Szewczuk v Transport Accident Commission
[2022] VCC 372
•29 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03593
| URSZULA ANNA SZEWCZUK |
| v |
| TRANSPORT ACCIDENT COMMISSION |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2022 | |
DATE OF JUDGMENT: | 29 March 2022 | |
CASE MAY BE CITED AS: | Szewczuk v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 372 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – injury to the right shoulder – pain and suffering consequences – “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:
Judgment:Leave granted to the plaintiff to commence a common law proceeding for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms J Frederico | Shine Lawyers |
| For the Defendant | Mr CJ Blanden QC with Mr L Howe | Lander & Rogers |
HIS HONOUR:
Introduction and background
1The plaintiff in this proceeding, Ms Urszula Szewczuk, is now 53 years of age. She was involved in a transport accident on 21 June 2018 (“the accident”) when her vehicle was struck from behind at an intersection in Dandenong. The plaintiff attended her general practitioner, Dr Damitha De Lanerolle, the day after the accident where it was recorded that she had pain in her right wrist and lower neck.[1] A few days later, she reattended Dr De Lanerolle and diagnostic imaging was arranged of her cervical spine, thoracic spine, and right shoulder. In short, the plaintiff claims that since then she has had ongoing pain in her cervical and thoracic spine, together with pain in her shoulders, particularly into the right shoulder.
[1]Defendant’s Court Book (“DCB”) 53.
2For the purposes of this proceeding, the defendant, the Transport Accident Commission (TAC), accepts that the accident occurred and that the plaintiff suffered injury in the accident. The dispute is confined to whether the plaintiff has suffered a “very considerable” consequence. The legal principles are not in dispute and the proceeding could be considered the quintessential “range case”.[2]
[2] A phrase used by senior counsel for the defendant; Transcript (“T”) 7, Line (“L”) 6.
3This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The plaintiff relied on a physical injury to the spine and/or to the right shoulder as the “serious injury”. It proceeded in the “usual way”. The plaintiff tendered affidavits and medical reports. She gave oral evidence and was cross-examined as to the contents of her affidavits and other medical records. I pause to note that the cross-examination was swift, but appropriate, bearing in mind that the only issue was whether the plaintiff continues to have impairment consequences which are “very considerable”. The defendant tendered an affidavit from the driver of the other car involved in the accident, medical reports, and clinical records. It also tendered photographs of the plaintiff’s vehicle taken after the accident.[3]
[3] For reasons that remain unclear.
4This is not a proceeding in which the plaintiff’s credit is challenged. The defendant raised appropriate matters in cross-examination but did not seek to impugn the plaintiff’s credit. She presented as a decent, hardworking person, who gave her evidence as best she could. In that regard, it is relevant that the plaintiff was born in Poland and came to Australia after finishing her schooling. Her working life has been spent in manual or unskilled type employments. As at the accident, she was employed in customer service with Crown Casino. Around March 2021, she commenced employment with Amazon, where she continues to be employed full time. She works 10-hour shifts four days per week, as an “auto-slam operator.”[4]
[4]Affidavit of plaintiff sworn 3 March 2022 at Plaintiff’s Court Book (“PCB”) 17.
5Pausing here, some injuries and impairment consequences are clearly “serious” and some are clearly not. Bearing in mind that I must consider the broad range of impairments and impairment consequences, and not just those that come before the Court, there are some applications that sit somewhere in the middle and are more finely balanced. This is one such application. I do not accept the robust submission put on behalf of the defendant that this is an example of the type of “serious injury” application that “defies the point of the whole legislation”.[5] A fairer description is of a “close call” as to whether the plaintiff can demonstrate a “very considerable” consequence.
[5] T7, L10-11.
The plaintiff’s evidence
6It is convenient to firstly deal with the plaintiff’s evidence before dealing with the medical evidence and the disposition of the proceeding. Much of the plaintiff’s affidavit evidence was not challenged, other than in the broad sense.
7The plaintiff swore two affidavits in support of her “serious injury” application.
8In her first affidavit sworn 28 November 2019,[6] the plaintiff described her background, medical history, and circumstances of the accident. She described how, after the accident, she attended Dr De Lanerolle, and the treatment that she received, limited as it has been. She described taking Nurofen and Panadol and Panadeine Forte[7] when she had increased pain. She described doing home-based exercises as taught to her by a physiotherapist, and that her physiotherapist continued to provide massage and dry needling. She described her return to work at Crown. She described ongoing consequences including:
“I suffer from ongoing aching and pain in my neck and right shoulder. I am never without pain in my neck and right shoulder. The pain increases depending upon my level of activity. I am reliant upon the treatment from the physiotherapist to manage my pain so I can remain at work.”[8]
[6]PCB 4.
[7] Contrary to her other evidence that she cannot use prescription pain killers due to an unrelated medical condition.
[8]PCB 9, paragraph 29.
9In her first affidavit, the plaintiff described restriction of movement in her neck and pain with moving her neck. She described radiating pain into her shoulders, particularly the left shoulder, but also into the right. She described significant aching in the middle of her back, difficulty sitting for long periods, and increased pain with activity. She described interference with her range of day-to-day activities, including sleep, her work, gardening, running, riding her bike, and socialising. She summarised her situation as feeling like she was “putting all my energies into remaining at work which affects my energy to go out at the weekend”.[9]
[9]PCB 11, paragraph 42.
10In her second affidavit,[10] she described her ongoing treatment as follows:
“2.Presently I take about two Nurofen and one Panadol twice a week, sometimes more and sometimes less. Since my injury, I have tried to rely on natural therapies such as physiotherapy, hot showers and baths, and heat packs. I do regular stretching, particularly at work to ease my pain. I cannot do much more to manage my pain. I am not able to take more medication as I do not have a gall bladder. If I take too much medication, it affects my liver which becomes inflamed with reflux, pain and swelling. It feels like someone has punched me in the stomach, so I only take over the counter medications, and only when I really have to.
3.I am still going to physiotherapy every second or third week. I pay for this from my own pocket. I mainly have dry needling and I find that it helps my symptoms. The physiotherapist has showed me how to stretch and I do stretching exercises regularly, at home as well as at work. I have had physiotherapy since the transport accident. I believe it is keeping me at work. The TAC is no longer paying for it so I pay for it from my own pocket as I really want to keep working. My physiotherapist has recently written to the Transport Accident Commission in December 2021 to ask it to continue paying.”[11]
[10]Sworn 4 March 2022, PCB 13.
[11]PCB 13-14, paragraphs 2 and 3.
11In her second affidavit the plaintiff described developing low back pain in 2020 and 2021, which she put down to standing for long periods in her current job with Amazon. She otherwise described continuing to suffer symptoms in her neck as set out in the first affidavit, and similar restrictions as described in the first affidavit. She described the pain in her neck as relentless and “it is an ache and a type of muscular pain”.[12]
[12]PCB 16, paragraph 11.
12She also described her current job with Amazon as the “auto-slam operator”, which she said was light work. She described being tired at the end of each workday. After working her allocated four days, on her first day off she is “exhausted from the pain in my neck and referred pain in my shoulders”. She then stays at home to recover and “for a whole day I rest”.[13] She otherwise sets out the assistance that her family provide for a range of domestic tasks and similar restrictions for day-to-day activities, as set out in the first affidavit.
[13]PCB 17, paragraph 19.
13The plaintiff also relied on affidavits from her daughter, Ms Nicole Rogalski,[14] and from a work colleague, Ms Kristie Kopasz.[15] I have taken the contents of those affidavits into account insofar as they record observations of the plaintiff since the accident.
[14]Sworn 4 March 2022 at PCB 22.
[15]Sworn 14 March 2022 at PCB 26.
14During the cross-examination of the plaintiff, she was taken through the clinical records of Dr De Lanerolle, and a subsequent general practitioner, Dr Ambreen Memon. Succinctly, the cross-examination demonstrated the accuracy of the clinical records and that the plaintiff has had very little general practitioner treatment for one or the other of the claimed serious injuries.
15It was put to her that she had not been back to the general practitioner now for some years in respect to the injuries, and she agreed,[16] and that her only ongoing treatment is physiotherapy.[17] The plaintiff also agreed during cross-examination that she has not been prescribed medication for either of the injuries, which, as she explained, was because she cannot take prescription medication because of a liver condition.[18]
[16]T27, L31.
[17]T28, L1-2.
[18]T27, L25-26.
16The plaintiff was cross-examined about her work and daily activities. She accepted that she is working full-time at Amazon and is now earning more than she had been earning at Crown.[19] She also accepted that she was able to look after the garden, do everything around the house,[20] work full time and socialise. In response to the suggestion that none of those activities were reduced because of the accident, she said, “I can’t do gardening the way I used to”. She then expanded, describing how she was restricted from gardening and for her social life, she does not go bike riding, cannot go for runs and cannot undertake home renovations anymore.
[19]T27, L8.
[20] T32, L10.
17In re-examination, the plaintiff was asked about her work at Amazon. She described that after working a four-day block, the level of symptoms in her neck and shoulders “feel like burning, aching pain in my shoulder and neck”.[21] She described how she takes Nurofen and Panadol because of the pain. She described how her principal treatment has been with the physiotherapist, including dry needling treatment which relieves some of the pressure from her shoulder and neck, and helps with headaches.
[21]T33, L26-29.
The medical evidence
Treating doctors
18The material from treating practitioners is limited. There are items of correspondence from Dr De Lanerolle, including a letter of 2 July 2018, stating that the plaintiff was then currently only fit for light duties.[22] There is a short report from Dr Memon dated 22 February 2022,[23] which explains that the doctor is not providing any care to the plaintiff and has not seen her since 18 June 2020 and, as such, was not able to make any comment on her progress or future medical treatment.
[22]PCB 39.
[23]PCB 63.
19Next, the plaintiff was referred to Dr David Edis, orthopaedic and spine surgeon, by Dr Memon for assessment of shoulder pain. In a letter dated 24 March 2020, Dr Edis wrote back to Dr Memon and said the diagnosis was subacromial impingement initially aggravated by the accident on the left side and then the right side, followed perhaps due to an overuse situation. He noted a previous steroid injection into the shoulder and that he then also injected the plaintiff’s shoulder.[24] Dr Edis said that he did not think the plaintiff would need to consider any surgical treatment, that ongoing physiotherapy was important in her recovery, and that things will spontaneously improve with time.
[24]It appears the first injection was to the left shoulder and that Dr Edis injected the right shoulder.
20The main treater has been the physiotherapist, Ms Deanne Barnard. Ms Barnard provided a letter dated 15 February 2019,[25] which mainly records a request for approval for a gym/swim pass, but also noted the plaintiff to have been progressing well with physiotherapy treatment and had been treated with dry needling, soft tissue work and spinal joint mobilisations. In a further letter of 20 January 2020,[26] Ms Barnard noted ongoing management of the plaintiff’s bilateral neck and shoulder pain, and described the pain as “much better”, but in the past few months the right shoulder pain had gotten quite bad.
[25]PCB 41.
[26]PCB 43.
21Next, Ms Barnard provided a comprehensive report dated 30 October 2021. In that report, she diagnosed “whiplash associated disorder”.[27] She described the plaintiff as suffering ongoing symptoms and set out the need for ongoing physiotherapy and possible injections in the future, and the possibility of shoulder surgery, although it is unclear how Ms Barnard came to express that conclusion and whether it is within her speciality. She summarised the situation as follows:
“Urszula’s condition has gotten better since her motor vehicle accident, but she continues to experience symptoms today. Her pain still fluctuates, however, it is at a lower level of pain intensity and doesn’t result in as big decreases in shoulder range of motion compared to when she first got injured. She will still occasionally experience larger spikes in her pain. Urszula still continues to work full time, and although this is in a different job to which she was working when she had her accident, the job still requires frequent upper limb movement. As Urszula’s pain still fluctuates to this day, it is likely that it will not stabilise completely any time in the foreseeable future. Urszula continues to stretch, exercise, modify some of her actions/activities and avoid any big triggers to her pain, to help prevent frequent flare ups of any pain or other symptoms in her shoulders.”[28]
[27]PCB 54.
[28]PCB 56, Answer to Question 4.
22Finally, by letter dated 1 December 2021, Ms Barnard provided a request for TAC to fund ongoing physiotherapy and described the plaintiff as still suffering with pain and some functional limitations.[29]
[29]PCB 57.
Medico-legal
23The plaintiff was examined by Mr Stephen Doig, orthopaedic surgeon, on 3 September 2019. By a report of that date,[30] Mr Doig took a history, conducted a physical examination, and provided his diagnosis. He noted the plaintiff told him she was then back to working 38 hours a week. In respect to diagnosis, he said:
“1.Soft tissue injury to the cervical spine now settled.
2. Soft tissue injury to the thoracic spine with ongoing problems.
3. Soft tissue injury to the left shoulder which has now essentially settled.
4. Soft tissue injury to the right shoulder with ongoing pain in the proximal humeral area.”[31]
[30]PCB 78.
[31]PCB 79.
24Mr Doig described the prognosis as reasonable. He discussed the need for an injection into the right shoulder, and said that if the plaintiff had the injection, then things may settle down considerably.[32]
[32]PCB 80.
25Mr Ash Chehata is an orthopaedic surgeon who examined the plaintiff on 25 January 2022 at the request of her solicitors. In a report dated 25 January 2022,[33] Mr Chehata took a history, conducted a clinical examination, and answered various questions. In respect to diagnosis, he said:
“It appears that she has had a stress response and likely suffered a whiplash style phenomena with radiating pain into both shoulders with a painful arc and aggravation of likely whiplash in the lower lumbar spine.
...
It appears that she suffered a whiplash style phenomena and there is no doubt that this is a multifactorial presentation. This is often the case with significant components of anxiety and depression, coupled with the magnification of ongoing pain, whiplash and an ongoing painful arc in both shoulders, which appears recalcitrant to all of the Allied Health intervention.
...
Her prognosis, at best, is guarded and treatment is likely to be more related to a conservative approach.”[34]
[33]PCB 82.
[34]PCB 85-87.
26Mr Chehata provided a further report dated 1 March 2022,[35] in which he repeats his assessment, but otherwise adds nothing more.
[35]PCB 89.
27Next, the plaintiff was seen by Dr Hazem Akil, neurosurgeon, at the request of her solicitors. He examined the plaintiff on 7 March 2022 and produced a report of that date.[36] Dr Akil took a history, conducted a clinical examination, and provided a diagnosis. In respect to the diagnosis, he concluded that the plaintiff “has a refractory myofascial pain affecting her cervical and her lumbar region”, but that “[e]lements of the pain in her neck are a contribution from the presence of bursitis and injury to both shoulders.”[37] Dr Akil went on to describe an organic cause of the plaintiff’s pain, but that the psychological impact was contributing to it. He described her condition as stable.
[36]PCB 92.
[37]PCB 94.
28The plaintiff was also seen at the request of the parties by Dr Nathan Serry, consultant psychiatrist. He provided a report dated 16 July 2019, which I have considered, but it adds little to the assessment of physical injury or the plaintiff’s current symptoms.
29Next, the plaintiff was seen for medico-legal purposes by Mr Gary Speck, consultant orthopaedic surgeon. He examined the plaintiff on 19 January 2022 at the request of the defendant, and provided a report dated 25 February 2022.[38] He also obtained a background history, conducted a clinical examination, a review of documents, and then provided his opinion in respect to questions asked of him. Relevantly, in respect to a diagnosis, he said:
“Answer: Ms. Szewczuk sustained soft tissue injuries in the transport accident on the 21/6/18 of the neck and right shoulder without evidence of discoligamentous or vertebral structural injury and no evidence of radicular or spinal cord injury. I believe the original soft tissue injuries have resolved.
The current symptoms to the shoulder and neck are consistent with a chronic pain syndrome/somatic symptom disorder and requires assessment by an appropriate mental health expert in conjunction with assessment of her anxiety/depression.”[39]
[38]DCB 14.
[39]DCB 32.
30Pausing here, the defendant relied upon Mr Speck’s opinion but did not rely upon the part of the opinion whereby he described the original soft tissue injuries as having resolved.
31Mr Speck went on to say that he thought the plaintiff required assessment by an appropriate mental health expert for her ongoing chronic pain syndrome/disorder.[40]
[40]DCB 33.
32Finally, the plaintiff was seen at the request of the defendant by Dr Timothy Entwisle, consultant psychiatrist. He assessed the plaintiff on 17 February 2022 and provided a report dated 7 March 2022.[41] He described the plaintiff as having a mild adjustment disorder with anxious mood, currently in remission.[42] His report is of little assistance otherwise in the assessment of a physical injury, save that he does record the plaintiff enjoying a close relationship with her family, that she is capable of the usual activities of daily living, and that she loved her current work at Amazon, describing it as busy but that was what she preferred.[43]
[41]DCB 36.
[42]DCB 41.
[43]T39.
Analysis
33The resolution of this proceeding is finely balanced in a consideration of where the plaintiff’s injury and impairment consequences fall in the range.
34The plaintiff is still relatively young at 53 years of age. She gave evidence in her affidavits and to the doctors of ongoing chronic neck pain, with radiating pain into her shoulders. She described limitation for several day-to-day domestic and recreational activities, such as gardening, running, bike riding and home renovation. In her evidence, she described needing to rest after completing her week’s work, the use of over-the-counter painkillers, and the need for ongoing physiotherapy. Those are all relevant factors that I consider in assessing whether the plaintiff has a “very considerable” consequence.
35However, in considering what is retained, the plaintiff is still able to work full time and can work 10‑hour shifts. She lost her job at Crown due to COVID but obtained alternate employment at a higher rate of pay, notwithstanding her injuries. She has had very little treatment, other than physiotherapy. While I accept that she may have an unrelated medical condition that limits the type of painkillers that she can use, nowhere in the medical material is it suggested that she required any stronger painkillers other than the over-the-counter medication that she uses as needed. She can live independently, maintain her home, drive, socialise, and engage in a range of pleasurable activities, including getting pleasure from her work. That evidence of what is retained is equally relevant to the assessment of whether the plaintiff has a “very considerable” consequence.
36An issue that also requires resolution is whether the plaintiff’s impairment consequences result from her claimed injury to the spine, or from a claimed injury to the right shoulder, bearing in mind that the plaintiff cannot aggregate those injuries. The opinions of Dr Edis and Dr Akil are of a discrete injury to one or both shoulders (noting that, in addition to injury to the spine, only the right shoulder was pursued as a discrete injury for this proceeding). On the other hand, there are the opinions from Ms Barnard, Mr Chehata, Dr Akil, and Mr Speck that the plaintiff has a soft tissue/ type injury to the cervical/ic spine, with radiating pain into the shoulders. Ultimately, I prefer the opinions from Ms Barnard, Mr Chehata, Dr Akil and Mr Speck. They are in the majority and, in my view, are consistent with the symptoms as described by the plaintiff, as well as with the opinion of Dr Edis that, with the injections, the subacromial impingement as diagnosed by him should improve. The ongoing radiating pain from the cervical/thoracic spine and into the shoulders fits more comfortably, in my view, with a likely diagnosis of a soft tissue injury to the spine/ type phenomenon, with radiating pain into the shoulders (“the injury to the spine”).
37The question, then, is whether that injury – that is, the injury to the spine – produces a “very considerable” consequence. The answer to that question is one where different minds might disagree in what is ultimately a value judgment involving questions of fact and degree.
38Having considered the evidence for and against “serious injury” in a finely balanced application, ultimately, I conclude that balance is tipped in favour of the plaintiff. I do so, in summary, and at the risk of repetition, because of the reasons that follow.
39Firstly, the plaintiff is still a relatively young woman. She was not challenged as to her description of neck pain. I accept that she has relentless pain in her neck of an aching type, with restriction of movement in the neck and increased pain with activity. I accept that she has associated headache and referred pain into her shoulders. That level of pain, in my view, is significant.
40Secondly, I accept the plaintiff is somewhat stoic, and I accept that, after working her four-day block, she has an increase in symptoms and a need to rest and limit her activity. It is also significant, in my view, that for the plaintiff to continue in employment she will continue a pattern of having increased pain by the end of her working week, with a limitation on other pleasurable activities due to the increased pain caused by continuing to work.
41Thirdly, I accept her description of the limitations on her social and domestic activities and the need for assistance from family members, as corroborated by the affidavits from her daughter and work colleague. I accept the plaintiff’s evidence that she was fit and active before the accident, and that it is a great loss to her that she cannot engage in activities that she loved such as camping. I accept that she has given up running and bike-riding.
42Fourthly, I accept her evidence that renovating was her other passion, and that instead of doing the renovating herself she now has to pay others to do it.[44]
[44]PCB 20, paragraph [31].
43Fifthly, I accept that when the plaintiff is in pain it affects her mood, which impacts on her personal relationships. The impact on her mood from a predominantly physical injury to the spine is a relevant psychological consequence that can be considered.
44Sixthly, I accept the plaintiff’s evidence that she required time off work from her pre-accident job at Crown due to her accident and the spine injury. I accept her evidence that she would have been unable to continue in her pre-injury employment. Although she is fortunate to have secured alternate employment with Amazon, I accept that the spine injury limits her job options, and so, while she may not have suffered any actual pecuniary loss to date, the narrowing of her job options is a relevant consideration.
45Therefore, while there is no one “big ticket” item, I conclude that the plaintiff’s pain and suffering and pecuniary loss consequences in combination – namely the pain, the interference with domestic and social activities, the ongoing pain she suffers by maintaining employment, and the potential restrictions on her employment options – are such that she has demonstrated a “very considerable” consequence.
46Accordingly, leave is granted to the plaintiff to commence a common law proceeding, and I shall hear from the parties as to consequential cost orders.
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