Stow v Transport Accident Commission
[2016] VCC 326
•20 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04067
| BRENDA JANE STOW | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2016 | |
DATE OF JUDGMENT: | 20 April 2016 | |
CASE MAY BE CITED AS: | Stow v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 326 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – injury to the spine and to the right shoulder – absence of treatment for a lengthy period – lack of treatment for a lengthy period – credit of plaintiff – whether statutory test satisfied – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr C Sidebottom | Slater & Gordon Ltd |
| For the Defendant | Mr G Lewis QC with Ms F Spencer | Solicitor for the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Commission Act 1986, hereinafter referred to as “the Act”. In bringing her application, the plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. She is alleging that she suffers from two serious long-term impairments or losses of body functions. One of these is impairment of the spine, it being both the cervical and lumbar spines and allegedly representing one body function. The other is impairment of the right shoulder. The plaintiff is right hand dominant. The test to be considered is that set out in Humphries & Anor v Poljak [1992] 2 VR 129.
2 That the relevant injuries were received in a transport accident on 4 May 2005 is not contested. Apparently some four vehicles were involved in the accident, which occurred on Scoresby Road, Scoresby and shall hereinafter be referred to as “the accident”.
3 Mr I Fehring of counsel with Mr C Sidebottom of counsel appeared on behalf of the plaintiff. Mr G Lewis QC with Ms F Spencer of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to the accident
4 The plaintiff is aged 43 years, she having been born on 14 July 1973. She is a divorced woman with two teenage children. By way of education, she completed Year 12 at school. She subsequently became a graphic artist. At the time of the accident, she was self-employed in this capacity and working part-time from her home, this presumably being because of the age of her children. Since she became divorced in 2009, she has continued to be self-employed and work from home, although she would appear to have, at least for some time, increased her working hours. As at the time of swearing her initial affidavit of 28 April 2014, she was operating the business full-time. As at the time of her second affidavit of 12 February 2016, she was working on average between 25 and 30 hours per week, taking breaks as required. It is not suggested that she is suffering economic loss – see Transcript (hereinafter referred to as “T”) 5.
5 The plaintiff was also a keen sportswoman, particularly enjoying team sports. She became a basketball referee at a very high level, but had ceased this approximately nine years prior to the accident.
(b) The plaintiff as a witness
6 There were a couple of matters relating to the reliability of the plaintiff’s evidence which have caused me some concern. One of these is the explanation given by the plaintiff in relation to the apparent lack of any treatment by her general practitioner or her colleagues in respect of the plaintiff’s spinal injury between the early visits following the accident in mid-2005 and 2 August 2012. This is despite 20 or more visits to Rowville Health, where the plaintiff’s treating general practitioner, Dr Lisa Yoffa, is based. Indeed, between 4 September 2006 and 2 August 2012, the clinical notes also reveal no mention of right shoulder pain, despite approximately 14 visits during that period. That plaintiff’s explanation was, essentially, that this was because of her court proceedings with her ex-husband, who was “trying to use anything he could to take my children away from me” – see T13. It is a somewhat unusual explanation, and does not sit comfortably with the fact that the plaintiff had attended at the rooms of her general practitioner on 15 occasions for a variety of complaints, but apparently without referring to those that formed the basis of this application. There are no references to the spine or to the right shoulder. Further, it is not a situation where the plaintiff is alleging that complaints were made to a general practitioner, but were not recorded. However, she maintained that she had not mentioned anything about spinal problems because she had not wanted it used against her in relation to the Family Court proceedings. This is a somewhat difficult explanation to comprehend. It involves acceptance of the proposition that the plaintiff would attend at the general practice for a variety of complaints, but would not mention those concerning her spine or right shoulder because of the matrimonial break-up and proceedings in which she was involved. It is even more difficult to comprehend, given that the plaintiff complained of and had treatment to the left shoulder.
7 Her explanation as to the lack of treatment for spinal injuries is one that, frankly, I cannot follow, although I note that something similar was said to Mr Robert Dickens, orthopaedic surgeon, who examined the plaintiff at the request of the defendant on 1 December 2014. I cannot understand why the plaintiff would not mention or seek treatment for spinal injuries received in the accident because of Family Court proceedings, but attend at her general practice about other complaints. Of course, one possible explanation is that she was not suffering symptoms in her spine or right shoulder to the extent that they were worth mentioning to her doctor or warranted treatment, prescription medication and the like.
8 The second point concerns the plaintiff’s refereeing of professional basketball matches. In her initial affidavit of 22 April 2014, the plaintiff described how the refereeing was very time consuming, also involving interstate and country travel, and that she ceased it just before her marriage at the age of 23. It is to be remembered that she was approaching 32 years of age when the accident occurred. However, in her later affidavit of 12 February 2016, she swore as follows:
“Prior to the accident I was a very active person. I had a passion for sports and fitness. I had been a referee for professional basketball … Since the accident, all this has changed. Running and high impact activities aggravate my back and neck pain. I no longer referee or play basketball as a result.”
9 I agree with Mr Lewis that the clear inference to be drawn from these assertions is that the plaintiff had been refereeing up until the accident and was unable to continue with this as a result of it. It is equally clear, as submitted by Mr Fehring, that the plain wording of the earlier affidavit makes it apparent that the plaintiff had long since ceased refereeing. Perhaps the drafting of the second affidavit was somewhat clumsy, but it was adopted by the plaintiff as being true and correct and it does contain the somewhat obvious inference described above. Mr Lewis also pointed out that, when seen by Mr David Brownbill, consultant neurosurgeon, at the request of her solicitors on 5 September 2013, the plaintiff stated that she was a professional basketball referee and a graphic designer, going on to say that, having been away from work for several months and returning on reduced hours, she built up to full-time performing of her normal graphic design work, “but she did not return to refereeing”. I appreciate that histories taken by medical examiners are not always completely accurate, but again the impression given appears to be that refereeing ceased following the accident.
10 In summary, the plaintiff’s reliability as a witness has not emerged. There may be explanations for the matters which I have just discussed, but in my view plausible ones were not advanced.
(c) Plaintiff’s health prior to the accident
11 The plaintiff had undergone lateral release procedures on both knees when she was approximately 18 years of age. This treatment was successful and it is not argued that there were any other relevant ongoing symptoms. I accept that she was fit and healthy as at the date of the accident.
The injuries, their treatment and diagnoses
12 As stated, the accident occurred on 4 May 2005. Whilst there may have been a number of cars involved, effectively the principal collision from the plaintiff’s perspective was head-on with a truck. The plaintiff was apparently taken by ambulance to the Maroondah Hospital. She was there x‑rayed, kept under observation for several hours and ultimately discharged home. Thus, she does not appear to have been an inpatient. The x‑ray taken on the day of the accident was reported by the radiologist to be as follows:
“the vertebral bodies appeared to be intact and disc spaces and alignment preserved. Prevertebral soft tissue injuries did not appear to be widened.”
In short, nothing abnormal was detected.
13 The plaintiff then saw a general practitioner, Dr Des Darrer, at Rowville Health on 6 May 2005. His examination revealed a reduced range of motion of neck and back movements and a lot of muscle spasm in the neck. She was also suffering from anxiety and flashbacks and, indeed, she was referred to a psychologist subsequently and commenced on antidepressant medication. This was taken until August 2005.
14 On 16 May 2005, the plaintiff attended upon a physiotherapist, Mr Ben Dalton, such referral apparently being made by Dr Lisa Yoffa, also of Rowville Health. Between 12 May 2005 and 1 March 2006, Mr Dalton saw the plaintiff a total of 51 times. He also organised for her to attend at a gymnasium. Mr Dalton also referred the plaintiff to a specialised physiotherapist, Mr Darren Goralsky, for a second opinion, this seeming to be in early 2006. Mr Dalton has reported that Mr Goralsky really helped the plaintiff with her neck, but her lower back was still a problem.
15 It is of interest that Mr Dalton, in his report of 23 April 2013, referred to the fact that the plaintiff had had to make huge lifestyle changes and did not play sport until approximately January 2008. Then, within six months, she snapped her right Achilles, which required surgical reattachment. Mr Garry Grossbard, orthopaedic surgeon, who saw the plaintiff at the request of her solicitors, also recorded a history that the plaintiff had returned to sport until she ruptured her tendo-Achilles in 2008. The plaintiff has also referred to this in her affidavit of 22 April 2014.
16 In April 2011, Mr Dalton saw the plaintiff for a lower back complaint, after she had hurt it on the previous day. He also commented that, over time, the plaintiff recovered a full range of movements in the right shoulder, but always with some element of pain. His conclusion was that, since the original accident, the plaintiff had never been pain free, but her situation was complex because of the multitude of injuries involved. He also referred to the fact that she had a lot of stress in her life. In a brief report of 7 June 2013, Mr Dalton referred to the fact that the plaintiff had multiple areas of her body which suffered various ailments. He also referred to the stresses in her life.
17 In another brief report of 11 November 2015, Mr Dalton said that he had seen the plaintiff three times in April and May 2015. She had soreness throughout the entire body. He gave her a lightweight brace and observed that manual therapy and exercise prescription seemed to have limited long-term benefits.
18 Included in the report of Mr Dalton is a reference to the various radiological investigations that have taken place. I have already referred to the x-ray taken on the day of the accident, which essentially revealed no abnormality in the plaintiff’s cervical spine. There is a reference in his report to a scan in 2013. I can only assume that this is a reference to a L3/4 and L4/5 facet joint injection performed under CT fluoroscopic guidance on 15 March 2013. The observation in relation to it by the doctor involved is that the procedure was well tolerated and that the injections again reproduced some of the plaintiff’s symptoms.
19 Mr Simon Holland, orthopaedic surgeon, also saw the plaintiff by way of reference from Dr Yoffa. He reported back to Dr Yoffa on 6 September 2006. He took a history that, following the accident, the plaintiff’s neck and shoulders ached severely and had not recovered as at the time of his seeing her. He concluded his remarks by saying that the plaintiff had bilateral shoulder troubles which seemed to be causing more problems than her cervical spine. He proposed an MRI of both shoulders.
20 Mr Holland reported again to Dr Yoffa on 4 October 2006. Apparently the plaintiff had undergone an injection of her right subacromial space some three weeks earlier. Examination on that day confirmed a near normal range of motion with no impingement signs and normal strength in the supraspinatus. The plaintiff was also complaining of sleepless nights, in relation to which Mr Holland referred to “other reasons”, also stating that he thought that the sleeplessness was “possibly not related to her shoulder”. It was also indicated that the plaintiff and Mr Holland agreed that “it was probably more of a nuisance level for her at the moment”.
21 Mr Holland wrote again to Dr Yoffa on 5 February 2007. The plaintiff continued to report ongoing troubles with both shoulders, the right more so than the left. The ache in the right shoulder was “both activity and night related pain”. Examination confirmed a range of motion that was well preserved and the plaintiff’s rotator cuff had good strength. She had moderate impingement signs on the right and mild impingement signs on the left. Because of the right rotator cuff symptoms, Mr Holland organised for the plaintiff to have an ultrasound scan of that shoulder. The possibility of a subacromial injection was raised.
22 That is the last report of Mr Holland that was placed in evidence. In her affidavit of 22 April 2014, the plaintiff indicates that she did have a second injection early in 2007, which did help “for a time”. No report in relation to any further ultrasound scan at about that time was placed before me. A report of some x‑rays and an ultrasound of the right shoulder, these being performed on 3 August 2012, was placed in evidence, but this seems to have been organised by Dr Yoffa and was 5 ½ years after the last report from Mr Holland.
23 Dr Yoffa has provided two reports. Her initial report is of 24 April 2013. She referred to the history originally taken by Dr Darrer and to the subsequent treatment. This has been referred to in paragraph 13 above. Dr Yoffa went on to report that the plaintiff presented with right shoulder pain on 3 August 2006, which she felt had been present since the accident. An ultrasound revealed bursitis and tendonitis. She was referred to Mr Simon Holland. She had a steroid injection of the right subacromial space which led to some symptomatic and functional improvement.
24 Dr Yoffa then reported that, despite consultations about numerous other unrelated issues over the next few years, the plaintiff did not consult again about relevant pain until 2 August 2012. On that occasion she was complaining of ongoing back pain, neck pain and right shoulder pain. Imaging revealed right subacromial bursitis. The plaintiff was referred to a sports and spinal physician, Dr Nick Van Wetering. She underwent an epidural injection in her spine and left hip and tried shockwave therapy. A labral tear was found in the left hip and she was referred to two specialists, one being Mr John O’Donnell. Of course, the left hip injury is not a basis for the present application. Dr Yoffa concluded that the plaintiff’s prognosis was uncertain as at 24 April 2013.
25 Dr Yoffa reported again on 23 November 2015. She was taking Panadol Osteo regularly and Voltaren occasionally. I note from the plaintiff’s affidavits that she had had occasional myotherapy, as well as occasional massage from time-to-time. The bulk of her report repeats what was previously set out in that of 24 April 2013. The additional paragraphs indicate that the plaintiff was still suffering from daily neck, back and bilateral shoulder pain, worse on the right. This was exacerbated by bending and lifting, lengthy sitting and use of the right arm for mouse and keyboard work. The plaintiff was working part-time as a graphic designer from home, needing frequent breaks for pain relief. Examination of her neck revealed pain on all movements, with some flexion, extension and lateral restrictions. Examination of the back showed pain with thoracic spine rotation and decreased flexion. Examination of her shoulders showed pain with all movements, but a full range of such movements. Dr Yoffa thought that the plaintiff’s pain and restriction of movement were stable and had not changed for some years. Her condition was likely to persist. The plaintiff was no longer undertaking physical therapies or any specific exercise program, as she did not feel that they helped. She was taking Panadol Osteo regularly and Voltaren occasionally.
26 Dr Nick Van Wetering, exercise and sports physician, reported to the plaintiff’s solicitors on 27 March 2013. It would appear that he saw the plaintiff on four occasions, these being on 7 September, 12 October and 28 November 2012 and 22 February 2013. He also had a telephone discussion with her on 19 March 2013.
27 At the initial consultation, the plaintiff’s main complaints were of a whiplash injury and right shoulder pain. However, she also complained of low back pain and a clunky left hip. The original assessment of Dr Van Wetering was that the plaintiff had multiple residual cervical spine and lumbar spine hypersensitivity. Dr Van Wetering organised MRI scans. Because there were multiple areas involved, Dr Van Wetering and the plaintiff tried to focus on the area of main concern, which was at the beginning of the left hip.
28 When Dr Van Wetering saw the plaintiff on 28 November 2012, her neck pain was maximal, with no upper limb radiation and involving both sides of her neck. Shock wave therapy was tried and Dr Van Wetering also suggested a trial of a low dose medication, namely Endep, 10mg at night. When seen on 22 February 2013, there was again discussion of a left hip joint block and an epidural injection at L3-4 and L5-S1. The plaintiff had low back pain and neck pain. Aggravating factors appeared to be such things as vacuuming and standing from a sitting position. Dr Van Wetering felt that the plaintiff may have had facet joint related back pain involving L3-4 and L4-5. He referred her for facet joint injections in the lumbar spine.
29 Leaving to one side the hip upon which reliance is not placed in the present application, Dr Van Wetering referred to the plaintiff as having chronic pain in the cervical spine that may be related to left C4-5 moderate proximal foraminal narrowing and also on the left C5-6. There was no obvious right-sided radiculopathy. It is to be remembered that it is the plaintiff’s right shoulder upon which reliance is placed in the present application. In relation to the lumbar spine, Dr Van Wetering referred to chronic low back pain that may be related to pathology involving disc bulging on the left side at L3-4 and less on the right at that level. There is also an L4-5 annular tear with a disc bulge barely contacting the anterior aspect of the left L5 nerve and not displacing it. Dr Van Wetering referred to an upcoming appointment on 15 April 2013, but there is no subsequent report from him in evidence. Because he was to see her again, he found it impossible to state whether her condition had stabilised.
30 The radiological material put before me includes the initial x-ray of the cervical spine taken on 4 May 2005, which was normal. An MRI of both shoulders was requested by Mr Holland, the radiologist reporting on 11 September 2006. The conclusion was that the plaintiff had supraspinatus tendinopathy, but without a discrete tear. There was subacromial subdeltoid bursal inflammation. The changes were worse on the right compared to the left. An ultrasound and x-ray of the right shoulder, together with x-rays of the cervical and lumbar spine, were carried out on 3 August 2012, this being at the request of Dr Yoffa. The x-ray of the cervical spine showed some narrowing of the C5-6 and C4-5 disc spaces. Posterior osteophytes minimally impinged into the exit foraminae. In relation to the shoulder, the radiologist’s conclusion was that there was subacromial bursitis with impingement and that, if it was clinically indicated, an ultrasound-guided cortisone injection could be performed. The body of the report in relation to the ultrasound of the right shoulder indicated that all the tendons of the rotator cuff had a normal appearance. There was no tear or tendinopathy. There was mild subacromial bursal thickening with impingement, no contour deformity, and the AC joint was normal.
31 An MRI of the plaintiff’s cervical and lumbar spines was performed on 25 September 2012, this being at the request of Dr Van Wetering. In relation to the cervical spine, the conclusion of the radiologist was that there was very slight contact of the disc and vertebral body osteophyte on the cord at C4-5. Although there was some mild facet joint arthropathy, particularly on the left at C4-5 and bilaterally at C5-6, facet joint arthropathy was not a prominent feature throughout the cervical spine. In relation to the lumbar spine, a potential source of radicular symptoms was the foraminal and far lateral disc on the left side of L3-4 and less so on the right. Although there was contact with respective nerves, a substantial degree of displacement and flattening of the nerves was not a feature. Dr Van Wetering also organised an MRI of the left hip, which revealed an acetabular labral tear superiorly.
32 At the request of Dr Van Wetering, the plaintiff underwent an epidural injection of the lumbar spine at the L3-4 level on 15 November 2012. At the request of the same doctor, a CT guided left F3 foraminal injection was performed on 13 December 2012 and a left L3-4 and L4-5 facet joint injection on 15 March 2013.
33 The plaintiff has also been seen for medico-legal purposes. At the request of her solicitors, she has seen Mr Garry Grossbard, orthopaedic surgeon, on two occasions. Mr Grossbard first saw the plaintiff on 27 November 2013. He took a history that, for her physical injuries, the plaintiff has a massage about once a month and uses Panadol about three times a week at night, also using heat packs. He noted that the plaintiff told him that she had returned to sport following the accident until she ruptured her tendo-Achilles in 2008 and has not resumed again. The diagnosis of Mr Grossbard was that the plaintiff had multiple soft tissue injuries as a result of the accident. He thought that they had been combined with a psychological injury. He was also of the view that there had probably been pre-existing degenerative changes in the cervical and lumbar spines. There was no evidence of radiculopathy in relation to the spinal injuries. In relation to the shoulders, he said that there was no evidence of a major rotator cuff tear, but some evidence of tendonitis, which had been improved with the use of subacromial steroid injections. There was some residual dysfunction in relation to each shoulder, the right side being more symptomatic than the left. He also referred to the existence of the hip injury.
34 Mr Grossbard did not think that any further specific treatment was going to be required other than ongoing pain management, and felt that the plaintiff was clearly going to be limited in her ability to resume high levels of active sport.
35 Mr Grossbard reported again on 3 August 2015. He had re-examined the plaintiff a few days earlier. The plaintiff had received some ongoing physiotherapy intermittently, but with only short-term benefit. The injections undertaken or arranged by Dr Van Wetering had similarly had no significant benefit. She was working part-time, with pain. She was walking and doing some bike riding, coping with these activities despite some shoulder pain. The plaintiff was using Panadeine and occasional Voltaren, but was not attending a general practitioner. She described constant pain in the neck and low back pain of variable intensity. She also described constant right shoulder pain with some tingling and numbness in the fifth finger. The hip was no longer an issue and much the same could be said for the left shoulder.
36 Mr Grossbard again referred to the plaintiff having multiple soft tissue injuries with symptoms in relation to the cervical and lumbar spines and right shoulder. He did not think that the situation was likely to change significantly in the foreseeable future and that the plaintiff would be prevented from undertaking a level of activity to the extent that she had prior to the injury.
37 The plaintiff has also been seen on two occasions by Dr David Brownbill, consultant neurosurgeon, the examinations being at the request of her solicitors. Mr Brownbill first saw the plaintiff on 9 April 2013. He also noted that the plaintiff had returned to sport in 2008, but required Achilles’ tendon surgery. The plaintiff told Mr Brownbill that her neck pain was present all the time with fluctuations, worsened by running, jolting or extreme neck movements. Her lower back pain was also present all the time, fluctuating in severity and being worse at night with prolonged standing, sitting or physical activity. She also referred to mid back pain. In relation to her shoulder pain, she said this existed more on the right side and “comes and goes”. Whilst Mr Brownbill found upon examination that there were restrictions of cervical and thoracolumbar spinal movements, there was no objective neurological abnormality of the upper limbs or lower limbs. There were no signs of radiculopathy or myelopathy. He considered that, on the basis of probability, the plaintiff had sustained damage to cervical and lumbar spine intervertebral discs, which had acted as the basis for disc protrusion. He thought that she would continue to have pain in a fluctuating manner indefinitely. He placed restrictions upon lifting, frequent bending and the like. The use of analgesics during periods of pain exacerbation was appropriate. Mr Brownbill regarded her condition as being stabilised.
38 Mr Brownbill saw the plaintiff again on 25 August 2015. She indicated to him that she was no better than when last seen. She had occasional physiotherapy or massage when symptoms increased, but took “nothing much”, save for occasional Panadol and sleeping tablets. She referred to back and neck pain as being present all the time, but with fluctuations. Mr Brownbill’s conclusion was that the examination had shown a full range of thoracolumbar spinal movements. There was restriction of cervical spine movements with associated pain, but there was no neurological abnormality of the upper or lower limbs. There were no signs of radiculopathy or myelopathy. His views generally remained much the same. The plaintiff would need to avoid such things as heavy lifting, frequent bending and prolonged standing, forced spinal mobility and the like. Mr Brownbill effectively made little, if any, reference to right shoulder pain, although he had a heading in his report in relation to this.
39 The defendant has also had the plaintiff examined. Mr Robert Dickens, orthopaedic surgeon, reported to the defendant on 8 December 2014. Essentially, the plaintiff told Mr Dickens that she had not received medical attention until such time as her Family Court case was over, when she recommenced attention to her accident-related injuries. Since last seeing Dr Van Wetering, her only treatment had been the receipt of massage therapy. She described herself as being never free from neck pain. There was pain in both shoulders, but more significant on the right side. She also complained of pain in her thoracolumbar and lumbosacral regions, which pain could be severe. There were more significant symptoms in her right shoulder than in her left.
40 The diagnosis of Mr Dickens was that the plaintiff had sustained a soft tissue injury to the cervical spine with evidence of degenerative pathology at C3-4 and C4-5. There were not sufficient clinical signs to indicate the diagnosis of radiculopathy. She also appeared to have sustained a soft tissue injury to her thoracolumbar spine, with referred pain to the legs, but without radiculopathy. The plaintiff had also sustained soft tissue injuries to both shoulders, more so on the right. Mr Dickens was of the view that the soft tissue injury to the cervical and lumbosacral spines probably represent aggravation of underlying degenerative pathology at those levels. There were also persisting symptoms in the shoulders.
41 Mr Dickens took a history of the various interferences with the plaintiff’s lifestyle that were being alleged, but stated that he did not believe that she would suffer from engaging in activities of daily living and occupational activities. He would not impose any specific restrictions in regard to accident-related injuries, except common sense avoidance of those things that cause increasing symptomatology. He did not believe that her spinal injuries would preclude her from continuing with her current employment. He felt that, if her symptoms persisted, surgical repair in relation to a supraspinatus tear in the right shoulder might be required.
42 Mr Dickens was also of the view that, since the accident, there had been other stressful events relating to the plaintiff’s family situation which have had a major impact on her symptomatology and lack of response to appropriate treatment. He noted that, at the interview and during discussions, the plaintiff demonstrated a significantly better range of movement when distracted. He considered her able to work on a full-time basis in her area of expertise. He concluded that it would not surprise him if she remained symptomatic in relation to her spinal problems on a long-term basis and that her right shoulder problem could also continue to persist. Because of some inconsistencies in the findings, he regarded the giving of a prognosis as being difficult and thought that it could prove inaccurate.
43 The plaintiff has also been seen at the request of the defendant by Dr Peter Boys, consultant orthopaedic surgeon. Dr Boys reported on 19 November 2015. In relation to her neck, the plaintiff informed Dr Boys that discomfort was present to some degree daily and that she was aware of strain at the extremes or rotation. She avoided forceful rapid movements of the neck. Pain radiated around the posterior aspect of the right shoulder, with occasional discomfort extending down the right upper limb as far as the hand and with paraesthesia of the right small finger. She also described thoracolumbar pain, with some lower lumbar pain always evident. She was engaging in cycling on a few occasions per week and also walking for exercise, although experiencing lumbar strain symptoms if that activity was prolonged.
44 Dr Boys diagnosed a musculoligamentous injury to the cervical spine and shoulder regions. He thought it reasonable to believe that she had experienced a degree of neck and shoulder strain symptoms of an ongoing nature consequential upon the accident. He could see no causal relationship with any lower back complaints. His overall diagnosis was of a musculoligamentous injury to the neck and shoulder region in association with a mild internal sternal contusion. He also noted the existence of some degenerative change in the lower cervical spine.
45 There were also constitutional degenerative changes in the shoulders. Dr Boy’s view was that the plaintiff’s current minor restriction of movement of the right shoulder reflected associated bursitis and tendonitis of a constitutional nature. He did not believe that the radiological material supported any specific diagnosed musculoligamentous injury. Dr Boys was not of the view that there was any specific condition of the neck or shoulders relating to the motor vehicle accident which required ongoing treatment and did not believe that it had given rise to ongoing work incapacity. The same could be said of domestic incapacity. He did not believe that there was any condition evident that would suffer significant deterioration.
46 In relation to the spinal injury, I accept that the plaintiff suffered soft tissue damage to the cervical and lumbar spines, along with the aggravation of pre-existing degenerative changes. I accept that there are some signs of protrusions at C4-5 and L3-4, but neither appear to be making any significant contact with nerves. Mr Grossbard has referred to the plaintiff as having multiple soft tissue injuries in the presence of pre-existing degenerative changes, but with no evidence of radiculopathy. Mr Dickens has also referred to the plaintiff having injuries of a soft tissue nature to the cervical and lumbar spines. He has also referred to some pre-accident constitutional degenerative pathology at the relevant levels. Mr Brownbill has also referred to focal degenerative changes in the cervical and lumbar spines, but with no signs of radiculopathy. Dr Boys has made reference to constitutional degenerative changes in the cervical spine. The plaintiff does not appear to have had any specialist treatment in relation to her spinal injuries.
47 In relation to the right shoulder injury, Mr Grossbard was of the opinion that there was no evidence of a major rotator cuff tear, but some evidence of tendonitis. Mr Brownbill effectively concentrated only on the spinal injuries. Mr Dickens referred to the fact that the MRI of the shoulders taken on 11 September 2006 showed a supraspinatus tear and bursitis on the right side. He referred to the possibility of some surgical repair if symptoms persisted. Dr Boys said that the plaintiff suffered a musculoligamentous injury to the shoulder regions. The treating specialist, Mr Holland, who does not seem to have seen the plaintiff for in excess of nine years, stated that the MRI of September 2006 showed a supraspinatus tendinopathy, although the right rotator cuff was behaving more severely than this.
48 I accept that the plaintiff suffered a soft tissue injury to the right shoulder. The most recent ultrasound investigation, being that of 3 August 2012, indicated that all the tendons of the right rotator cuff had a normal appearance. There was no tear or tendinopathy. There was mild subacromial bursal thickening without impingement, with no contour deformity. The AC joint was normal. There is not a great deal of difference between the various opinions, but in essence I accept the view of Mr Grossbard that there is some evidence of tendonitis in the plaintiff’s shoulders, but no evidence of a major rotator cuff tear. There is some residual dysfunction, the right side being more symptomatic than the left. Essentially, it is a soft tissue injury. The plaintiff has received no specialist treatment for it, for a period in excess of nine years and has otherwise received only a modest amount of treatment.
49 On balance, I am of the view that the spinal injuries and their consequences are long-term within the meaning of the Act in that they will persist for the foreseeable future. Mr Grossbard has stated that the situation is stable and unlikely to change significantly in the foreseeable future. He was prepared to make a whole person impairment assessment pursuant to the AMA Guides and permanence is an ingredient of such an assessment. Mr Brownbill regarded the plaintiff’s condition as stabilised from a neurosurgical point of view and anticipated that the neck and back pain would continue in a fluctuating manner indefinitely. Mr Dickens, examining on behalf of the defendant, stated that he would not be surprised if the plaintiff continued to remain symptomatic with respect to her spinal problems on a long-term basis. The contrary was not argued with any vigour, if at all.
50 The situation is a little less clear in relation to the right shoulder injury. There has been a suggestion of possible surgical intervention if symptoms do not abate. However, on balance I am of the opinion that the plaintiff has established that the right shoulder injury and its consequences are long-term within the meaning of the Act. Mr Grossbard was prepared to make an assessment of permanent impairment pursuant to the AMA Guides and Mr Dickens has expressed the opinion that the right shoulder problem could continue to persist.
51 As stated, I accept that the spinal injuries are in the nature of aggravations. However, I also accept that this condition was asymptomatic prior to the accident. Accordingly, the spinal symptoms from which the plaintiff now suffers result from the accident. It is not suggested that she had any shoulder difficulties before it.
52 Reliance has not been placed upon paragraph (c) of the definition of “serious injury”. That the plaintiff has suffered from possible psychological or psychiatric consequences, or an emotional reaction, is something suggested by Mr Brownbill. Dr Albert Kaplan, consultant psychiatrist, who saw the plaintiff at the request of her solicitors, expressed the view that she became increasingly depressed and anxious as a result of the accident. There are other factors also at play. Ultimately, he believed that her psychiatric condition and its impact upon her capacity for employment will be largely determined by her physical condition. In any event, it was said from the outset that the plaintiff’s claim was pursuant to sub-paragraph (a) of the definition for physical injury.
Other developments since the accident
53 I have already dealt with the plaintiff’s medical treatment. In relation to employment, the plaintiff has returned to graphic design work and, in addition, did casual weekend bar work at the Cardinia Beaconhills Golf Club for some 18 months from the end of 2009. With this work, she had some difficulty lifting heavy things. Essentially she does her graphic work from home, regulating her hours.
Ruling
54 On balance, I am of the view the plaintiff has failed to discharge the burden of proof in this matter. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a)As stated, the injuries sustained by the plaintiff are soft tissue in nature. There is no radiculopathy. I also note that she complained to her treating physiotherapist, Mr Dalton, in 2015 that she continued to be sore “through the entire body”. Multiple soft tissue injuries can, of course, be productive of consequences which satisfy the test in Humphries v Poljak, but the nature and gravity of injuries sustained seem to me to be matters which can be considered. Of course, it is the consequences that must be evaluated, but the nature and gravity of the injuries that have produced them and whether they are consistent with such injuries can be relevant matters.
(b)It is now approaching 11 years since the accident and during that time the plaintiff has had what could be considered to be a minimal amount of treatment for the injuries. The clinical notes of Rowville Health, at which Dr Darrer and Dr Yoffa are based, were placed in evidence. It would appear that, between the end of May 2005 and August 2012, the plaintiff attended at Rowville Health on some 15 occasions. These attendances were for a variety of complaints. On no visit during that period is there recorded any complaint concerning a spinal injury. On 8 May 2009, there is a reference to “sore back”, but this is in a totally different context and appears to relate to her menstrual cycle. Between 7 December 2006 and 2 August 2012, there are no references, in some 15 attendances, to either back symptoms or right shoulder symptoms. Interestingly, on 31 August 2006, being the second-last occasion upon which the plaintiff made complaint concerning her right shoulder at Dr Yoffa’s clinic before 2 August 2012, whilst there is a complaint of pain and some tenderness anteriorly, it was found that she had a full range of movement with no painful arc. Her range of movement was not recorded on 4 September 2006, when there was referral for diagnostic imaging. Thus, there is a very long period when the plaintiff was attending Rowville Health without making complaint concerning her spine and a slightly shorter one during which she complained of neither her spine or her right shoulder.
(c)In relation to her shoulder injury, it is apparent that the plaintiff saw Mr Holland in September and October 2006 and in February 2007. It is apparent that an MRI of both shoulders was carried out on 11 September 2006 and that, at around about that time, Mr Holland administered an injection into the plaintiff’s right shoulder. The last report from Mr Holland is in fact a letter to Dr Yoffa of 5 February 2007. Examination on that day confirmed that the plaintiff’s range of motion was well preserved and her rotator cuff (presumably right) had good strength. She had moderate signs of impingement on the right side. He arranged for her to have an ultrasound scan with a review in four weeks, but there is no evidence of anything further happening. Thus, there is no evidence that the plaintiff has seen her treating specialist since 5 February 2007. There is no indication that Mr Holland treated the plaintiff in relation to any spinal complaint. Indeed, there is no evidence from any specialist who might have treated her in this regard.
(d)It would also appear that the plaintiff had very little physiotherapy over the years between approximately 2007 and July 2012. At some stage, perhaps in 2007, Mr Dalton administered a cortisone injection into the plaintiff’s right shoulder. He saw her for a lower back complaint on 14 April 2011, but the reference in this regard is to her having hurt her back on the previous day. Some radiological investigations were ultimately carried out in September 2012. It would then appear from Mr Dalton’s report of 11 November 2015 that he treated the plaintiff on 18 April 2011 and then did not see her until 20 April 2015, treating her on three occasions between then and 12 May 2015. Overall, it could not be said that the plaintiff has had much treatment of the relevant injuries by way of physiotherapy in recent years.
(e)Dr Van Wetering saw the plaintiff on four occasions, but does not appear to have seen her for in excess of three years. Part of his treatment included a referral to a specialist, Mr John O’Donnell, but that was in relation to the left hip, concerning which reliance is not placed in the present application. The amount of treatment received from Dr Van Wetering could scarcely be described as excessive and was treatment received some years ago.
(f)The level of medication taken by the plaintiff is not great. When she saw Mr Brownbill for her solicitors on 25 August 2015, she said that she took “nothing much”, save for occasional Panadol and sleeping tablets. The more recent report from Dr Yoffa indicates that the plaintiff takes Panadol Osteo regularly and Voltaren occasionally. Indeed, in her affidavit of 12 February 2016, the plaintiff referred to her seeing Dr Yoffa “as required”. However, she went on to swear that “I realise there is little else she can do for me and so I only see her sparingly”. Thus, it would appear that the plaintiff is taking no prescribed medication and indeed having very little treatment apart from seeing her general practitioner “sparingly”. She has had no specialist treatment for any relevant injury for in excess of eight years.
(g)The plaintiff has been able to return to work, engaging in graphic designing from home. It seems likely that she is quite skilled in this regard, as there is no claim for economic loss. She is able to work at her own pace. It is also to be remembered that, for a period of between 12 and 18 months, the plaintiff worked at the Cardinia Beaconhills Golf Club as a casual bar person. This involved her in dispensing drinks, picking up glasses, taking money, wiping tables and the like. She agreed that she was on her feet throughout the shift – see T20. The precise number of hours that she worked is not clear. It is also not clear as to whether she performed this work whilst also working from home, although the impression gained is that this may have occurred. In her affidavit of 22 April 2014, the plaintiff has sworn that she and her husband were divorced in 2009 and that, from that time, for financial reasons she needed to operate her business full-time. She also gave evidence that she did the bar work because she was “desperate for money” – see T21. It would seem that she was not seeing a doctor about her problems at this time.
In any event, the plaintiff has demonstrated the capacity to perform her work as a graphic artist from home and also managed to do some work as a casual bar person for a period of approximately one year to 18 months, albeit that this would appear to have been part-time work. The demonstrated capacity of the plaintiff to resume work after the accident is certainly not one which is fatal to her, but it can be taken into account in the overall assessment of whether the burden of proof has been discharged.
It is perhaps given some additional significance when combined with the apparent absence of complaint to the general practitioner for some six years (which period embraces the time that the plaintiff was working as a bar person) and the comparatively modest amount of treatment and medication.
(h)In her second affidavit, the plaintiff has sworn that she has “really missed” her sporting activities. However, it is to be remembered that she returned to sport, playing netball in 2008. Whilst she has sworn that this caused some symptoms, the fact of the matter is that she continued until she suffered a rupture of her Achilles tendon. In her affidavit of 22 April 2014, she swore that:
“The snapped achilles put an end to this return to team sport. I was out of action for the remainder of the season with treatment. Although the achilles is no longer a problem for me, by 2009 the situation of my marriage was so bad that dealing with the separation and divorce left me with no space to return to sports.” (sic)
It is comparatively clear from the plaintiff’s earlier affidavit, which also embraces material in support of an application pursuant to s23 of the Limitation of Actions Act 1958, that there were factors in addition to the relevant injuries that interfered with the plaintiff’s return to sporting activities. In cross-examination the plaintiff agreed that she ruptured her Achilles tendon near the very end of the season. She had played through the season without any need for medical assistance and had not used any prescription medication or received physiotherapy. The ruptured tendon put an end to this.
(i)I would refer to the often quoted words of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 2602 as follows:
“But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
In the present case, in addition to other capacities, both sporting and otherwise, which she has retained, it is apparent that the plaintiff retained at least the capacity to play for a netball team until she ruptured her Achilles tendon. She has continued to attend a gymnasium, performing strengthening exercises, swimming and doing treadmill work. She played golf for a period, although she claims that she has now not played for approximately a year and had difficulty playing more than nine holes. The plaintiff seems to me to have retained at least some ability to compete in team sport until the rupture of the tendon.
(j)In relation to the plaintiff’s sporting activities, I would again refer back to the question mark that hangs over her reliability concerning her being a referee of professional basketball. Even leaving to one side what is contained in her affidavit of 12 February 2016, which arguably could be the result of poor or ambiguous drafting, there remains the history given to Mr Brownbill as set out in paragraph 8 above. The clear inference to be drawn is that she had been a professional basketball referee prior to the injury, but did not return to it thereafter. The fact that she had ceased refereeing long before the accident is not stated. I would also point out that the plaintiff agreed that her left hip had been a problem for some years and, by February 2013, was a significant concern. Further, Mr John O’Donnell, who treated the plaintiff for her left hip problems, reported on 5 February 2013 to Dr Van Wetering that the plaintiff was unable to play sport because of hip pain, which is almost certainly a reference to pain in the left hip, this not being an area of injury relied upon in the present case.
(k)In relation to current activities, the plaintiff has been riding a bicycle two to three times per week, generally riding between 20 and 30 kilometres. She agreed that she had been measuring or recording the distances that she rode, using an App called Strava for this purpose. She commenced using that App in approximately April 2015. In that year, she recorded a total of 2,082 kilometres from 65 rides. It was put to her, and she agreed, that in February of this year she had ridden 270 kilometres over 11 hours and had recorded elevation, being the amount climbed, of 2,068 metres. In a ride on what was described as a the short Rowville loop on 25 February 2016, being some four days before the hearing, she had been awarded the title of QOM. This apparently stands for “Queen of Mountain”. She also achieved a personal record on that day. She said that there were no other females competing on the loop that day. She also achieved a personal record on that day. She stated that she rode “maybe 25 K in about an hour” – see T26-28.
(l)In considering what has been retained by the plaintiff, she has been able to continue to engage in employment and would seem to be earning more money in recent years than previously. She has been able to return to team sport, having played virtually a full season of netball before rupturing her Achilles tendon. She has taken up cycling and clearly is able to cycle considerable distances, and in a competitive fashion. Apparently she paid approximately $1,000 for a bicycle, together with $150 for apparel, in April of last year – see T27. She experiences difficulty with household and domestic chores, but apparently is able to perform such things as vacuuming, mopping, gardening and mowing, albeit with difficulty. In this regard, she receives some assistance from her children, but says that there is an increase in pain subsequently.
(m)The plaintiff complains of ongoing constant pain in the lower back, in addition to constant aching and discomfort in the back of the neck, with fluctuating pain being present daily. She also complains of constant discomfort with the right shoulder joint and a limited range of movement. She also states her sleep is frequently disturbed by pain, whilst also swearing in her more recent affidavit, that she uses sleeping tablets “from time-to-time”. These are matters which are taken into account and weigh up in coming to my ultimate conclusion. The fact remains that the plaintiff has had a minimal amount of treatment, with no specialist treatment for her soft tissue spinal injuries at all and no specialist treatment of her right shoulder for in excess of nine years. Other treatment is occasional at best. Essentially no prescription medication is involved. The plaintiff is taking some over-the-counter painkillers. As discussed, some question marks as to her complete reliability as a witness have arisen. All of these matters, and those previously set out, must be considered and the relevant comparison made. When that exercise is performed, it seems to me that the plaintiff has failed to discharge the burden of proof.
Conclusion
55 The plaintiff is unsuccessful. She has failed to discharge the burden of proof. Her application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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