Thomas v Transport Accident Commission
[2021] VCC 645
•24 May 2021
m
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03166
| SHINEY JOEL MATHEW (née THOMAS) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2021 | |
DATE OF JUDGMENT: | 24 May 2021 | |
CASE MAY BE CITED AS: | Thomas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 645 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – physical injury to the spine – whether the consequences for the plaintiff are “serious” – pecuniary disadvantage – credit of the plaintiff – whether aggravation of pre-existing spinal complaint is serious
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Abbas v Transport Accident Commission [2015] VSCA 217; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health (2008) 20 VR 566; Richards & Anor v Wylie (2001) 1 VR 79
Judgment: The application for serious injury certification in respect to the physical injury to the plaintiff’s spine as a result of the transport accident on 22 February 2018 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Johnson | Zaparas Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr S Pinkstone | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1This application is brought by Originating Motion dated 16 July 2020. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of a transport accident which occurred on 22 February 2018 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):
“a serious long-term impairment or loss of a body function; … .”
4In this application, the plaintiff seeks certification from the Court for serious injury in respect of loss of body function of the spine.
5The enquiry under s93(17)(a) of the Act focuses attention on, first, 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.
6The serious injury defined by ss17(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.[1]
[1]Richards & Anor v Wylie (2001) 1 VR 79
7In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by a comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2]Humphries and Anor v Poljak [1992] 2 VR 129
8In this application, the plaintiff swore and relied upon two affidavits, dated 24 September 2019 and 25 March 2021. The plaintiff gave evidence and was cross-examined by Mr Middleton QC, for the defendant.
9The plaintiff also relied upon an affidavit sworn by her husband, Joel Mathew, dated 22 April 2021.[3] Mr Mathew was not required for cross-examination by the defendant.
[3]Plaintiff’s Court Book (“PCB”) 28
10In addition to the affidavits referred to above and the evidence given by the plaintiff and her husband by affidavit, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the relevant tendered medical material and will refer to the material that is relevant to the determination of this application in these reasons.
11The plaintiff tendered the following documents in support of her application:
· Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 7-8, pages 21-60 and pages 64-136.
· Exhibit B – the Plaintiff’s Supplementary Court Book (“PSCB”), pages 1-2.
12The defendant tendered the following documentation:
· Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 4-23 and pages 26-28.
13At the commencement of the proceeding, the issues in this application were set out by Mr Middleton QC, counsel for the Transport Accident Commission. The issues that were identified were as follows:
(a) The plaintiff has not suffered a pecuniary disadvantage as a result of the transport accident;
(b) The pecuniary disadvantage was to the plaintiff’s husband, who has been unable to work since the transport accident;
(c) The evidence discloses that the plaintiff has only suffered a soft-tissue injury to her neck and lower back. The plaintiff’s complaints are overridden by her psychiatric reaction to the injury; and
(d) The plaintiff has failed to meet the statutory standard to satisfy the serious injury test under the legislation.[4]
[4]Transcript (“T”) 6
The Plaintiff’s background
14The plaintiff was born in India in 1983 and is currently thirty-eight years of age. The plaintiff migrated to Australia in 2009.[5] The plaintiff is a married woman and has two children, aged twelve and five years old.
[5]PCB 21
15Prior to coming to Australia, the plaintiff qualified for a Diploma of Nursing in her home country of India. The plaintiff had then worked as a nurse in India prior to coming to Australia.[6] After the plaintiff came to Australia, she enrolled in a community welfare course, which was not completed. She then commenced a patisserie course.
[6]PCB 21
16The plaintiff also worked at Burwood Hill Aged Care as a personal care assistant for the period of September 2009 through to May 2012.
17In April 2012, the plaintiff commenced a Bachelor of Nursing degree at the University of Ballarat.[7]
[7]PCB 21
18Upon completion of the nursing degree, the plaintiff worked in Nagambie Healthcare as a nurse for the period of 2012 through to January 2017.[8]
[8]PCB 22
19The plaintiff, her husband and family, moved from Nagambie to Melbourne in January 2017. The plaintiff commenced employment at Monash Health and was working between 64 and 70 hours a fortnight as a registered nurse on a rotating roster.[9]
[9]PCB 27
20The plaintiff was injured in the transport accident on 22 February 2018.
21The plaintiff returned to work at Monash Health in April 2018. When the plaintiff returned to work, she applied for the role as associate nurse manager at the Kingston Centre of Monash Health.[10] The plaintiff continued to work in that role in a full-time capacity between 60 and 70 hours per fortnight as a nurse on nightshift until April 2021, when she resigned. The plaintiff’s plan is to move to Brisbane with her family to live.
[10]PCB 30
The transport accident
22The plaintiff described the transport accident in the following terms:
“On 22 February 2018, my husband was driving a friend’s car to the airport. I was in the second row of three rows of seats. We were on the Monash Freeway inbound, near the Punt Road exit and the tunnel.
My husband stopped our car because of the traffic ahead. Another car then hit us from behind, hard. He was driving at freeway speeds. There was glass everywhere. The third row of seats came off the floor and I think it hit me from behind. Our friend’s car was a write-off.”[11]
[11]PCB 22
23The plaintiff stated that she immediately felt pain in her neck and lower back as a result of the transport accident. The ambulance attended at the scene and placed a collar on her neck. She was taken to The Alfred hospital, but was discharged later on the same day. She was initially given Endone pain medication.
Medical treatment of the Plaintiff as a result of the transport accident
24On 23 February 2018, the plaintiff attended her general practitioner, Dr Sajeewa Elwitgala.[12] Dr Elwitgala referred the plaintiff to undergo an MRI scan of her lumbar spine. The MRI examination was performed on 27 February 2018. The radiological report states as follows:
“There is no abnormal signal seen within any of the vertebral bodies or within the posterior elements to suggest an undisplaced fracture. Simple cyst is demonstrated incidentally in the right kidney with maximum diameter of 2.8cm.”[13]
[12]PCB 23
[13]PCB 131
25The conclusion was that it was a normal examination.
26The plaintiff subsequently returned to her general practitioner, Dr Elwitgala, complaining of neck pain and trapezium muscle spasm, together with upper and lower back pain.[14] The plaintiff was started on analgesia medication and referred to physiotherapy for treatment. The plaintiff had physiotherapy treatment from Mr Simon Li in March 2018 until July 2018.
[14]PCB 43
27In April 2018, the plaintiff commenced osteopathy treatment with Dr Tran. The plaintiff continues to receive osteopathy treatment from Dr Tran, stating it gives her temporary relief from her symptoms to her back. The plaintiff continues to pay for her osteopathic treatment.
28In May 2019, the plaintiff commenced treatment with Dr Muir, a consultant in pain management.[15] Dr Muir noted that the plaintiff had received physiotherapy and osteopathy treatment. The plaintiff received a course of acupuncture which proved to be ineffective. When the plaintiff first attended on Dr Muir, she was prescribed the following medications: Pregabalin, Palexia and Panadeine Forte. The plaintiff reported that she would also take a combination of Nurofen and Panadeine Forte to Dr Muir.
[15]PCB 53
29In November 2019, the plaintiff commenced a pain management program at the Victorian Rehabilitation Centre. The plaintiff remained in that program as an outpatient until January 2020. The plaintiff’s evidence was that she was unable to fit in the required sessions at the pain management program with her nightshift work. The plaintiff stated the pain management program was not helpful.[16]
[16] T34
30On 25 November 2019, the plaintiff underwent an MRI scan of her cervical spine.[17] It noted as follows:
“C3/4: Small posterior disc osteophyte complex. No canal or foraminal stenosis.
[17]PCB 132
…
C5/6: Posterior disc osteophyte complex eccentric to the right mildly effacing the anterior thecal sac.
…
Comment:
No canal or neural compressive foraminal stenosis. No cause for the [plaintiff’s] left arm symptoms is identified.”[18]
[18]PCB 132
31The most recent medical interventions for the plaintiff occurred on 12 October 2020, when the plaintiff underwent a right and left L3-4 and L4-5 medial branch block by Dr Muir at the Glenferrie Private Hospital.[19] The follow-up investigation occurred on 18 January 2021 when the plaintiff underwent a medial branch block at C2-3 and C3-4 by Dr Muir at the Glenferrie Hospital.[20] In his report dated 17 February 2021, Dr Muir stated as follows:
“To date, the patient has completed a set of lumbar medial branch blocks at the lower levels as well as a combination of sacroiliac joint injections and cervical medial branch blocks. The initial set of lumbar blocks were negative and the patient is yet to return for followup (sic) after cervical medial branch blocks and sacroiliac joint injections.”[21]
[19]PCB 133
[20]PCB 134
[21]PCB 57
32Dr Muir went on to state:
“The patient could be considered to suffer from non-specific low back and non-specific cervical pain. Precise pain generators are under investigation.”[22]
[22]PCB 57
33The plaintiff’s current medication regime was set out in her affidavit at paragraph 30:
“a. Panadeine Forte, two tablets, a few times a week.
b. Panadol, two to four tablets, about five days a week.
c. Ibuprofen, two to four tablets, about three to four days a week.
d. Metsal painkilling cream, almost every day.
e. Traditional ayurvedic medication.”[23]
[23]PCB 24-25
34The plaintiff confirmed that this medication regime continued to the present time in her evidence.[24]
[24]T38, Lines (“L”) 1-8
35The plaintiff has also been prescribed Norspan patches by Dr Muir but was unable to tolerate that medication. Dr Muir prescribed the plaintiff with 28 slow-release 50-milligram tablets of Tapentadol. At the time of the hearing, the plaintiff had not commenced that medication.[25]
[25]Plaintiff’s Supplementary Court Book (“PSCB”) 1
Pecuniary disadvantage as a result of the transport accident
36It was submitted on behalf of the plaintiff that, as a consequence of the injury she suffered in the transport accident, she has a pecuniary disadvantage. The argument by the plaintiff relied upon the medical opinions that the plaintiff was working beyond her physical capacity after the transport accident and that her future working capacity has been compromised due to her spinal injuries.
37The transport accident occurred on 22 February 2018. The plaintiff, at the time of the collision, was employed as a registered nurse at the Kingston Centre, which is part of Monash Health. The plaintiff returned to work on normal duties in April 2018.
38In May 2018, the plaintiff applied for the role of associate nurse manager at the Kingston Centre. The plaintiff obtained this role and then worked permanent nightshift. The plaintiff’s evidence was that she preferred to work nightshift because it was not as fast-paced, nor as physically demanding, and that she could take more regular breaks.[26]
[26]PCB 30-31
39On nightshift, she was not required to shower patients. Further, the plaintiff stated that on permanent nightshift she could obtain more weekend shifts, where the penalty rates significantly increased her income. The plaintiff’s hours of work remained the same as before the transport accident; that is, between 60 and 70 hours per fortnight. The plaintiff’s evidence was that after the transport accident, she took medication to manage her pain levels so that she could continue to work those hours.
40The plaintiff stated that she was motivated to work because her husband was unable to work due to the injuries that he received in the same transport accident. The evidence was the plaintiff was assessed for Transport Accident Commission payments of $1,300 per week, but she could earn $1,900 per week if she was nursing. The plaintiff stated she needed to work and earn income so she could pay for the newly-constructed family home at Clyde North.
41The plaintiff continued to work full-time nightshift duties at the Kingston Centre from May 2018 to 14 April 2021, when her resignation took effect. The plaintiff and her family have sold their family home in Clyde North and are moving to Brisbane to live. This was the reason the plaintiff resigned from her employment.
42The plaintiff’s income has been increasing since she returned after the transport accident. Her income records show:
2018 ꟷ $97,000 (this is the year of the transport accident)
2019 ꟷ $119,000
2020 ꟷ $134,000.
43There was no evidence of the plaintiff’s income in the current tax year to her resignation on 14 April 2021. The evidence was she continued to work for 60 to 70 hours per fortnight.
44I conclude that the plaintiff’s income for the period of 1 July 2020 to 14 April 2021 would be the same on a pro rata basis as the previous tax year. There was no evidence in this case that the plaintiff had taken any time away from work due to her injured spine from May 2018 to 14 April 2021.
45The issue of pecuniary disadvantage is not to be determined only by the income the plaintiff has earned between the date of the transport accident and the date of the application before the Court. In Abbas v Transport Accident Commission,[27] the Court of Appeal stated:
“While, as the respondent submitted, Glover was a very different case on the facts, compared to the present case, at least one point may be derived from it: a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income had increased in each year between 2010 and 2012, was to disregard the totality of the applicant’s circumstances and, in the circumstances of this case, constituted specific error on the part of the judge. The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.”
[27][2015] VSCA 217 at paragraph [37]
46I am required to consider whether the consequences of the injury to the plaintiff’s spine has been proven to have caused a pecuniary disadvantage which is “at least very considerable” when taking into account the range of possible impairments or losses. That assessment requires consideration of the whole of the evidence in this case, not simply the income earned by the plaintiff between the transport accident and the date of the hearing. The medical evidence in this case, which expresses the opinion that the plaintiff was working beyond her capacity, was given by the following witnesses:
(a) Dr Sajeewa Elwitgala, general practitioner
47Dr Elwitgala refers to “increased number of sick leave”;[28] however, there is no record or evidence to support this statement. Nevertheless, the general practitioner is of the opinion the plaintiff has work limitations because of her spinal injury.
[28]PCB 47
(b) Dr Andrew Muir, consultant in pain management
48Dr Muir’s opinion is that the plaintiff has limited work capacity as long as she takes pain medication.[29] He was of the opinion this would last for the foreseeable future.
[29]PCB 57
(c) Dr James Tran, treating osteopath
49Dr Tran’s opinion is that the plaintiff’s employment does not help her condition.[30]
[30]PCB 64-65
(d) Mr Ash Chehata, orthopaedic surgeon
50Mr Chehata recommended the plaintiff reduce her work duties by both hours of work and by duties she actually performs.[31]
[31]PCB 79
(e) Dr Richard Sullivan, pain specialist
51Dr Sullivan was of the opinion that the plaintiff could not maintain her current work level and was working beyond her capacity.[32]
[32]PCB 85
(f) Dr James Rowe, occupational physician
52Dr Rowe’s opinion is as follows:
“I believe … [the plaintiff] is working in excess of her capacity at this time.”
53And, further:
“I am not of the opinion that this lady has the physical capacity to perform the inherent duties of a registered nurse and [I] believe that she is working beyond her capacity at this time.”[33]
[33]PCB 106
(g) Dr Hazem Akil, neurosurgeon
54Dr Akil states in his report:
“…[the plaintiff] should be commended for continuing to work as a staff nurse despite all these symptoms.”[34]
[34]PCB 111
55Dr Akil’s diagnosis is as follows:
“With regard to her cervical symptoms and based on the symptoms that she is complaining from as well as the findings on the MRI scan, I conclude that she has aggravation of cervical spondylosis. This is compatible with the mechanism of injury described to me by the patient.
With regard to her lower back pain and taking into consideration the findings on the MRI scan, I conclude that she has a myofascial source of her lower back pain.”[35]
[35]PCB 111
56I am not satisfied that the plaintiff has, on the balance of probabilities, proven she has suffered a pecuniary disadvantage as a result of the injury to her spine in the transport accident. The plaintiff has been able to continue to work full time on effectively the same duties as prior to the transport accident. The plaintiff has had the assistance of medication to ameliorate her symptoms of pain, but nevertheless, she has maintained the work required of her for a period of three years. I note that the plaintiff’s evidence is that when she was going to work – that is, travelling to work for the 20-minute trip to and from work – that she would not take the more serious pain-relieving medication of Panadeine Forte or, in the past, Tramadol or Tramal, when she was working or driving. The plaintiff had been able to manage her employment duties and while ingesting Panadol or Nurofen.
The credit of the Plaintiff
57Ms Pilipasidis, on behalf of the plaintiff, submitted that the plaintiff was a stoic person who was managing to continue with her employment despite the serious consequences of the injuries she received in the transport accident. A stoic is a person who practises repression of emotion or indifference to pleasure or pain and patient endurance. I did not find the plaintiff to be such a person. It was clear that since the transport accident, the plaintiff had made considerable complaints about her pain, both to the medical practitioners and those around her, including her husband. The plaintiff has engaged in medical treatment, in particular osteopathy, over the whole time, together with ingestion of considerable amounts of medication. The plaintiff’s motivation for doing that was so she could maintain her payments to the people who had loaned money to the family for them to build their home in Clyde North.
58I accept that the plaintiff is a witness of truth. The plaintiff gave her evidence in a manner that was matter of fact.
59When the plaintiff was giving evidence about her use of heat packs for treatment of her pain symptoms, she stated as follows:
Q: “In terms of ‑ you were saying you use heat packs?‑‑‑
A: Yes, I do.
Q: What sort of heat packs do you use?‑‑‑
A: It is with a wheat ‑ wheat pack.
Q: Wheat pack?‑‑‑
A: Yes. And also I have tried the iron.
Q: An iron?‑‑‑
A: Yes.
Q: Like a normal clothing iron?‑‑‑
A: Yes.
Q: Right. And ‑ ‑ ‑ .”
HIS HONOUR:
Q: “Sorry, what do you do with an iron?‑‑‑
A: Because the heat back is not giving enough heat ‑ ‑ ‑
Q: Yes?‑‑‑
A:So I even had tried the iron, putting it ‑ towel on my back and my neck and ‑ ‑ ‑
Q: Directly on your neck?‑‑‑
A: No, I put a towel on the ‑ ‑ ‑
Q: Towel?‑‑‑
A: A towel, yes.
Q: Yes?‑‑‑
A: A towel on the neck.
Q: Yes?‑‑‑
A: And I apply the iron. One time I got burnt.”[36]
[36]T14, L2-16
60During the course of that evidence, both myself and counsel for the defendant viewed the burn marks made by the steam on the plaintiff’s neck. I found this was a very unusual approach for a person who is a trained nurse to take to alleviate her pain symptoms. Nevertheless, it is an example of the frankness with which the plaintiff was prepared to give her evidence.
61In summary, while I do not accept that the plaintiff could properly be described as “stoic”, I do accept she is someone who is prepared to work through pain, or the experience of pain, in order to maintain the financial position of the family. I accept her as a witness of truth.
The Plaintiff’s medical treatment for back and spine complaints prior to the transport accident
62The plaintiff was examined by Mr Gary Speck, orthopaedic surgeon, for the defendant on 20 January 2021. The defendant relied upon a report prepared by Mr Speck dated 19 March 2021.[37]
[37]Defendant’s Court Book (“DCB”) 14
63Mr Speck had been provided with the plaintiff’s general practitioner’s clinical notes. These notes came from the Dandenong Superclinic. In those notes, the plaintiff had previously been seen by her general practitioner, Dr Elwitgala, on 22 May 2017 for back pain complaints. The plaintiff was also seen by Dr Elwitgala on 27 June 2017 for a wry neck complaint, and on 22 August 2017, where the plaintiff was complaining to Dr Elwitgala about pain for a long time that was getting worse while moving, in particular, referring to cervical spine pain.
64On 10 September 2017, the plaintiff attended her general practitioner, Dr Elwitgala, stating she had fallen down in her bathroom and experienced back pain as a result. The plaintiff then returned to Dr Elwitgala on 17 December 2017, complaining of headaches for two days with body pain. The next visit to the general practitioner was on 23 February 2018 which, of course, was the day after the transport accident.
65The plaintiff, when cross-examined by Mr Middleton about these trips to the doctor, readily conceded that she previously had complaints of back and neck pain. In particular, she had clear memories of the wry neck condition that she had suffered at an earlier time.
66I find that these previous trips to the general practitioner in the year prior to the transport accident were for relatively minor complaints of pain, both to her back and neck. It is clear from the general practitioner’s notes that the condition had resolved and she continued on with her life in the normal way.
67In contrast, the plaintiff has consistently attended her general practitioner and osteopath seeking further treatment for her injuries since the transport accident. The plaintiff has, and continues to, attend upon Dr Muir, a pain specialist, for treatment of her condition. I accept that the aggravation to her previous neck and back complaints is “more than ‘significant’ or ‘marked’” and “at least very considerable”.
Medical opinions
Dr Sajeewa Elwitgala, general practitioner
68Dr Elwitgala had been the plaintiff’s general practitioner from January of 2017 to the current time. Dr Elwitgala prepared three reports, dated 25 February 2019, 30 March 2020 and 17 January 2021.
69In her final report, Dr Elwitgala diagnosed the plaintiff’s condition as chronic back pain and neck pain. Dr Elwitgala’s opinion is that the transport accident is the cause of the exacerbation of the plaintiff’s neck and back pain. In her opinion, the plaintiff’s symptoms will continue for the foreseeable future.[38] Dr Elwitgala noted that the chronic pain was affecting the plaintiff with a mild depression and sleeping difficulties. She also noted that the spinal pain was affecting her work and social life.
[38]PCB 47
Dr Farshad Ghazanfari, consultant musculoskeletal physician
70Dr Ghazanfari prepared a report dated 26 October 2018. On examination, Dr Ghazanfari noted that the plaintiff suffered neck stiffness and pain in all directions and that she had bilateral trapezius muscle spasm. He also noted the plaintiff suffered from tenderness in the mid-thoracic spine and lumbar spine.
71In his opinion, the plaintiff would benefit, at that stage in 2018, from comprehensive rehabilitation pain management treatment.[39]
[39]PCB 50
Dr Andrew Muir, consultant in pain management
72Dr Andrew Muir prepared three reports, dated 28 January 2020, 17 February 2021 and 22 April 2021. Dr Muir has been treating the plaintiff for two years as a pain specialist physician.
73In Dr Muir’s opinion, the plaintiff has –
“… ongoing somatic and somatic referred pain which is partly responsive to analgesic medications and is under investigation with the idea of determining treatable pain generators. She did not have a satisfactory experience [in] the pain management program.”[40]
[40]PCB 57
74In Dr Muir’s opinion, the plaintiff’s prognosis is uncertain. He notes that the consequences of the spinal injury on the plaintiff are that she has restricted activities of daily living, including sleep, social activities and domestic and recreational activities.
75In his most recent report dated 22 April 2021, Dr Muir noted that the plaintiff was unable to tolerate his prescription of buprenorphine patches and the plaintiff had abandoned that treatment. He then had prescribed the plaintiff with 28 slow-release 50-milligram tablets of tapentadol. At the time of the hearing of the application, the plaintiff had not commenced that medication.
Dr James Tran, osteopath
76Dr Tran has been treating the plaintiff as a patient since April of 2018. Dr Tran has diagnosed the plaintiff as suffering from chronic cervical whiplash with bilateral soft-tissue hypertonicity with possible disc bulges and low-back pain due to lumbar disc bulges.[41]
[41]PCB 64
Professor Stephen Davis, neurologist
77Professor Davis was asked to examine the plaintiff for medico-legal purposes. He prepared a report dated 29 April 2019. Professor Davis noted that the plaintiff was on medications of Panadeine Forte and Brufen. He also noted the plaintiff had been tried on Palexia and Lyrica.
78Professor Davis was unable to find any objective cause for the pain to the plaintiff’s neck and back on clinical examination. He noted that there was no neurological abnormality.[42]
[42]PCB 68
79I note that in his report, Professor Davis did not have access to the MRI scan of the plaintiff’s cervical spine which was performed on 25 November 2019. It is unfortunate that the plaintiff was not returned to Professor Davis, together with that MRI report, which appears at page 132 of the Plaintiff’s Court Book, so that a more up-to-date opinion from Professor Davis could have been obtained.
Mr Ash Chehata, orthopaedic surgeon
80Mr Chehata prepared two reports, dated 1 July 2019 and 25 February 2021.
81Mr Chehata noted, on examination, as follows:
“On examination, Ms Thomas has diffuse pain in the cervical region with widespread posterior neck pain. All movements cause pain, but there are no radiating symptoms. All median, ulna and radial nerves are intact. There is no muscle wasting.
Examination of the lower lumbar region is also globally painful with asymmetrical muscle spasm and continuous restricted movement. There are no radicular symptoms. … .”[43]
[43]PCB 78
82Mr Chehata went on to note that the plaintiff’s condition has an organic basis. He stated as follows:
“It appears that these spinal injuries are related to a central sensitisation, as well as an aggravation of cervical spondylosis and whiplash and lower lumbar spine myofascial style soft tissue injuries culminating into chronic back pain.”[44]
[44]PCB 78
83Mr Chehata’s opinion was that the plaintiff’s prognosis was poor and he expected the plaintiff’s symptoms to continue into the foreseeable future.[45]
[45]PCB 79
Dr Richard Sullivan, pain specialist
84Dr Sullivan prepared two reports, dated 21 November 2019 and 19 December 2020. These reports were for the purposes of medico-legal reporting.
85In Dr Sullivan’s first report dated 21 November 2019, he stated as follows:
“The diagnosis is post traumatic chronic pain condition presenting as chronic posterior cervical pain, chronic left shoulder and upper limb pain and chronic lower back pain. I accept that there is likely to be a substantial component of her chronic pain presentation caused by the organic process known as central sensitisation, however, I am not convinced that structural pathology in the cervical spine has been adequately excluded and as such I am recommending that she have MRI of the cervical spine.”[46]
[46]PCB 85
86The plaintiff then underwent an MRI scan of her cervical spine on 25 November 2019.[47]
[47]PCB 132
87In his later report dated 19 December 2020, Dr Sullivan refers to that radiological report. He stated as follows:
“I was able to obtain a radiology report, MRI of the cervical spine dated 25 November, 2019. The report notes a posterior disc osteophyte complex at C3/4 and a posterior disc osteophyte complex at C5/6. The images demonstrated a posterior disc protrusion at C5/6 that extended into the right neural foramen and there was associated degradation of the quality of the disc (dehydration) at C3/4 and C4/5.
These radiological changes would be consistent with the diagnosis of cervical spondylosis.”[48]
[48]PCB 88
88Dr Sullivan’s opinion was as follows:
“Diagnosis
Spinal injuries of back and neck. Shiney Thomas has aggravation of cervical spondylosis. She also has a chronic pain condition affecting her lumbar spine consistent with the organic process of central sensitisation.”[49]
[49]PCB 89
89In Dr Sullivan’s view, the plaintiff was likely to experience chronic pain in her neck and low back into the foreseeable future.[50]
[50]PCB 89
Dr James Rowe, occupational physician
90Dr Rowe prepared three reports, dated 18 February 2020, 17 March 2020 and 28 January 2021 for the purposes of medico-legal reporting.
91In his report dated 18 February 2020, Dr Rowe diagnosed the plaintiff as suffering chronic pain in her cervical and lumbosacral spine. She has ongoing symptoms relating to a car accident which occurred on 22 February 2018.[51]
[51]PCB 95
92Dr Rowe’s opinion was that the plaintiff’s prognosis was not good and that she was likely to suffer from her conditions for the foreseeable future.
93In his most recent report dated 17 March 2020, the plaintiff’s radiological results had been sent to Dr Rowe. He diagnosed disc derangement in the cervical spine at C4-5, C5-6 and C6-7. He noted that the plaintiff had an organic basis for her complaints and her condition.
94In his most recent report dated 28 January 2021, Dr Rowe stated that the plaintiff’s diagnosis was as follows:
“Diagnosis of spinal injuries, (back and neck);
The diagnosis is an aggravation of underlying cervical spondylosis and a soft tissue injury to the lumbar spine, resulting in chronic pain, likely due to a central sensitization process as per the opinion proffered by pain management specialist, Dr Richard Sullivan.”[52]
[52]PCB 104
95In Dr Rowe’s opinion, the restrictions and condition of the plaintiff would persist for the foreseeable future.[53]
[53]PCB 105
Dr Hazem Akil, neurosurgeon
96Dr Akil examined the plaintiff for medico-legal purposes on 27 January 2021. Dr Akil noted that the plaintiff, at that time, was taking Panadeine Forte, Mobic, Nurofen, as well as Endone as required.[54]
[54]PCB 109
97Dr Akil examined the MRI scan of the plaintiff’s neck dated 25 November 2019. He noted as follows:
“With regard to her cervical MRI scan, there is a marked loss of lordosis in her cervical spine with spondylotic features. I agree that there is no particular neural deficit but this is certainly not a normal MRI of her cervical spine.
With regard to her lumbar spine, I can see that there is a normal lordosis of the lumbar region with adequate and healthy looking disc spaces.”[55]
[55]PCB 110
98Dr Akil went on to diagnose the plaintiff as suffering from an aggravation of cervical spondylosis. He also noted the findings on the MRI scan concluded that the plaintiff had a myofascial source for her low-back pain.[56] In Dr Akil’s opinion, the plaintiff’s condition has an organic basis in respect of her neck, and back pain. He noted that the transport accident was an aggravating feature of pre-existing cervical spondylosis and the recurrence of a myofascial lower back pain.[57]
[56]PCB 111
[57]PCB 112
Dr Brendan Hayman, consultant psychiatrist
99The plaintiff was examined by Dr Hayman for medico-legal purposes. Dr Hayman prepared two reports, dated 31 May 2019 and 17 March 2021.
100In his final report, Dr Hayman noted that the plaintiff had developed a Mild Adjustment Disorder with Depressed Mood as a result of the physical injury to her spine. He described the plaintiff as a stoic woman who did not view herself as being psychologically struggling.
101I have had the advantage of seeing the plaintiff and she certainly does not present as someone who is magnifying her psychological condition.
102The plaintiff accepts that her psychological condition would be relatively mild and that her physical presentation is the main difficulty for her.
Mr Simon Li, physiotherapist
103Mr Simon Li prepared a report dated 8 December 2020 on behalf of the plaintiff’s solicitors. The plaintiff did not rely upon Mr Li’s opinion to support her application. The defendant tendered Mr Li’s report in support of the defence of the application made by the plaintiff in this case.
104Mr Li diagnosed the plaintiff as suffering soft tissue injury/strain to her neck and back.[58] I note, by way of completeness, that when Mr Li prepared his report, he had not seen the plaintiff for some eighteen months and that the plaintiff had previously complained to other treating practitioners, especially Dr Muir, that the physiotherapy did not assist her in any way.
[58]DCB 26
105I do not find the opinion of Mr Simon Li of much assistance in the determination of this application.
Mr Gary Speck, orthopaedic surgeon
106Mr Speck prepared a report dated 19 March 2021 after examining the plaintiff on behalf of the defendant for the purposes of medico-legal reporting. Unfortunately, Dr Speck was not provided with the MRI scan of the plaintiff’s neck performed on 25 November 2019. His report is dated 19 March 2021. There was no explanation as to why Mr Speck was not provided with the report of the MRI scan performed on the plaintiff’s neck.
107On this issue, during the course of submissions by Mr Middleton, the following exchange occurred:
HIS HONOUR: “It would have been helpful if he had the MRI.
MR MIDDLETON: Yes, we agree. But you can’t hang your hat on radiology.
HIS HONOUR: Who me, or anyone?---
MR MIDDLETON: Anyone. You’ve got to have, you’ve got to marry, you’ve got to marry the history, the examination and the pathology with the experience and expertise of the doctor.”[59]
[59]T63, L21-28
108There was no explanation as to why Mr Speck was not provided with the MRI scan of the plaintiff’s neck which may or may not have provided more information to him when forming his opinion.
109Mr Speck diagnosed the plaintiff in the following way:
“Mrs. Shiney Thomas sustained soft tissue injuries to the neck, back, chest and right upper extremity at the time of the transport accident on 22/2/18. She has no identifiable physical injury to the cervical or lumbar spine and no neurologic involvement. The current presentation is one of a chronic pain syndrome and possible mental health issues which should be assessed by an appropriate expert.”[60]
[60]DCB 16
110Mr Speck did have access to the imaging reports performed at The Alfred hospital upon the discharge summary for the plaintiff. He stated that there was no identified physical basis for her current complaints of symptoms in her back and neck. The radiological examinations of the plaintiff included an x-ray of her right arm and hand. Neither of these areas or body parts of the plaintiff form part of this application.
111I am not satisfied that Mr Speck was provided with all of the necessary radiological examinations prior to him making his report in March of 2021. I accept that he is a very experienced orthopaedic surgeon and someone who could rely upon that experience and his examination of the plaintiff. Nevertheless, his opinion that the plaintiff’s condition is solely as a result of her psychological or mental condition is not accepted by me as an appropriate finding.
112On the balance of all the medical opinions referred to above, I find that the plaintiff’s symptoms and complaints do have an organic basis relating to her spinal condition.
Consequences of the spinal injury received by the Plaintiff as a result of the transport accident
113The plaintiff swore two affidavits, dated 24 September 2019 and 25 March 2021, in support of her application. She also relied upon an affidavit of her husband, sworn 22 April 2021. The plaintiff set out the consequences to her of the injury to her spine as a result of the transport accident in her affidavits and in her evidence during the course of this hearing.
Sleep
114In her first affidavit, the plaintiff set out how her sleep was disturbed. She stated that she would wake with pain and needed to take medication or apply ointments in order to go back to sleep.[61] In her more recent affidavit, the plaintiff reiterated how she struggled to sleep and found it necessary to get up during the course of the night to take pain medication and apply creams to her neck and back.[62] The plaintiff was supported by the evidence of her husband, Joel Mathew, who stated in his affidavit, the plaintiff struggles to get to sleep and that she would wake up a lot during her sleep.[63]
[61]PCB 26
[62]PCB 29
[63]PCB 35
115The plaintiff reported to the neurosurgeon, Dr Akil, that her sleeping patterns were interrupted.[64] Dr Muir, the treating pain management physician, took a history from the plaintiff in January 2020 that she had good sleep and does not have any symptoms consistent with PTSD.[65] However, in a later report dated 17 February 2021, Dr Muir noted that the plaintiff had restrictions in relation to activities of daily living, including her sleep.
[64]PCB 111
[65]PCB 54
116I accept that the plaintiff has suffered the consequence of interrupted and broken sleep patterns as a result of the injury to her spine received in the transport accident. I accept that the inability of the plaintiff to get a good night’s rest is a consequence for her which is “more than ‘significant’ or ‘marked’” and “at least very considerable”.
Pain and medication
117The plaintiff has consistently complained of pain to her neck and lower back region as a result of the injury to her spine in the transport accident. The plaintiff has been prescribed a variety of pain-relief medications, including Panadeine Forte and Brufen,[66] Norspan patches[67] and Endone.[68] The plaintiff’s current medication regime to relieve her pain is set out in her evidence.[69] The plaintiff currently takes Panadeine Forte, two tablets a few times a week; Panadol, two to four tablets about five days a week; Ibuprofen, two to four tablets about three to four times a week; Metsal painkilling cream almost every day, and most recently has been prescribed Tapentadol slow-release 50-milligram tablets to be taken at night.[70] The plaintiff also uses heat packs and creams to alleviate the pain to her back.
[66]PCB 68
[67]PCB 29
[68]T13 and 18
[69]T38
[70]PSCB 1
118I am satisfied that the necessity for the plaintiff to take such amounts of pain-relief medication on a consistent and regular basis since the occurrence of the transport accident, is a very considerable consequence for her and it is likely to continue for the foreseeable future.
Ongoing treatment
119The plaintiff is continuing to see her general practitioner approximately one to two times per month for treatment and monitoring in respect of her pain-relief medication.[71] The plaintiff is also under the care of Dr Muir, a pain management specialist, and that treatment is continuing. The plaintiff also attends an osteopath on a regular basis. The plaintiff’s evidence in respect of this treatment was that she continues to pay for the cost of the osteopath herself after the Transport Accident Commission had refused to make any further payments for that treatment. The plaintiff’s evidence was that she obtained some limited relief from the osteopath, but it assisted her in dealing with her symptoms of pain.
[71]T16
120I find that the ongoing treatment regime is a clear indication that the symptoms and consequences for the plaintiff are very considerable when measured against a range of other possible consequences arising from the transport accident.
121I note that the plaintiff has had a number of investigative procedures, including MRI scans and nerve block investigations in an attempt to isolate the exact cause of her pain. While the medical opinions in this case are unable to precisely diagnose exactly what is physically causing the pain to the plaintiff in her spine, her treating medical practitioners, and those that have seen her for the purposes of this application, accept that the plaintiff is suffering considerable pain, and endorse the continuing treatment of pain by use of medication referred to in these reasons.
122I accept that the plaintiff’s condition and experience of pain, and the use of medications, has increased significantly since the transport accident, compared to her minor experiences of isolated periods of pain to her neck and/or her back in the past. I am satisfied, on the balance of probabilities, that the injury to the plaintiff’s spine as a result of the transport accident has had a very considerable impact on the life of the plaintiff and is more than simply significant or marked. I find that the plaintiff’s current symptoms will continue for the foreseeable future.
Conclusion
123I am not satisfied that the plaintiff has, on the balance of probabilities, proven that she has suffered a pecuniary disadvantage as a result of the injury to her spine in the transport accident, as outlined in paragraphs 36-56 of my Reasons.
124On the basis of the medical evidence in this case and the evidence I accept from the plaintiff, the plaintiff has satisfied the statutory test that the consequences arising from the physical injury to the plaintiff’s spine are “at least very considerable” and “more than ‘significant’ or ‘marked’”.
125Leave is granted to the plaintiff pursuant to s93(17)(a) of the Act to bring proceedings for damages in respect of the physical injury to the plaintiff’s spine incurred as a result of the transport accident which occurred on 22 February 2018.
126I will hear the parties on the question of costs.
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