Sumsion v TAC
[2011] VCC 854
•11 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-03360
| MELISSA SUMSION | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 April 2011 |
| DATE OF JUDGMENT: | 11 April 2011 |
| CASE MAY BE CITED AS: | Sumsion v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 854 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 - Serious Injury - Application for leave to bring proceedings pursuant to s.93 - leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacey SC | Maurice Blackburn |
| With Mr G Chancellor | ||
| For the Defendant | Mr C J Blandon SC with | Solicitor to the TAC |
| Dr R McNeill | ||
| HER HONOUR: |
1 Melissa Sumsion is aged 42. She is a mother of three young children aged 11, 9 and 6. She classifies her occupation as home duties and secretary. She assists her husband whom at present has a home based business as an IT consultant.
2 On 24 December 2002 she was the driver of a vehicle that was stationary at lights when her vehicle was struck forcibly from behind by another vehicle (“the transport accident”).
3 Ms Sumsion brings this application by Originating Motion for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injury suffered by the plaintiff arising out of the transport accident.
4 A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury. (s.93(6))
5 The plaintiff primarily relies upon the definition of serious injury under s.93(17)(a): “serious long term impairment or loss of body function.”
6 The claimed impairment or loss of body function relied upon is the low back.
7 The application is put on the alternative basis under sub-section (c) of the definition of serious injury namely, “a severe long-term mental or severe long- term behavioural disturbance or disorder”. The claimed condition being relied upon is a chronic pain syndrome.
8 Mr Hore-Lacey, SC on behalf of the plaintiff, relied primarily on the injury being one that is of a physical nature and only faintly pressed the application under paragraph (c).
9 Mr Constable, SC on behalf of the defendant, submitted that having regard to the totality of the evidence I ought not to be satisfied under part (a) of the definition in relation to a serious physical injury. Further, he submitted that Ms Sumsion’s chronic pain syndrome falls to be assessed under paragraph (c) of the definition and looked at on that basis, it does not satisfy the definition of “severe” as set out in the definition and the authorities. Therefore the application should be dismissed.
10 The defendant accepted that the plaintiff had a physical injury to the low back at the time of the accident but that has been overtaken relatively soon after the accident by what has been described essentially as a chronic pain syndrome. Mr Constable sought to rely on the evidence of Mr Shannon, Dr Littlejohn and Dr Engel and to a lesser extent on Mr Wilde to support this contention.
11 The narrow issue in dispute therefore is what is the nature of the injury that was suffered by Ms Sumsion in the transport accident and whether the injury ought to be characterised as a physical injury or as a chronic pain syndrome that is not organic in origin. I then must have regard to the relevant definition of serious injury that applies and make a finding on the totality of the evidence as to whether Ms Sumsion has satisfied the relevant test.
The evidence
12 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Treatment following injury
13 As a consequence of the transport accident Ms Sumsion suffered neck, thoracic and lumbar injuries and was transferred by ambulance to the Emergency Department at Maroondah Hospital. She did not suffer any loss of consciousness but was noted to complain of thoracic spine pain, mid-scapular and lower spine pain when attended by ambulance officers.
14 The initial assessment was one of spinal pain. Mild tenderness over the mid- thoracic spine and lumbar tenderness was noted on examination. Soft tissue injury was the provisional diagnosis. X-rays of the neck, chest and thoracic spine were reported as being normal. The final diagnosis was of neck and back pain. Ms Sumsion was discharged home that day to rest.
15 Because of continuing problems she presented to her local clinic, the Warrandyte Road Clinic, and was seen by a Dr McKenzie on 29 January 2003. At that stage she was complaining of thoracolumbar pain.
16 Ms Sumsion continues to be managed conservatively and has been seen by various doctors at that clinic ever since. Over time the neck and thoracic pain resolved and the ongoing complaint has been of persisting lumbar pain. She has been treated with anti-inflammatories and analgesia for the pain and referred for physiotherapy. In addition to physiotherapy she has also had chiropractic treatment and has undertaken gym-swim programs, self-directed exercise programs and Pilates.
17 In 2003 she was referred for specialist referral to Mr Rodney Simm, orthopaedic surgeon. He saw her once on 15 July 2003 and assessed her as having a musculoskeletal injury to the back. He did not believe at that time she had sustained a disc injury and was optimistic that she would improve.
18 In a letter dated 12 August 2003, Mr Simm confirmed that her presenting symptoms were chronic symptoms consistent with the diagnosis of musculoligamentous injury to the back. He advised ongoing treatment should involve pain management strategies which may include massage and acupuncture.
19 In a letter dated 6 March 2008, written to the Transport Accident Commission Dr Kaye Kerr, general practitioner, notes that Ms Sumsion presented with ongoing back pain following the transport accident on 24 December 2002. The back and sacral pain coming from the lower discs and sacroiliac joints is continuing. A request for authorisation for her to attend a gym-swim program and Pilates was made. The material shows that this has been the pattern of her injury with an increase in pain secondary to activities involving the low back.
20 An MRI was undertaken on 19 October 2007 that was reported as follows: “Minor degenerative change in the lumbar spine. No central canal stenosis or evidence of nerve root impingement.”
21 Dr David Vivien, a pain management specialist, reviewed the plaintiff on 29 January 2008 on referral from Dr Kaye Kerr. He confirmed his diagnosis was chronic sacral pain which is substantially disabling and the pain levels are high. The pain, he thought, could come from one of the lower discs such as L4/5, but considered that the diagnostic tools such as discogram and other diagnostic processes controversial. He opined that the MRI is not diagnostic of L4/5 disc pain at all. He discussed treatment options and recommended bilateral sacro-iliac joint injections.
22 Ms Sumsion underwent those injections without ligamentous injection on 30 July 2008. The injections made no difference to the pain on the day or subsequently.
23 He states that Ms Sumsion developed pain that seemed to arise directly from the motor accident on 24/12/2002. He considered that the pain “most certainly derived as a consequence from injury sustained in that accident”. He did not note any past history of any significant pain. He considered that the pain could still derive from sacroiliac joint (the part of the joint that was not entered with the injection that he performed) and the ligamentous component. He considered that the results of the first injections may have been a false negative.
24 Overall, he considered that she may have discogenic pain and stated that an abnormality such as disc degradation on an MRI, does not imply that the disc is the source of pain.
25 Importantly, he did not consider that there was anything in her presentation to suggest any functional overlay or anything else to suggest that there is a substantial psychological component to her pain presentation.
26 In the history recorded he noted that she had been assessed by the insurance doctor and diagnosed with fibromyalgia. His stated view is that she does not have generalised pain and the sacral pain is the predominant pain.[1]
[1] PCB 83
27 He further recorded that she has had a lot of treatment and gets variable response to treatment. She takes pills including a combination of sedative with analgesic. She takes them particularly at night, but not every night, and they do help her to sleep to some extent.
28 Dr Vivian considers it is unlikely Ms Sumsion will recover and the condition is considered to be permanent and stable. [2]
[2] PCB 82
29 Dr Sam Engel, consultant rheumatologist, saw the plaintiff on one occasion only on 9 December 2008 on referral from Dr Kaye Kerr. On that one occasion he diagnosed soft tissue injury to the lumbar spine as a consequence of the transport accident. He noted that Ms Sumsion had gone on to develop a regional chronic pain syndrome as manifested by multiple tender points and failure to respond to conservative management. He did not consider surgical intervention as appropriate and recommended a pain management rehabilitation program.
30 He confirmed that the plaintiff did complete the program and gained some benefit in that she was able to stop Mersyndol and commence Amitriptyline.
31 He dealt with the issue of causation and felt that the soft tissue injury was consistent with the transport accident but the development of the pain syndrome could only be indirectly, in his view, related to the initial traumatic incident.
32 He was guarded in his prognosis by the fact that the transport accident had occurred some years previous to the presentation and in his experience patients with regional pain syndromes lasting over one year rarely returned to a pain-free status and often have a long-term disability relating to chronic pain and not to any specific bone or joint abnormality.[3]
[3] PCB 125
33 In 2009 Ms Sumsion was referred to Dr Mithu Palit, a rehabilitation physician. He saw her on 16 February 2009. At that time the pain was localised to the sacrococcygeal region and was present constantly. She was using a combination of Tramadol slow release tablets, Voltaren and short-acting Tramadol capsules to manage the pain. Sleep disruption was reported due to pain and also the plaintiff was developing lowered mood and a negative outlook.
34 Dr Palit’s clinical impression was that she was suffering from mechanical lower back pain as a consequence of a high velocity, hyperextension flexion injury. He recommended a rehabilitation program.
35 Ms Sumsion completed a rehabilitation program at Epworth Rehabilitation, Dandenong following which she had improvement in her pain management skills and strategies with less reliance on pharmaceutical treatment. However Ms Sumsion still required analgesia, anti-inflammatory medication and low dose Tricyclic medication to manage the pain.
36 He continued to review her on 3 August 2009, 24 August 2009, 23 November 2009, 12 April 2010 and 16 August 2010. The plaintiff trialled a TENS machine during this period and found that useful. She was able to avoid taking what had been routine doses of medication. He noted that the scenario of injury Ms Sumsion describes is not uncommon. His observations were that the disability reported has been consistent over the period of his consultations.[4]
[4] PCB 88
37 Dr Palit was optimistic about a return to the workforce. However, he noted there would be restrictions on what the plaintiff could manage by way of manual handling and her capacity for prolonged sitting or standing or, for that matter, any sustained activity. He anticipated that she would need to seek medical assistance periodically.
38 Ms Jessica Wrigley, physiotherapist, provided a report outlining her observations and treatment. She first saw the plaintiff on 20 May 2010 when she attended for physiotherapy. She confirms that Ms Sumsion had been treated by another physiotherapist at the clinic in 2006 for the pain relating to the transport accident.
39 Ms Wrigley confirms that clinically Ms Sumsion has chronic non-specific low back pain with ongoing episodes of global muscular spasm, facet stiffness and deep stabilising muscle inhibition. She responded well to massage, mobilisation and core exercises and regular gym work. She recommended regular hydrotherapy. She considers that she has a long term disability resulting from the transport accident. [5]
[5] PCB 90
40 Ms Wrigley opines that the plaintiff had no pain or problems in the low back prior to the accident. It is possible with a whiplash-type injury, such as being hit from behind, a person would suffer chronic low back pain. Much of the force of impact is absorbed through the spine and subsequent ongoing muscle over activation, facet joint inflammation and stiffness would be consistent with this cause.
41 Having regard to the reported studies referred to in Ms Wrigley’s supplementary report 29 October 2010 I accept this proposition. [6]
[6] PCB 92
42 She noted the plaintiff’s current personal circumstances and stated that she would be unfit to return to work as a beautician because of the need to sit in a chair for an extended period of time and also some heavy lifting. She recommended that she would benefit from regular Pilates and hydrotherapy to improve increased movement and lumbopelvic stability.
43 Dr Kaye Kerr states in a report 25 March 2011 that Ms Sumsion continues to be treated intermittently with respect to her transport accident injury. The diagnosis remains chronic low back pain in the lumbosacral area from an injury sustained in the transport accident.
44 Dr Kaye Kerr confirms that Ms Sumsion will require regular review by rehabilitation physician with occasional review and management by a rehabilitation team of physiotherapist, occupational therapist and psychologist as her lifestyle changes with her childrens’ needs particularly and a return to paid employment.
45 In addition, she will require long-term home help to undertake vacuuming, cleaning of the bathroom and oven regularly. She requires a community based gym exercise program long-term and also intermittent short periods of physiotherapy treatment for flare-ups of pain and short periods of hydrotherapy.
Medico-legal reports relied on by the plaintiff
46 Mr Peter Wilde examined the plaintiff on 18 November 2008 and re-examined her on 24 April 2010. He is an orthopaedic surgeon with a surgical practice in musculoskeletal surgery with a particular sub-speciality interest in spinal surgery.
47 He noted the history and background. At the time she presented to him the pain was mostly lumbosacral in location and referred into both buttocks and up to the waist extending to the hamstrings and occasionally both feet and calves ached. She described altered sensation in both thighs. The pain was constant.
48 Mr Wilde considered the pain had a mechanical quality to it in that bending, lifting and twisting made the pain worse whereas lying down eased the symptoms.[7]
[7] PCB 33
49 Pain restricted many activities such as housework, vacuuming, mopping, cleaning, washing, coitus or playing with her children. These activities make the pain infinitely worse. She was more comfortable sitting or lying flat but could only do those for a short period of time. She is able to drive a car and perform some light housework tasks but any housework she does is done very slowly room by room. Pain prevents her from doing gardening or shopping.
50 His opinion is that the plaintiff suffers mechanical lumbar back pain probably related to an aggravation of underlying mild degenerative spondylosis. There was no clinical evidence of radiculopathy.[8]
[8] PCB 34
51 He reviewed the MRI scan personally and considered it suggests disc desiccation at L4/5 without a prolapse. He diagnosed mechanical lumbar back pain probably related to aggravation of pre-existing degenerative lumbar disc and facet joint disease without radiculopathy.
52 The injury is the source of her ongoing mechanical pain. [9]
[9] PCB 35 & PCB 39
53 As a secondary phenomenon he considers that she has also developed a chronic lumbar pain syndrome which means neural transmission pathways behave erratically and unnaturally and so compound and magnify her pain levels. There has been a psychological response to the physical injury and that further adds to her pain.[10]
[10] PCB 34
54 He recommends conservative treatment for the future and no surgical treatment was indicated. She will need to have treatment from time to time for acute exacerbation of her pain and he recommended she continue home exercises and Pilates. Prognosis is guarded and it is likely she will continue to suffer with back pain for many years to come. Her condition has stabilised.
55 When Mr Wilde reviewed her on 21 April 2010 the position had not changed. He repeated his diagnosis and felt that psychological factors served to amplify the perception of pain and disability having regard to the MRI findings and his clinical examination. He did however conclude that there was evidence of lumbar injury with no clinical or radiological evidence of loss of motion, segment integrity or radiculopathy.[11]
[11] PCB 41
56 Dr Amanda Silcock, occupational physician, examined the plaintiff on 27 October 2008 and 11 January 2010. She agrees with the diagnosis that the plaintiff suffers from non-specific mechanical low back pain. She noted absence of right knee jerk. Although there was right knee jerk absence there was nothing else to suggest there is radiculopathy present and an MRI did not show any neural compression.
57 She considered that the injury has substantially reduced Ms Sumsion’s capacity to obtain and maintain employment in the competitive job market as employers are reluctant to employ somebody who has had a history of back injury over a prolonged period. She may also have some difficulty working a full week and may need to work part-time. She did consider the plaintiff had a capacity for work either as a beautician or in an office. Her condition has stabilised. She is unable to undertake many sporting activities and her social activities have also been affected as she can no longer dance and has to take extra painkillers if she goes to the movies.
58 When re-examined she considered that the diagnosis is non-specific mechanical lower back pain possibly complicated by chronic pain syndrome. Her condition had changed little since the last examination. Complaints of severe low back pain were recorded and participation in pain management and a rehabilitation program has not altered the symptoms.[12]
[12] PCB 56
59 Dr Alex Stockman, rheumatologist, reviewed the plaintiff on 18 October 2010 and he formed the view that she has mechanical back pain from lumbar disc degeneration at L4/5 notwithstanding rather minor degree of abnormality demonstrated on MRI. The pain could also be coming from lower facet joints but no imaging of these joints is available (for example CT scan of the lumbar spine).
60 His opinion is that the injury is consistent with being caused or significantly aggravated by the transport accident. He agrees she could only work part- time and would not be fit for more than four hours per day and would have to take regular half hourly breaks. She could work in her pre-injury employment as a nail technician. She is likely to require analgesia and anti-inflammatory medication indefinitely, use a TENS machine and perform core strengthening exercises. He recommends home help for the heavier housework. [13]
[13] PCB 96
61 Ms Sumsion’s problem is stable and no significant improvement is likely in the foreseeable future. She will require ongoing analgesia and that will have a negative effect on her social, domestic, recreational and working life.
62 Dr Clive Kenna, consultant in musculoskeletal pain management specialising in physical medicine, reviewed the plaintiff on numerous occasions at the request of the Transport Accident Commission. The plaintiff relies on his reports.
63 He saw her on 25 August 2004, 7 May 2005 and 2 March 2010. He has therefore had an opportunity of viewing her over a period of five and a half years. His diagnosis is one of central lower back pain. He considers that she presents as someone who very likely has a discogenic injury, either a central bulge or protrusion or, indeed, an annular tear.[14]
[14] PCB 101
64 When he first reviewed the plaintiff he considered that the pain pattern diagram indicated she was not developing pain sensitisation and her clinical presentation still very much had a pathological basis. He believed the symptoms did have an organic basis and did not consider any overtly psychosocial issues were impacting on her presentation.[15]
[15] PCB 101
65 When he saw her on the next occasion on 7 February 2005, he noted on examination that she was very tender between L4 to S1 with associated muscle spasm on ballotment. There was intervertebral dysfunction with structural asymmetry FRS right. In extension this partially relieves the pain and symptoms.
66 He confirmed that she remained symptomatic pertaining to the lower back and believed it was discogenic in origin. [16]
[16] PCB 108
67 He did not believe there was any substantial psychosocial risk factors. Work is not an issue. Her condition had effectively plateaued and no further investigations were required.
68 When asked to comment on some treatment he wrote to the Transport Accident Commission on 21 March 2005 and stated that he believed she developed restriction of mobility due to persistent discogenic symptoms but this translated into tightened muscles and trigger points which easily trigger increased pain. He therefore recommended she may benefit from a course of deep tissue massage in conjunction with exercise. He recommended chiropractic physiotherapy treatment.[17]
[17] PCB 112
69 When he last reviewed the plaintiff on 2 March 2010 he noted that she was still complaining of intense central lower back pain with some very mild referral pain symmetrically into both lower limbs but the main focus is intense pain in the low back. He noted that there was no significant prior history.
70 He accepts that she sustained an injury to her low back as a result of the transport accident. She no longer has problems with cervical or thoracic spine and her main problems clearly pertain to the lower lumbar spine. In his opinion there has been no change over the five years since he examined her and she has plateaued out at what would have to be a symptomatically significant level. She has changed her medication and that seems to have also substantially resulted in improvement. She is now taking Tramal.[18]
[18] PCB 117
71 He noted that she is a busy young mother with three children and has a range of home duties and assists in her husband’s business working from home. He noted the range of treatment that she had and his provisional diagnosis of low back pain secondary discogenic in origin mostly likely an annular tear. This would explain the profound centralised low back pain with some vague distal referral. He considers that she has been left with persistent chronic low back pain and reduced activity tolerance limits.
72 He notes that her condition has been kept in check, in part, by activity and exercises but she is still reliant on medication to maintain the overall level of pain control. He considers that activities of daily living have been significantly impacted upon by her clinical presentation and that has been a major complaint since the transport accident.
73 His prognosis is one of chronic low back pain with reduced activity tolerance limits, reduced physical mobility, the requirement for ongoing medication, partial stabilisation of condition by maintaining her overall level of fitness with gym activities support by a home-based exercise program.
74 He noted that some eight years had passed since the transport accident and it was reasonable to assume that the condition has plateaued and that no further substantial alteration in her current clinical presentation could reasonably be expected. She will continue to have a permanent partial disability as a result of the injuries incurred in the transport accident. [19]
[19] PCB 117
75 The plaintiff has been examined by Dr Nigel Strauss, consultant psychiatrist, on two occasions namely, 10 February 2009 and 3 March 2010. Dr Strauss noted that there was no history of psychiatric problems prior to the transport accident. He noted, following the transport accident, the plaintiff suffered from chronic low back pain and as a consequence of that back pain, in his opinion, she has developed some symptoms of anxiety and depression secondary to the pain.
76 He did not consider that she had a diagnosable psychiatric condition but had a psychiatric impairment involving symptoms of anxiety and depression. He considered the underlying anxiety and depression may be perpetuating the pain such that there is a psychological basis to some of her pain but primarily he believed her pain to be organically based. She has no incapacity on psychiatric grounds. The condition is stable and he did not recommend any treatment.[20]
[20] PCB 66
77 When he re-examined the plaintiff he confirmed his view that she has a genuine physical condition affecting her back and mild post-traumatic stress symptoms and secondary anxiety and depression. The condition is stable. She will always have a mild psychiatric reaction to the accident and the prognosis must be regarded as guarded.
78 This finding is consistent with the findings set out in the report of Dr David Weismann, psychiatrist who examined Ms Sumsion at the defendant’s request.
79 Having regard to the psychiatric assessments it is my view that predominantly the plaintiff’s condition is organically based and the pain is not a manifestation of a psychiatric condition.
The defendant’s medical evidence
80 Professor Geoffrey Littlejohn, a rheumatologist with specialist expertise in chronic pain syndrome, reviewed the plaintiff on 6 May 2008 and 12 May 2010. His view is that she has chronic pain syndrome that fulfils the criteria for fibromyalgia and her main symptom areas are in the low back.
81 He considers the cause of her ongoing symptoms relates to the chronic pain syndrome fibromyalgia and not to any tissue damage or ongoing injury in the structures of the low back such as the discs or related areas. He believes the pain is predominantly related to psychological factors and not to tissue damage. He confirms the problem was triggered by the accident but other personal, emotional and social factors now maintain and modulate her pain problem.[21]
[21] DCB 28
82 He found on examination abnormal tenderness and muscular restriction mainly in the area of low back and regions of referral from that site, the buttocks, trochanteric and leg region. He found no evidence of organic pathology in the back and in particular no neurological impairment.
83 He noted that the MRI imaging from the MRI scan of the lumbar spine dated 19 October 2007 showed evidence of a very minor bulge at L4/5 with no neural impingement and does not think that there is any radiological support to indicate organic damage or injury to the low back.
84 In his opinion the diagnosis of chronic pain syndrome indicates the pain is independent of any tissue damage source. He notes the examination findings are consistent with her complaints of pain and stiffness.
85 He states that fibromyalgia syndrome or more specifically lumbar regional pain syndrome implies there is no tissue damage or injury in the back causing the symptoms. The pain system is amplified through change in control of factors in the spinal cord and brain.[22]
[22] DCB 16
86 On this analysis I am satisfied that following the transport accident there has been some physiological change to the plaintiff’s pain system and on that basis I consider that Mr Littlejohn’s analysis does provide a further physical basis for the plaintiff’s complaint of chronic lumbosacral pain.
87 Mr Littlejohn accepts the relationship with the transport accident in that symptoms were triggered by the transport accident and the consequence of it and he further asserts that normally with these types of pain syndromes, there is a psychological component. He suggested a review by a psychologist or psychiatrist.
88 He also recommended that Ms Sumsion be reviewed by a pain management doctor as she did not appear to have been exposed to a wider range of pain modulatory medication such as Tricyclic medication or Alpha-2 Delta modulators such as Pregabalin.
89 In a letter dated 10 March 2011 Mr Littlejohn states the constancy and intensity of the plaintiff’s pain is predominantly related to psychological factors and not to tissue damage and that other personal, emotional and social factors now maintain and modulate her pain problem. He does not however articulate what those other personal, emotional and social factors are that maintain and modulate Ms Sumsion’s pain problem.
90 Given the differences of opinion expressed between Professor Littlejohn and the preponderance of opinions expressed by the treating doctors and doctors Wilde, Silcock, Stockman and Kenna, I consider that it is more likely that the plaintiff’s chronic pain is as a consequence of mechanical low back pain and not a manifestation of a psychological problem.
91 Mr Michael Shannon, surgeon, reviewed the plaintiff on 19 April 2010. He had available the reports of physiotherapist, Dr Vivien, Mr Wilde, Professor Littlejohn and Dr Weissman together with a plethora of other material.
92 His opinion, following examination, was that Ms Sumsion had a relatively minor soft tissue injury which he anticipated ought to have resolved within weeks or months. He considered that the claimed disability is greater than the nature of the injury. Although he did acknowledge that the physical findings are confined to the low back where she has some restriction of movement. He confirmed when he examined her that thoracic lumbar movements were limited by about a third and most of the flexion was occurring at the hips and there was no significant spasm.
93 He did not think her presentation was particularly inconsistent but in his view did not support a significant physical injury. He noted the radiological findings were apparently minimal but had not seen the films. He did not think any further treatment was indicated and that she ought to be capable of performing normal activities of daily living.
94 He considered that the transport accident was unlikely to result in a significant injury to the low back which is protected by the seat. That opinion is contrary to the expressed view of Ms Wrigley whose opinion I prefer having regard to the research she has referenced.
95 Mr Shannon accepted the possibility of some jarring-type soft tissue injury but stated no specific pathology has been identified with investigation and the quite minor disc bulging noted at L4/5 is unlikely to be symptomatic or accident-related.
96 He opined in his letter 19 October 2010 that he was not certain that the diagnosis of a hyperextension flexion injury was justified on the history and expressed his opinion about the material that has been relied upon by the plaintiff.
97 I disagree with his expressed opinion that the general consensus is that Ms Sumsion has not sustained a significant injury to her spine and that is supported by both physical examination and extensive investigation. He noted the consensus is that she has developed some form of chronic pain syndrome.
98 In a further letter 1 March 2011 he opines that the general consensus is that she is probably suffering from mechanical back pain with some form of pain syndrome. He queried the relationship with the accident, noting that it was only a relatively minor accident.
99 Having regard to the extensive property damage that was caused to the plaintiff’s vehicle, in excess of $5,000, and also the fact that her vehicle was stationary when it was hit forcibly from behind, I consider that his assessment of the accident being “relatively minor” cannot be substantiated.
100 I have had regard to the findings of Ms Wrigley the physiotherapist and also the other doctors who have been intimately involved in her treatment such as Dr Kaye Kerr, Dr Vivian, Dr Pallit and the other specialist’s doctors Wilde, Silcock, Stockman and Kenna. I reject Mr Shannon’s contention that there does not appear to be any major physical organic basis for Ms Sumsion’s ongoing complaints of low back pain and that her problem stem from a chronic pain syndrome.
101 Dr David Weissman, consultant psychiatrist, reviewed the plaintiff on 28 April 2010. He considers that on purely psychiatric grounds she presents with a fairly mild residual post-traumatic stress and anxiety with features of traumatisation. She does not have post-traumatic stress disorder. She also suffers mild to moderate mixed reactive depressive syndrome and anxious mood of mild to moderate severity associated with mild residual symptoms and features of traumatisation.
102 He considers that the plaintiff might also have some symptoms and features of a chronic pain disorder associated with psychological factors and a general medical condition. The psychiatric prognosis is fair.
103 He considers that the psychiatric injury should be added in a narrative or qualitative sense to the physical and surgical conditions and injuries she has also sustained and developed which he notes are outside his area of expertise.[23]
[23] DCB 51
Findings on the nature of the injury suffered in the transport accident
104 Overall, I am guided by the clinical findings of those who had the management of the plaintiff in the intervening period following the accident up to the present.
105 I have considered the material from the Warrandyte Road Clinic, in particular, Dr Kaye Kerr, the findings of Dr David Vivien, Dr Palit and the physiotherapist, Jessica Wrigley. Their findings are consistent with those of Dr Kenna who had the advantage of seeing the plaintiff over a 5 year time frame.
106 Ms Wrigley had the opportunity of assessing the plaintiff over 25 sessions and so was intimately involved in her management and care and her observations are important. Of particular significance are the clinical findings of chronic non-specific back pain with ongoing episodes of global muscular spasm, facet stiffness and deep stabilising muscle inhibition recorded by Ms Wrigley, all of which are indicative of a physical injury.
107 I am satisfied having regard to the totality of the evidence that Ms Sumsion suffered injury to her low back as a consequence of the transport accident. She has continued to experience chronic low back pain in the lumbosacral area since the transport accident on 24 December 2002.
108 I am satisfied that the chronic low back pain is discogenic in origin notwithstanding that the MRI does not show any major abnormality.
109 I shall proceed to consider the application on the basis that she suffers from physical impairment.
110 The inquiry under sub-section (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
111 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
112 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described at least “very considerable” and more than “significant” or “marked”.
113 I shall now consider the consequences of Ms Sumsion’s injury.
Consequences of the injury
114 Ms Sumsion gave her evidence in a frank and straightforward manner and there was no sense of her seeking to embellish her condition. Her evidence was not challenged concerning the consequences of the accident.
115 I found her to be a reliable and credible witness and I accept her evidence concerning the stated consequences as set out in her evidence and her affidavits.
116 In addition to the chronic and severe low back pain that she has suffered since the accident, the plaintiff has experienced flare-ups associated with activities of daily living such as getting in and out of her car, playing with her children, standing upright in one place for too long (such as when she is cooking or ironing or undertaking housekeeping tasks).
117 She is precluded from doing any heavy household work such as vacuuming, mopping, cleaning, anything involving lifting, bending and twisting. She has the various responsibilities for three young children and looks after them and is able to attend to their needs but is careful in the way in which she goes about her activities so as to avoid any further flare-ups.
118 She requires assistance with heavy household tasks. She avoids doing activities involving bending and lifting things. She is able to assist her husband working part-time providing secretarial services for a consultant computer business. That is soon to cease as her husband has taken up a full-time position. She is likely to experience difficulties finding alternative employment due to her physical limitations.
119 I accept that prior to the accident Ms Sumsion did not have any low back problems and was a very physically active person. She played basketball twice a week at the Knox Sports Centre and 10 pin bowling every week. She also played golf monthly and occasionally played social tennis and was active walking and going out dancing with her husband and also undertaking gardening at the home.
120 In contrast since the transport accident she has not been able to resume basketball or 10 pin bowling and has given up both sports because of her constant pain. She no longer plays golf or tennis or goes dancing. She avoids gardening. Even walking can be painful.
121 The effect of her low back injury has impacted on her relationship with her husband. She no longer has sex as often as she did previously and her enjoyment of sex is much diminished because of the pain it causes to her low back. Her social life is curtailed. She has difficulty with sleeping at night and wakes with pain. She often feels tired associated with lack of sleep. She takes Tramadol and Endep at night and anti-inflammatories as required.
122 She has completed the six week rehabilitation course at Epworth Rehabilitation in Dandenong. That did not alleviate her pain but taught her to do things differently in order to try and cope with the pain.
123 She continues to see her general practitioner, Dr Kerr, for medication and the pain specialist, Dr Palit, every three to six months. She does not consider that she will be able to return to work because of her ongoing pain and associated disability.
124 Her husband, Robert Sumsion, provided an affidavit verifying that prior to the accident she was a very active and social person who would play basketball and 10 pin bowling regularly and would go for walks and play vigorously with her children and enjoy gardening. She was a person who was very houseproud. Since the accident she has become less sociable and is unable to participate in the activities that she says she can no longer do or is inhibited from doing as set out in her affidavit.
125 Christine Heffernan, a friend of some 15 years, provided an affidavit confirming that the plaintiff can no longer play basketball and 10 pin bowling and that she has become a lot less sociable and physically inhibited with her children. She has also noted that the plaintiff is less meticulous with her housework.
126 Mr Jim Fryer, a friend of some six years, states in his affidavit that he has observed the plaintiff day to day since the accident. He confirms that she takes painkilling medication on a daily basis and on occasion he has had to personally assist her when she has become overcome with severe pain and has been unable to walk, drive a motor car or care for her children without assistance.
127 Mr Peter Dyett, the plaintiff’s father, confirms in his affidavit that pre-injury Ms Sumsion was an active, bright, outgoing person who enjoyed her role as a mother and bringing up her young family. He has observed her health, fitness and morale deteriorate since the accident.
128 Mr Ray Dobson, a friend who has known the plaintiff for 17 years, in his affidavit describes a person who pre-accident was very active, routinely participating in basketball, 10 pin bowling and other sports. Ms Sumsion was outgoing and socially active and full of life. Subsequent to the accident the plaintiff has not been able to be fully involved in her children’s lives and her relationship with her husband has been affected. She is no longer the happy person she was. She is much more withdrawn and introverted and her back pain has caused her constant suffering.
Conclusions
129 I accept that the plaintiff continues to suffer chronic pain in her low back. She is required to take medication to alleviate her pain and periodic medical treatment and physiotherapy to manage her conditions.
130 Further, since the transport accident, the plaintiff’s sleep has been frequently disturbed by her pain.
131 I accept that the plaintiff’s low back condition affects her social, domestic and recreational activities, as well as her ability to work. For a person aged 42 the consequences of the impairment to her low back have been and will continue to be significant.
132 Ms Sumsion suffers chronic pain, reduced activity tolerance limits and reduced physical mobility. I am satisfied having regard to the evidence that she has impairment to the low back that is long term in that it likely to continue indefinitely into the future.
133 Another consequence which I am entitled to take into account in an application pursuant to s.93 of the Transport Accident Act is the plaintiff’s expected psychological response to the pain and restriction resulting from her low back injury as Winneke P set out in Richards v Wylie (2000) 1 VR 79.
134 I have had regard to Dr Strauss’s and Dr Weissman’s expressed opinions.
135 Overall, I am satisfied that the plaintiff suffered injury to her low back as a consequence of the transport accident, which has resulted in mechanical pain which has resulted in an injury, which when judged by comparison with other cases in the range of possible impairments may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
136 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the transport accident.
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