Trickey v Transport Accident Commission

[2015] VCC 611

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT

COMMON LAW DIVISION
SERIOUS INJURY LIST

CI-14-04792

MARGARET TRICKEY

v

TRANSPORT ACCIDENT COMMISSION

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Ballarat (Decision: Melbourne)
DATE OF HEARING:	11 February 2015
DATE OF JUDGMENT:	14 May 2015
CASE MAY BE CITED AS:	Trickey v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 611

REASONS FOR SENTENCE
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Subject:  SERIOUS INJURY APPLICATION

Catchwords:             Whiplash injury to neck; whether consequences at least “very considerable”; role of pre-existing chronic psychiatric condition

Legislation Cited:     Transport Accident Act 1986, s 93

Cases Cited:Humphries and Poljak [1992] 2 VR 129; Richards & Anor v Wylie [2000] 1VR 78

Judgment:                 Plaintiff’s application dismissed.               

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull with Mr N Dubrow	Nowicki Carbone
For the Defendant	Mr P Scanlon QC with Ms F Ryan	Solicitor to the Transport Accident Commission

HER HONOUR:

1       Ms Margaret Trickey suffered injury in a motor vehicle collision on 5 September 2012.  She seeks leave to bring a claim for damages in respect of her injuries, and to obtain leave must satisfy the Court that she suffered a “serious injury” within the definitions and requirements of the Transport Accident Act 1986 (“the Act”).

2       Ms Trickey’s application is now confined to an injury to her cervical spine.[1]  She relies on part (a) of the definition of “serious injury”[2], claiming to have suffered serious long-term impairment of the function of her neck.  To satisfy this definition, she must satisfy the Court that she has suffered an injury to her neck, the consequences of which to her, when judged by comparison with other cases in the range of possible impairments, can fairly be described as at least “very considerable” and certainly more than “significant” or “marked”[3].

[1]Transcript (“T”) 1, L19-22 and T1, L29 – T2, L10

[2]Section 93(17)

[3]          Humphries & Anor v Poljak [1992] 2 VR 129 at 140

3       The plaintiff’s case is that she suffered injury to her neck causing pain in her neck and left shoulder, which has persisted, required painkilling medication, a set of branch block injections, physiotherapy and massage, and which has limited her activities and lifestyle, and limited her employment options including reducing the number of hours she can comfortably work.  The symptoms from her neck have also aggravated her pre-existing and chronic depressive condition, which although not claimed of itself to constitute a “serious injury”, may be taken into account in considering her responses to the impact of the physical injury to her neck.[4]

[4]Richards v Wylie   [2000] 1 VR 79 at [24]

4       The defendant does not actively dispute that the plaintiff suffered injury to her neck in the transport accident in question.  It argues that the injury suffered was “no more than a soft tissue injury”, and that the consequences have not been serious enough to meet the test of “at least very considerable”, in particular as she has had limited treatment to her neck.  It also argues that her prevailing problems stem from her psychiatric condition rather than the injury to her neck. 

The evidence

5       The evidence consisted of the documents tendered which are set out in the attached schedule, and the oral evidence of the plaintiff who was the only witness called for cross-examination.

6       As in most applications of this nature, the credibility and reliability of the plaintiff’s own evidence is critical as not only the Court but doctors whose opinions are in evidence are reliant on the plaintiff’s version of the extent, duration and impact on her life of her symptoms. 

7       My impression of Ms Trickey, both during the hearing and on recently watching all of her evidence again on a recording, was that she was an honest witness.  She appeared to be genuinely trying to tell the truth to the best of her ability and recollection, to frankly concede matters put to her where she could recall, and to be truthful when she said she could not recall.  She appeared to be careful not to downplay her prior psychiatric history.  She did not appear to me to be deliberately exaggerating or embellishing her symptoms or her circumstances, but to be describing them as she honestly perceives them and their impact on her.

8       There was one instance where her first affidavit was incorrect as it listed Panadeine Forte as part of her then current treatment[5], but I infer that she had given her instructions for that affidavit before the acute psychiatric episode during which her medication was changed to Seroquel which she was told was incompatible with Pandeine Forte, and that the change was overlooked despite Seroquel being added before she swore the affidavit soon afterwards.  In her second affidavit and in oral evidence she said she hadn’t taken Panadeine Forte since then, so the defendant and the court were not misled into thinking it was still current. I do not regard that error in her first affidavit as undermining her credibility or reliability at all.  

[5]Exhibit A, Affidavit of 23 September 2014, paragraph 9

9       There was only one matter on which I felt her recollection unreliable, and that was the frequency of taking Panadeine Forte for bad pain in the five to six months after her return to Victoria from Queensland and prior to her being prescribed Seroquel.  She is reported to have told a medico-legal assessor[6] in August 2014 that she was taking Panadeine forte about once a week for neck pain, and occasionally for headache.  In her oral evidence she said that she took Panadeine Forte only when the pain was bad, and sometimes only once in one to two weeks, but sometimes two tablets a day.  She thought it had been prescribed for her at the Coliban Medical Centre, or else she must have had a scrip left from Queensland.  However, her clinical records from the Coliban clinic do not include a prescription for Panadeine Forte in that period, and as she said she only ever received single prescriptions for a box of 12 tablets, she could not have been taking those tablets as often as she described in that period.

[6]Mr Grossbard – Exhibit 1

10      For the above reasons, and subject only to the issue of how often she took Panadeine Forte last year, I have accepted as reliable Ms Trickey’s evidence.

Relevant background circumstances

11      Ms Trickey is now aged 50.  She has three adult children who live independently, and at least one grandchild.  She lives with a partner, Michael, in a relationship that commenced shortly before the transport accident in question.

12      Ms Trickey left school in Year 9.[7]  She has never returned to general studies but has obtained Certificates in Security, Personal Care and Health Services.  She moved to Kyneton in her mid-teens with her mother and siblings after her parents were divorced.  She would work locally after school and on weekends, and then after leaving school she worked at various jobs from cleaning to retail assistant, and in an abattoir as a meatworker.

[7]Exhibit A – paragraph 3 of first affidavit corrected in paragraph 1 of second affidavit.

13      She married at nineteen and was working at a nursing home in Bendigo until her first child was born.  Unfortunately she suffered severe post-natal depression and was in hospital for an extended period after her first child’s birth, and also suffered similarly after the births of her other two children.  After her third child was born in about 1995, she returned to work at a clothing store where she remained for about eight years.

14      In 2001 she obtained a security licence.  Prior to the transport accident, she had been working at Western Health, having commenced at the Sunshine Hospital in about 2004 as a security guard, but having in about March 2012  transferred to Williamstown Hospital where she worked as an orderly, she says because they did not have separately designated security guards.  That period of employment was interrupted by time off, suffering depression and anxiety.  The change of place of employment had been due to difficulties with another employee at Sunshine Hospital.  Her medical records also reflect that her stress was heightened by the breakdown in a long-term relationship.

15      I am satisfied that Ms Trickey has a work history which reflects hard work and her being willing to adapt to different types of work as needs required.  It was mainly in quite physically demanding duties.  It was, however, interrupted over the years not only by time taken when having children, but also by her long term depressive illness which at times, including during 2012 before the transport accident, caused her to reduce her hours of work or take leave. 

16      Her marriage had ended by 2012, but I do not know when.  She has told doctors of several stressful relationships, one of which had apparently ended about mid-2012.  She told her doctors whom she attended for her psychiatric condition that the stress in her life at that stage included a recent relationship break down.  

17      At the time of the transport accident, she was on leave due to anxiety and depression, but had prior to that been working 32 hours per fortnight as a hospital orderly, made up of two eight hour shifts per week, reduced from the previous three due to her stressful life circumstances at the time and in particular the breakup of a long term relationship.

18      Ms Trickey had no previous history of neck or other spinal problems, notwithstanding engaging in physically demanding work over the years.  She acknowledges that she had suffered from depression ever since the birth of her first child, and that that had at times been quite severe and interrupted her ability to work, as well as generally impairing her lifestyle. 

19      Her medical records reflect that about two months before the transport accident she suffered headache severe enough for her doctor to prescribe Panadeine Forte[8].

[8]Exhibit 5 - Attendance 13 July 2012

20      She is not challenged that prior to the transport accident she enjoyed keeping physically fit, including going to a gym for aerobics once or twice a week, jogging or walking most days, riding a bicycle about 10 kilometres about twice a week.  She did her own housework and maintained her garden.

Transport accident

21      On 5 September 2012, she was a front seat passenger in a car driven by her daughter which in an attempted right hand turn struck another vehicle.  Police attended the accident and she was taken by ambulance to hospital.  

22      She is recorded by ambulance officers as complaining of neck and lower back pain, and pain on the left side of her head, and was treated with a cervical collar for immobilisation, ice pack to her left shoulder, and administered morphine.[9]  At Royal Melbourne Hospital a chest x‑ray was taken and reported that a small pneumothorax could not be excluded. Left shoulder x‑ray showed no skeletal injury, and CT scan of her cervical spine was reported as “No fracture or dislocation. Prevertebral soft tissues within normal limits.” 

[9]Exhibit B

23      She was diagnosed with a soft tissue injury to her neck, treated with analgesia and observed in the Emergency Department short stay unit overnight.  She was discharged home next morning with a prescription for oral analgesia, and advised that she was unfit for work until 7 September[10].

[10]Exhibit C

24      She attended Dr Li at the Coliban Medical Centre on 10 September 2012.  Amongst issues relating to her mental health, she told of a car accident the previous Wednesday night which was very scary and said she had no fracture, however pain in the neck and back.  Notes of that attendance say more of mental health issues than physical pain, and included a plan to refer her to a psychiatrist and a psychologist for counselling, and to do a mental health plan.  Notes under “pain relief” record “simple analgesia” and “Valium no more than two tablets per day”, but the records include a prescription that day for Panadeine Forte.  A letter of referral was created 10 September 2012 for referral to Dr Fiona Cairns, psychiatrist.

25      On 13 September 2012, she attended Dr Li, still with a very sore neck after the car accident the week before, but no neurological problems or numbness in arms.  On examination she was tender in the muscles on the back of the neck but had a full range of movement to the neck with slight pain.  The plan was simple analgesia, Voltaren gel, gentle massage and reassurance, noting she would see a psychiatrist the following week. 

26      On 19 September the entry is concerned with her mental health state including change of medication, having seen a psychiatrist, Dr Cairns, and on 25 September she was referred to another psychologist as the initial one was on holiday, but she was feeling slightly better after change to Pristiq.  The following week, on 2 October, an attendance noted she “felt very bad last week, very depressed”, and “occasionally headache” but her mood was more stable, not as anxious as before and stated she felt calm and did not need to use any Valium.  She also complained of “sore neck, a bit stiff.”  On examination she was found to have a full range of movement to the neck with no neurological signs and the impression was muscle strain/spasm and she was to try massage to see if there were any improvement.

27      Commencing 12 September 2012 she was treated by psychiatrist Dr Fiona Cairns[11], who diagnosed Major Depressive Disorder, which was a chronic illness the plaintiff had suffered since her early twenties, the course of which had been of episodic exacerbations, usually in the context of life stressors.  On first presentation she described an exacerbation of depressive symptoms over the preceding 6 months in the setting of a relationship break up and a minor car accident.  She reported minor whiplash following the accident. Her medication was changed to Pristiq, and she responded well to that medication and counselling, and Dr Cairns described her as making a complete recovery to her pre-morbid level of functioning by early 2013.  Dr Cairns described her personality traits as including dependent traits and low self-esteem.  Dr Cairns opinion was that she would be likely to have further exacerbations of depression and anxiety, able to respond to medication counselling and lifestyle changes, but always be vulnerable to stressful situations.

[11]Report – Exhibit 2

Progress and medical treatment since soon after transport accident

28      In November 2012 she commenced physiotherapy for her neck and left shoulder, which continued until March 2013 when she advised she was moving to Queensland, at which stage she was doing upper limb exercises with 0.5kg lifting tolerance.  Her physiotherapist assessed her as requiring ongoing treatment at that stage for an acute whiplash- associated disorder.[12]

[12]Exhibit H – David Grenfell

29      In December 2012, Dr Li reported that although initially the pain in the left side of her neck and shoulder seemed to get better, that may have been with the concentration on her depression and with Valium that she occasionally took having the effect of a muscle relaxant.  She did not require further Valium but could not return to her usual duties as a PSA in the hospital due to pain in the left shoulder and neck.  She was then seeing a physiotherapist twice a week and taking simple analgesia for pain management.

30      She was still attending Dr Li in January 2013 in relation to her neck, continuing with physiotherapy twice a week, but not ready to go back to her usual duties at work.  In February she was prescribed further Panadeine Forte as well as Diazepam and Pristiq (for depression).

31      In March 2013, she moved to Queensland to live with her new partner and her medical management was passed to a clinic in Caloundra, and in particular a Dr Allen Gray who became her regular GP. 

32      In August 2013, an MRI scan was taken of her cervical spine which Dr Gray describes as giving rise to a diagnosis of nerve root impingement[13].  I note that the MRI scan report[14] states that there appears to be a right paracentral annular tear at the C3-4 level but no central canal stenosis or foraminal stenosis.  It reports that at C5-6 level, nerve root impingment of the exiting C6 nerve roots are not excluded, and nor is nerve root impingement excluded at the C6-7 level. 

[13]Exhibit E

[14]In Exhibit K

33      Dr Gray referred Ms Trickey to a pain specialist, Dr Scott Masters. Dr Gray reported that she was incapacitated for her pre-injury employment due to her condition which he felt was consistent with the accident circumstances described.[15]

[15]Exhibit E

34      In a report from Caloundra Spinal and Sports Medicine Clinic[16] (apparently where Dr Masters practises but it is not clear whether he is responsible for the whole report), there is a diagnosis of persistent somatic cervical dysfunction, and it describes treatment after an MRI scan as a medial branch block but she had not been seen since that procedure so its result was not commented upon.  The author of this report considered that the MRI scan did not reveal any obvious serious mechanical disruption to her neck, but revealed some non-specific changes, and thought that if she had a positive result to the medial branch block that had been carried out, she would be suitable after a second one for radio frequency neurotomy.  It was considered that her injuries were consistent with the motor vehicle accident she described and that her injuries had decreased her ability to complete her social, domestic and recreational activities.  This report appears to be written for Dr Masters although is ultimately signed as if he has adopted it.

[16]Exhibit F – 14 March 2014

35      While in Queensland where she moved to be with her new partner, Michael, she was not able to obtain sustained employment.  She did some volunteer work.  She did obtain a part-time job assisting intellectually disabled children on bus rides, which did not require her to lift them in or out of the bus or wheelchairs, however she experienced physical difficulty in this job as a result of her neck pain, and ceased after about six weeks.

36      In April or May 2014, Ms Trickey returned to live in Kyneton, Victoria, with her partner.  She returned to the care of Coliban Medical Centre where she has mainly seen Dr Aslam.  In a report of 10 September 2014,[17] Dr Aslam reported that her neck injury had stabilised and he did not expect any further deterioration of the neck injury she had sustained in the 2012 motor vehicle accident.  He reported that she was currently working at an aged care facility and able to complete her work unhindered.  However, her pre-injury duties included working as a security guard in addition to being a hospital orderly, and he believed that those occupations would be unsuitable as sudden trauma to the neck or heavy lifting may cause neck pain.  He did not consider further management or treatment was required at that stage.

[17]Exhibit G

37      Just before that report, however, she had a relapse of her depressive symptoms and Dr Cairns saw her on 9 September 2014, noting the precipitants to be some stressors in her relationship.  There was alteration in her medication on that date, but Dr Cairns had not seen her again at the time of writing a report I October 2014[18].

[18]Exhibit 2

38      Ms Trickey herself describes herself as having suffered “a mini mental breakdown” in September 2014.  As a result, there was intervention by a CAT Team and she spent a week at PARC recovery care service.  Her medication was changed with the introduction of Seroquel as her main antidepressant, and she gained considerable benefit from that, reporting to her general practitioner that she had not felt as good for many years.  The previously prescribed Valium, and Panadeine Forte, was ceased.

39      The clinic records[19] reflect that on 2 December 2014, she attended but saw a different doctor, who recorded that in her work as a PCA for Western Health, pulling and pushing a patient for the last three days had had pain in the left side of her neck radiating up to her head and down to the arm.  On examination, range of movement was limited in the neck due to pain.  Her shoulder had normal range of movement.  The reason for the contact was left neck pain to be managed with analgesia and rest. 

[19]Exhibit N

40      Since being prescribed Seroquel she has ceased to take Panadeine Forte and Valium.  She says she manages ongoing pain in her neck with Panadol and Nurofen, both bought over-the-counter.  The amounts of these she takes varies according to the pain she experiences, but she says that she takes up to six Panadol a day and up to about four Nurofen, finding that taking two Panadol and one Nurofen at the same time gives the best relief.

Medico-legal Opinion

41      Dr Chris Baker, occupational medicine specialist, examined her for the TAC in March 2014.  On physical evaluation she complained of pain in the left side of the neck radiating into the left trapezius region, and on rotation of the neck she had more discomfort rotating to the right than the left and there was tenderness over the base of the neck on the left side to deep palpation.  She complained that the pain was unremitting and he suggested she see a specialist in pain management.

42      Dr Baker diagnosed soft tissue injuries to the neck from the transport accident, resulting in persisting left sided neck and shoulder and trapezius symptoms with complaints of chronic pain with left sided headaches.  At that stage she was working in Queensland a total of four hours a day undertaking dropping off and picking up intellectually disabled children on a school bus run.  He concluded she had suffered a whiplash injury to the neck and had persistent left sided neck symptoms referred into the left shoulder region.  Noting that she also had a pre-existing psychological problem and was taking antidepressant medication, he believed there had been an exacerbation of her psychological state but recommended that be assessed by a psychiatrist. 

43      He considered she was suffering with a chronic pain problem affecting the left side of the neck and needed to see a pain specialist.  He thought it was probable that she may need to repeat the medial branch blocks on the left side.  He considered that persisting pain on the left side of her neck was preventing her from returning to a wider range of alternative work, that her lack of confidence and psychological condition was having a minor bearing on her ability for job seeking, but that with appropriate treatment the level of pain in the neck could be improved, which would improve her chances of obtaining employment and be likely also to benefit her psychological state.

44      An orthopaedic assessment from Mr Garry Grossbard was obtained in August 2014.   He took a history that following the accident and the treatment at Royal Melbourne Hospital she undertook exercises about twice a week for three to six months and then once a week for another six months, but subsequently ceased physiotherapy and continued with her own exercise program.  He was told that she had developed severe headache following the accident, which initially was constant and on one occasion was sufficient to take her to the Emergency Department where she was treated with opiates.  She was also using Nurofen, Panadeine Forte and Valium regularly in the early months.  The headache began to improve after a few weeks and there has been gradual ongoing improvement.

45      He was told of her move to Queensland, her work there, and that she had recently returned to work in Victoria as a personal care assistant in Kyneton.  This did not involve a great deal of bending or lifting.  She continued to have massages each four to six weeks depending on her finances, as she paid for them herself, and found them helpful.  He understood that she was using Panadeine Forte at that stage once a week, particularly after a heavy day’s work and used Valium to a similar extent according to her level of pain.  She also used Panadol each few days and continued to do her own exercises at home, and attended her general practitioner about once a month.

46      She told him of pain in her neck when she rotates to the left and to a lesser extent when she looks down, and difficulty turning her head to the left did affect her driving.  She told Mr Grossbard she had learnt to live with it and it did not seem to be changing significantly.  She continued to have headaches approximately each week, helped by Panadol, and she thought they were probably diminishing in frequency.  He reported she did all of the home maintenance activity including shopping and hanging the washing but did have some discomfort with such activities as mopping. 

47      Mr Grossbard noted an MRI scan which he described as undertaken 14 August 2014[20]  revealed some mild stenosis at the C3-4 level and some disc bulges at the C5-6 level, causing some foraminal impingement and there was foraminal stenosis at the C6-7 level with major disc bulging. 

[20]Presumably referring to the Qld scan of August 2013 before the branch block; there is no later MRI in evidence.

48      Mr Grossbard’s opinion was that she has had a soft tissue [presumably injury] to her cervical spine following the side-on collision on 5 September 2012.  The initial symptoms of neck pain and headache had gradually subsided but she was left with a degree of discomfort with neck rotation and some ongoing intermittent headache.  He considered that after two years, the situation had stabilised and she would continue to have some ongoing neck discomfort with some ongoing reduced neck motion, particularly on turning to the left.  He did not believe any specific further treatment was required, but that she needs to continue with an exercise program, and intermittent but restricted massage would be reasonable for her during exacerbations of pain, as it provided significant relief of her symptoms and was particularly important as she had recommenced work and it was important for her to stay in the workforce. 

49      A jointly commissioned psychiatric medico legal report from Dr Weissman was obtained, and tendered by the defendant.  I note that as it is dated 26 August 2014, it precedes the major psychiatric episode of mid-September 2014.  Dr Weissman diagnosed that in the transport accident of 5 September 2012, she said she had sustained whiplash in her neck.  He was of the view that at the time of the transport accident, she was seeing a psychiatrist, Dr Cairns, because of moderate depression and anxiety in particular due to relationship breakup.  He considered she was probably suffering from moderate depression and anxiety whilst working at Williamstown Hospital.  Following the transport accident her depression and anxiety significantly worsened/deteriorated, mainly in the context of her pain and being out of work.  She also developed significant moderate chronic Post-Traumatic Stress Disorder symptoms and traumatisation features, directly due to the circumstances of the transport accident itself. 

50      He concluded, therefore, that there was a moderate aggravation of her pre-injury depressive and anxiety condition as well as new post-traumatic stress and anxiety symptoms.  There had been some improvement in her psychiatric state, particularly since she returned to Victoria in mid-2014, and had obtained a new job two weeks before he saw her.  He thought at that stage she was suffering from mild post-traumatic stress and anxiety symptoms and traumatisation features, directly due to the circumstances of the transport accident but she did not have a full-blown Post-Traumatic Stress Disorder.  He considered she did have a primary direct or non-secondary psychiatric impairment.  His view was she was now suffering from a mild, mixed, reactive depressive and anxiety syndrome consequential to the transport accident, and overall she was probably suffering from mild to moderate – closer to moderate – mixed depressive and anxiety syndrome, but part of that was pre-existing and only partly consequential to the transport accident. 

The injury

51      I am satisfied on the balance of probabilities that the plaintiff suffered a physical injury to her cervical spine in the transport accident. 

52      Only the Queensland GP, Dr Gray, went so far as to diagnose nerve root impingement, but the MRI report to which he referred stated that nerve root impingement could not be excluded at two levels, which does not appear to positively confirm the impingement as Dr Gray described.  Mr Grossbard’s is the only orthopaedic opinion, and he diagnosed “a soft tissue to her cervical spine” following the collision.  Although Dr Baker referred to her having a chronic pain problem, I do not take him to have meant that her pain was not from a physical injury, which he also described as soft tissue injury, as he was of the view she may need a further branch block injection which would only be warranted if he accepted the underlying cause of symptoms to be organic.

53      I am satisfied that she suffered a “whiplash-type” or “soft tissue” injury to her cervical spine as a result of the transport accident, but not that it amounted to an injury to any cervical disc or caused nerve root impingement.

54      Although the description “whiplash” or “soft tissue injury” is sometimes regarded as reflecting a minor physical injury, and indeed the defednat’s submissions that it is “at most a soft tissue injury” imply just that, the test in an application of this type must assess the seriousness of the consequences of the injury rather than the serious of the injury itself.

Assessment of symptoms and consequences of the injury to the plaintiff 

55      I am satisfied that the plaintiff initially suffered pain in her neck, especially on the left side, and pain in her left shoulder as a result of the injury, which was serious enough to warrant prescription of Panadeine Forte a week later, although was not the main focus of discussion with her doctor at that time.  She continued to be prescribed, and to take, Panadeine Forte over the following months, when pain was bad, and that medication continued to be prescribed for about 18 months.    

56      I am satisfied that she felt pain on some movements in her neck, especially rotation, although her range of movement was often found to be full. She underwent physiotherapy.   I infer that the ongoing level of symptoms in her neck was serious enough for her Queensland doctors to order an MRI of her cervical spine, and then for a pain specialist to recommend and undertake branch block injections.  

57      While in Queensland and undertaking that treatment, she was nevertheless looking for work and even doing volunteer work, which of course is to her credit.  It reflects that she was not letting her neck symptoms stop her trying to get on with her life.

58      She has complained of headaches, although Mr Grossbard was under the impression they had gradually subsided.  However,  I note that only two months before the transport accident she was prescribed Panadeine Forte for headache, and without medical opinion addressing the issue of whether headaches since the accident were related to her neck injury or her psychiatric condition, or purely stress, I am not able to find that they are a consequence of the neck injury.

59      I find that by the time of her return to Victoria in April or May 2014, and over the next few months, her neck symptoms were relatively settled to the extent that she looked for, and in July or August obtained, work as a personal care attendant at an aged care centre, albeit where there was a policy that her role did not include lifting of clients.  Dr Aslam reported in September that her neck had settled.  There are entries in the clinical notes indicating that as at early October there was consideration of referral to a chiropractor (if the TAC would pay) and in December that there was exacerbation of neck pain at work. 

60      I accept her evidence that she still suffers ongoing pain in her neck, and radiating into the left shoulder, which pain fluctuates according to her activities.  I accept that discomfort in her neck can interfere with her sleep.  I also accept that it limits some of her previous physical activities such as jogging, riding a bicycle or aerobics as they would jolt her neck too much and aggravate pain, so she has ceased to engage in them.  Lifting heavy items, or undertaking heavier parts of housework can bring on pain. She says in her affidavits that she no longer spends the time she used to do playing games with her grandchild because it brings on pain, although the actual activities she no longer does with him are unclear.   I accept that she still benefits from massage when she can afford it, and that she still takes Panadol and Nurofen to control pain when it occurs.

61      The plaintiff describes the injury suffered in the transport accident as having had a huge impact on her life.  I accept that that is her perception but it is a description which I must consider objectively in the light of all of the evidence.

62      Part of that evidence is that she has suffered from chronic depression since her early 20s, with exacerbations brought on particularly by stressors in her life, and suffering symptoms of considerable anxiety at such times. She was undoubtedly undergoing a severe exacerbation at the time the transport accident occurred, and the psychiatric opinion supports that her depression and anxiety were aggravated by the injury to her neck.   

63      I find from this evidence that Ms Trickey’s already vulnerable psychiatric condition at the time of the accident was likely to have affected her ability to cope with the accident and her neck injury, and contributed to her perceptions of the impact of that injury on her. Her resilience was likely to have been lowered by her underlying psychiatric condition, and the defendant must bear that consequence[21].  I am satisfied that her fluctuating psychiatric condition over the period since the accident has contributed to both her ability to cope with the symptoms of her neck injury, and with her perception of the impact of the neck injury and symptoms on her.  I am satisfied that her psychiatric condition has increased her subjective perception of the impact of neck symptoms on her.

[21]The defendant “must take the plaintiff as it finds her” including her vulnerability or lack of resilience.

64      In contrast, the opinions of Dr Li in the early period, Dr Aslam, and Mr Grossbard, although accepting of the genuineness of her complaints, do not describe her symptoms as significantly debilitating.  Dr Baker’s opinion in March 2014 gives more weight to her levels of ongoing pain, however in the few months following his report her activities and abilities exceeded his expectations.

65      It is submitted that a significant consequence of the neck injury to her is its impact on her capacity for work and flexibility of employment options.  I accept that she has a sustained work history, albeit interrupted by periods of incapacity due to exacerbations of her chronic psychiatric illness.  I also accept the submission that her ability to work has been important to her self-esteem and sense of self-worth, as well as important to her financial needs.  Dr Cairns comments on her personality and low self-esteem.

66      I am not satisfied however, that the evidence supports the submission on her behalf that her neck injury prevented her from returning to her pre-injury employment, or was a cause of her move to Queensland.  While she clearly had ongoing neck symptoms and was undergoing physiotherapy and taking pain medication up until the time of her move to Queensland, I am satisfied that it was her psychiatric condition that was the primary cause of her inability to return to work at least until Dr Cairns says she had returned to her pre-morbid state in early 2013.  I am also satisfied from her own evidence that the move to Queensland was for the relationship then relatively new with Michael.  

67      It is only Dr Gray who has given the opinion that her neck injury prevents her from being able to return to her pre-injury employment, and I moderate the weight I give to his opinion compared with others because he is the only doctor to interpret the MRI of August 2013 as confirming cervical nerve root impingement.

68      She described having enjoyed her work as a security guard as it moved at a pace and engaged her with people.  I am satisfied that her neck is now vulnerable to exacerbation through jolting, sudden movements or repeated turning, twisting or flexing.   However I also find that even though she apparently worked for the Sunshine Hospital for some years as a security guard, that was not full-time and she had transferred from that role to that of orderly after stress from interaction with another employee.  The change of role may have been because the smaller hospital did not have guards, but I consider it more likely than not that her psychiatric condition would not have withstood further work as a security guard, with the stresses that role would be likely from time to time to cause.   

69      As a result of her neck injury, I find that she probably is now not suited to work as an orderly, as she should not undertake the heavier roles of moving patients as those would require more stooping, bending and lifting than her neck would easily tolerate.  Nevertheless, her current role as a patient care assistant is not so dissimilar from the previous role as a hospital orderly, but has less physically demanding duties.  In particular at the employer where she currently works there is a “no lifts” policy which is greatly to her advantage.  I am not satisfied that her present work does not give her similar enjoyment from being amongst and helping people, and self-esteem and sense of self-worth as her jobs as  security guard or orderly used to do.

70      Prior to the transport accident, she had reduced her hours to 32 per week, being two eight hour shifts per week, having before that worked three.  At the nursing home where she currently works she commenced working six shifts per fortnight and had shortly before the hearing in February reduced that to five shifts per fortnight, being four six hour shifts and one of ten hours.  The ten hour shift she described as lighter because it is night time and most patients are asleep and her main duty is to be available if called.  She was therefore still working 34 hours a fortnight which was slightly more than she had been working when she had last worked before the transport accident.

71      I am not satisfied on the balance of probabilities that she would now be engaged in significantly greater hours of employment if she did not suffer the restrictions of her neck injury.  I am satisfied that ongoing effects of the injury to her neck do pose some limitations on employment flexibility now and for the likely future, especially at physically oriented jobs which are what she has undertaken previously and the only type of work for which she is qualified.  Nevertheless, she has managed to adapt to a similar but less physically onerous job now than what she did prior to the transport accident and her history shows much adaptability which is to her credit.  I am unable to find that there is a significant limitation on her likely earning capacity as a result of the neck injury as opposed to natural limitation on the number of hours she is likely to be able to comfortably work per week due to her underlying psychiatric condition which will remain vulnerable to stressors such as long working hours.

72      The defendant tendered an affidavit by the current employer exhibiting documentation she signed when she commenced that employment.[22]  It is clear from the deponent’s statement as well as from the attached forms that Ms Trickey revealed her previous whiplash injury from the transport accident.    In response to being asked to disclose pre-existing injuries, she wrote: “Whiplash due to car accident.  Was under TAC.  No longer ongoing”. It was put to her in cross-examination that she intended by that response to convey that the injury was no longer ongoing.  I accept her denial of that meaning.  She said that she meant that she was no longer receiving TAC payments, and that is entirely consistent, in my view, with the situation as it was at the time she completed the form, and remains so, in that the TAC has refused to pay for ongoing massage which she finds helpful.  It is my impression that the plaintiff has been frank with her current employer in relation to her prior injury, and that is consistent with my impression of her being frank in her evidence before the Court.  

[22]Exhibit 4

73      I accept Ms Trickey’s description that from her perception the injury has had a huge impact on her life, but I find that perception to be enhanced by reduced coping skills due to her chronic psychiatric condition and her personality as described by her psychiatrist.   Her most significant medical issues, and those most impacting her life, as reflected through the Colibran clinic’s records, have been psychiatric.  I do not overlook that even though the psychiatric symptoms may have taken priority and at times overshadowed the physical complaints, the medical material confirms that there have been ongoing complaints by her of pain in the left side of her neck and left shoulder over the intervening periods.  In the main however it has not been the dominant cause of her seeking out medical treatment.

74      The question then is whether those symptoms and their consequences can fairly be described as being more than significant or marked and at least very considerable, when viewed objectively rather than through her subjective perceptions.

75      The extent to which medication is taken may be a measure of the extent of symptoms although circumstances vary so greatly between individuals that the lack of large quantities of prescribed strong medication does not exclude that the patient may in fact be suffering significant pain.  I also accept that a reason for not taking strong medication may well be that it interferes with clear-headedness for work. 

76      The extent and nature of active treatment (other than medication) may also be a measure of the extent of symptoms, but again does not exclude that a person is stoically bearing serious symptoms without obtaining treatment, or that there is not treatment available likely to help.

77      The evidence is that she now takes Panadol tablets, an average of about 4 but up to 6 a day, and Nurofen up to 4 a day, to deal with her pain from this injury. She performs exercises herself, and has no other active treatment except massage which she would like to undergo more often but cannot afford without the TAC paying.  She does continue to see her GP but it only irregularly involves mention of neck symptoms.

78      She is able to carry out personal and domestic tasks, although she has difficulty with the heavier tasks such as mopping.  She can drive although turning her head to extremes can cause pain.

79      She is able to work, and although she reduced her fortnightly hours by one shift in early February, she was still working a little more in hours per fortnight than she had been when last working prior to the accident, and in a job not wholly dissimilar to that of her last pre-injury work although overall at less physically demanding tasks.  She has curtailed some of her recreational activities and exercise, but is not prevented from engaging in less jolting or gentler forms of exercise. 

Conclusion

80      I accept that Ms Trickey perceives that the impact on her life as a result of the injury to her neck suffered in the transport accident has been great.  I am satisfied that the consequences to her have been significant.  However, exercising the value judgment which I must, when comparing the consequences of the injury to her with those in other cases in the range of possible impairments, I am not satisfied that the injury to her neck can fairly be described as “at least very considerable”, and more than significant or marked.   I therefore intend to order that the plaintiff’s application be dismissed.

CI-14-04792

Trickey -v- Transport Accident Commission

SCHEDULE OF DOCUMENTS EXHIBITED

Exhibit Number	Short Description of Exhibit	Court Book Reference
A	Plaintiff’s affidavits made 23 September 2014 and 19 January 2015	PCB 7-11, 12-17
B	Ambulance report dated 5 September 2012	PCB 18-24
C	Report of Royal Melbourne Hospital dated 12 July 2014	PCB 25-26
D	Report of Dr Jingying Lee dated 18 December 2012	PCB 27-33
E	Report of Dr Allen Gray dated 15 January 2014	PCB 34-36
F	Report of Dr Scott Masters dated 14 March 2014	PCB 37-40
G	Report of Dr Aftab Aslam dated 10 September 2014	PCB 41-43
H	Report of Mr David Grenfell dated 14 December 2014	PCB 44-45
J	Report of Dr David Weismann dated 26 August 2014	PCB 51-65
K	CT of Cervical Spine of 5 September 2012	PCB 66
CT of brain and cervical spine of 15 November 2012	PCB 67
MRI Cervical spine of 14 August 2013	PCB 68-69
Cervical Medial Branch Block  of 18 December 2013	PCB 70
L	Report of Dr Chris Baker dated 6 March 2014	PCB 71-78
M	TAC claim for compensation form dated 11 September 2012	PCB 79-90
N	Extracts from clinical notes of the Coliban Medical Centre for dates 6 October 2014 – 2 December 2014 inclusive.
Report of Mr Garry Grossbard dated 28 August 2014	PCB 46-50
Report of Dr Fiona Cairns dated 28 October 2014
Affidavit of Frances Mancuso sworn 28 January 2015 and exhibits thereto	DCB 3-11
Affidavit of Sarah Collier sworn 28 January 2015 and exhibits thereto	DCB 12-28
Extract of entries from Coliban Medical Centre for period 5 April 2006, 4 June 2012 to 6 October 2014