Tsigoulis v TAC
[2015] VCC 950
•17 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-11-02209
| MARA TSIGOULIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 & 26 February 2015 | |
DATE OF JUDGMENT: | 17 July 2015 | |
CASE MAY BE CITED AS: | Tsigoulis v TAC | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 950 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for leave to recover damages – whether serious long-term impairment of right upper limb and severe long-term mental disturbance or disorder due to transport accident – pre-existing right shoulder injury – whether shoulder injury resolved - issues of credit and reliability of medical opinion based on inaccurate or incomplete histories - whether pain and suffering consequence of physical injury contributed to psychiatric state
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richardsv Wylie [2000] VSCA 50, Transport Accident Commissionv Kamel [2011] VSCA 110, Humphries v Poljak [1992] 2 VR 129, Mobiliov Balliotis [1998] 3 VR 833, Mazevskav Transport Accident Commission [2014] VSCA 176, Wingfoot Australia Partner Pty Ltd v Jovevski [2014] VSCA 21, AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Leave granted to the Plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Gorton Q.C. with Ms A. Ryan | Patrick Robinson & Co |
| For the Defendant | Mr D. Myers with Mr P. Gates | Transport Accident Commission |
HER HONOUR:
Introduction
1 The plaintiff is 54 years of age. She completed her schooling in Macedonia. In 1970 the plaintiff moved with her family to Australia, she married, had two children and by 1997 was divorced.
2 Before her divorce, the plaintiff had worked some years either as a machinist or part-time in takeaway food shops. However, from October 1997, the plaintiff was employed by Coles in the Delicatessen section of a suburban store.
3 Late in the evening, as she travelled home from work on or about 15 November 2006 the plaintiff was injured in a transport accident. The plaintiff described the collision as a very frightening event involving an unidentified vehicle striking the driver’s side of the vehicle driven by her.
4 The plaintiff was taken by ambulance to the Sunshine Hospital. The ambulance service notes and the Hospital’s Emergency Attendance Record, among other things, record complaint of right shoulder, neck (on the left side) and hip pain as well as complaint of altered sensation in the plaintiff’s right arm.[1]
[1] Exhibit P1, Plaintiff's Court Book (PCB) 137-142
5 The results of x-rays obtained on 15 November 2006 of the plaintiff’s cervical and thoracic spines and her right shoulder in the investigation of right arm pain/numbness, did not indicate specific matters of concern.[2]
[2] PCB 63
6 On that occasion the radiologist noted the presence of mild degenerative changes at the mid thoracic region and, based on the projection available to him, reported he had not been able to completely rule out posterior dislocation of the humeral head.
7 In the first of three affidavits, the plaintiff deposed she stayed off work and, after a few days, she attended her doctor at the Sydenham Medical Centre, Dr Aboud for treatment of severe symptoms of neck pain with symptoms into both arms and lower back pain. The neck pain was, the plaintiff said, the most troubling of her spinal pain. According to the plaintiff, Dr Aboud prescribed pain killing medication and gave her further time off work.
8 A list of medications previously prescribed was tendered at hearing. Among other things, this list recorded prescription of various medications: the anti-inflammatory, Voltaren Rapid on 9 November 2006 (some days before the transport accident) and again on 20 November 2006 together with the analgesic, Panadeine Forte and, on 27 November 2006, prescription of an anxiolytic, Ducene.[3]. I will discuss the medication prescribed before the transport accident in greater detail in due course. However, in view of the events which followed I concluded the prescription of an anxiolytic so soon after the transport accident was, likely, an early indicator of the psychiatric problems that ensued.
[3] Exhibit D3, 58
9 In a Medical Certificate dated 20 November 2006 Dr Aboud recorded, among other things, transport accident related injury involving pain and restriction of movement affecting the plaintiff’s neck and right shoulder and unfitness to work until 27 November 2006.[4]
[4] Exhibit D1, Defendant's Court Book (DCB) 17
10 On 28 November 2006 the plaintiff changed doctors. The plaintiff deposed that, on the recommendation of a friend, she started attending a doctor at another clinic, Dr Pahtsivianidis, under whose care she had remained. Through her responses given during cross-examination and re-examination the plaintiff rejected the suggestion that this had been to avoid her earlier medical history. Rather, the plaintiff said she changed practitioners after a local newspaper reported an alleged rape at the clinic at which Dr Aboud worked. It was never suggested that this incident involved the plaintiff’s doctor.[5]
[5] Transcript (TN) 60-61 and 133-134
11 A Medical Certificate dated 28 November 2006 and two reports dated 13 October 2013 and 21 February 2015 by Dr Pahtsivianidis, all tendered at hearing, relevantly confirmed the plaintiff’s presentation for treatment of transport accident related injury commencing from 28 November 2006.[6]
[6] PCB 23a-23h
12 As recorded by the general practitioner, the plaintiff initially complained of ongoing and severe anxiety which she attributed to her belief that she would die in the collision. Physically she complained of pain in her right shoulder, neck, upper thoracic and lower back, right groin and right hand with numbness in the fourth and fifth fingers of this hand. The Medical Certificate issued recorded the plaintiff’s physical injuries in similar terms. She was certified unfit for work and referred for physiotherapy.[7]
[7] DCB 20
13 The reports submitted by Dr Pahtsivianidis indicated that, since November 2006, the general practitioner had been involved in the investigation and treatment of injuries the doctor attributed solely to the transport accident, namely injury to the plaintiff’s cervical and lumbar spines, right shoulder, anxiety and depression, insomnia and pelvic floor weakness with stress incontinence.
The application
14 By originating motion filed 18 May 2011, the plaintiff sought leave to commence common law proceedings pursuant to section 93 of the Transport Accident Act 1986 (the Act).
15 Sub-section 93(17)(a) and (c) of the Act define serious injury as: “serious long-term impairment or loss of a body function” or as: “severe long-term mental or severe long-term behavioural disturbance or disorder” respectively. Serious injury is determined by considering the consequences of either an injury-related impairment or loss of body function or of injury-related mental or behavioural disturbance or disorder.
16 The plaintiff alleged transport accident related serious long-term impairment of the right upper limb and the spine (specifically the cervical spine), as well as severe long-term mental behavioural disturbance or disorder.
17 In opening the plaintiff’s case counsel outlined injuries to the plaintiff’s right shoulder (in the context of pre-existing degeneration and a workplace injury in March 2006) and cervical and lumbar spines (in the context of earlier radiological evidence of degenerative disease). Counsel, however, informed the Court that the right shoulder was the principal cause of the plaintiff’s complaints of pain.
18 The plaintiff relied on an unresolved aggravation injury to her right shoulder. It was, however, clear from both the evidence called and the manner in which the plaintiff’s case was conducted that the plaintiff was not also in a position to prove a separate serious injury to her spine.[8]
[8] TN 98-101
19 Under paragraph (a) the plaintiff was required to satisfy the Court that the right shoulder injury was caused by the transport accident and was serious as at the date of determination of the application for leave. She was required to establish that the pain and suffering and/or pecuniary disadvantage consequences of injury to her right upper limb were both long-term and serious to her. The test was whether the consequences (measured in part by any psychological response or recognisable mental reaction to her physical injury[9]), when judged by comparison with other cases in the range of possible impairments or losses, could be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[10]
[9]Richardsv Wylie [2000] VSCA 50 and Transport Accident Commissionv Kamel [2011] VSCA 110
[10]Humphries v Poljak [1992] 2 VR 129, 140
20 Whilst the application for leave was made under paragraphs (a) and (c) of the definition of “serious injury”, in his opening remarks and closing submissions counsel indicated that leave was sought principally in respect to injury to the plaintiff’s mental state for which various diagnoses have been proffered. In this regard, without opting for one diagnosis or another, the plaintiff relied on the evidence of ongoing mental disturbance or disorder and its consequences following the transport accident.
21 Under paragraph (c) the plaintiff was required to establish that the pain and suffering and/or pecuniary disadvantage consequences of injury-related mental or behavioural disturbance or disorder were both long-term and severe, the latter connoting something “of stronger force” than the word: “serious”.[11]
[11]Mobiliov Balliotis [1998] 3 VR 833, 834-5 and 846
22 The recent decision of the Court of Appeal in Mazevskav Transport Accident Commission,[12] among other things, instructs that, when evaluating the consequences of injury suffered as a result of a transport accident, the Court must also consider whether the plaintiff had raised pecuniary disadvantage consequences of compensable injury, which amounted to serious injury. In this case, the plaintiff had not returned to her pre-injury employment or sought alternative employment. Coles terminated her employment in 2009.[13] I was told the plaintiff has received a disability pension since 2009.
[12] [2014] VSCA 176 [21]
[13] TN 125
The dispute
23 The Transport Accident Commission (the TAC) accepted that the plaintiff suffered injury to her psyche, right shoulder and cervical spine as a result of the transport accident.[14]
[14] TN 9
24 The issues raised by the TAC are summarised in the following paragraphs.
25 Firstly, the TAC relied on evidence that, particularly work place injury to the plaintiff’s right shoulder in March 2006, had not fully resolved and was under treatment at the time of the transport accident. This factor alone called for a before and after analysis of the extent of impairment of function of particularly the right shoulder. However, the TAC also relied on the opinion of its orthopaedic surgeon, Mr Kierce, to the effect that any aggravation injury to the plaintiff’s right shoulder had been temporary and submitted there was no evidence of additional long-term impairment. In this regard, the TAC emphasised the absence of evidence of complaint of right shoulder symptoms over a period of some years before 2011 and the normal results reported following radiological investigations in November and December 2006.[15]
[15] TN 10
26 Secondly, the plaintiff’s credit was challenged. The TAC submitted the plaintiff had failed to provide reliable medical histories. This had particular significance, so the submission went, because it undermined the reliability of her doctors’ conclusions and opinions.
27 Thirdly, the TAC submitted the plaintiff had failed to establish that any pain and suffering consequence of physical injury caused by the transport accident continued to contribute to her current psychiatric state. As I understood the submission articulated on behalf of the TAC, if transport accident related physical injury was resolved, treating and other specialist opinion prefaced on contribution by this physical injury, be it injury to the spine or right shoulder, was flawed. Ultimately, I concluded the TAC’s submission in this regard was untenable. The principal concern was whether and the extent to which the symptoms of any mental disturbance or disorder caused by the transport accident had persisted despite fluctuations in the level of or resolution of any physical injury suffered.[16]
[16]Wingfoot Australia Partner Pty Ltd v Jovevski [2014] VSCA 21, [35]
28 Fourthly, the pain and suffering consequence of injury to the right shoulder did not meet the narrative test for serious injury under the Act and, lastly, the plaintiff had not established that the consequences of injury-related mental or behavioural disturbance or disorder were both long-term and severe.
The evidence
29 Subject to some minor corrections and clarification of the duties performed by her at work prior to the transport accident, the plaintiff relied on three affidavits sworn on 16 November 2011, 14 October 2013 and 24 February 2015 respectively. The plaintiff gave evidence with the assistance of an interpreter and she was cross-examined. No corroborating affidavit material was tendered.
30 The material tendered from the Plaintiff’s Court Book in the main comprised medical reports from treating doctors and medico-legal specialists, material extracted from medical and hospital records and a report prepared by Flexi Personal, Human Resources Consultant, Ms Webster dated 24 December 2014.[17]
[17] Exhibit P1
31 I infer from the concession made by the TAC at hearing that such surveillance as was undertaken had not revealed the plaintiff in activity inconsistent with her stated consequences.
32 The TAC tendered extracts from its Court Book and a Materials Folder comprising historical materials from pre-accident WorkCover files, its specialists’ reports and a statement dated 31 December 2012 from the supermarket Deli Department Manager at the time of the transport accident, Linda Elmazovski.[18]
[18] Exhibit D1, Defendant’s Court Book (DCB)
33 The TAC also tendered a letter/fax dated 4 October 2011 from treating Consultant Physician, Dr John Myers addressed to the plaintiff’s general practitioner as well as extracts from a materials folder containing various medical and radiological records.[19]
[19] Exhibits D2 and D3 respectively
Investigation, treatment and diagnosis of physical injury to July 2010
34 I propose to deal first with the case regarding physical injury to the plaintiff’s right shoulder analysis of this aspect of the leave application was pertinent to my assessment of the reliability of the plaintiff’s evidence overall.
35 The evidence of physical injury was drawn in the main from the first of the plaintiff’s affidavits and from the medical records and reports of treating doctors.
36 The medical records and reports confirm that in the months subsequent to the transport accident the plaintiff was treated with pain killing and anti-inflammatory medication (such as Naprosyn 250 mg three times daily and Panadeine as required). She underwent physiotherapy, hydrotherapy and osteopathic treatments, the latter after the plaintiff reported she was not satisfied with physiotherapy treatment.
37 The TAC was correct in its submission that, by her first affidavit, the plaintiff only sought leave for impairment of her spine and for mental or behavioural disorder.[20] Whilst, in paragraphs 6 and 8 the plaintiff referenced the right shoulder and, in paragraph 20, she deposed to limitations on performing certain tasks which required her to lift with or use particularly her right arm (as for example, hanging out washing, reaching into a wardrobe or washing her hair),[21] the affidavit placed particular emphasis on the consequences of injury to the plaintiff’s spine or psyche. In effect, these were the conditions the plaintiff deposed would affect her ability to manage any work at all.[22]
[20] PCB 1
[21] PCB 10
[22] PCB 9
38 Historically, however, the records show that right shoulder symptoms had initially caused some concern.
39 In November 2006 Dr Pahtsivianidis ordered ultrasound investigation of the right shoulder. On 30 November 2006 this returned normal findings (“There was no evidence of inflammatory or degenerative change to the rotator cuff complex or the long head of biceps tendon. No tears, fluid collections or impingement were identified”).[23]
[23] PCB 62 and Exhibit D3 at 206 respectively
40 In the first of her tendered reports, Dr Pahtsivianidis also spoke of a clinical examination on 1 December 2006 which had revealed restricted elevation of the right shoulder to 90 degrees only.
41 Nevertheless, CT scans of the right shoulder obtained on 6 December 2006 had not found evidence of soft tissue injury or abnormalities.[24] Based on the radiologist’s report, the CT investigation had not revealed evidence of bony pathology or soft tissue injury and the acromioclavicular and glenohumeral joints were seen to be intact with no evidence of dislocation or subluxation. The results of these scans appeared to answer the earlier radiologist’s concern that the projection available to him on 15 November 2006 left open the possibility of posterior dislocation of the humeral head.
[24] PCB 23b and Exhibit D3, 206
42 Notably, the results of the ultrasound and CT investigations had not reported the presence of the pathology identified by an earlier ultrasound investigation on 18 May 2006 (supraspinatus swelling and changes consistent with tendonopathy and abduction impingement on the coraco-acrominal arch[25]). These results had been obtained within two months of a work place injury in March 2006. I will discuss this event and the radiological evidence in more detail in due course.
[25] Exhibit D3, 204
43 According to Dr Pahtsivianidis when the plaintiff presented again on 8 December 2006, she complained of persisting headaches and right shoulder and neck pain and reported feeling very depressed.
44 The next attendance was on 11 January 2007. The plaintiff reported right and left shoulder as well neck pain and associated numbness from the base of her skull down her back. Dr Pahtsivianidis recalled anti-inflammatory medication, such as Naprosyn, was prescribed and she referred the plaintiff for hydrotherapy.
45 Some 12 days later, on 23 January 2007, the plaintiff presented again, this time with symptoms relating to pain in her right iliac fossa. This complaint prompted referral to a general surgeon for assessment.
46 On 6 February 2007 the plaintiff reported numbness in her left hand dorsally and pain from the left side of her neck travelling down her forearm and hand. As already mentioned, the plaintiff indicated a preference for osteopathic treatment, although I was not able to ascertain from the materials tendered that this treatment was also directed to right shoulder symptoms.
47 The plaintiff had also complained of right groin pain. Following investigation of symptoms of right groin pain and stress incontinence the plaintiff underwent surgical pelvic floor and bladder repair twice, on 8 August 2008 and again on 6 November 2009. According to Dr Pahtsivianidis the plaintiff’s symptoms of stress incontinence have since improved, although she continued to report persistent urine leakage when sneezing and persistent right groin pain.
48 Gastroscopy on 18 September 2007 apparently revealed a small hiatus hernia and evidence of chronic gastritis. One result of this condition was that the plaintiff has difficulty tolerating oral anti-inflammatory medications.[26] Instead Dr Pahtsivianidis prescribed the medication, Lyrica for pain relief.
[26] PCB 67
49 It appears that during 2007 and 2008 additional investigations were undertaken involving either the plaintiff’s spine or left arm.
50 In her first affidavit the plaintiff deposed that nerve conduction studies in May 2007 to assess the cause of pins and needles in her hands had revealed problems with the nerves in her arms. The results of these studies were not tendered. Nevertheless, reports from doctors who have seen the results have confirmed the studies revealed evidence of left ulnar nerve lesion at the elbow level and the possibility of a further lesion at the brachial plexus level.[27]
[27] See for example one of Mr Brearley's reports at PCB 115
51 The materials tendered further indicated that, on 29 May 2007, MRI scans of the plaintiff’s cervical and lumbar spines were obtained at the request of consultant physician, Dr John Myers.
52 According to the radiologist’s report, cervical spine imaging was obtained to investigate bilateral neck and muscle pain extending into the first two fingers of the plaintiff’s left hand. This investigation reportedly revealed the following:[28]
[28] PCB 64-65
· Multi-level cervical spondylosis.
· An asymmetric right-sided broad based disc bulge and unco-vertebral osteophytes causing minor mass effect upon the proximal aspect of the exiting right C4 nerve root at the C3/4 level.
· An asymmetric left-sided broad based disc bulge and unco-vertebral osteophytes causing moderate left-sided neural foraminal stenosis and mild mass effect upon the exiting left C7 nerve root at the C6/7 level.
53 According to the radiologist’s report, lumbar spine imaging was obtained to investigate posterior right lumbar pain, radiating to both knees. The conclusions reported were in the following terms:[29]
At L5/S1, an asymmetric right-sided broad based disc bulge contacts, but does not have significant mass effect upon the exiting right L5 nerve root. Minor grade 1 retrolisthesis of L5 on S1. Nil significant elsewhere.
[29] PCB 66
54 In May 2008 Dr Pahtsivianidis ordered ultrasound investigation of the plaintiff’s left forearm.[30] The reason for ordering this further test was not clear from the materials tendered.
[30] PCB 68
55 In her first affidavit, the plaintiff said she had been referred to the Alfred Hospital’s neurosurgical department to investigate headaches, severe neck pain and difficulty turning her head. She deposed that following the MRI investigation she received advice that her neck problems were worst at the C6/7 level and that a discectomy and fusion might help arm pain but not neck pain.
56 A report from Alfred Radiology dated 17 October 2008 confirmed some of this history by establishing that neurosurgeon, Dr Hwang had ordered further MRI imaging of both the cervical and lumbar spines to investigate histories of left C7 and right S1 radiculopathy. The results set out below, reported pathology, which arguably provided some organic basis for likely ongoing complaints of pain and disability:[31]
Moderate left C6-7 foraminal stenosis would correlate well with clinical history of C7 radiculopathy; and
Lobulated fluid signal adjacent to right S1 nerve root, almost certainly a small Tarlov’s cyst. No nerve root compression but if symptoms persist follow-up with gadolinium could be considered.
[31] PCB 69-70
57 The plaintiff did not proceed with surgery or with an alternative recommendation that she participate in a pain management program, probably because, as claimed, in the latter part of 2008, the plaintiff underwent the first of the bladder surgeries to which I have already referred.
58 Notably, in March 2007 and again in May 2008 the plaintiff approached her employer to return to light duties. These approaches were preceded by discussion with the TAC’s representatives about a return to work. Based on the evidence, particularly the records made, I was satisfied that on each of these occasions pressure from the TAC to resume employment and the plaintiff’s financial circumstances had dictated her response.
59 The file notes dated 6 March 2007 recorded telephone discussions between the plaintiff and a TAC representative, and between this representative and the employer’s return work officer. The notes made established, among other things, that at the time the plaintiff considered herself unfit to perform her full-time pre-accident duties yet, as the plaintiff repeated under cross-examination, she had been willing and keen to attempt part-time light or alternative duties, which the employer had not been able to provide. [32]
[32] PCB 143-144 and TN 83
60 Furthermore, in May 2008, in response to a TAC representative’s suggestion that she return to work and, notwithstanding the general practitioner’s view that the plaintiff was not really capable of performing these, the plaintiff sought and obtained clearance from her doctor to return to light duties. Again, the employer had not been able to accommodate a return to work on light duties.[33]
[33] TN 126 and 133
61 Leaving to one side for the moment investigation and treatment of the other conditions discussed above, more than three years had elapsed before, on 18 April 2010, the plaintiff again reported right shoulder symptoms (including lower back) pain. According to the doctor’s report, on that occasion, the plaintiff demonstrated difficulty elevating her right arm to more than 80 degrees.
62 In the interim, however, the plaintiff’s physical injuries had been assessed by medico-legal specialists, orthopaedic surgeons Mr Brearley and Mr Steedman, occupational medicine specialist, Dr Eaton and rheumatologist, Dr Kostos on various dates between June 2007 and April 2009.
63 Mr Brearley initially examined the plaintiff at the request of the TAC on 15 June 2007.[34] The plaintiff apparently informed this specialist that the right shoulder had gradually improved but was still troubling her.
[34] DCB 116A-116F
64 Mr Brearley’s examination revealed no wasting or deformity and a full range of movements in the right shoulder. At the time, Mr Brearley had access to the x-ray film of the right shoulder obtained on 15 November 2006 and the ultrasound images obtained on 30 November 2006. He apparently viewed the MRI images of the plaintiff’s spine obtained in May 2007.
65 It was clear from my reading the report made by this specialist that the focus of the plaintiff’s complaint had been on what the doctor recorded as: “virtually constant” pain in the back of the plaintiff’s neck and over the top of her shoulders, as well as low back pain.
66 Mr Brearley offered no specific diagnosis in respect to the right shoulder. He, nonetheless, accepted that the symptoms of which the plaintiff complained could be explained by pathology revealed in the MRI scans of her spine obtained in May 2007 and by the likelihood that the plaintiff had suffered significant soft tissue damage as a result of her involvement in a high-impact collision. Mr Brearley did not, however, discount the possibility that anxiety was amplifying the plaintiff’s symptoms.
67 Mr Brearley considered the plaintiff unfit for her full-time pre-accident work for a further few months. He contemplated a return to part-time duties within six weeks, that is by about mid-August 2007.
68 Under cross-examination, the plaintiff was reluctant to concede any improvement in the condition of her right shoulder following the transport accident. Essentially, she indicated that the condition of her right shoulder had progressively worsened and argued, somewhat unconvincingly in the circumstances, that a full range of movement in her right shoulder and arm had been achieved during clinical examination with help from Mr Brearley.[35]
[35] TN 83-84
69 Some five and half months later on 26 November 2007, Dr Eaton examined the plaintiff at the request of the TAC .[36] Again, this examination had not focussed on any right shoulder injury or treatment of same. Among other things, the plaintiff reported continuous pain in her neck, which radiated down both arms to the upper forearm, intermittent numbness over the radial side of the distal part of both forearms and the first and second fingers of both hands, pain centrally located in her lower back, which radiated down the back of the right leg to her foot and numbness over the back of her right thigh and most of her right leg below the knee.
[36] DCB 123-136
70 Dr Eaton said that clinical examination of the right shoulder had not revealed wasting of the shoulder girdle muscles, swelling, deformity or tenderness of the acromio-clavicular joint or evidence of impingement. He had measured a normal active range of motion. Despite the submission made to the contrary, I was satisfied that Dr Eaton had considered the reported results of the x-rays, ultrasound scan and CT scans of the right shoulder obtained either in November or December 2006, the results of the MRI scans of the cervical and lumbar spines obtained in May 2007 and the results of nerve conduction studies also obtained in May 2007. He attributed the changes seen in the plaintiff’s spine to age-related degeneration.
71 Dr Eaton accepted, albeit reluctantly, the possibility that, as a result of the transport accident, the plaintiff had sustained soft tissue injury to her cervical and lumbar spines, her right leg and right shoulder. He, nonetheless, opined that the effects of these injuries had resolved and the plaintiff’s symptoms were no longer mediated by organic injury. Dr Eaton considered the plaintiff physically fit to return to her pre-injury duties.
72 Whilst it was not clear whether the plaintiff had a recollection of the examination by Dr Eaton, again under cross-examination, she steadfastly resisted any suggestion that, when examined by Dr Eaton, her right shoulder had not been painful or that she had been able to demonstrate a normal active range of motion.[37]
[37] TN 85
73 When examined by Dr Kostos at the request of the TAC on 10 October 2008, the plaintiff apparently reported her condition had deteriorated, she was suffering from constant pain in her neck, shoulders and upper arms, which extended to the midpoint of the forearm, from numbness in both hands, from constant pain across the lumbar region, more so to the right, right groin pain and right leg numbness and collapsing when she walked.[38] Notably, Dr Kostos said clinical examination of the plaintiff had shown a full range of pain-free movement in her shoulders.
[38] DCB 117-122
74 The plaintiff’s counsel submitted, correctly as it turned out, that when Dr Kostos reported he had not found evidence of any objective musculoskeletal condition and diagnosed a chronic pain syndrome (citing significant non-organic factors as enumerated in the summary of his clinical findings), he had not seen any of the radiology or reports obtained, which clearly indicated underlying pathology in the plaintiff’s spine. The plaintiff’s counsel, nonetheless, relied on Dr Kostos’ evidence, which supported a finding under paragraph (c) of the definition of serious injury that the plaintiff was suffering from a genuine psychogenic illness.[39]
[39] TN 254-255
75 Mr Steedman was appointed by the plaintiff’s solicitors. He examined her prior to preparation of a report dated 7 April 2009. Mr Steedman referred to reports from the general practitioner and the Alfred Hospital and indicated he had read reports of multiple radiological investigations, including the MRI scans of the plaintiff’s cervical and lumbar spines obtained in 2007.
76 When examined by Mr Steedman the plaintiff apparently reported undergoing physiotherapy to her neck and back on a weekly basis, taking analgesic and sleeping tablets and attending her psychiatrist every six weeks.[40] She complained of neck aches three days each week radiating down the left arm with some numbness and pain in the right shoulder area twice a week, lower lumbar back ache once or twice a week with radiation down the right leg and pain in her right groin nearly every day.
[40] PCB 26-28
77 On examination, Mr Steedman found neck stiffness, limitation in the movement of the plaintiff’s neck, mild sensory loss down the medial aspect of the forearm and hand in each arm, lower back stiffness, reduced straight leg raising and sluggish reflexes in the lower limbs. Relevantly, in contrast to the clinical findings made by the specialists referred to above, examination of the plaintiff’s right shoulder had revealed evidence of slight deltoid muscle wasting and restriction in movement of the shoulder by 20 degrees in all directions. Mr Steedman had also noted tenderness around the shoulder joint. He diagnosed transport accident related soft tissue injuries to the neck, back, right shoulder and right groin and observed that the plaintiff was suffering from obviously significant continuing psychiatric problems.
78 The plaintiff was, Mr Steedman said, totally incapacitated for any physical type of work. In April 2009, he predicted the plaintiff’s disability would continue at the same level.
79 When, under cross-examination the plaintiff was taken to the reports of Dr Kostos and Mr Steedman, she indicated a number of matters. Firstly, that the level of pain in her right shoulder fluctuated from one day to the next. Secondly, that, as reported, she probably had told Mr Steedman in April 2009 that she experienced pain in her right shoulder twice a week, however, since 2011 and right shoulder surgery the pain in her right shoulder had been constant, save for perhaps one hour during each day.[41]
[41] TN 85-86
80 In summary, the plaintiff persisted with her claim that following the transport accident she had continued to suffer right shoulder pain, adding that the pain had worsened from 2011.
81 Based on the evidence summarised so far, whilst there was some clinical evidence of the right shoulder restrictions in April 2009 and again in April 2010 consistent with there being problems affecting the right shoulder, the weight of the evidence supported a finding that before reporting a significant flare-up in pain and restriction in 2011, the symptoms of likely soft tissue injury to the right shoulder had probably improved, not deteriorated as alleged.
82 One of the complicating factors in this case was, however, that any pre-existing injury and impairment affecting the right shoulder had not been considered by particularly Mr Steedman when in April 2009, he attributed the symptoms in the plaintiff’s right shoulder to unresolved soft tissue injury caused by the transport accident.
Investigation, treatment and diagnosis of right shoulder injury from 2011
83 Under cross-examination, the plaintiff agreed that between June and August 2011, she had travelled to Macedonia. This was, she said, because her brother had died.
84 On 30 August 2011 the plaintiff attended her general practitioner complaining of right shoulder pain. The doctor prescribed Panadeine Forte.
85 At hearing, the plaintiff agreed that her right shoulder symptoms had worsened such that she had been referred for radiology on 31 August 2011. The results of x-ray reported by the radiologist were, nonetheless, unremarkable (“Glenohumeral joint is enlocated. No significant degenerative/erosive arthropathy, fractures or suspicious bony lesions. Acromioclavicular joint appears unremarkable and enlocated. No obvious soft tissue calcifications detected”).[42]
[42] PCB 71
86 On 28 September 2011, the plaintiff reported pain in the right side of her neck and right shoulder and difficulty sleeping on that side or raising her right arm to dress herself. The general practitioner again prescribed Panadeine Forte.
87 The plaintiff was next seen by consultant physician, Dr John Myers in October 2011. Notably, when taken to a letter from Dr Myers to the general practitioner on 4 October 2011, the plaintiff agreed she had complained of right shoulder and right sided neck pain for two months (“constantly”[43]), of not being able to raise her right arm, of difficulty in dressing, of pain when doing her hair and lifting a small coffee cup, of an inability to tolerate Panadeine Forte or Nurofen (the former made her drowsy and did not affect the pain) and of an inability to sleep as she usually did on her right side.
[43] Exhibit D2
88 Notably, at hearing the plaintiff appeared to qualify the suggestion that pain had been constant when she said she had not experienced pain every day but only from time to time.[44]
[44] TN 107
89 On 5 October 2011 ultrasound investigation ordered by Dr Myers reported evidence of mild supraspinatus tendonopathy and a probable small partial intrasubstance tear.[45]
[45] PCB 72
90 The plaintiff was next referred to orthopaedic specialist in shoulder and knee surgery, Mr Nguyen. He examined the plaintiff for the first time on 8 December 2011.[46]
[46] PCB 35-38
91 Mr Nguyen took a history of shoulder, back and neck injury as a result of the transport accident. The plaintiff presented complaining of increased right shoulder pain since July 2011 without any further injury. She reported constant pain in her right shoulder which increased at night and with certain movements. Clinically Mr Nguyen noted tenderness in the subacromial bursa and reduced (painful) movements of the shoulder.
92 Based on the plaintiff’s history, the results of the more sophisticated MRI imaging obtained on 24 January 2012 (which included reportedly severe acromioclavicular joint degeneration, mild subacromial bursitis and moderate rotator interval synovitis[47]) and in his clinical examination, Mr Nguyen diagnosed impingement, subacromial bursitis and AC joint degeneration.
[47] PCB 73
93 Conservative treatment, including cortisone injection on 14 March 2012, failed to improve the plaintiff’s condition. On 4 July 2012, Mr Nguyen performed arthroscopic decompression surgery. Among other things, arthroscopy investigation had revealed a very thickened and inflamed subacromial bursa, a very thickened type 2 acromion with a lateral spur and osteoarthritis of the AC joint. The procedure performed involved an arthroscopic acromioplasty to convert the acromion to type 1 with extensive resection of the subacromial bursa and resection arthroplasty of the AC joint.
94 Within six months of surgery the shoulder condition had improved to almost normal. However, on 19 March 2013, the plaintiff presented to Mr Nguyen complaining of the sudden onset three weeks earlier of pain in her right shoulder without further injury. Clinical examination on this occasion revealed evidence of adhesive capsulitis or frozen shoulder.
95 On 17 April 2013, approximately one month after Mr Nguyen administered a steroid injection, the plaintiff reported no improvement in her condition. Mr Nguyen referred the plaintiff for a hydrodilatation procedure. This was the last occasion on which Mr Nguyen saw his patient. So far as Mr Nguyen was concerned, the aetiology of adhesive capsulitis is mostly unknown. He, however, predicted a full recovery from this condition within 2 years.
96 The plaintiff said she had not undergone the hydrodilatation procedure because she believed it was very painful.
97 The plaintiff was next seen by Dr Pahtsivianidis on 18 July 2013. On that date, the plaintiff had not been able to elevate her arm to 45 degrees and demonstrated limitation of internal rotation by half of normal. The doctor reported further prescription of Panadeine Forte.
98 Having reviewed the plaintiff on 15 January 2015, in her final report Dr Pahtsivanidis noted, among other things, the plaintiff’s complaints included:[48]
[48] PCB 23f-23h
· continuing right shoulder pain, difficulty moving her right shoulder and elevating her right shoulder to more than 45 degrees (and as a result difficulty performing dressing, showering and grooming tasks) and difficulty sleeping on her right shoulder with broken sleep because she was frequently woken by pain during the night. An inability to lift weights exceeding 2 to 3 kilograms with both hands due to right shoulder and lower back pain;
· persistent neck pain and stiffness, which caused difficulty with activities such as reading, knitting, embroidery and driving. Stiffness of the neck also affected the plaintiff’s ability to find a comfortable position at night and disrupted sleep;
· persistent left arm numbness and weakness on lifting objects more than two kilograms in weight;
· occipitonuchal tension headaches; and
· persistent back pain with difficulty in bending and twisting her spine or undertaking prolonged sitting, standing or walking activities;
· ongoing mental health issues, which had impacted on the plaintiff’s ability to leave her home and socialise.
99 The general practitioner continued to prescribe painkilling medication, particularly Panadeine Forte for use on an as required basis and the plaintiff remained under the care of her psychiatrist, who prescribed medications in the treatment of the plaintiff’s psychiatric symptoms. I will say more about the medications currently prescribed in due course.
100 Dr Pahtsivianidis attributed multiple injuries to the transport accident: cervical spondylosis with left C7 radiculopathy symptoms, lumbar spondylosis with disc degeneration, right shoulder bursitis and AC joint changes, anxiety/depression, insomnia and pelvic floor weakness with stress incontinence. Without dealing with each injury individually, according to this doctor the plaintiff was permanently incapacitated for work as a result of her injuries and their sequelae and her prognosis was poor. Dr Pahtsivianidis envisaged ongoing care by a psychiatrist, intermittent physiotherapy to relieve stiffness and pain in the plaintiff’s right shoulder, neck and lower back and an indefinite need for medication in the treatment of anxiety/depression and panic attacks and to control pain.
Pre-existing physical conditions and the plaintiff’s employment duties
101 It was common ground that in the years preceding the transport accident, various injuries and symptoms affecting relevant body functions (the spine and right shoulder) had been investigated and treated.
102 In her first affidavit, the plaintiff relevantly deposed that, prior to the transport accident, she had made WorkCover claims for injury to her neck in 2001, having been struck by a glass window covering whilst cleaning the Deli section and for injury to her left elbow and shoulders as a result of a lifting incident in April 2006. According to the plaintiff, at the time of the transport accident, she had been performing her normal hours of work between 3pm and midnight, subject to some lifting restrictions.[49] In her second affidavit and in further evidence-in-chief, the plaintiff added that the lifting restriction imposed at the time of the transport accident had been up to 7 kilograms.[50]
[49] PCB 5
[50] TN 54
103 A Certificate of Capacity signed by general practitioner, Dr Aboud some six days prior to the transport accident, tells us that, on 9 November 2006, he imposed work restrictions for the period commencing from 10 November 2006 to 8 December 2006.[51] The injury described in the Certificate was: “Rt elbow and neck pain after lifting heavy tins at work. Rt tennis elbow with muscular strain on neck and Rt wrist – Rt supraspinatous tendopathy with impingement (sic)”. Treatment and medication apparently involved NSAIDs, analgesia, an elbow brace and physiotherapy. The restrictions imposed were: “strictly No Heavy lifting (limit of 7 kg), no repetitive work, light duties with frequent breaks as necessary - no cleaning of display windows to avoid over head work (sic)”.
[51] DCB 102.5
104 Whilst I have accepted that the plaintiff may have been working her normal hours of work at the time of the transport accident, in view of the conflict in the evidence about the hours worked, I could not be satisfied that the plaintiff had been working full-time hours at the time of the transport accident.
105 In a statement dated on 31 May 2012, Linda Elmazovski, the Deli Department Manager, recalled the plaintiff had been employed as a part-time Deli assistant. She had, Ms Elmazovski said, performed her duties to a high standard, prior to suffering any injuries. As I understood the statement made, the plaintiff had been assigned to the evening shift where she was responsible for closing the Deli Department at night because of the high standard she brought to the performance of her duties and because of her work ethic and seniority.[52]
[52] DCB 190-192
106 However, the effect of the statement made by the Deli manager was that the plaintiff had never worked other than as a part-time employee. According to Ms Elmazovski, the plaintiff worked approximately 25 hours per week, for approximately five hours per day, spread over a seven-day week.
107 Ms Elmazovski recalled that during the time she worked with the plaintiff there had been times when the plaintiff’s hours were reduced because of injury. She stated that, after the plaintiff was injured in a fall (which I took to reference injury suffered prior to the transport accident) the plaintiff was placed on light duties with restrictions on lifting heavy items and on reaching above shoulder height.
108 Under cross-examination, the plaintiff agreed with many of the matters to which Ms Elmazovski’s statement referred, save that the plaintiff asserted she had been working full-time in 2006 (between 3 pm and midnight, five days per week), albeit on light duties with restrictions on lifting and reaching above shoulder height.[53]
[53] TN 123
109 The plaintiff, nonetheless, agreed that for the three years up to and including June 2000 she had been working for 25 hours per week and in March 2001 she had been working 15 hours per week, that is to say, three hours per day spread over five days.[54]
[54] TN 122
110 I found the evidence about the hours worked in 2006 difficult to reconcile. On one view of Ms Elmazovski’s statement the plaintiff was in fact working 35 hours per week, whereas the plaintiff’s evidence suggested she was working 45 hours per week. The plaintiff, did contradict this evidence by later agreeing with counsel when he suggested her evidence was that she worked 40 hours per week.
111 Ultimately, not a great deal turned on whether the plaintiff had been working as a part-time or full-time Deli assistant. The Certificate of Capacity issued by Dr Aboud some days prior to the transport accident placed no restriction on the hours worked. Moreover, as my findings reveal in due course, whatever her physical capacity had been for work prior to the transport accident, a dramatic change in her psychological functioning had occurred after the transport accident, which had not resolved and likely rendered the plaintiff totally psychiatrically incapacitated for work for the long-term.
112 I was told at hearing that the leave application had been adjourned on 14 October 2013 because the supplementary affidavit sworn and served on that date contained more detailed information about the plaintiff’s past medical history. According to the TAC’s counsel the adjournment had been granted to allow the plaintiff’s medical practitioners to consider the additional information.
113 Details of the pre-existing medical conditions to which the plaintiff deposed in the supplementary affidavit are summarised in the following paragraphs, as are any responses given during cross-examination or re-examination.
1995
114 The plaintiff conceded that in 1995 she had a CT scan of her lower back.[55]
1997-1998
[55] TN 77 and Exhibit D3, 193
115 The plaintiff conceded she had suffered headaches with nausea and vomiting in 1997 and in 1998 she had been prescribed Sandomigran and Panadeine Forte in the treatment of migraine headaches.[56]
1999
[56] TN 77
116 In 1999, the plaintiff was referred to neurosurgeon, Professor Andrew Kaye in the treatment of symptoms of numbness in her legs. The plaintiff deposed this condition had resolved over a period of time and had not prevented her from working. Under cross-examination the plaintiff agreed she underwent CT and MRI investigation of her lumbar spine in 1999 and that this radiology had identified a minor broad based disc bulge at the L5/S1 level.[57]
[57] TN 77 and Exhibit D3, 194-195
117 The plaintiff also recalled that in 1999 she fell at work landing on her right shoulder. She deposed to experiencing mild neck and shoulder pain from time to time (“it was only occasionally”[58]), which the plaintiff said had not prevented her from performing her: “normal work duties and living a normal life”.[59]
[58] PCB 12b
[59] Ibid.
118 Under cross-examination the plaintiff agreed that following the fall in 1999 she had experienced pain in her upper arm, pain on moving her shoulder and that pain had limited the range of movement in her shoulder.
2000
119 The plaintiff recalled undergoing a CT scan of her head on 2 May 2000, which she believed had been to investigate a “bad” migraine. The plaintiff, nonetheless, argued that since the transport accident she had suffered migraine headaches “a lot more often”.[60]
[60] Ibid.
120 Under cross-examination the plaintiff agreed that in March 2000 she reported to the Royal Melbourne Hospital that she suffered migraines every two weeks.
121 The plaintiff corrected her earlier affidavit by indicating in her supplementary affidavit that the workplace incident, when she had been struck on the neck by a glass window covering, probably occurred on 18 May 2000. The plaintiff recalled that the area injured was mainly the back of her neck, the pain had been manageable, she had not experienced ongoing symptoms in her arms and she believed a good recovery had been made such that, within a number of weeks, she had been able to return to her normal work and lifestyle.
122 Under cross-examination, the plaintiff was unsure whether in May 2000 the plaintiff’s general practitioner had correctly recorded complaint of a headache for 10 days, although she agreed that in May/June 2000 she underwent CT scans of her head and neck.[61] The plaintiff further agreed that the CT imaging of her neck had revealed disc protrusions at the C3, C4, C5, C6 and C7 levels.
2001
[61] TN 77-78 and Exhibit D3, 196-199
123 The plaintiff recalled having slipped on greasy oil and fallen at work, resulting in injury to her left shoulder, back and neck. Having been shown a claim form, the plaintiff confirmed this incident occurred on 21 January 2001. She further recalled working modified duties (“for a while”[62]) but said that over a period of time her condition improved and she again returned to her normal work duties and normal life. The plaintiff recalled she had coped without difficulty with ongoing occasional aches and pains in the areas hurt and that these had not interfered with work or life outside work.
[62] PCB 12b
124 Under cross-examination the plaintiff agreed she had complained of loss of sleep and daily headaches and that in March 2001 she was still complaining of lower back, neck and right shoulder problems. I took the latter to reference the earlier injuries suffered in 1999 and 2000. In any event, this evidence suggested that the earlier injuries including the injury to the right shoulder had not fully resolved by March 2001.
125 The plaintiff agreed with a number of further propositions.[63] Firstly, that in March 2001 she was working three hours, five days a week. Secondly, that in July 2001 she suffered aggravation of her back pain with pain and numbness travelling down her left leg. Thirdly, that in September 2001 she was suffering from neck and back pain and, lastly, that in November 2001 she was suffering from back pain.
2002-2003
[63] TN 78
126 The plaintiff deposed to separate workplace accidents in which she cut her hand and her calf in 2002 and 2003 respectively. The plaintiff said she had recovered and returned to work. According to the plaintiff, neither event had affected her back, neck or shoulders.
127 Under cross-examination, however, the plaintiff agreed with the proposition that medical notes made in July 2002 still recorded neck pain and had indicated that the medication, Endep had been prescribed. Whilst she was unable to recall the reason for the prescription of Endep, the plaintiff thought this medication had been prescribed on and off in the treatment of pain.
128 The plaintiff also agreed that she had attended for treatment of migraine headaches in March 2003.
2004
129 Under cross-examination the plaintiff agreed that she had attended her general practitioner in April 2004 for treatment of recurrent headaches and insomnia. She was prescribed Stilnox and in April 2004 underwent a further CT scan of the head.[64] It appears that in September and November 2004 the plaintiff again attended her general practitioner complaining of migraine headaches.
2005
[64] TN 79 and Exhibit D3, 202
130 Under cross-examination the plaintiff agreed that in April 2005 she had complained of upper back pain. The materials tendered by the TAC included a medical report prepared for the plaintiff’s employer by consultant surgeon, Mr Schutz.[65] Mr Schutz examined the plaintiff on 8 November 2005 in respect to ongoing symptoms in her right lower leg, which at the time the plaintiff attributed to the injury to her right calf in 2003 and in respect to complaint of lower back symptoms, which the plaintiff reported had commenced 4 to 5 years earlier.
[65] DCB 178-186
131 Under cross-examination, the plaintiff acknowledged that Mr Schutz had been told her back injury had never recovered and that she still suffered some discomfort but continued to work and put up with this (“I have discomfort from time to time, on and off, yes”[66]).
[66] TN 79
132 In his report, among other things, Mr Schutz opined the plaintiff was suffering from some continuing relatively minor low back and right lower leg or ankle symptoms, notwithstanding her complaint of more pain.
133 Under cross-examination the plaintiff agreed with a number of propositions regarding the description of her capabilities. The plaintiff agreed she had told Mr Schutz she could walk all day with pain (although she said she put up with pain), she could run but not much (notably when counsel read the doctor’s note that this activity bothered the plaintiff’s right lower leg the plaintiff corrected him saying it bothered her right lower back[67]) and she could sit but developed an uncomfortable stretching sensation in the right lower leg. Whilst the record that she could stand and move about all day was also put to the plaintiff, counsel interrupted before the plaintiff had an opportunity to respond to this further matter.
[67] TN 80
134 Based on the responses given to further cross examination relating to the doctor’s record of the plaintiff’s capacity in 2005 to cook, perform house work, drive, shop and sit, I made the following findings of fact:[68]
[68] TN 80-81
· in the year preceding the transport accident the plaintiff was living with her daughter;
· the plaintiff did the cooking and whilst she could perform the house work, typically her daughter, then as now, did most of the house work;
· the plaintiff could drive and shop but, then as now, her daughter did the shopping because the plaintiff has never liked shopping;
· the plaintiff did not drive for long distances due to difficulty sitting. This was still the case, although the plaintiff claimed her situation had worsened;
· the plaintiff had continuing problems with the right lower leg after the workplace accident in 2003, including numbness in the heel or sole of the foot. According to the plaintiff the current situation (presumably with the right lower leg) was worse than it had been in 2005.
2006
135 As already mentioned, in her first affidavit the plaintiff deposed to having made a WorkCover claim in respect to her left elbow and shoulders following a lifting incident at work in April 2006. In the supplementary affidavit, the plaintiff explained she had experienced the onset of pain mainly in the right neck and shoulder area (it may have been the right elbow not the left elbow) when lifting heavy olive tins. The plaintiff deposed her pain improved with time, she was placed on modified duties which limited lifting to 7 kilograms but continued to work her normal hours and to perform and cope with all of the bending, leaning and twisting activities associated with her work.
136 The plaintiff further deposed that prior to the transport accident she had taken leave to travel overseas and, a couple of weeks before the transport accident, she had returned to her normal full-time work (albeit with an ongoing lifting restriction). According to the plaintiff, prior to the transport accident, her neck and shoulder pain had not completely resolved and had flared up from time to time but not to the extent that it prevented her from performing her usual work and having a normal life outside work.
137 As I understood the evidence at hearing, the incident to which the plaintiff referred occurred in March 2006. Under cross-examination, the plaintiff agreed that, following the work place injury in March 2006, in the period leading up to the transport accident, she had seen Dr Aboud regularly for treatment of neck and right shoulder pain, although there had also been other complaints made, as for example, complaint of migraine and vomiting in May 2006.
138 The plaintiff agreed that on 18 May 2006 she underwent ultrasound investigation of her right shoulder and that this investigation, the results of which she had discussed with the doctor, had revealed some problems with the tendons in her shoulder (tendonopathy with impingement).[69]
[69] TN 73-74
139 It appears that the plaintiff was referred for physiotherapy twice weekly and in July 2006 she again presented to her doctor with restricted movement in her right shoulder.
140 It was common ground that in August 2006 orthopaedic surgeon Mr Battlay examined the plaintiff for her employer. Whilst the plaintiff’s counsel opened on Mr Battlay’s report, it was not tendered. Under cross-examination, it was, nonetheless, suggested to the plaintiff that this specialist had suggested her neck condition may have being causing her right arm problems. The plaintiff was not able to respond to this question.
141 What was, however, abundantly clear from the evidence was that, after two months of travel overseas during September and October 2006 and less than a week before the transport accident, on 9 November 2006 the plaintiff had reported to Dr Aboud that her right shoulder and arm symptoms had flared up again after she had returned to work.
142 The plaintiff agreed her doctor had advised her to resume physiotherapy treatment and prescribed anti-inflammatory medication, Voltaren Rapid. Ultimately, the plaintiff agreed with propositions to the effect that at the time of the transport accident she was still under treatment with Dr Aboud, she was still performing modified duties at work, she had been referred for more physiotherapy and she was taking the medication already mentioned.
143 Despite counsel’s submission to the contrary, I concluded that anti-inflammatory medication prescribed on 9 November 2006 was probably also prescribed in the treatment of the ongoing right shoulder problems. In doing so, I took into account the possibility that the medication may have also been required to treat a complaint of left knee pain made on the same date. X-ray investigation on 10 November 2006, subsequently revealed evidence of mild degenerative narrowing of the medial joint compartment,[70]
[70] Exhibit D3, 205
144 The plaintiff’s concession at hearing that medication had been prescribed and the content of the doctor’s Certificate of Capacity to similar effect were persuasive in this regard. In summary, I was satisfied that, shortly before the date of the transport accident, the symptoms of the work-related right shoulder injury had not fully resolved, the plaintiff was undergoing active treatment and her work duties were restricted to the extent described by Dr Aboud in the Certificate of Capacity.
Notification of pre-existing conditions to either the TAC or doctors
The claim form
145 A claim form dated 28 November 2006 was submitted after the transport accident.[71] At hearing, the plaintiff identified her signature and was able to recall having signed the claim form.
[71] DCB 1-14
146 The plaintiff was taken to various responses noted in the claim form. For instance, question 34 asked whether before the accident the claimant had ever suffered from a long list of conditions. Relevantly, the boxes marked: “No” on the plaintiff’s claim form were ticked for a number of conditions: a lower back condition or pain; a neck condition or pain, a head injury or neurological condition; a hip, knee or shoulder condition or pain; and migraine or similar episodic headaches. Boxes marked: “Yes” were ticked for work-related injury and a drug or substance dependency, the latter accompanied by the words “Panadaine Forte (sic)”.
147 The plaintiff acknowledged previous lower back, neck and migraine conditions. She told the Court someone else, who had known the plaintiff had an accident at Coles, had helped complete the form. The plaintiff said she had not read all of the form. Essentially, the plaintiff was unable to recall the responses to which I have referred or for that matter, explain why question 37 was answered in the negative. This question asked if the claimant had ever made a Worker’s Compensation Claim.
148 My impression, however, was that factors such as her lack of sophistication and the plaintiff’s imperfect command of English as a second language likely provided some explanation for the failure to complete this form accurately. For instance, in answer to question 33 (“Before the accident have you ever required treatment”) the plaintiff ticked the box marked “Yes” in respect to treatment from a chiropractor or physiotherapist. Question 35 sought details of the injury or condition and treatment received before the accident (where any part of questions 33 and 34 had been answered in the affirmative). With the benefit of hindsight, the information provided, might have been properly ascribed to the lifting incident in March 2006. In short, whoever entered the information on the form nominated the arm as the injury or condition for which the plaintiff was receiving treatment before the transport accident, they nominated weekly massage and physiotherapy as treatment and they referred to pain from lifting.
149 I may have left to one side the inadequacies in the responses recorded in the claim form had this document been the only evidence of inaccurate information about the plaintiff’s past medical and WorkCover history. However, perusal of medical reports obtained from treating doctors or specialists engaged after the transport accident, whether on behalf of the plaintiff or the TAC, demonstrated a marked lack of information about the plaintiff’s relevant past medical history. Indeed, in some instances the reports contain statements which were consistent with the plaintiff having been asked and having denied such a history.
150 For instance, in her response to the plaintiff’s solicitors on 13 October 2013, Dr Pahtsivanidis, who commenced treating the plaintiff following the transport accident, stated: “To my knowledge, there have not been any pre-existing injuries”.[72]
[72] PCB 23b
151 Under cross-examination the plaintiff was taken to earlier reports from this doctor in which the general practitioner made similar statements. The plaintiff asserted the general practitioner had been instructed to obtain relevant records from Dr Aboud. At first the plaintiff insisted that her earlier medical history had been discussed with Dr Pahtsivanidis before and since the adjournment of the leave application. Following the adjourned hearing date and re-examination of the plaintiff, the latter on 15 January 2015, the final report submitted by Dr Pahtsivanidis contained no similar statement or comment on the aetiology of the conditions described in the report.
152 However, when responding to further cross-examination, the plaintiff appeared to contradict her earlier evidence by indicating that in the interval between the adjournment and the hearing date she had not been asked, but had she been she would have discussed her past medical history with Dr Pahtsivanidis.[73]
[73] TN 64
153 In short, I could not be satisfied from the evidence as a whole that the general practitioner was cognisant of the plaintiff’s relevant past medical history when she submitted any of the reports tendered in evidence.
154 The final report submitted by treating orthopaedic surgeon, Mr Nguyen to the plaintiff’s solicitors in September 2013 contained the statement: “The patient denied any prior injury to her shoulder before the… car accident.”[74]
[74] PCB 35
155 This evidence suggested that when the surgeon attributed the condition of the plaintiff’s right shoulder to injury suffered in the transport accident he had not considered any relevant past medical history, because, as he said, the plaintiff had denied any prior injury to her shoulder.
156 The plaintiff gave conflicting accounts. Under cross-examination the plaintiff appeared to suggest that when questioned by him, she had believed the surgeon was referring to injury suffered in another car accident.[75] This evidence was likely an attempt at reconstruction rather than evidence of any actual recollection. The upshot of the evidence given by the plaintiff was that she was unable to recall being asked this question by the doctor but was confident that had she been asked she would have recounted her past medical history.
[75] TN 109-110
157 Psychiatrist, Dr Piperoglou commenced treating the plaintiff within five months of the transport accident. In the first of three reports tendered at hearing, under various specific headings, Dr Piperoglou indicated no history of past accidents, compensation claims or psychiatric illness. The only past medical history recorded by him involved unrelated medical conditions.[76] His later reports do not specifically address any medical history predating the transport accident.
[76] PCB 42-43
158 Under cross-examination the plaintiff agreed she had told Dr Piperoglou about an earlier appendix operation, a bladder operation, the latter because he had asked and about her use of olive leaf extract in the treatment of a liver condition.[77] When challenged, however, the plaintiff simply replied she thought he (“they”) knew about her prior neck, back and right shoulder problems.
[77] TN 65-66
159 On the medico-legal front the history of relevant past medical problems obtained by specialists varied. The matters reported by the following specialists and summarised below tended to reinforce my view that, prior to swearing the supplementary affidavit and adjournment of the hearing date on 14 October 2013, the plaintiff had provided no or no adequate account of her past relevant medical history and in some cases may have denied any relevant history:
· Mr Brearley. I have already mentioned his first report submitted to the TAC on 15 June 2007. Mr Brearley recorded a past history of injury to the plaintiff’s lower back and right leg following a fall at work in about 2002 in the treatment of which the plaintiff underwent physiotherapy and took two days off work. Mr Brearley’s report relevantly contained the statement: “She has had no other injuries”.[78] Under cross-examination the plaintiff agreed she had responded to a question about her past medical history as recorded. Essentially, the plaintiff denied she had failed to tell Mr Brearley the whole truth, stating that she had responded to the questions asked and had nothing to hide.[79]
[78] PCB 122
[79] TN 69-70
· Dr Eaton. In his only report, Dr Eaton relevantly recorded that the plaintiff had no previous history of neck pain, lower back pain or numbness in her arms or right leg before the transport accident, nor had she had any previous history of anxiety, depression or psychiatric treatment.[80] When these matters were put to the plaintiff in cross-examination she replied through the interpreter: “I don’t think I left that question as such. I should not have answered it as such, I should have told him”.[81] I took this and the plaintiff’s subsequent responses to mean that had she been asked about her past history the plaintiff would have supplied this to Dr Eaton.
[80] DCB 130
[81] TN 71
· Dr Kostos. In his only report, Dr Kostos relevantly recorded a history in which the plaintiff claimed that, apart from a work-related neck injury “a few years back” after a window fell on to the plaintiff’s neck (which led to a short period of neck pain but no time off work) and surgery for a bladder prolapse in 2008, the plaintiff’s general health had been good.[82] Under cross-examination the plaintiff agreed that, as stated in the report, she had not taken time off work. However, without explanation of what condition or conditions caused this, the plaintiff further indicated that she had sometimes taken time off work when her health had been “bad”.[83]
[82] DCB 119
[83] TN 71
· Mr Steedman. In his only report, Mr Steedman attributed soft tissue injuries to the neck, back, right shoulder and right groin to the transport accident. Otherwise, the report was silent on whether and to what extent earlier injury (if any) caused pain in or impairment of the plaintiff’s spine or right shoulder prior to the transport accident .[84]
[84] PCB 26-28
· Dr Nathar. On 19 June 2009, in the first of four psychiatric assessments undertaken at the request of the plaintiff’s solicitors, Dr Nathar recorded a history of unrelated medical conditions.[85] Under cross-examination, the plaintiff agreed she told the psychiatrist her appendix had been removed (this had occurred in the 1970s) and she had undergone a bladder operation. Essentially, somewhat unconvincingly, the plaintiff sought to distinguish between having been asked by the doctor about past operations or about past WorkCover conditions.[86]
· Mr Shannon. In the first of two reports submitted to the TAC in 2012, Mr Shannon relevantly noted a past history involving workplace injuries to the plaintiff’s right forearm, to her head and back of her neck after the plaintiff had been struck by a window, the latter injury leading to a few days off work with neck pain. Apart from these matters, Mr Shannon noted: “She had never had any trouble with her back or shoulder”.[87]
· Dr Serry. In a report submitted to the TAC in July 2003 Dr Serry recorded a past medical history of appendectomy as well as the absence of any past psychiatric history.[88] According to the plaintiff she answered his questions – “that’s all”.[89]
[85] PCB 92
[86] TN 66-69
[87] DCB 139
[88] PCB 128
[89] TN 70
160 When challenged by the proposition that she had not told her general practitioner or any of her doctors the: “whole truth about (her) past history of complaints and claims”, the plaintiff expressed a belief that Dr Aboud’s reports had been provided to other doctors and she reiterated her earlier evidence that had she been asked she would have answered questions about her past medical history.
161 In view of the many instances summarised above, I could not be satisfied that when required to do so, either in completing the claims form or when questioned about this at various times by treating and other doctors, the plaintiff had recounted her past medical history either adequately or at all. I did not conclude, however, that the plaintiff had actively sought to mislead the TAC or the medical practitioners. In reaching this conclusion, I took into account the plaintiff’s long history of returning to work despite various work-related injuries and the fact that, generally speaking, she presented to doctors as a genuine individual. My impression was that she held the very simplistic view that because she had been functional and working before the transport accident, the injury suffered in the transport accident had been the cause of all her problems. The evidence of the plaintiff’s unresolved psychological reaction to the multiple physical injuries helped reinforce this view.
162 Howsoever, the plaintiff’s behaviour was explained, she was a poor historian. The question that remained was: whether and the extent to which any of the medical opinions obtained had been comprised by lack of information about particularly the pre-existing right shoulder condition.
163 One immediate problem confronting the Court was the shortage of expert evidence to assist in comparing the before and after position with respect to the right shoulder or spine in the assessment of any additional impairment consequent on any aggravation injury.[90] The doctors who were not cognisant of the past history of physical injury, who had not accessed the results of any earlier radiology or were not cognisant of any of the injury-related limitations already impacting on the plaintiff’s work capacity and lifestyle, were never in a position to properly assess the extent to which any ongoing impairment of the right shoulder or spine was attributable to soft tissue/aggravation injury suffered in the transport accident. The same could be said of the general practitioner.
[90]AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309, [34]
164 The problem faced by the plaintiff in this regard was best illustrated by reference to current specialist medical opinion summarised below.
Current specialist opinion concerning specifically the condition of the plaintiff’s right shoulder
165 Recent specialist evidence obtained on behalf of the plaintiff reported, among other things, long-term impairment of the right shoulder as a result of transport accident related injury.
166 Orthopaedic surgeon, Mr Brearley re-examined the plaintiff on two further occasions. On each of these at the request of her solicitors. His third and final report was dated 1 October 2014. This was before the earlier hearing date had been vacated.
167 In August 2013 the plaintiff apparently reported that her right shoulder was her major problem. On this occasion, Mr Brearley took a relevant history of work-related injury to the plaintiff’s left elbow and both shoulders as a result of a lifting incident in 2006. He understood the plaintiff had a short period off work before returning to her normal duties. On this occasion, Mr Brearley had not accessed the earlier radiology when he attributed injury to the transport accident. That is to say, injury to the rotator cuff with a small intrasubstance tear of the supraspinatus and development of tendonosis and subacromial bursitis as well as aggravation of degenerative changes in the AC joint. However, even if the condition of the plaintiff’s right shoulder in 2011/2012 was causally linked to the transport accident, we know from the treating surgeon’s records that arthroscopy had not shown any rotator cuff tear.
168 In 2014, Mr Brearley opined the diagnosis at the time of injury was impingement, subacromial bursitis and AC joint degeneration.[91] At the time he did not have access to the ultrasound results obtained in May 2006, although by that stage Mr Brearley appeared to have understood the plaintiff had been performing modified duties with restrictions on lifting subsequent to the work-related injury in 2006.
[91] PCB 119f
169 Mr Brearley attributed reports of ongoing stiffness and constant pain to injury suffered in the transport accident and predicted the plaintiff’s symptoms would continue for the foreseeable future. Mr Brearley appeared to have accepted the plaintiff’s description of the significant impact of impairment of her right shoulder on her social, recreational and domestic activities. In Mr Brearley’s opinion the plaintiff was totally incapacitated by reason of impairment of the right shoulder from any form of full-time or part-time work.
170 Another orthopaedic specialist, Professor Myers, re-examined the plaintiff in October 2014 at the request of her solicitors. He diagnosed a transport accident related unresolved aggravation injury to the right shoulder in the context of pre-existing degenerative changes.[92] He thought the prognosis poor, vis-a-vis the plaintiff’s right shoulder, involving likely persisting and worsening problems. He too appeared to accept that for the future, pain and impairment of the plaintiff’s right shoulder would impact on her social, recreational and domestic activities and (without explaining the extent of this) on the plaintiff’s capacity to perform any type of work.
[92] PCB 119r
171 I found the conclusions reached by Professor Myers in his report and subsequent correspondence, the latter dated 23 February 2015, difficult to justify. Firstly, in his report, Professor Myers discussed the pre-accident injuries described by the plaintiff in her supplementary affidavit but appeared to have overlooked the work-related injury she deposed she had suffered in April 2006 as well as its impact on her work capacity. Secondly, having apparently viewed the ultrasound report of the right shoulder performed on 18 May 2006, which Professor Myers said showed mild changes of inflammation in the rotator cuff structures of the shoulder but no other significant abnormality, he advised that all of the plaintiff’s disability had resulted from the transport accident: “on the basis of aggravation of pre-existing mild disease”.[93] It was not clear to me that Professor Myers had given any weight to the ongoing treatment and restrictions on the plaintiff’s work activities at the time of the transport accident.
[93] PCB 119u
172 The defendant obtained up-to-date medico-legal assessments from various specialists. Orthopaedic surgeon, Mr Kierce had the benefit of records and radiological material pertinent to both the plaintiff’s pre-accident and post-accident conditions.[94]
[94] DCB 162-177n
173 Focusing for the moment only on the plaintiff’s right shoulder, in the latter part of 2013 and, more recently, in November 2014, Mr Kierce noted the results of the earlier ultrasound report obtained on 18 May 2006 had recorded supraspinatus tendinopathy with impingement in the right shoulder.
174 Based on the materials to hand, his clinical examination and on the likely correct assumption that the workplace injury had not resolved prior to the transport accident, Mr Kierce concluded that the transport accident may have aggravated a pre-existing osteoarthritic condition in the plaintiff’s right acromioclavicular joint. He, however, had not found objective evidence that this had caused any significant lasting injury. Essentially, Mr Kierce attributed the plaintiff’s presentation and her complaints of ongoing neck, lower back and right shoulder pain to psychological factors.
175 Whilst Mr Kierce appeared to have accepted that there was evidence of adhesive capsulitis of the right shoulder (a frozen shoulder), he, as Dr Pahtsivanidis had beforehand,[95] viewed this condition as a complication of arthroscopic decompression surgery performed by Mr Nguyen on 4 July 2012.
[95] PCB 23e
176 As already mentioned, Mr Nguyen had described the onset of the adhesive capsulitis condition approximately 10 months after surgery. This circumstance and his belief that the effects of any aggravation injury had likely resolved before the plaintiff had sought further treatment from 2011, appeared to underpin Mr Kierce’s conclusion that the adhesive capsulitis condition was an unrelated complication of the surgery performed in 2012. Of course, if any aggravation injury suffered in the transport accident was not also a cause of the condition giving rise to surgical intervention some six years after the transport accident it could not now be linked to the ongoing capsulitis condition.
177 In short, Mr Kierce concluded that the effects of likely aggravation of pre-existing osteoarthritis of the plaintiff’s right shoulder and cervical and lumbar spondylosis as a result of the transport accident had been temporary, and that the plaintiff’s ongoing complaints were likely attributable to a form of chronic pain syndrome perpetuated by predominantly psychological factors.[96]
[96] DCB 177J
178 However, not all of the TAC’s specialist opinion (and as the plaintiff’s counsel submitted, arguably well informed opinion) had ruled out the possibility that the effects of injury suffered to the right shoulder as a result of the transport accident had resolved before the plaintiff presented to Mr Nguyen for treatment in 2011.
179 For instance, in April 2012 the TAC’s orthopaedic specialist, Mr Shannon reportedly diagnosed soft tissue injury to the plaintiff’s neck, back and right shoulder.[97] He too was armed with a detailed before and after history including the report of the results of the May 2006 ultrasound. Among other things, Mr Shannon was told that the right shoulder had become particularly painful in July 2011.
[97] DCB 137-146
180 Clinically, Mr Shannon found mild-to-moderate restriction of abduction and flexion of the right shoulder but other movements were through a normal range. He also reported mildly positive impingement signs.
181 Relevantly, Mr Shannon advised he could not: “exclude that the accident is still contributing to the right shoulder condition, although there does not appear to be significant references to her right shoulder after 2007 and it would appear that the more recent investigations were precipitated by a more recent flare-up of symptoms, although I could not establish a cause for this”.[98]
[98] DCB 142
182 In April 2012 Mr Shannon was of the view that injury suffered as a result of the transport accident had temporarily reduced the plaintiff’s work capacity. Of course, his assessment was made before the plaintiff underwent surgery.
183 Having been provided with a copy of Mr Battlay’s report from August 2006 and further records from Dr Aboud’s clinic, in June 2012 Mr Shannon advised the TAC his opinion was unchanged.[99]
[99] DCB 146
184 I was not satisfied that Mr Shannon’s evidence provided strong endorsement of the proposition that the right shoulder condition had remained symptomatic or, alternatively, had not returned to the same level as before the transport accident.
185 Having weighed the available specialist evidence, I could not be satisfied of the ongoing causal link between any soft tissue/aggravation injury to the right shoulder as a result of the transport accident and the current symptoms and adhesive capsulitis condition. In short, the plaintiff was a poor historian. Whilst I have accepted that there was a significant flare-up in the condition of the right shoulder from about July 2011, resulting in surgical intervention in 2012, I could not be satisfied that the condition treated was causally linked to unresolved soft tissue/aggravation injury of the right shoulder suffered as a result of the transport accident.
Diagnosis and treatment of mental disability or disorder
186 I now turn to consider the application made under paragraph (c). The evidence in this regard was mainly drawn from the plaintiff’s affidavits and the reports of her treating doctors.
187 In her first affidavit the plaintiff relevantly deposed as follows:[100]
14. I was very frightened in the accident and continued to be very nervous and anxious. Dr Pauline referred me to a psychologist, Mr Mavroudis and a psychiatrist, Dr Piperoglou. I began seeing Dr Piperoglou in April 2007. I remained fearful of driving and of visiting the site of the accident. I had believed that I would die at the time of the accident and remembering what happened makes me feel upset and anxious even now. I had nightmares of the accident and although they are not as frequent now as they were earlier on, they are still sufficient to wake me feeling shaky and sweaty.
15. I no longer see Mr Mavroudis. I continue to take medication for mood as originally prescribed by Dr Piperoglou and I am monitored regularly by Dr Pauline regarding this.
[100] PCB 8
188 In her supplementary affidavit the plaintiff provided a more detailed account in the following terms:[101]
[101] PCB 12d
C. Psychiatric Injury
15. I saw the car coming at me in the accident and thought I was going to die. I have been very stressed and depressed and anxious since the accident. I am stressed both because I think about the accident a lot, and because I have continued to be in pain and unable to live my normal life since the accident. It all gets too much for me. I have continued to receive treatment from Dr Michael Piperoglou. I see him on approximately every 6 to 8 weeks for treatment and assistance with my medication regime.
16. Since I have been treated by him I have suffered from inability to sleep and he has trialed me on a number of medications. I often do not sleep for any longer than 2 to 3 hours a night. I have difficulty falling asleep. When I don’t sleep well I experience migraines and headaches the next day. This affects my capacity to attend to very basic things such as house work and exercise and shopping. I have a lot more migraines now than I did before the accident.
17. I still have nightmare and flashbacks about the accident. In my dreams I am stuck in my car and cannot get out. I’m scared of being hit or of the car blowing up. I had this dream last night. The number of doctors that I have seen and telling them about the accident exacerbates this. This causes me to re-live the accident. I also have dreams about the accident. This is not related to attending doctor’s appointments. This occurs on a regular basis.
18. I remain anxious when driving and fearful about having another accident. I am reluctant to drive long distances and get my daughter or my brother to drive me. I have put on a lot of weight since the accident. This is due to my inability to be active.
19. I feel helpless and this causes me a lot of frustration, as before the Transport Accident I was independent in so many ways both financially and personally. I was the one who helped other not the one who required to help. I loved working and enjoyed the independence it gave me. I used to enjoy my food and now do not get the enjoyment out of eating. Sometimes I will not eat for two or three days at a time. I used to enjoy cooking Macedonian meals and put a lot of effort into my cooking now I do not have the motivation to do this.
20. I have become more depressed over the past two years and have considered ending my life. I don’t like talking about this. I have discussed this with my treating doctors. I feel that my life is over.
21. My daughter often complains that I am very negative and not a positive influence on my grand-son who also lives with us. This causes friction at home.
22. As stated above my daughter and my grand-son lives with me. My daughter works part-time and attends to most of the domestic chores, shopping and cooking.
23. I am forgetful and have left the gas stove on, on several occasions. My daughter now will not let me cook until she gets home.
24. My memory and concentration are not good for example I will read a magazine and then not remember what I have read about.
25. I currently take two types of anti-depressants. Lexapro and Avanza. I also take Seroquel to sleep and Panadeine Forte at night and Tramadol twice a day.
26. My social life is limited as I lack the motivation to participate in cultural events. I spend my time mainly at home. Sometimes I have visitors but I have become more withdrawn over the years. I prefer to be alone and do not like mixing with people.
27. I am a different person now to what I was like before the accident. I had a positive outlook and was extremely independent. Now I take so much medication and feel flat a lot of the time, my relationships with my children and grandchildren as well as friends and working life have been affected.
189 In her third and final affidavit, among other things, the plaintiff confirmed she continued to consult Dr Piperoglou every two months. Apparently the TAC has continued to fund these consultations as well as medication the plaintiff deposed Dr Piperoglou prescribed (Valdoxan and Lexapro for depression and Seroquel to aid sleep). The plaintiff said she took these medications daily but had ceased taking other medication prescribed by Dr Piperoglou (including Lyrica) because these medications caused stomach problems.
190 It appeared from the responses given both under cross-examination and during re-examination, that in the past the plaintiff had stopped taking medication such as Stilnox because of its side-effects (sleepwalking), and had avoided taking or had only taken anti-depressant medication prescribed by Dr Piperoglou intermittently.[102]
[102] TN 120-121
191 Essentially the plaintiff’s explanation for this was that in the past she had not wanted to be, in her words: “flat and depressed all the time” and had not wanted to become dependent on this medication.[103] Nevertheless, her evidence was that in the years preceding the hearing she had taken her anti-depressant medication. As recently as September 2014, Dr Piperoglou reported he had adjusted the type of anti-depressant medication prescribed. Dr Piperoglou’s evidence in this regard helped satisfy me that his patient was probably now compliant with her medication regime.[104]
[103] TN 129-130
[104] PCB 50c
192 In her final affidavit the plaintiff relevantly deposed that she felt tired all the time, her social life remained limited, she remained an anxious driver, she often felt depressed and she cried frequently.
193 As far as I could tell from the medical evidence tendered, it had never been suggested that the plaintiff was a malingerer. Rather, specialists such as Dr Kostos and Mr Kierce have ruled out ongoing organic transport accident related causes, whilst also noting the likely influence of psychiatric factors.
194 I have already mentioned in passing the earliest reports of psychological symptoms to the general practitioners. These complaints were consistent with transport accident related traumatisation, which by April 2007 had manifested as significant ongoing psychiatric sequelae.
195 The matters outlined in the reports of the treating doctors, Dr Pahtsivianidis and Dr Piperoglou suggested that, notwithstanding many years of regular attendance for psychotherapy/counselling and daily use of psychotropic medications, the plaintiff had never recovered psychologically.
The treating psychiatrist’s reports
196 The reports submitted in October 2013 and in February 2015, by Dr Pahtsivianidis, among other things, indicated that the traumatic experience of the transport accident and ongoing pain, limitation and insomnia have perpetuated the plaintiff’s psychological symptoms, all of which the doctor associated with injury suffered in the transport accident and in the doctor’s opinion are a barrier to the plaintiff returning to her pre-injury or alternative employment.
197 As earlier mentioned, the plaintiff was referred by Dr Pahtsivianidis to psychiatrist, Dr Piperoglou for what he described as assessment and management of her nervous disorder. When first seen by him on 4 April 2007, Dr Piperoglou recorded complaints which included anxiety, avoidance of the scene of the transport accident, fear when driving, poor sleep, ruminations about the transport accident, traumatic nightmares, anxiety and tearfulness when talking about the transport accident or passing the scene of the transport accident, flashbacks, bad headaches, weight gain which the plaintiff attributed to inactivity since the transport accident, chronic pain in her neck, shoulders and both arms and the recent onset of feelings of depression.[105]
[105] PCB 40-41
198 In a report submitted to the plaintiff’s solicitors on 21 August 2009, Dr Piperoglou noted that the plaintiff had been reviewed on a further 14 occasions between June 2007 and June 2009. It appeared from this report that, in addition to psychotherapy and counselling, Paxam had been prescribed in the treatment of symptoms of anxiety from April 2008 and the anti-depressants, Lexapro and Avanza had been prescribed from May 2008. Dr Piperoglou also recorded prescription of various hypnotic medications, Temaze, Stilnox and, at the time of making the earlier report, Halcion.
199 Notably, nearly three years after the onset of symptoms, the psychiatrist said the treatments administered had only partially improved the plaintiff’s condition. In August 2009 he described her condition as involving residual effects of Post-Traumatic Stress Disorder and a Chronic Adjustment Disorder with Anxiety and Depressed Mood.
200 At the time, Dr Piperoglou believed the plaintiff’s psychiatric reaction would be worsened by any ongoing physical incapacity.
201 In August 2009 Dr Piperoglou predicted a poor prognosis for further improvement of the plaintiff’s psychiatric symptoms, which included anxiety, depression, chronic pain and the residual post-traumatic stress symptoms, all of which the psychiatrist believed would continue to have an adverse impact on the plaintiff’s quality of life in all spheres of activity. Accordingly, whatever fluctuations may have occurred in the plaintiff’s physical injury and symptoms in the years following the transport accident, there was no evidence that the psychiatric condition, resulting from the transport accident had resolved.
202 We know from the plaintiff’s first affidavit sworn in November 2011 that she was also referred to psychologist, Mr Mavroudis, whom the plaintiff deposed she no longer consulted.
203 Neither the general practitioner or the treating psychiatrist mentioned treatment by this psychologist in their reports, although I could not discount the possibility that the reference to supportive psychotherapy/counselling in Dr Piperoglou’s report encompassed the psychologist’s treatment. I note, however, from the materials to which the TAC’s psychiatrist, Dr Firestone referred, that he reportedly read the records kept by Mr Mavroudis between 13 December 2006 and 9 December 2008. The two matters noted by Dr Firestone included the psychologist’s report, that the plaintiff drove pass the site of the accident and that, at the conclusion of her treatment, the psychologist had diagnosed an Adjustment Disorder.[106]
[106] DCB 161e
204 The TAC submitted the Court should infer from the failure to explain the absence of evidence from the psychologist that his evidence would not have assisted the plaintiff’s case.
205 In his closing submissions the plaintiff’s counsel submitted the absence of evidence from this treating psychologist was of no consequence.[107] In an application where the plaintiff relied predominantly on injury to her psyche, I have not accepted that this submission fully answered the submission made by the TAC. The failure to offer any explanation for the absence of evidence from a treating psychologist would ordinarily constitute one of many relevant factors to be weighed in determining the outcome of the application.
[107] TN 258
206 However, accepting for the moment that the opinion of the treating psychologist was as reported by Dr Firestone, for the reasons outlined below, in deciding this application I have preferred the up-to-date evidence of the treating psychiatrist and Dr Nathar both as to their diagnoses and the likely presence of ongoing symptoms of Post-Traumatic Stress Disorder. Moreover, notwithstanding the records to which he had access, Dr Firestone, on whose evidence neither party placed great store, found the plaintiff continued to suffer from traumatic symptoms and a Chronic Adjustment Disorder.
Current specialist opinion concerning the plaintiff’s psychiatric condition
207 On 20 February 2015 treating psychiatrist, Dr Piperoglou reported the plaintiff continued to suffer from residual features of Post-Traumatic Stress Disorder and a Major depressive disorder.[108] He attributed the plaintiff’s psychiatric state to nervous stress suffered at the time of the transport accident as well as pain and suffering from her physical injuries. He said the plaintiff was receiving counselling and being prescribed antidepressant medication, Lexapro in the morning and Valdoxan and Seroquel at night, the latter in the treatment of insomnia.
[108] PCB 50c
208 In effect, Dr Piperoglou’s earlier prognostications and his opinion that her psychiatric state rendered her unfit for her pre-injury employment were unchanged. In my view, Dr Piperoglou’s acceptance that the chronic pain of which the plaintiff complained was mediated by organic not psychogenic factors could not derogate from his evidence, the thrust of which was that over a period of nearly 8 years of regular contact for treatment he had observed significant psychological distress as a consequence of direct psychological trauma and as a consequence of his patient’s reaction to physical pain and disability following transport accident related physical injury.
209 In arriving at this conclusion, I also took into account the results of the third and fourth assessments by the plaintiff’s medico-legal specialist, psychiatrist, Dr Nathar on 16 July 2013 and 17 October 2014 respectively.
210 In July 2013, Dr Nathar relevantly identified the role of psychological factors in amplifying the plaintiff’s physical symptoms when he opined that the plaintiff suffered from: “a mild Post-Traumatic Stress Disorder with car travel phobic anxiety disorder and some Panic Disorder although the latter seems to be milder now. She also has an ongoing Adjustment Disorder with Anxious and Depressed Mood and ongoing Chronic Pain Disorder where psychological factors are amplifying her physical problems. All her psychiatric conditions seem to need the high dosages of anti-depressant medications to control the symptoms which otherwise would be of at least moderate severity.”[109]
[109] PCB 108-109
211 Dr Nathar attributed the plaintiff’s psychiatric injury to the transport accident. He indicated an overall poor psychiatric prognosis. Dr Nathar envisaged long-term use of high dosages of anti-depressant medications to control: “likely to have long-term psychological deficits at around the current level”.[110] In Dr Nathar’s opinion the severity of the plaintiff’s psychiatric injuries would have a more than significant impact on her ability to enjoy a full range of social and recreational activities and rendered her totally and permanently incapacitated for full-time or part-time pre-injury or alternative employment duties.
[110] PCB 109
212 In October 2014 Dr Nathar had the advantage of reading extensive background materials, which included some of the pre-accident medical evidence when he gave the following advice:[111]
[111] PCB 119l
1. The current status of your client’s psychiatric conditions are that she has a mild Posttraumatic Stress Disorder with some car travel phobic anxiety, continuing Panic Disorder with also a Chronic Pain Disorder still of moderate degree. There has been little change in her conditions since I last examined her over twelve months ago and her conditions have been stabilised with medications and treatment.
2. This is a situation I think, due to the chronicity of her psychiatric problems and the poor prognosis; where she will probably need life long psychiatric care roughly seen on two or maybe even three monthly basis. She probably will need to take her current dosage of anti-depressants, anti-anxiety and also pain medications for life.
3. The overall psychiatric prognosis is poor. She is finding it constantly difficult to cope with her chronic pain acting as chronic stressors on her mental state. PTSD after this length of time in any case has a poor prognosis.
4. As explained in previous reports, I see her as continuing to suffer from more than a significant reduction in her ability to attend to her full range of social and recreational activities due to her psychiatric injuries alone. In terms of work, taking into account her psychiatric state, her past work history, continuing physical problems and her age and length of time she has been off work, I would consider as being totally and permanently incapacitated for pre-injury and alternative duties full-time or part-time and that she is not a suitable candidate for any retraining. I do believe that her effective working life is over (sic).
213 The plaintiff further relied on earlier reports submitted by medico-legal specialist, psychiatrist, Dr Serry to the TAC following assessments on 3 July 2007 and 11 March 2008 respectively.[112]
[112] PCB 126-136
214 When last seen by him, Dr Serry diagnosed a chronic adjustment disorder with anxiety, depression and features of traumatisation as well as a pain disorder associated with psychological factors and a general medical condition. He said the plaintiff’s psychological symptoms were attributable to the transport accident and reflected a complex interplay between the initial physical injury, the psychological injury and the plaintiff’s perception of her ongoing health state. Whilst Dr Serry contemplated an increase in the plaintiff’s attendances on her psychiatrist, Dr Piperoglou, and in the dosage of her antidepressant medication, in 2008, Dr Serry believed physical not psychological factors were the principal barrier to the plaintiff returning to her pre-accident employment.
215 In my view, the reports of the treating psychiatrist and Dr Nathar are to be preferred in this regard, if for no other reason than they represent current assessments of the plaintiff’s mental state and her long-term psychiatric capacity for employment.
216 As mentioned, the TAC had obtained assessments from psychiatrist, Dr Firestone. He initially assessed the plaintiff on 1 June 2011. However, this report and the reports submitted following reassessments on 2 August 2013 and 8 December 2014 were tendered.[113]
[113] DCB 147-161L
217 The plaintiff did not have a history of psychiatric illness or treatment. This evidence notwithstanding, following the earliest of his assessments, Dr Firestone diagnosed pre-existing somatic symptom disorder with predominant pain. It appears that a diagnosis of pre-existing somatic disorder arose in circumstances where the psychiatrist had acquainted himself with the plaintiff’s medical history before the transport accident. This history involved treatment of pain in association with conditions of one kind or another since 1997, as well as the plaintiff’s unfortunate history as a battered wife throughout a marriage which, as earlier mentioned, ended in divorce in 1997.
218 Dr Firestone nonetheless, attributed diagnoses of Post-Traumatic Stress Disorder and Chronic Adjustment Disorder with Depressive Features to the transport accident. These conditions were, he said, of greater severity because of the pre-existing condition.
219 If Dr Firestone was correct in his diagnoses, the plaintiff was a particularly vulnerable, nonetheless, psychologically functional individual at the time of the transport accident, who may have been suffering from some pre-existing, albeit undiagnosed and untreated psychiatric condition.
220 One immediate problem arising from evidence that postulated an earlier undiagnosed and untreated somatic disorder was that in the years preceding the transport accident there was solid evidence of medical treatment and pathology, which could and probably did explain much of the pain and restriction reported. For instance, prior to the transport accident the right shoulder pathology revealed by the ultrasound scan in May 2006 had been accepted by the general practitioner and presumably WorkCover as a compensable organic condition.
221 More recently, after reassessment of the plaintiff on 8 December 2014, Dr Firestone reported the following diagnoses:[114]
[114] DCB 161f
Psychiatric illness resulting from accident not related to physical injury.
Traumatic symptoms (nightmares, preoccupation with the accident) remain Chronic Adjustment Disorder with Depressive Features
Psychiatric illness resulting from effects of transport accident-related physical Injury.
somatic symptom disorder with predominant pain
Psychiatric illness not related to accident.
Pre-existing somatic symptom disorder with predominant pain
Chronic Adjustment Disorder with Depressive Features
222 In determining this application I did not dwell on Dr Firestone’s evidence primarily, because in his final submissions, counsel for the TAC had indicated the TAC only relied on his report to the extent that Dr Firestone referenced some form of pain syndrome. Counsel aptly described Dr Firestone’s opinions as being: “all over the place”.[115] Otherwise, the TAC focused its attack on the reliability of the treating psychiatrist’s evidence, in all the circumstances.
[115] TN 202-203
223 Whilst the plaintiff’s counsel submitted the Court should prefer the opinions of psychiatrists other than Dr Firestone, he, nevertheless, submitted that the consequences of any aggravation injury to the plaintiff’s psyche would also amount to a serious injury under the Act.[116] I was not satisfied it was necessary to venture down that path.
[116] TN 233-240
224 In this application, the plaintiff satisfied me that pain and suffering including pecuniary disadvantage consequences of transport accident related mental disturbance or disorder might fairly be described as being severe in the sense required by the Act. My reasons for so finding are summarised in the paragraphs that follow.
225 As is apparent from the matters discussed in some detail so far, I could not be satisfied that either treating or medico-legal specialists retained by the plaintiff, had a proper understanding of the history of earlier physical injury and/or treatment for same, particularly for the years immediately preceding the transport accident.
226 I have already rejected the TAC’s submission that resolution of transport accident related physical injury or the absence of an accurate history of pre-existing physical injury, rendered the opinions expressed by particularly the psychiatric specialists on whose evidence the plaintiff relied, unreliable.
227 This is not to deny that an understanding of the plaintiff’s earlier medical history or of the possibility that physical injury suffered in the transport accident was now resolved, could impact on the diagnoses made. However, by the date of hearing, the treating doctor and psychiatrist had observed and recorded the plaintiff’s psychological distress over a period of nearly 8 years and both remained pessimistic about any improvement in the plaintiff’s long-term psychiatric state. Moreover, Dr Nathar had the advantage of examining the plaintiff on four occasions, in June 2009, in May 2012, in July 2013 and, on the last occasion in October 2014 he had access to material recording at least some of the plaintiff’s earlier medical history. Both he and Dr Piperoglou have diagnosed unresolved and significant psychiatric sequelae to the transport accident requiring ongoing psychiatric treatment and the daily use of psychotropic medications.
228 The upshot of the evidence of the treating psychiatrist and Dr Nathar is that the plaintiff is likely totally and permanently incapacitated for full-time or part-time employment. The report prepared at the request of the plaintiff’s solicitors by the Flexi Personnel Human Resources Consultant in December 2014 helped reinforce this view because, quite apart from any physical factors, the plaintiff’s psychological state and her ongoing use of high dosages of psychotropic medications also likely affect the plaintiff’s ability to retrain for alternative employment.
229 Without revisiting in detail the plaintiff’s evidence, or the accounts recorded by particularly Dr Piperoglou and Dr Nathar, the pain and suffering and loss of enjoyment of life consequences of transport accident related psychiatric injury are briefly described in the following points:
· allowing for Dr Nathan’s diagnosis of an ongoing Chronic Pain Disorder, likely amplification of the plaintiff’s perception of pain;
· ongoing symptoms of traumatisation involving nightmares and flashbacks and reliving of the transport accident. The plaintiff spoke of her tendency to ruminate about the transport accident with intrusive thoughts about the accident circumstances and nightmares and flashbacks, at times triggered by reminders of the transport accident. Relevantly, Dr Nathar reported car travel phobic anxiety disorder (which I understood included problems travelling both as a passenger and driver) and some Panic Disorder. In assessing the impact of the car travel phobic anxiety disorder I took into account the concession made by the plaintiff that prior to the transport accident she had been reluctant to drive long distances due to difficulty sitting. I, nonetheless, made allowance for some worsening of this circumstance as a result of her car travel phobic anxiety disorder;
· a pecuniary disadvantage consequence involving likely long-term incapacity for all employment which of itself could amount to a serious injury. I was satisfied there was no real probability that the plaintiff would ever be psychiatrically fit to retrain for alternative employment or resume her pre-accident employment duties;
· a need for ongoing psychiatric treatment likely involving psychotherapy/counselling and significant doses of psychotropic medications on a daily basis. Relevantly, Dr Nathar opined that the plaintiff was likely to require the anti-depressant Lexapro as well as other pain modulating medications for life;
· an inability to sleep despite nightly use of a strong psychotropic medication, Seroquel, with more frequent headaches and migraines and a reduced capacity to perform the plaintiff’s day-to-day living activities, all consequent on disrupted sleep;
· a depressed mood of variable severity associated at times with uncontrollable tearfulness;
· both weight gain due to inactivity, as well as a loss of enjoyment of food and eating. The plaintiff associated the latter with occasions on which she failed to eat for successive days;
· a loss of motivation to cook. The plaintiff’s evidence was that before the transport accident she cooked for the household and had particularly enjoyed cooking Macedonian meals. Apparently her daughter now attends to most of the cooking;
· social withdrawal and social isolation. The plaintiff claimed there were times when she had not been able to leave the house, she spoke of a lack of motivation to participate in cultural events and generally described social withdrawal and isolation as consequences of her psychiatric state;
· the plaintiff conceded that prior to the transport accident her daughter had performed most of the domestic chores and shopping. I, nonetheless made some allowance for the likely further impact of loss of motivation and social withdrawal on these day-to-day activities;
· whilst neither Dr Piperoglou or Dr Nathar found evidence of poor concentration or memory, events such as leaving the gas stove on were, the plaintiff said, indicative of a level of forgetfulness she attributed to her poor psychiatric state;
· a tendency to overreact to sounds and stimuli;
· friction in her home and problems in her relationships particularly with family members which the plaintiff attributed to her own negativity;
· when compared with her pre-injury functioning, a significant long-term loss of independence.
230 The test in this case was whether on the available evidence the plaintiff had established that the consequences of injury to her psyche (measured in part by any accompanying physical incapacity), when judged by comparison with other cases in the range of possible mental disturbances, may be fairly described as both long-term and severe. This involved making a value judgement. In all, I was satisfied that the consequences of transport accident-related mental disturbance are fairly described as both long-term and severe.
Orders
231 Accordingly, leave is granted to the plaintiff to bring proceedings for recovery of damages in respect to injury suffered in the transport accident on or about 15 November 2006.
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