.”[28]
[28]T89, L15–30
31 It may be in this exchange it can be inferred the doctor conceded there was a possibility that stress could have exacerbated the plaintiff’s chronic pain syndrome, but it does not seem to detract from her view that there was not a particular cause “except prolonged standing at work”, which, to my mind, is consistent with an organic mechanism.
32 Dr Webb was then taken to a report of the treating pain specialist, Dr Monagle. She confirmed he was the specialist who had conducted the two Ketamine injections. She was then asked about his report to the following effect:
Q:“And he says, ‘On review on 19 October 2015 she has certainly turned a corner in her recovery from the car accident and is now working consistently as a make-up artist, having retrained herself some months ago’. And do you agree with that?---
A:Yes.
Q:And that she was concerned about pain recovery and he felt it would be best dealt with by a pain management program?---
A:Yes.
Q:And that he thought that some of her pain would be posture related and working – I beg your pardon – and related to her working conditions?---
A:Yes.
Q:Again, do you think – do you agree with that?---
A:Yes.
Q:And that further instructional physiotherapy with some self-management would be beneficial?---
A:Yes.”[29]
[29]T90, L10–23
33 Once again, questions of pain being posture-related and requiring physiotherapy gravitate more towards an organic rather than a psychological driver of the pain.
34 Dr Webb was then cross-examined as to the opinions of other medico-legal specialists. She had seen reports from Mr Stephen Doig, an orthopaedic surgeon (exhibit J). She was aware that he had diagnosed a soft tissue injury to the cervical spine, and she would agree with same.[30] She also stated she agreed with the opinion of Dr Hocking, a specialist in occupational medicine, to the effect that there was a diagnosis of a soft tissue injury to the cervical spine and an Adjustment Disorder reactive to the “crash”.[31]
[30]T91, L5–12
[31]T91, L13-21
35 Further, she agreed with an opinion from Mr Kevin Fraser, rheumatologist, in a report dated August 2014, that there were soft tissue injuries of a musculoligamentous strain.[32] It was then put:
“And that there was a lack of improvement which he thought was largely due to psychosocial factors, particularly related to dissatisfaction with her former employer. Would you agree with that?---I wouldn’t say largely due to that, but I would agree partially due to that, yes.”[33]
[32]T91, L22–25
[33]T91, L26–30
36 Further, she agreed she had been provided with copies of reports from orthopaedic surgeon, Mr Paul Kierce (exhibit 5 (supra)). She was asked:
Q:“Are you aware that he considered that there was a soft tissue injury to the cervical spine?---
A:Yes.
Q:And again no-one seems to be in disagreement about that?---
A:That’s right.”[34]
[34]T92, L3-6
37 It was then put:
Q:“And that his view was that there was an abnormal psychogenic reaction to the soft tissue injury. Again, would you agree with that proposition?---
A:I couldn’t say whether – what is a normal or abnormal psychogenic reaction because I don’t think that’s my area of expertise, really.
Q:In that regard, would you defer to a consultant psychiatrist?---
A:Yes.
Q:Have you been provided with a report of Associate Professor Peter Doherty [exhibit 6, (supra)]?---
A:Yes.
Q:Are you aware that it was his opinion that the patient suffered from two diagnosable psychiatric conditions, the first, this is at page – sorry, your Honour – p.33 of the defendant’s book – the first was of a chronic pain disorder and/or a somatic symptom disorder with predominant pain and he has diagnosed them under DSM‑IV and DSM‑V?---
A:Yes, yes.
Q”And also an Adjustment Disorder with Depressed and Anxious Mood?---
A:Yes.
Q:Would you accept that that is a diagnosis that associate professor – it is within his area of expertise?---
A:Yes, yes, yes.
Q:Would you defer to that opinion?---
A:Yes, I would.
Q:And that it was his view that the two conditions were of mild intensity. This is at p.35, your Honour. And again is that something that you would take on board given the associate professor’s level of expertise?---
A:Yes.”[35]
[35]T92, L7–T93,L2
38 She was then cross-examined on the report of Dr Garry Grossbard dated August 2013 (exhibit 7). She was asked:
Q:“I suggest that you therefore would be aware that Dr Grossbard also thought there was a soft tissue injury to the cervical spine?---
A:Yes.”[36]
[36]T93, L7–9
39 It was then put that Dr Grossbard stated:
Q:“‘Whilst there may have been a moderate degree of soft tissue injury at the time, I believe this lady has been significantly over treated.’ And he was concerned about the level of treatment. Was that brought to your attention?---
A:I can’t exactly remember. If I had the letter in front of me and I could read it, it would make it a little bit easier, but I can’t remember everything back then.”[37]
[37]T93, L11–18
40 Further it was put, from Dr Grossbard:
Q:“‘As suggested by Dr Bruce Hocking, I believe there is some form of adjustment disorder and it may be associated with a degree of depression.’ But again he said he wasn’t a specialist in that area?
---
A:That’s right.
Q: And again you would accept that that is a fair comment?---
A: Yes.
Q:He thought the natural history of the condition would be to improve, but that, bear in mind, is in August 2013?---
A:Yes.
Q:So is really the situation that we have a soft tissue injury to the neck and what is being superimposed is a chronic pain syndrome of a psychological nature and that has been amplifying or adding to the level of pain and distress that the patient reports to you?---
A:Correct, yes. Am I allowed to say something extra?”[38]
[38]T93, L20 – T94, L2
41 She was then advised she would be able to say extra matters in re‑examination.
42 Later, Dr Webb conceded there had been an emotional response by the plaintiff to a recent mediation of the matter, and in that context she had prescribed some Panadeine Forte. She agreed that that prescription had been because of the emotional response manifesting itself in pain when the plaintiff presented to her.[39]
[39]T94, L8–21
43 When questioned as to a time limit of ten years in relation to capacity for work, she was asked how she could arrive at such an opinion. She replied:
“It’s difficult. I’m using – in my experience, having seen quite a few patients who have whiplash injuries, I find that it often is – it usually is a lifelong thing punctuated by episodes of severe pain and that often they cannot resume full time work for at least ten years. It is – I agree it is – I am making an educated assessment of that.”[40]
[40]T94, L26 – T95, L2
44 In re‑examination, she was asked:
Q:“You’ve said that you wish to add something. Are you agreeing with my friend that there was, to some extent, an emotional reaction to her soft tissue injury, and that had an impact upon her experience of pain – you said, ‘May I add something?’?---
A:Yes. Sorry.
Q:That’s all right?---
A:I was commenting on the psychiatrist’s report that Mrs Stojanovski had a very mild whiplash and a very mild soft tissue condition. I wouldn’t agree with very mild. I would’ve called it moderate.”[41]
[41]T97, L28 – T98, L6
45 The plaintiff came under the care of Ms Dennise Smith, physiotherapist, at the Melbourne Whiplash Centre, commencing 8 April 2013. Ms Smith first reported to the court on 6 August 2013.[42] At the initial consultation, the plaintiff had described pain in the areas of head, neck and back, where her neck symptoms had been intermittent but more recently had presented constantly. She was also experiencing paraesthesia intermittently in her first to third fingers on her right and left hands (although not present simultaneously).[43]
[42]Exhibit G
[43]Exhibit G, PCB 50
46 Ms Smith took a history that prior to that consultation the plaintiff had been on reduced hours at work but her symptoms were becoming increasingly painful, and she struggled by lunchtime with her duties. Her symptoms were also aggravated with physical tasks such as those within the home (mopping, vacuuming, hanging washing up), and at that time she was receiving assistance with this for two hours per fortnight through TAC.[44] At this time, the only way she had been able to get some relief from her symptoms was to go to bed early, have an afternoon rest, and reduce her activity. The use of pain medication had also been necessary since the day following her accident, and has continued to be ongoing.[45] After examination, the diagnosis was one of:
“[G]ross muscle weakness, particularly in the neck flexor group. This can be a cause of ongoing pain due to functional instability and consequent overload of other spinal structures, which causes muscular trigger points and compression of joint surfaces, both contributing to ongoing pain. As is common with ongoing pain, behaviour change and coping strategies often become secondary. This results in further activity avoidance and muscle deconditioning and therefore feeds the ongoing pain cycle. A clinical diagnosis of a whiplash associated disorder with a degree of central sensitivity has been used to describe these symptoms and findings.”[46]
[44]Exhibit G, PCB 51
[45]Exhibit G, PCB 51
[46]Exhibit G, PCB 51–52
47 The treatment prescribed was “a specific neck strengthening program ... two sessions per week”.[47] Further, she reported:
“During this time her GP was happy for her to continue with physiotherapy. In addition to soreness in her neck, she described a numbness develop in her left upper trapezius and shoulder area, but this had improved since her GP prescribed Endone.
... She felt overall that the program was having a positive effect.”[48]
[47]Exhibit G, PCB 52
[48]Exhibit G, PCB 52
48 Thereafter, there was a reported improvement in her functional questionnaire and an improvement in her neck strength in flexion and extension. Ms Smith reported that the plaintiff was still well below normal values for her neck strength overall, which was to be expected, and therefore she continued with another block of strength training.[49]
[49]Exhibit G, PCB 52
49 As to the future, Ms Smith reported:
“Our future treatment plan for Monica is centred around continuing to improving her functional neck strength, to within normal levels, which will allow her spine to tolerate functional load. I would hope that we could continue to use manual therapy as a means of improving the recovery of her spinal muscles between the strengthening sessions and helping to normalise the muscle tone in this area.”[50]
[50]Exhibit G, PCB 53
50 As to prognosis, she stated:
“As is commonplace with whiplash associated disorders, it is difficult to predict the timescale for a resolution of her symptoms.”[51]
[51]Exhibit G, PCB 53
51 Finally, as to capacity for work, she stated:
“Whilst we have been treating Monica at the Melbourne Whiplash Centre she has not been working, which has allowed us the opportunity to treat her with a targeted strengthening session and allow her adequate recovery time before the next session. It has also reduced the activity, which was aggravating her symptoms at the time. In line with current best advice for managing symptoms of a chronic nature, maintaining some level of work activity is the best way to ensure a return to work.”[52]
[52]Exhibit G, PCB 53–54
52 In her second report, dated 13 June 2014, Ms Smith reported:
“Using a variety of modalities we have tried to address pain, muscle strength, functional decline and increased muscle tone. Her function has improved and she is now attending the gym 2–3 times per week which she seems to be tolerating well.”[53]
[53]Exhibit G, PCB 84
53 In her next report, dated 28 October 2014, Ms Smith reported:
“Whilst Monica deals with pain on a daily basis, she continues to struggle with the ability to self manage this when the muscles of her cervical spine and lumbar spine become hypertonic (increase in tension that can progress into a spasm). She finds that she struggles to achieve 3 weeks without manual therapy to assist the muscle to a more relaxed state.
I believe Dr Monagle is continuing to work with Monica to assist with her pain management and is keen for her to continue with physiotherapy sessions as she works to increase her exercise tolerance further.”[54]
[54]Exhibit G, PCB 86
54 In her final report, dated 6 October 2015, Ms Smith reported that it had been her intention to discharge the plaintiff from her care once referral was completed to the pain-management services of Dr Monagle in May 2014. However, Ms Smith became aware, following the appointment, that there were no physiotherapy components with her pain-management service. She stated:
“As a result of this and along with the recommendation from Dr John Monagle (Specialist Anaesthetist), we agreed to continue to provide a physiotherapy service with the aim of helping to keep Monica active and further increase her ability to meet her goal of returning to some form of employment.”[55]
[55]Exhibit G, PCB 91
55 Further, she reported:
“As documented in the clinical notes for Monica on 9/9/14, she reported that she struggled to get through three weeks without receiving any manual therapy to release the tension build up in her cervical spine musculature. This made it more difficult to stick to her gym program and resulted in an increased uptake of pain medication.”[56]
[56]Exhibit G, PCB 91
56 As to her functional capacity, Ms Smith reported:
“Whilst her Neck Disability Index did not significantly change over time it should be noted that Monica has demonstrated positive changes in functional capacity. She was able to attend the gym a minimum of three times per week whilst she received funding for this. She no longer requires to have rests/sleep during the day.
Monica completed a further education course and after receiving this qualification has returned to the work force in a part time role of 12 hours per week.”[57]
[57]Exhibit G, PCB 91–92
57 Ms Smith further opined:
“The positive reinforcement and pain education she receives through our interactions at her physiotherapy appointments should not be underestimated, in the role this has played in increasing her functional capacity. This strategy was successful in assisting her recovery from her early strength and conditioning sessions using the MCU and then later with her gym sessions.”[58]
[58]Exhibit G, PCB 92
58 As to the prognosis, she stated:
“As is commonplace with whiplash associated disorders, it is difficult to predict the timescale for a resolution of her symptoms. There are a number of factors, which combine to influence her pain and functional capacity. I think given the chronic nature of Monica’s pain, it is realistic to assume that Monica will not achieve full symptom resolution and will have to continue to manage her pain levels in the future. I believe the best means for her to do this is to continue to remain active and use the pacing or graded exposure approach to new activities that we have introduced her to.”[59]
[59]Exhibit G, PCB 92
59 As to her capacity for work, Ms Smith stated:
“Whilst we have been treating Monica at the Melbourne Whiplash Centre she has worked hard to achieve her goal of returning to work, at this time it is in a part time capacity. She has potential for increasing her hours in the future, but as I have previously alluded to, this needs to be phased in progressively. She will benefit from roles where she has freedom to move from her workstation so as to avoid prolonged static postures. Good workstation ergonomics would be very important.”[60]
[60]Exhibit G, PCB 92
60 I am mindful that practitioners such as Mr Grossbard consider the plaintiff has been over-treated and this prolonged her recovery. I also note that another treating general practitioner, Dr Julia Trayer, noted, in a report dated 17 June 2013,[61] that on 23 May 2013, she had:
“[A]dvised her at the time to get a third opinion from a physiotherapist and advised to consider stopping therapy at the Whiplash centre as I was concerned that it was worsening her symptoms.”[62]
[61]Exhibit E
[62]Exhibit E, PCB 40
61 For completeness, on examination on 23 May 2013:
“She was found to have tight muscles in her neck and shoulders. She had a normal neurological examination.”[63]
[63]Exhibit E, PCB 40
62 As previously noted, the only medical practitioner to be cross-examined was Dr Webb. It may well be that the plaintiff has been over-treated, and it may well be that the physiotherapy treatment has prolonged her symptoms, but, even if this is so, it does not appear to detract from the proposition that it is the organic symptoms that are being prolonged. In any event, I will return to this aspect later.
63 Treating pain-management specialist and anaesthetist, Dr John Monagle, has reported to the Court on six occasions between 15 July 2014 and 19 October 2015 (exhibit H). In his first report, he confirms he is treating her for a “whiplash injury and subsequent Chronic Pain Syndrome”.[64] He recites:
“The worst of the pain is at the base of her skull/upper neck. When it flares up it extends across the base of her head and down into her head. Over time the pain has increased to be a sensitivity down to the level of about the scapular in her central area and radiates across her trapezius muscles into her shoulders and when it’s at its worst into her arms. Monica describes occasional tingling into her fingers associated with this.”[65]
[64]Exhibit H, PCB 136
[65]Exhibit H, PCB 136
64 He further reports:
“The pain impacts on all her daily activities. She initially managed this pain by modifying her activities at home and trying to modify her work hours.”[66]
[66]Exhibit H, PCB 136
65 He relates a psychological component to her pain in the following statements:
(a)“While she describes a supportive family she has become somewhat withdrawn about her pain over time due to the self conscious nature and anxiety/depression associated with her pain.[67]
(b)“She has been seeing a psychologist for a bit over a year. This has been helpful and I think will be well worth continuing. Monica currently rates herself as 26/50 on the K10 scale which shows a moderate degree of distress, and 12 for anxiety and 15 for depression on the hospital anxiety and depression scale which are both moderate scores indicating a need for assessment/intervention.”[68]
[67]Exhibit H, PCB 136
[68]Exhibit H, PCB 137
66 When turning his mind to the “cause” for her pain, Dr Monagle relates:
“She has been reviewed by a number of doctors and has a CT scan of her cervical spine. Typically in a whiplash injury there is nothing additional to find. She has no persistent neurological change, only intermittent pain related changes on examination. Today her upper limb neurological examination was normal. Her neck movement was decreased due to pain in all directions. There was mild sensitivity/tenderness in the lower part of her neck extending laterally round to the lateral portions of her neck and this was a little bit more intense in the occipital region onto the base of the occiput. I discussed with Monica that this is a whiplash injury and the chance of finding a focal cause and something that can easily be remedied outside of the investigation reviews that have already been done is highly unlikely. I have suggested to Monica that the best course of action in the first instance is to undertake the treatment plan that we have put in place and see whether, as things improve, there is a focal area that would then be the target of further investigation and/or intervention. I think both of these options outcomes are unlikely.”[69]
[69]Exhibit H, PCB 137
67 Dr Monagle then recites a treatment program, first in the past, consisting of physiotherapy, weights exercises, Pilates, massage and dry needling, together with gymnasium exercises, which have all been helpful. The future treatment program that he embarked upon consisted of a gym program three times a week, and to set this at a pace that she can recover from and continue on a regular basis. He suggested to her a few minutes’ upper-body program per trip to the gym, and a 15‑minute aerobic program such as the treadmill. His thoughts were that if she continued this for a month then he would look to increase the upper-body program to a 5‑minute program and the aerobic to 20 minutes. He thought at that stage that myotherapy/physiotherapy was helping her and he would continue that for three months while the gym program and the self-management started to take effect.[70]
[70]Exhibit H, PCB 137
68 It would appear to me a reasonable inference that the program is essentially one directed towards an organic base, especially when combined with the Ketamine infusion which took place on two separate occasions in 2015. The fact that Dr Monagle relates “I think ongoing psychological support is going to be a vital part of this program” does not detract from the inference that the driving force of the pain is organically based with a psychological reaction.
69 In a further report dated 14 October 2014, Dr Monagle reported that oral medications had afforded the plaintiff no relief and that she continued to be disabled by pain that is 6 to 8 out of 10 on all days.[71]
[71]Exhibit H, PCB 141
70 As at 17 March 2015, Dr Monagle recorded that since the plaintiff’s leaving hospital after her Ketamine infusion there had been a significant improvement. He considered that, to try to assist her further, a day-case Ketamine infusion top-up would be beneficial. He thought aiming to do this at monthly intervals for three months and then reassess her would be worthwhile.[72] In the meantime, he considered that the plaintiff was now accepting that she was much more in control of things, and that she had been clearly well encouraged by the team around her.[73]
[72]Exhibit H, PCB 142
[73]Exhibit H, PCB 143
71 On 9 September 2015, Dr Monagle recorded the Ketamine infusion of 8 September 2015, and he thought that the mainstay of treatment at that stage would be ongoing support and physiotherapy.[74]
[74]Exhibit H, PCB 144
72 Importantly, on 19 October 2015, Dr Monagle reported that the plaintiff had:
“... certainly turned a corner in her recovery from the car accident and is now working consistently as a makeup artist having retrained herself some months ago. She is enjoying the work but is concerned that she is now living just to work, in terms of her pain-recovery period taking up most of her home time. I think this would be best dealt with by a pain management program in helping her learn better self management strategies and self awareness. Given that some of her pain will be posture related and related to her working conditions I think some further instructional physiotherapy around, again self management, would be beneficial.”[75]
[75]Exhibit H, PCB 145
73 On this basis, he recommended approval for a further six physiotherapy visits.
74 The treatment program thus outlined would appear to have, as its central base, treatment of an organic complaint, with psychological counselling being an adjunct to try and cope with the physical pain.
The Plaintiff’s medico-legal opinions
75 The plaintiff tendered a report commissioned by the defendant from Dr Bruce Hocking, specialist in occupational medicine, dated 22 May 2013.[76] At that stage, he took a relevant history of the medication being ingested, referred to earlier. On examination the plaintiff was acutely tender over the left mastoid and extending along the nuchal line to the right mastoid, and then in an area extending over the upper trapezius to the clavicles and along the cervical spine. Movements of the cervical spine were reduced by pain.[77]
[76]Exhibit M
[77]Exhibit M, PCB 176
76 His diagnosis was one of soft tissue injury of the cervical spine and an Adjustment Disorder reactive to the crash. His prognosis for her injuries was “fair”. He stated:
“It is now 10 months since the crash and it is anticipated that she will show some improvement over the next few months.
The prognosis for employment is fair. She has a strong work ethic and has consistently tried to return to work but has not been able to cope so far.
...
Monica is a 35-year-old customer services operator who was in a car crash 10 months ago and sustained soft tissue injury of the neck. She has persistent pains and limitation of movement as well as a moderate adjustment disorder.
Her injuries are consistent with the crash.”[78]
[78]Exhibit M, PCB 177
77 At that time, Dr Hocking thought it prudent to await the results of the plaintiff’s five‑week course at the Whiplash Centre referred to above. He suggested that home-help services continue, and he opined that the plaintiff had ongoing limitations to her work capacity due to persistent neck pain and restrictions of range of movement.[79] The defendant apparently commissioned no further report from Dr Hocking. I consider it reasonable to conclude that it was his opinion that the predominant cause of the pain was the soft tissue injury.
[79]Exhibit M, PCB 177
78 The plaintiff was examined by orthopaedic surgeon, Mr Stephen Doig, at the request of the plaintiff’s solicitors on 23 January 2014.[80] At that stage, he noted that she had ongoing constant lancinating ache in her cervical spine. It was related to activity but was variable. She was still having physiotherapy once a week, and she stated that that helped for two to three days but then it deteriorated again.[81] On examination, he noted discomfort at the root of the neck, radiating out towards the supraspinatus tendon. She was tender along both sides of the neck; more so towards the lower part of the cervical spine than the upper part. There was pain and discomfort at the extremes of movement.[82]
[80]Exhibit J
[81]Exhibit J, PCB 146
[82]Exhibit J, PCB 147
79 His diagnosis was one of “soft tissue injury to the cervical spine.”[83] He also thought that her injuries were consistent with the accident, and from an orthopaedic point of view she had done poorly. He thought that even if she went back to pain management or to the Metropolitan Spinal Clinic, it was unlikely that she would improve markedly from where she was at that stage, and therefore he considered that she was substantially stabilised.[84] The prognosis at that stage, he said, was somewhat guarded, and he thought that she was likely to continue to have some ongoing pain and disability in her cervical spine no matter what else was done.[85]
[83]Exhibit J, PCB 147
[84]Exhibit J, PCB 147
[85]Exhibit J, PCB 148
80 Chronologically, the next report tendered by the plaintiff was that of rheumatologist, Dr Kevin J Fraser, who saw her on 22 August 2014 at the request of the defendant.[86] He noted that her current treatment included Mobic, Panadeine Forte, Panadol, Valium and Cymbalta. He also noted that she was now attending pain-management specialist, Dr John Monagle. On examination, movements of the cervical spine were restricted, and she complained of pain at the extremes of the range. It was his opinion that the plaintiff had sustained soft tissue injuries in the nature of musculoligamentous strain as a result of a whiplash injury sustained in the motor vehicle accident on 30 July 2012. He stated:
[86]Exhibit N
“Unfortunately, there hasn’t been any improvement in her symptoms with the passage of time and the various therapeutic measures mentioned previously.
I suspect that the lack of improvement to date is largely due to psychosocial factors, particularly related to dissatisfaction with her former employer.
In this situation, the prognosis is poor and it is unlikely that there will be any significant improvement in the foreseeable future.
Her current treatment by a pain management specialist is appropriate. As she claims that there hasn’t been any improvement to date I see no point in ongoing physiotherapy, say beyond another 2–3 months in which time she should be instructed in a transition to a self managed home exercise programme.
...
In my view, psychosocial factors are the major impediment in respect of her rehabilitation. From a physical point of view, I consider that she is at least fit for half-time pre-injury duties or any other work for which she is otherwise suited, including the roles identified in the Vocational Assessment Report of 30 May 2014.”[87]
[87]Exhibit N, PCB 180–181
81 Clearly, from this report it may be perhaps inferred that the major driver of the pain is “psychosocial factors”. However, he apparently acknowledges an organic basis to the pain as well when he states:
“From a physical point of view, I consider that she is at least fit for half‑time pre-injury duties or any other work for which she is otherwise suited ...”[88]
[88]Exhibit N, PCB 181
82 Mr Doig again examined the plaintiff on 6 July 2015 on behalf of the plaintiff’s solicitors.[89] Since his last report, the plaintiff had undergone hydrotherapy, gym therapy and physiotherapy. His physical examination of the cervical spine was very similar to what he had seen last time.[90] He noted that she had not returned to work since last seen, but had however undergone a course in makeup artistry. This consisted of two hours per day, two days a week, and was a ten‑week course. She reported doing very well in this endeavour. She related that it had helped her a lot psychologically, and she felt she could do something along these lines. Importantly, his diagnosis, relevantly, was:
“Soft tissue injury to the cervical spine.”[91]
[89]Exhibit J, PCB 152
[90]Exhibit J, PCB 153
[91]Exhibit J, PCB 153
83 She reported to Mr Doig that her neck was still affecting her significantly. It was hard to do the shopping and the house-cleaning. She told him she could not sit for long periods of time, and her neck was giving her significant grief.[92] His prognosis, at that stage, was “fairly guarded”. It was also “appropriate and proper for her to try the Ketamine infusions via pain management”.[93]
[92]Exhibit J, PCB 154
[93]Exhibit J, PCB 154
84 Finally, Mr Doig provided a follow-up report dated 6 October 2015. He had been referred to a report of Mr Garry Grossbard dated 15 August 2013, and reported that such report did not cause him to alter his own opinions.[94]
[94]Exhibit J, PCB 155
Surveillance videos
85 The defendant showed surveillance videos of the plaintiff taken 13 March 2015, 28 August 2015, 1 September 2015, 13 October 2015 and 27 October 2015.[95] In my opinion, the activities shown therein, and the cross-examination thereupon of the plaintiff, do not impugn the plaintiff’s credit or the medical practitioners’ opinions already expressed. Suffice to say that I found the plaintiff, at all material times, doing her best to tell the truth whilst in the witness box, and I consider that the main argument in this case is whether the pain and disability is organically or psychologically driven, per the jurisprudence recited earlier.
[95]Exhibit 1
Conclusions
86 The plaintiff is basically a reliable and honest historian. There seems to be little doubt that she has suffered a musculoligamentous injury to the cervical spine colloquially known as a whiplash injury. It is also clear that she has suffered a reactive psychological condition to the physical pain caused by the soft tissue injury.
87 The medication prescribed, and the treatment regime embarked upon, appear to me essentially directed towards an organic injury because of the essential physical nature of the treatment, being physiotherapy, gymnasium attendance, Pilates, etc. There has been no referral to a psychiatrist, and in fact the overwhelming psychiatric evidence is that any reaction is of a mild nature.
88 Insofar as there may be an element of over-treatment by way of, for example physiotherapy, the support for such in medical opinion would seem to come from the fact that there has not been dramatic improvement. The argument would therefore be that it is of little help and amounts to over-treatment. In my view, there has been improvement, at least to the extent of the plaintiff partaking in an alternative career as a makeup artist, which in part shows her genuineness. If the physiotherapy was an over-treatment and prolonged the physical organic component of the pain, it seems to me that that is still related to the subject accident, there being no element of unreasonableness on the part of the plaintiff.
Consequences
89 In view of the findings expressed above, it would appear that the plaintiff has suffered from chronic pain, which has led to a change of career with a capacity for approximately half the number of hours that she was able to engage in pre-injury. She has had constant physical treatment, referred to above, including the ingestion of regular pain-relief medication. In Humphries v Poljak, Crockett and Southwell JJ stated:
“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’?”[96]
[96][1992] 2 VR 129 at 140
90 In my view, for the reasons outlined above, the plaintiff has discharged the onus of proof with respect to this template, and leave will be granted to issue proceedings accordingly.
91 I will hear the parties as to any consequential orders.
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