Tolevski v Transport Accident Commission
[2020] VCC 109
•19 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02695
| STOJKA TOLEVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 January 2020 | |
DATE OF JUDGMENT: | 19 February 2020 | |
CASE MAY BE CITED AS: | Tolevski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 109 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – lower back injury –aggravation – psychiatric injury - whether consequences “very considerable” - credit
Legislation Cited: Transport Accident Act 1986, s93(a) and s93(c)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi & Anor [2012] VSCA 161; De Agostino v Leatch & Anor [2011] VSCA 249
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Ruddle | Verduci Lawyers |
| For the Defendant | Mr A Moulds QC with Ms J Clarke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Ms Stojka Tolevski has had a difficult preceding twenty years; back problems, difficulties with her knees requiring surgery on one occasion, Bilateral Carpal Tunnel Syndrome requiring surgery, chronic pain and a serious frozen left shoulder which required surgery. During this time she has struggled to work by reason of some of these injuries, forcing her ultimately off work from 2004 until 2012. She made worker’s compensation claims and a total and permanent disability claim against her superannuation fund in relation to these injuries in 2010. In addition, she was involved in a motor vehicle accident on 7 October 2015. She alleges that as a result of this motor vehicle accident, she has sustained serious injuries. Those serious injuries are alleged to be a serious physical injury to her lower back and a severe psychiatric disturbance.
2 Ms Tolevski faces the difficult task of convincing the Court that from among her many medical problems, the motor vehicle accident has resulted in injuries which could meet the definition of “serious injury” as set out in the Transport Accident Act 1986 (“the Act”) .
3 As with all cases involving aggravation of pre-existing conditions, the Court is guided by the principles in Petkovski v Galletti.[1] This means it is for Ms Tolevski to establish what injury was caused by the accident and then to prove that injury has resulted in consequences which might meet the relevant test.
[1][1994] 1 VR 436 at 444
4 In order, the questions to be decided in this application are:
(a)what injury did Ms Tolevski sustain in the motor vehicle accident? As she brings her claims under both paragraph (a) and (c) of s93 of the Act, it is necessary to consider separately what was the physical injury, and what was the psychiatric injury sustained, if any, as a result of the motor vehicle accident;
(b)having found the relevant injury, it is then necessary to decide what consequences, if any, did the relevant injury have for Ms Tolevski? A very significant issue must be addressed when considering this question. That is the question of credit. As will become apparent when the medical evidence is analysed, there is little objective evidence to pinpoint the cause of many of the symptoms Ms Tolevski complains of. For this reason, acute attention is paid to the believability of Ms Tolevski’s reporting of her symptoms and consequences to doctors, in her affidavit material and also her viva voce evidence;
(c)it then falls to consider whether the consequences complained of rise to the relevant level necessary to satisfy the serious injury test.
5 I now turn to consider each of those questions in turn.
Is there an identifiable injury caused by the motor vehicle accident?
Physical
6 The overwhelming preponderance of evidence supports a finding that Ms Tolevski sustained an aggravation of her pre-existing spinal condition as a result of the motor vehicle accident. Her treating specialist, Mr Morris, neurosurgeon, opines that she has sustained an aggravation of lumber spinal facet joint arthropathy.[2] He came to this opinion after examining Ms Tolevski on 11 July 2016. He took a history of longstanding lower back pain and suspected an aggravation of her condition resulting in the lower back pain that she complained of. He noted the CT scan of 3 October 2015[3] showed thoracic and lumbosacral degenerative changes. He further noted an MRI scan of 1 April 2016[4], which showed no fracture and no protrusions consistent with a frank injury occurring at the time of the motor vehicle accident. However, he was suspicious of pathology at the facet joints and hence ordered a bone scan, which was more sensitive for that condition. That was conducted on 14 July 2016[5] and showed mild uptake activity, consistent with his suspicions. Mr Morris considered this confirmatory of his opinion of an aggravated facet joint arthritis.[6] Mr M Khan, an orthopaedic surgeon, considered such an aggravation to be severe.[7]
[2]Plaintiff’s Court Book (“PCB”) 49
[3]PCB 36
[4]PCB 40
[5]PCB 21
[6]See Mr Morris to Dr Ho, 8 August 2016 at PCB 50 and Mr Khan, 14 September 2017, PCB 120
[7]PCB 127
7 Dr Craig Mills,[8] an orthopaedic surgeon, found Ms Tolevski suffered from an “aggravation of cervical and lumbar spondylosis … which persists”.[9] He attributed this to the motor vehicle accident.[10] Mr Paul D’Urso,[11] a neurosurgeon, similarly considered that Ms Tolevski had aggravated the degenerative changes in her lumbar spine.[12]
[8]PCB 77
[9]PCB 82
[10]PCB 89
[11]PCB 62 – Report 2 October 2019
[12]PCB 64
8 Against this material is the opinion of Mr Gary Speck,[13] an orthopaedic surgeon, whose position is that Ms Tolevski sustained only soft-tissue injury in the motor vehicle accident, which had resolved by the time he saw her in 2019.[14] For completeness I note, Dr Slesenger, for the defendant, a specialist occupational physician, considers her condition simply a minor aggravation of underlying degeneration.[15] This is essentially in keeping with Dr Mills and Mr D’Urso, save for the comment as to the longevity of the aggravation.
[13]Defendant’s Court Book (“DCB”) 37
[14]DCB 46
[15]DCB 19, at Para. 4
9 In considering that material, set out as a whole, I prefer the opinion of Mr Morris to that of Mr Speck. His opinion is supported by the findings on the bone scan, the subsequent MRI scan of 27 September 2017,[16] and the opinions of Mr Khan, Dr Mills and Mr D’Urso. I also consider Mr Speck has not explained adequately, or at all, how his diagnosis accounts for that radiology I have just referred to. For example, his report (while he was instructed with the bone scan report)[17] does not refer to it at all. He clearly had the relevant reports of Mr Morris with his opinion, however he simply noted “investigations do not provide a structural organic explanation”[18] for ongoing symptoms. That opinion does not adequately, in my view, counter the process of reasoning used by Mr Morris, supported by the radiology, and the other medico-legal specialists, I have referred to above. In the result, I find that Ms Tolevski sustained an aggravation of facet joint arthritis in her lumbar spine as a result of the motor vehicle accident on 22 October 2015.
[16]PCB 23
[17]See Letter of Instruction to Mr Speck, dated 4 January 2019
[18]DCB 47
Psychiatric
10 Prior to the motor vehicle accident, Ms Tolevski was suffering from psychiatric illness.[19] Such psychiatric illness had arisen because Ms Tolevski had suffered from thyroid problems, Bilateral Carpal Tunnel Syndrome requiring surgery, surgery for left frozen shoulder, chronic pain and also knee problems requiring surgery. She had been forced off work from 2004 to 2012, by reason of these physical injuries. Consequent upon those physical injuries, Ms Tolevski developed psychiatric illness, described by her treating psychiatrist, Dr Congiu, as being “distressed with an unstable mood … Her mood was depressed and anxious”.[20]
[19]DCB 52, report of Mr Flaim, dated 7 March 2007; DCB 62. Report of Mr Ball dated 25 March 2008; DCB 92 Dr Congiu, entry in clinical notes, dated 22 June 2011; DCB 68, report of Dr Congiu, dated 19 May 2008.
[20]DCB 71, Dr Congiu, May 2008
11 In 2010, Ms Tolevski made a TPD Claim. Her treating doctor described her conditions in the following way:
“Chronic renal impairment – permanent
Depression – seeing psychiatrist fortnightly.
Rotator Cuff syndrome – permanent.
Hypothyroidism – permanent.”[21]
[21]DCB 214, Dr Chai of the Highlands Medical Clinic, which was the treating doctor clinic for the plaintiff, dated 4 May 2010.
12 Dr Congiu recorded that she had depressive symptoms, with insomnia and waking at night.[22] On 18 February 2010, he recorded she was easily confused and distressed and did not derive enjoyment from a cruise to New Zealand. She was prescribed Cymbalta on 8 April 2010.
[22]DCB 96, 8 April 2010, on history of worsening pain with cold and depressive symptoms, list including: insomnia and waking at night
13 Her condition immediately prior to the motor vehicle accident, according to Ms Tolevski, was remarkably different. She was having no psychological treatment and no psychological medication. After the motor vehicle accident she saw various practitioners.[23] She was diagnosed with Depression, Anxiety and sleeplessness. She was prescribed Seroquel and Cymbalta.[24] She was also taking Quietapine and Effexor, and saw Mr Short, a psychiatrist, once per month since mid-2018. He opined, as at October 2019, that she had had a good response to her medications and treatment, and her Anxiety, Depression and sleeplessness were better with treatment.[25]
[23]PCB 69, Dr Menssink, seeing Ms Tolevski on 20 November 2017 at Empower Rehab for a pain management program; PCB 90, Dr Short, seeing Ms Tolevski since June 2018, report dated 9 October 2019.
[24]PCB 90
[25]PCB 91
14 Dr Albert Kaplan, a psychiatrist, considered that she had an adjustment disorder with mixed anxiety and depressed mood.[26] This diagnosis is supported by Dr Timothy Entwisle.[27] The totality of this medical and affidavit evidence supports a finding that the motor vehicle accident caused a recurrence of Anxiety, Depression and sleeplessness for Ms Tolevski.
[26]PCB 116
[27]DCB 27
Do the identified injuries result in consequences which could be considered serious physical consequences?
The importance of findings as to credit
15 As the radiological findings are subtle (“mildly active”[28]) and relate to aggravation of a degenerative process, it is difficult to use radiological investigations to pinpoint the cause of consequences that Ms Tolevski complains of. In fact, the changes in the spine are noted immediately after the motor vehicle accident to be longstanding,[29] of a minor nature,[30] and to not show a reason for the symptoms complained of.[31]
[28]PCB 21
[29]PCB 36. I note that the CT scan of 3 October 2015 must contain an incorrect date, given this is before the motor vehicle accident.
[30]PCB 18, CT scan of the lumbar spine, dated 19 January 2016.
[31]PCB 25, MRI scan of the lumbar spine, 30 November 2018
16 In that context, the reporting of Ms Tolevski to those treating, and reporting on, her condition becomes extremely important. If those practitioners proceed on the basis of incorrect or incomplete information, it can substantially affect their opinions. My assessment of this question is also informed by the information contained in, and the way in which Ms Tolevski provided her affidavit evidence and her viva voce evidence. Having set out that context, I note that Ms Tolevski’s credit was put squarely in issue by the Defendant. The attack on her credit was said to be supported on several bases.
17 First, it was put that Ms Tolevski had not properly detailed her longstanding history of lower back pain,[32] specifically, in relation to lower back pain from 1998 onwards. In her affidavit of 22 August 2019[33], where she dealt with her pre-existing lower back pain, she did not mention any 1998 back problems. In neither of her two other affidavits did she deal with it. Her treating psychologist, Ms Jana Menssink, recorded Ms Tolevski had no history of lower back pain prior to the motor vehicle accident at all.[34]
[32]Transcript (“T”) 99, Lines (“L”) 20, Closing of Mr Moulds QC.
[33]PCB 9
[34]PCB 69, dated 25 January 2016
18 Dr Yap and Dr Ho (treating doctors) had a history of lower back pain in 2000 and 2002 (which Ms Tolevski had deposed to in her affidavits) but not in 1998.[35] Mr Morris was aware of longstanding complaints of lower back pain, but states that he had no evidence her injuries predated the motor vehicle accident.[36] No lower back pain history, prior to the motor vehicle accident, was reported by Mr D’Urso.[37] Dr Mills had only radiology and records post the motor vehicle accident to review. However, he did take a history of lower back pain in 2000 and 2002 and of an MRI scan to the lumbar spine in 2010 from Ms Tolevski.[38] Mr Slesenger recorded one episode of lower back pain prior to the motor vehicle accident, which Ms Tolevski said was related to her thyroid condition.[39] Mr Speck records a history of longstanding back pain from 2001.[40]
[35]PCB 29, PCB 41
[36]PCB 55, PCB 58, Mr Morris’s report, 20 April 2017.
[37]PCB 63
[38]PCB 77, report of Dr Mills, 28 February 2019
[39]DCB 14, report of Mr Slesenger, 14 March 2017
[40]DCB 45, report of Mr Speck, 26 April 2019
19 When it was put to her[41] that she had problems with her lumbar spine as far back as 1998, Ms Tolevski responded that this was due to thyroid dysfunction.[42] She suggested, very forcefully during her viva voce evidence, that the lower back pain lasted only a few months, while her thyroid medications were being balanced. I found it extremely useful to watch Ms Tolevski answer questions while in the witness box. The manner in which she gave her evidence was not at times direct or responsive to questions. I do not accept her evidence, as to the effect of her thyroid on her spinal condition. First, there is no medical evidence to support the assertion she makes. I query, then, why she would adopt this argument. Second, it appears nowhere in her treating doctors’ notes as a reason for the back pain. Third, the lower back pain did not last “a few months”, but persisted as Ms Tolevski herself informed some doctors, to at least 2002, and perhaps even up until the motor vehicle accident itself. By itself, this point might just represent a misremembering of a sequence of events which occurred twenty years ago. But in the context of matters which I will come to, I do not consider it as such. Rather, I find Ms Tolevski had stepped into the role of an advocate for her own case, rather than giving frank evidence.
[41]T20, L21
[42]T21, L23
20 This can be seen when the Defendant put to Ms Tolevski that her lower back pain continued after 2010. This was the second basis upon which the Defendant based its credit attack. Ms Tolevski responded by saying that her lower back problems were caused by menopause at that time, and were resolved by a curette.[43] It was pointed out that the curette was done in July 2010[44] and there were ongoing lower back pains after that time. Ms Tolevski was adamant in her evidence in Court that “from 2012 to 2015 until the accident, I worked on full speed with no problems at all”.[45]
[43]T50, L18-22, T53, L7-9
[44]DCB 135
[45]T22, L2-4
21 It was put to her that on 28 April 2010, she had seen Dr Ho for ongoing lower back pain.[46] I also note that on 30 August 2010 and 30 September 2010, there were further consultations dealing with Ms Tolevski’s lower back problem.[47] It was again put that on 3 November 2011, Professor Karin Jandeleit-Dahm, noted “a lot of back pain” and “recurrent, severe back pain” at a consultation with her.[48] It was further put to her that she had seen her treating doctor’s clinic for what was described as chronic back and foot pain in July 2013.[49] Only then did Ms Tolevski admit that she had chiropractic treatment on one occasion for that back pain.
[46]T47, L 11
[47]DCB 256
[48]DCB 78
[49]T74, L10
22 When assessing this evidence, the facts tell against Ms Tolevski and her credibility. I find that she had ongoing chronic lower back pain well past the time of the curette in July 2010. It continued, I find, based on her treating doctor’s notes until at least mid-2013.[50] I further find such pain is likely to have continued to the date of the motor vehicle accident given its previous history and longstanding nature, and given no particular treatment could be said to have arrested its course. In fact, Ms Tolevski admitted later in her evidence that she had always had that lower back pain.[51]
[50]DCB 259
[51]T55, L7
23 I also find Ms Tolevski’s evidence on this point to be troubling. She pointed to the curette as curing her back pain when it did not. There is also no medical opinion supporting the notion that the back pain was caused by menopause or cured by the curette. She made no attempt to explain the inconsistency in her evidence when faced with the records and gave her evidence in a manner which was often not responsive to questioning.[52]
[52]T59, L21-27, T60, L1-26
24 Third, in it’s attack on her credibility, the Defendant pointed to Ms Tolevski’s signed TPD claim form, dated 4 May 2010.[53] The terms of her treating doctor’s statement have been set out above.[54] While it does not claim permanent and total disablement on the basis of lower-back injury, it does state that Ms Tolevski was in chronic pain and that was permanent. Ms Tolevski signed a statutory declaration, declaring that such was a permanent condition which prevented her from working in the future. However, in March 2012, she signed a form for her prospective employer, Epworth Health, declaring there was no injury or disease which she had which was likely to be aggravated by work as a cleaner.[55] It must be remembered that she had not worked from 2004 to 2012, during which time she had been treated for numerous physical and psychiatric conditions, had surgery on both wrists, her left arm and left knee, and been under psychiatric care. When consideration is given to the fact that the job of a cleaner involved use of both arms, walking, bending and physical exertion, I consider the signature on this form to be either a very significant downplaying of her condition or a deliberate attempt to deceive Epworth Health. Neither reflects well on Ms Tolevski.
[53]DCB 214-215
[54]DCB 214, Dr Chai of the Highlands Medical Clinic, which was the treating doctor clinic for the plaintiff, dated 4 May 2010.
[55]DCB 212-213
25 Fourth, the Defendant pointed to inconsistencies between the alleged restrictions Ms Tolevski complained of and her actual physical state, as shown by the surveillance film. In the broad, I consider the film did show variances as to the capacity Ms Tolevski had to walk and shop. She had told Dr Mills, for example, that she was unable to walk around shopping centres,[56] when, clearly, the film showed she could. She also admitted in evidence being able to walk up to thirty minutes after seeing the film, yet she had previously told Mr D’Urso that she could not walk for more than ten minutes.[57]
[56]PCB 79
[57]PCB 63
26 Given the above matters in total, I am unable to accept Ms Tolevski’s evidence as to the consequences the aggravation of her facet joint arthropathy is alleged by her to have caused.
27 Set against these findings are the opinions of Dr Ho and Mr Morris, most importantly as her treating practitioners. Those reports carry significant weight because each doctor treated Ms Tolevski over a period of time and serially recorded history, symptoms and findings. However, because of the nature of the found condition (an aggravation of facet joint arthropathy not a frank injury), the doctors are largely dependent on Ms Tolevski’s truthful recounting of her symptoms. I do note in this regard that even Mr Morris, while supported in his view by the bone scan of July 2016, is not able to explain Ms Tolevski’s complaints of lower-limb pain. In fact no neurovascular clinical examination by any doctor has been positive.[58] This supports my finding that the consequences complained of by Ms Tolevski must be looked at not just with regard to Dr Ho and Dr Morris, but having regard to all the evidence.
[58]Different doctors’ neurovascular observations, and examinations being Dr Mills PCB 77-89, Mr D’Urso PCB 62-66 and Mr Speck DCB 37-49.
28 In consideration of all of the evidence, regard must also be had to what may be described as the more objective signs, such as medication intake. Ms Tolevski has had injections to her facet joints. She currently alleges that she is on six to eight Panadol per day,[59] and goes to physiotherapy once per week and Pilates.[60] It was not put to Ms Tolevski that prior to the accident she was on any pain medication or had treatment (other than one chiropractic session in 2013). The medication list, from her treating doctor’s surgery, shows that in the two months preceding the motor vehicle accident, she was prescribed Augmentin Duo Forte, Panadeine Forte and Diazepam.[61] Thereafter, such strong pain-relieving medication was only prescribed in December 2015, September 2018 and December 2018. Otherwise, the treating doctors, Dr Ho, and Mr Morris, do not comment on her Panadol/Panadeine Forte intake. The only person who records such a history is Mr Kaplan, a medico-legal psychiatrist, and Dr Mills,[62] but he has a different history of medication, being Panadol Osteo and Panamax. Specifically, I find it telling that Ms Tolevski’s pain specialist, Dr Nick Christelis, recorded no intake of Panadol/Panadol Forte/Panamax in mid-2019, when he asked her specifically as to her medications.[63] Given my findings as to credit, set out above, I find the intake of pain medication is not as alleged by Ms Tolevski. I note no supporting affidavit material of other family members has been tendered in support of her allegations in this regard. I also note there is no report from the treating physiotherapist, who she alleges she sees. In the context of my previous findings as to credit, I do not find that Ms Tolevski sees a physiotherapist for her lower back pain, as she alleges.
[59]PCB 106
[60]PCB 113 and PCB 11 at paragraph [8]
[61]DCB 247
[62]PCB 87
[63]PCB 67
29 In summary form then for the following reasons I do not find that Ms Tolevski has sustained a serious physical injury:
(a) the failure to disclose the 1998 history of back pain;
(b) the attribution of the 1998 back pain to thyroid problems when this was medically unsupported;
(c) the manner in which Ms Tolevski attributed her 1998 back pain to her thyroid condition which was more in the role of advocate than witness;
(d) The continuation of back pain well after 2010 and likely to the time of the motor vehicle accident;
(e) The attribution of back pain after 2010 to menopause when this was medically unsupported;
(f) The assertion that the back pain did not continue after a curette in July 2010 when the medical notes show such back pain did continue;
(g) the fact that in May 2010 Mrs Tolevski certified to her superannuation fund she was totally and permanently disabled by a range of ailments (chronic pain being one) yet within 2 years was working;
(h) the fact that she did not disclose to Epworth Health that her range of ailments might be aggravated by her work as a cleaner;
(i) the discrepancies shown on film as to her physical capacities in contrast to her affidavit and viva voce evidence;
(j) the lack of verifiable neurological signs on clinical examination to support Mrs Tolevski’s reports of symptoms;
(k) the discrepancies as to her reported medication intake;
(l) the lack of evidence to support the allegation that Mrs Tolevski requires physiotherapy as she alleges;
(m) the lack of evidence from family or friends to support Mrs Tolevksi’s evidence as to the consequences the alleged injuries have had on her.
30 Having made these findings, I conclude by finding that Ms Tolevski has not satisfied the Court that the consequences of her physical injury are serious, within the meaning of that term in the Act. This is primarily because I have found I am unable to determine exactly what consequences relate to the motor vehicle accident given the matters set out in the preceding paragraph.
Do the identified injuries result in consequences which could be considered a severe mental disturbance?
31 My assessment of this issue is informed by my findings as to credit set out above. I also note that Mr Ruddle, who appeared for Ms Tolevski, did not suggest this was his primary argument.
32 In short, my inability to accept Ms Tolevski’s evidence as to the consequences of the recurrence of her Anxiety, Depression and sleeplessness, means that I cannot find that she has sustained a severe mental disturbance within the meaning of the Act. Even when regard is had to her medication of relatively low dose Cymbalta and Seroquel, she is noted by Mr Short to have had a good response. In those circumstances, the intake of medication alone does not rise to a level where it could be considered reflective of a severe condition necessary to meet the test.
33 Given my findings as to physical injury, I do not need to consider the point as to the stability of Ms Tolevski’s condition raised by the Defendant and said to be supported by the decisions in Bezzina v Phi & Anor[64] and De Agostino v Leatch & Anor.[65]
[64][2012] VSCA 161
[65][2011] VSCA 249
34 I will dismiss the application and hear the parties as to costs.
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