Williams v Transport Accident Commission
[2017] VCC 1180
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00481
| Linda Williams | Plaintiff |
| V | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16-18 August 2017 | |
DATE OF JUDGMENT: | 25 August 2017 | |
CASE MAY BE CITED AS: | Williams v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1180 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited: Richards & Anor v Wylie [2000] VSCA 50; (2000) 1 VR 7
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms J Frederico | Zaparas Lawyers |
| For the Defendant | Mr P Elliott QC with Mr T Storey | Transport Accident Commission |
HER HONOUR:
1 Ms Williams applies under s.93(17)(a) of the Transport Accident Act 1986 (Vic) for leave to issue proceedings for the recovery of damages in respect of an injury to the lumbar spine sustained in a transport accident on 31 May 2013 (‘the transport accident’). At the time of the accident Ms Williams was working full-time in the public service in a management role. She was stationary in her car in a supermarket carpark in Prahran behind another car when the car driven by the defendant struck the front of her vehicle, causing about $2,100 worth of damage to it. The plaintiff felt severe back pain, saw her doctor, and received ongoing treatment. She attempted to return to work in mid-July 2013 on limited hours but only lasted 4-5 days. She has not worked since. She had pre-existing back pain going back to the 1990s, with periods of exacerbation including a fall at work in November 2012, for which she received medical treatment and took daily medication, but was able to work full-time and engage in a full range of domestic and recreational activities. Since the transport accident, she says that the back pain has become more severe than it was before, and is of a different kind, with the result that she has been unable to return to work that she loved, and is severely restricted in her domestic and recreational activities. She has also suffered psychological distress in response to her pain and limitations. In all the circumstances, she says that the consequences of the aggravation of the pre-existing and symptomatic lumbar spine degeneration resulting from the transport accident meet the definition of ‘serious injury’.
2 The defendant says that the transport accident was minor, and that prior to the accident, the plaintiff had well documented advanced degenerative changes in the back and neck which were symptomatic, and required ongoing treatment and substantial ingestion of opioid medication such as Oxycontin, Endone and Tramal, and resulted in time off work in the 1990s, 2007, 2008 and 2009. She suffered a disc prolapse in 2007. Importantly, she suffered a fall down some stairs at work in November 2012, in which she suffered injury to her face, knees, and back. The defendant says that the fall at work triggered an aggravation of underlying degenerative changes in the lumbar spine which produced a worsening of lumbar spine symptoms to the point where, in the weeks prior to the transport accident, she was working shorter days on Thursdays and Fridays and had been referred by her general practitioner to see a rheumatologist in relation to her back pain. She was taking substantial pain medication (Oxycontin, Endone, Tramal). The defendant notes the divergence of medical opinion as to the precise diagnosis of the plaintiff’s current lumbar spine condition, but relies on the medical opinion Mr Brazenor and Mr Han either to the effect that no injury was sustained in the transport accident or that the symptoms complained of are related to her pre-existing, symptomatic, lumbar disc degenerative changes. The defendant relies on the plaintiff’s stated desire to retrain and to obtain some work, and on the medical opinion (from Mr Brazenor and Mr Brownbill) that she retains a work capacity. Finally, the defendant says that the only element of the plaintiff’s current psychological presentation which can be relied upon in her application under sub-paragraph (a) of the definition of serious injury is that of the natural upset and emotional effect of suffering continuous pain. In all the circumstances, the defendant says that the consequences relied upon by the plaintiff do not meet the narrative test for serious injury.
The plaintiff
3 The plaintiff is 55 years old. She has an adult son and is very close to the niece she raised from the age of 13. She completed high school and obtained a Bachelor’s Degree in Youth Affairs, as well as postgraduate qualifications in drug and alcohol and counselling. She worked in Melbourne and in Western Australia in a variety of jobs at not-for-profits and in retail, and in housing at various charitable organisations before joining the Department of Human Services, in 2007, in housing. She was midway through a Master’s Degree at the time of the transport accident.
4 According to her affidavits, she suffered back pain at work in early 2007, for which she sought medical treatment. The back pain got better.
5 In late 2008 she suffered from back pain which left her unable to walk for a few days. She had a CT scan, was diagnosed with an injured disc, had 5 weeks off work, took medication (Panadeine Forte and Oxycontin) and then returned to work. Her pain gradually improved and she ceased taking medication.
6 In July 2012, she experienced an exacerbation of lower back pain. She was again prescribed Oxycontin and Endone. The back pain got better.
7 On 9 November 2012, she fell down 6 stairs at work, striking her mouth, and landing on her knees and then her buttocks. She suffered soft tissue injuries to her knees and pelvis. She suffered back pain, had a further CT scan, took pain medication and was referred to a rheumatologist, Mr Woodruff.
8 The plaintiff has suffered from depression in the past and had a number of difficult periods in her life, at which times she took anti-depressant medication. At the time of the accident, she was taking anti-depressants to assist her with symptoms of menopause. She has also suffered from intermittent stress incontinence. The partis agreed that this medical problem is not relevant to the issues to be determined in this application, and I have put it to one side.
9 Prior to the transport accident, she enjoyed walking, reading, going to the cinema and to the theatre. She was a “foodie”, and enjoyed cooking and entertaining. She would eat out about 3 nights per week. She would go away for weekends with friends, walk for 2 to 3 hours at a time with them and eat dinner in a restaurant. She played tennis occasionally. She was able to clean her house and to take her niece’s 7 year-old son to the park and to the movies. As her son and niece had become more independent, she had started dating again. She was taking Oxycontin for her earlier back injury and had been referred to Mr Woodruff, rheumatologist. At the time of the transport accident, she was slowly recovering from the effects of the fall at work[1] but was having trouble sitting for long periods, and by the end of the week was leaving work an hour or so early. Just prior to the accident, she had planned to take a week’s leave.
[1] Plaintiff’s Court Book (PCB) 24
10 The transport accident occurred on a work day, when she was stationary in a parking lot in Prahran. Another vehicle, a 4-wheel drive, crossed some dotted lines, and collided with the front driver’s side of her car. There is some dispute between the parties about the circumstances of the transport accident, including the speed at which the defendant was driving. It is not necessary for me to determine these issues. I conclude from the plaintiff’s concession that it was a “bump” and not a major collision, and from the small amount damage to her vehicle, the repair to which were estimated to cost $2100, that the collision was a low-impact one.
11 After the transport accident, the plaintiff was very upset at the scene, and was comforted by the defendant. She returned to work but started to feel severe back pain. She was driven home by a colleague.
12 The plaintiff saw Dr Howard, who prescribed Targin. She had physiotherapy and then completed a pain management program in 2014. She had two facet joint injections which provided short-term relief. She was referred to neurosurgeons, Mr Tiew (in December 2013) and Mr Brazenor (in October and December 2015) and a neurologist (Dr Williams) in December 2014.
13 After the transport accident, the plaintiff said that her situation has vastly changed. Her main problem is her constant back pain (which she rates at about 7/10), in the mid and lower back, which radiates into her left thigh.[2] Since completing the pain management course, she has learned to manage the pain by pacing herself, walking and lying down. She avoids activities which exacerbate her pain, such as driving, or leaning forward or bending over. She barely cooks at all anymore, and rarely eats out. If she entertains, she gets takeaway food. She finds it difficult to sit through a movie, but sometimes goes during the day when she can sit or stand. She no longer goes to the theatre, as she is not confident about being able to sit for a whole performance. She walks as much as possible. She wakes in the morning, takes pain killers, stretches and walks. She rests twice per day. She does little housework. She no longer plays tennis. Her day is spent managing her pain. She can no longer take her niece’s son to the park and movies. She has trouble sitting longer than 30 minutes, standing for long periods, bending forward, twisting and heavy lifting. She only drives about 15 minutes at a time, as using the clutch aggravates her left leg symptoms. Back pain interrupts her sleep once per night. She does not believe that she has the capacity to return to work given her poor sitting tolerance, difficulty concentrating, and persistent pain. She “can just manage”[3] to look after herself and gets by doing the basic activities of daily living, housework and attending her medical appointments. According to the history given to some doctors, she has been unable to complete her Master’s degree.
[2] PCB 25
[3] PCB 27
14 She takes 4 Targin and 4 Panadol Osteo per day, and an anti-depressant, Cymbalta. She sees her psychologist, Gabrielle Jacobs, fortnightly.
15 She had planned to work until the age of 65 and then do voluntary work. She is upset and frustrated that her life has become so restricted, that she cannot work, and that as a result she has lost her connection to the social justice system, which gave her life much meaning. She had a strong work ethic. She is depressed and anxious about the future.
16 In cross-examination, the plaintiff agreed that from 1997 onwards she had suffered a number of episodes of serious back pain. She agreed that as at the time of the transport accident, she was still suffering back pain resulting from the fall at work in November 2012. She said that she now goes out about once per month. She has been investigating the possibility of retraining so that in the future she could do some work from home. On a good day she will walk more than 10,000 steps, but on a bad day she does not walk at all.
17 In re-examination, she said that the shooting pain started at the time of the transport accident and has persisted since then. Her back pain since the transport accident is further up her back than it was after her fall at work, and since the transport accident it radiates through the buttock and the top of her left leg. After the fall at work she was able to keep working. Prior to the transport accident she would cook at home many times per week. Now she is limited to cooking a batch of vegetable soup once per week and freezing it.
Angela Osborne
18 Ms Osborne has been a friend of the plaintiff’s for 30 years. She deposed that they used to go walking together a few times per week.[4] Those walks continued after the plaintiff’s fall on the stairs at work. They would go on trips to markets and galleries in the country on the weekend. Shortly before the transport accident, the plaintiff told her she was tired and was going to take a week off work. After the transport accident, she has seen a ‘heartbreaking” decline in the plaintiff.[5] Prior to the transport accident she was confident, strong and physically capable, and dedicated to her work and career. Since the transport accident, she has lost confidence, and needs to move around to minimise her pain. She is not able to go to markets and galleries because of her back pain. She has still not unpacked many of the boxes in her new house, because of her back pain, which is very out of character for her.
[4] PCB 28
[5] PCB 27.3
Radiology
19 CT scan of the lumbosacral spine on 9 February 2013 was reported as showing mild facet arthropathy at L2/3 on the left and bilaterally at L3/4, L4/5 and L5/S1.[6] At L5/S1 there was also a mild posterior central disc bulge or protrusion, without impingement.
[6] PCB 67
20 MRI scan of the lumbar spine dated 6 November 2013 was reported as showing minimal central protrusions which were non neural compressive at T12/L1, L2/3, L3/4 and L4/5.[7] At L5/S1 there was minimal central protrusion and posterior annular tearing. At L3/4, L4/5 and L5/S1 there was minimal bilateral facet arthropathy. The conclusions were reported as follows:
1. No caudal equina syndrome/compression.
2. Minimal to mild multilevel degenerative spondylosis as described that is non neural compressive.[8]
[7] PCB 68
[8] PCB 68-69
21 MRI scan of the lumbar spine dated 1 August 2014[9] was reported as showing, in particular, at L3/4, left foraminal protrusion resulting in mild left neural exit foraminal stenosis, posteriorly displacing the emerging left L3 nerve. At L5/S1, there was a central to right paracentral protrusion at L5/S1 resulting in posterior displacement, hyperintensity and thickening of the emerging right S1 nerve root.
[9] PCB 69.1-69.2
22 MRI scan of the spine on 25 January 2015 was reported as showing in the lumbar spine:
Minimal disc degenerative changes maximal at L2/3 and L3/4 with narrowing and desiccation and minor posterior disc protrusions.
The central canal is adequate throughout the lumbar region.
Further laterally in the lumbar spine, there is no evidence of any significant foraminal compromise.
No compression or other fracture.
Conclusion:
1. Virtually normal spinal examination for age with only minor disc degenerative changes in the typical position of the lower cervical spine and the mid lumbar spine.
2. No evidence of any significant neural compression.[10]
[10] PCB 70-71
23 Nerve conduction studies performed on 4 March 2015 in bilateral lower extremities were reported with findings “consistent with bilateral L5, S1 radiculopathies”.[11]
[11] PCB 72
24 Bone scan of the lumbosacral spine performed on 9 November 2015 was reported with the following conclusion:
Scintigraphic abnormality within the symptomatic lumbosacral spine localises to the region of the L2-3 disc space and the right L4-5 facet joint.[12]
[12] PCB 73
Reports of Treating Doctors
25 Dr Tim Woodruff, rheumatologist, wrote to Dr Howard on 24 June 2013 that he felt that the fall at work provoked pain and muscle spasm from the degenerative changes documented.[13]
[13] Defendant’s Court Book (DCB) 24-25
26 Mr Tiew Han, neurosurgeon, reported on 11 December 2013 a history from the plaintiff of mid to low back pain and right left pain after the fall at work.[14] After the transport accident, she reported a change in her symptoms, with the onset of right sided buttock pain radiating down the rear of her right thigh into the back of the right knee, with intermittent numbness in the right heel and sole. He opined that her symptoms “could be related to degenerative lumbar disc disease”, but noted that the MRI scan of November 2013 showed no cauda equina compression or nerve root impingement.[15] He recommended conservative management.
[14] PCB 35.2
[15] PCB 35.4
27 Dr Isla Williams, neurologist, reported on 19 December 2014 finding apparent muscle wasting on the right side and referred the plaintiff for EMG and nerve conduction study.[16] After receiving the EMG study results, Dr Williams noted, in a letter of referral (for matters not relevant to this application) that the EMG study “revealed changes consistent with bilateral chronic L5-S1 radiculopathies. The MRI of the whole spine (January 25 2015) revealed only minor disc degenerative changes in the cervical and lumbar region.”[17] Dr Williams wrote to Dr Howard on 30 March 2015[18], noting that she sought a second opinion on the MRI of the whole spine from Dr Ian Cox, and “agreed with the previous radiologist that he could see no nerve root compression or cord abnormality in the MRI scan of the spine”.[19] She noted that the fall at work in 2012 might have aggravated the pathology at L5/S1 (bilateral chronic radiculopathies) and suggested neurosurgical review by Associate Professor Graeme Brazenor. On 7 April 2015, Dr Williams reported that the plaintiff’s back condition had not yet stabilised.[20]
[16] PCB 35.15
[17] PCB 35.19
[18] PCB 35.21
[19] PCB 35.21-35.22
[20] PCB 35.27
28 On 8 April 2015, Dr Williams reported to the plaintiff’s solicitors[21] that on the history given, the plaintiff suffered injury to her back at L5/S1 in 2007, but that the fall at work in 2012, along with the transport accident, aggravated the existing pathology at the L5/S1 region.
[21] PCB 35.28
29 On 7 October 2015, Associate Professor Brazenor, neurosurgeon, wrote to Dr Williams that the plaintiff described ongoing pain localising to the sacroccygeal junction, with radiation to the left buttock and upper thigh, as well as pins and needles in what he said was a non-dermatomal distribution.[22] He found no spasm to the lumbar spine. She told him that she was better than she had been. He felt there was no cause for significant back pain or left-sided radiculopathy in the MRI of January 2015. He concluded that he felt that the plaintiff’s problem was a psychiatric and not a physical one.
[22] DCB 36
30 On 14 November 2014, Associate Professor Brazenor wrote to the plaintiff that the “wear and tear” shown on the MRI scan was normal for her age, and that he could not find any other cause for her left buttock pain.[23] He wrote to Dr Howard, on 11 December 2015, to the same effect, namely that her ageing lumbar structures could not cope with her extra weight, and that he could not “demonstrate any form of injury, however slight, from the motor car accident”.[24]
[23] DCB 38
[24] DCB 39
31 On 29 December 2015, Associate Professor Brazenor reported to the plaintiff’s solicitors in similar terms.[25] He noted that when he reviewed the plaintiff in December 2015, he saw the full MRI scan of 25 January 2015, and saw moderately deflated discs at L2/3 and L3/4 and mildly deflated discs at every other level. He felt that she needed to lose 40 kgs in weight. He concluded that he could “find no evidence of spinal (or indeed other) injury sustained by Ms Williams in the motor vehicle accident of 31 May 2013. There is certainly no radiologically evident cause for cauda equina trauma of any degree”.[26] He concluded that she was fit for employment.
[25] DCB 41-43
[26] DCB 43
32 Gabrielle Jacobs, psychologist, reported on 2 July 2017 that she had seen the plaintiff a total of 112 times for counselling since 2014.[27] The diagnosis made is unclear, as the heading on page 4 of her report states “Adjustment Disorder with Mixed Anxiety and Depression”, but the body of the paragraph refers to a primary psychological injury in the form of Post-Traumatic Stress Disorder.[28] However, she noted at page 7 of her report that there have been substantial psychological and emotional consequences of the transport accident related physical injuries.[29] In particular, the plaintiff’s back pain affects her mood, energy levels, sitting and driving tolerances, and her ability to socialise and travel. Her life mainly revolves now around her small flat and immediate neighbourhood. Her income has substantially reduced and she struggles financially. Ms Jacobs felt that the plaintiff would benefit from at least another 12 months of counselling, and that her Adjustment Disorder “is likely to significantly resolve across the next two years”[30] and that her psychological state then would not prevent a return to work. However, Ms Jacobs felt that she would be unlikely ever to be able to return to full-time work because of her level of pain, and the resultant limitations on sitting, standing and concentration.
[27] PCB 42
[28] PCB 45-46
[29] PCB 48
[30] PCB 52
33 The plaintiff’s general practitioner, Dr Duncan Howard, reported on 17 December 2016 and 7 June 2017[31] that both the fall at work and the transport accident have contributed to the plaintiff’s back symptoms. He felt that her quality of life has been clearly affected by all her symptoms (not all of which are relevant to the present matter), but that she was not capable of returning to work in the short to medium term. Any return to work would depend on her symptoms.
[31] PCB 32-35
Medico-legal reports relied upon by the plaintiff
34 Dr Umberto Boffa, occupational physician, reported on 4 November 2013[32] to the defendant’s insurer that the plaintiff had persistent mechanical back pain without radiculopathy, needed referral to a pain management program, and would be able to return to work upon completion of that program. On 16 June 2014, Dr Boffa reported[33] that the plaintiff still did not have a current work capacity due to the transport related chronic back pain, unless that work could be done at home.
[32] PCB 107
[33] PCB 112
35 On 12 May 2015, Dr Robert Athey, psychiatrist, reported to the defendant’s solicitors that the plaintiff told him that before the transport accident, she had a very good job, was happy with life and had planned an overseas trip. She was looking forward to the next ten years of her life, which she felt should be the most enjoyable, and felt that she had been robbed of this.[34] He diagnosed “a significant adjustment disorder (chronic) with mixed anxiety and depressed mood”, secondary to a “stressful situation, in her case adjusting to injury and incontinence”.[35] He considered that the increase of back pain following the transport accident was the cause of her psychological problems. He did not feel that on psychological grounds she could return to work given her impaired concentration and difficulty with decision-making, but suggested a review in 6 months.
[34] PCB 119
[35] PCB 125
36 Professor Richard Bittar, consultant neurosurgeon, reported to the plaintiff’s solicitors on 9 December 2016[36] that he reviewed the three MRI scan reports referred to above at paragraphs 21-23. On examination, she had left-sided paravertebral tenderness over the L4/5 and L5/S1 facet joints with bilateral muscle spasm, but that there was “no evidence of radiculopathy”.[37] He diagnosed aggravation of lumbar spondylosis, with her pain “most likely emanating predominantly from the facet joints in the lumbar spine”.[38] He considered that the diagnosis of facet joint pain was consistent with her symptoms, the mechanism of the transport accident, the examination findings, and the radiological findings. He rejected the diagnosis of a soft tissue injury sustained in the transport accident, because her symptoms would be expected to resolve after a few months but did not do so.
[36] PCB 101
[37] PCB 104
[38] PCB 104
37 He concluded from the history that the plaintiff suffered a pre-existing aggravation after the fall at work in 2012, but that the transport accident “is the dominant contributing factor to her current presentation and to her aggravation of lumbar spondylosis”, because since the transport accident her symptoms have been more severe, more disabling, and have required more substantial treatment.[39] He noted that prior to the transport accident, she was working nearly full-time on slightly modified duties, but felt that as a result of the transport accident she is totally incapacitated for all employment. This is because of her pain, the medication she takes, and the impact of that medication on her cognitive functioning and concentration. He noted that her quality of life had markedly worsened, with less socialising, a cessation of any significant recreational activities, difficulty cleaning her house, and reduced sitting tolerances. He concluded that two-thirds of her current disability is due to the transport accident, with the remaining one-third being due to her pre-existing condition and prior work injury.
[39] PCB 104
38 Dr Michael Epstein, psychiatrist, reported on 20 June 2017[40] that the plaintiff “has developed a Major Depressive Disorder of moderate severity, associated with passive suicidal ideation, together with heightened levels of anxiety mainly contributed to by her chronic pain but also related to non-work-related factors”.[41] He felt that three quarters of her psychiatric impairment was secondary to physical injury (although I note that the physical injury he referred to included back pain, left-sided sciatica, and much worsened stress incontinence “which has remained a major source of distress to her”).[42] He noted that “her quality of life has diminished markedly since her transport accident affecting her work capacity, her relationships and her recreational enjoyment”.[43]
[40] PCB 90
[41] PCB 99
[42] PCB 99
[43] PCB 99
Defendant’s medico-legal reports
39 Mr David Brownbill, consultant neurosurgeon, reported on 25 February 2015[44] that, on examination, he found restriction of thoraco lumbar spinal movements but no objective abnormality of the lower limbs and no signs of radiculopathy. On the information provided to him, he concluded that as a result of the transport accident, the plaintiff “on probability sustained some soft tissue injury to structures about the lumbar spine giving rise to local pain which on description has continued although with a changing position”.[45] Noting the annular tear at L5/S1, he felt that it was prudent for her to avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting, but that from a neurosurgical point of view she could return to her pre-injury duties and hours, although he deferred to the relevant specialties for the assessment of work capacity.
[44] DCB 48
[45] DCB 51
40 On 19 August 2015, Mr Brownbill reported[46] that, having sighted a vocational assessment report, he felt that the proposed employment options of welfare project manager, project coordinator, housing officer, or officer coordinator, conformed to the restrictions he imposed and were therefore appropriate for the plaintiff, although he recommended that she return to work in a graded fashion.
[46] DCB 56
41 On 15 August 2016, Michael Shannon, orthopaedic surgeon, provided an impairment assessment in relation to the sequelae of the fall at work and the transport accident.[47] He felt that the fall at work was significant in the sense that it may have produced some impact on her coccyx, but the symptoms of coccydinia were improving at the time of the transport accident. He noted that the transport accident was low impact and her car was drivable. He concluded:
It is unlikely that such an accident would have resulted in significant injury to the spine, nor have numerous investigations identified any significant spinal pathology.[48]
[47] DCB 67
[48] DCB 72
42 Mr Shannon concluded that he was unable to make an apportionment between the two incidents and the previous back problems.[49]
[49] DCB 74
43 On 10 July 2016, Mr Shannon reported[50] that the plaintiff had a long history of back pain dating back to 2007. He concluded that in the fall at work in 2012, the plaintiff probably “sustained a soft tissue injury to the lumbar spine on a background of chronic back pain, which continued up to and subsequent to the transport accident…”[51] In relation to the transport accident, he noted “this is purely speculative, but it is likely that she sustained a soft tissue injury to her back on a background of longstanding and fluctuating back pain”.[52] He was unable to apportion the contribution in percentage terms of each incident. He felt that no new pathology had arisen as a result of either the fall at work or the transport accident.
[50] DCB 77
[51] DCB 79
[52] DCB 80
44 Associate Professor Peter Doherty, psychiatrist, reported on 17 July 2017[53] that the plaintiff described her level of back pain as ranging between 4.5/10 and 7/0. He felt that many features of a somatic symptom disorder were present, but the full clinical criteria for this condition were not satisfied. He considered whether there is an adjustment disorder with anxious or depressed mood or features of traumatisation, but felt that the current level of psychological symptoms was not of sufficient intensity or strength to justify such a diagnosis. He also felt that there was no Post-Traumatic Stress Disorder condition present. He concluded that the transport accident is not the cause of a current diagnosable psychiatric disorder.[54] There was no psychiatric impairment interfering with the plaintiff’s ability to work or to undertake the activities of daily living, domestic and leisure activities.[55]
[53] DCB 82
[54] DCB 96
[55] PCB 97
FINDINGS AND REASONS
45 I found the plaintiff to be a very straightforward witness, and I accept her account of the impact of the transport accident upon her, in terms of her pain, restrictions, reduced quality of life, and reduced enjoyment of life given her physical inability to manage her pre-injury work, which she loved, or any work at all.
46 I note that although they reached slightly different diagnoses, all the treating and examining doctors, apart from Mr Han (who really did not address the issue) and Mr Brazenor (who concluded in his brief, rather schematic reports that her presentation was psychiatric), concluded that the plaintiff suffered some organic injury in the transport accident. Dr Williams diagnosed an aggravation of the pre-existing pathology at L5/S1. Mr Bittar diagnosed an aggravation of lumbar spondylosis manifested in facet joint pain. Mr Brownbill and Mr Shannon felt the plaintiff had suffered a soft tissue injury in the transport accident, while Dr Boffa diagnosed mechanical back pain. I consider that as a result of the transport accident, the plaintiff suffered an aggravation of her pre-existing lumbar spondylosis, resulting in pain and with the restrictions and consequences deposed by her. I turn to examine the extent of the aggravation caused by the transport accident.
47 Only Dr Boffa, Mr Brownbill and Mr Bittar addressed the restrictions flowing from the plaintiff’s physical symptoms. Dr Boffa felt in mid-2014 that the plaintiff had no work capacity unless the work could be performed at home. Mr Brownbill felt in early 2015 that because of the annular tear at L5/S1, Ms Williams could attempt a graded return to work in jobs involving no prolonged sitting, standing, repeated bending and twisting. Mr Shannon made no comment about these matters in August 2016. Only Mr Bittar addressed these issues in December 2016 when he concluded that the transport accident is “the dominant cause” of the plaintiff’s current presentation, because, since that accident, her symptoms are more severe, more disabling, and require substantially more treatment than prior to the transport accident. I note that the plaintiff has only to establish that the transport accident is a cause of her current organic presentation. Mr Bittar opined that Ms Williams permanently has no work capacity due to the organic sequelae of the transport accident. I note that the plaintiff indicated that she would like to retrain in some capacity so that she could undertake some self-paced work at home and on a part-time basis.
48 I also note the diagnosis of an Adjustment Disorder with anxious and depressed mood made by Ms Jacobs and Dr Athey. Some of her symptoms include distress and upset at her back pain and attendant restrictions. I have taken the Richards v Wylie[56] component of her psychological presentation into account in reaching my conclusions.
[56] [2000] VSCA 50; (2000) 1 VR 7
49 The before and after picture painted by the plaintiff is a dramatic one. Prior to the transport accident, Ms Williams suffered some back pain for which she was taking medication and working a slightly shorter day at the end of the week, she was working full-time in a socially useful occupation which she loved, and she was able to engage in the full range of domestic and recreational activities. She socialised freely and frequently, cooked for herself and friends at home, travelled to the country on weekends with friends, went to the theatre and cinema, and could take out her niece’s young son. She was also undertaking a Master’s Degree. She was taking Oxycontin for her earlier back injury, and an anti-depressant for menopause-related emotional symptoms. As outlined in paragraph 13 above, her life after the transport accident is vastly changed. She suffers daily back pain that is worse than before, in a different location to before, and which requires daily ingestion of strong painkilling medication (4 Targin and 4 Panadol Osteo per day). She no longer socialises, barely cooks, spends her days managing her pain and walking and doing a bit of shopping, and attends her medical appointments. She has given up studying. She cannot work as she did, even though she has a strong work ethic. She misses work, particularly her connection through it to the social justice system. She is upset and distressed at the pain she suffers.
50 I consider on the evidence that even if the plaintiff could retrain so that she could undertake self-paced work part-time at home, she would continue to suffer substantial pecuniary disadvantage.
51 In all the circumstances, I am satisfied that in terms of pain and suffering and/or pecuniary disadvantage, the consequences of the plaintiff’s long-term impairment of the lumbar spine are more than considerable when compared with other cases in the range of long-term impairments of the lumbar spine.
CONCLUSION
52 It follows that leave is granted to the plaintiff to issue common law proceedings in respect of the injuries to the lumbar spine suffered in the transport accident.
53 I reserve the question of costs.
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1
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