Yuan v Transport Accident Commission
[2022] VCC 243
•16 March 2022
,
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00597
| LIHONG YUAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 19 October 2021 | |
DATE OF JUDGMENT: | 16 March 2022 | |
CASE MAY BE CITED AS: | Yuan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 243 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraphs (a) and (c) of the definition of “serious injury” – serious long‑term impairment of the spine – severe long‑term behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries and Anor v Poljak [1992] 2 VR 129; Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie (2000) 1 VR 79; Randhawa v Transport Accident Commission [2021] VSCA 135
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Winneke QC with Mr L Howe | Henry Carus & Associates |
| For the Defendant | Mr P Y Rattray QC with Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
Introduction
1Li Hong Yuan seeks leave to commence a proceeding to recover damages for injuries allegedly suffered in a transport accident. She relies on paragraphs (a) and (c) of the definition of “serious injury” in s93(17) of the Transport Accident Act 1986 (“the Act”). For paragraph (a), “serious injury” means a serious long-term impairment or loss of a body function and, for paragraph (c), it means a severe long-term mental or severe long-term behavioural disturbance or disorder.
2Ms Yuan relied on her affidavits and gave oral evidence.[1] She also relied on the affidavits of her husband and son. Many medical and other reports were admitted into evidence.
[1] Affidavits sworn 21 June 2019 and 3 September 2021
3Owing to a lack of time, the parties made written submissions.
4The defendant’s position is:
(a) Ms Yuan’s post-accident clinical picture substantially mirrors her pre-accident state;
(b) there are multiple contributors to her injuries both before and after the accident;
(c) Ms Yuan presents with aggravations of pre-existing injuries, organic and psychological, and disentanglement of the injuries and their consequences is an issue in terms of Petkovski v Galletti.[2]
[2] [1994] 1 VR 436
Circumstances
5Ms Yuan is now sixty-one. She was born and raised in China. She completed tertiary studies in China, studying the French language and its literature. After graduation, she worked as a full-time university teacher for seven years. Later, she returned to teaching in a university on a part-time basis and also worked in sales in an import and export company. She is married with a son.
6In 2006, Ms Yuan, her husband and son migrated to Australia. Unfortunately, her skills went unrecognised and she could only find work as a shop assistant in what she describes as a “$2 shop”. This was full-time work, which finished in the latter part of 2015 because her mother became ill and she cared for her until the transport accident occurred.
7Before the transport accident, Ms Yuan was an active person. Part of her evidence was a series of photographs taken in 2014 and 2015 depicting her at Wine Glass Bay in Tasmania, at Kangaroo Island, in Queensland, Wandin East, at the Elizabeth Cowan Reserve and in Switzerland. In Switzerland, she was able to hike and walk long distances in relatively rough terrain.
8Ms Yuan has attended Dr Tan, general practitioner, since about 2010. She received treatment for her sleep problems. She suffered from a racing heart. She undertook tests and wore a monitor. She had treatment for pains in both upper limbs.
Transport accident
9On 6 May 2016, while a passenger on a bus, Ms Yuan was thrown towards the front of the bus. Since she was facing the rear of the bus at the time, she landed heavily on her back and buttocks. She suffered injury to her lower back. She also suffered mental stress and behavioural disturbance including anxiety and depression.
10A more detailed account of the accident was given to the psychiatrist, Associate Professor Paoletti:[3]
“… She was on a bus which stopped at a bus terminal. Everybody was getting ready to get off. The driver must have thought that he was not positioned properly and went to move again. She was standing at the back door and fell to the floor ‘all the way from the back door [to] next to the bus driver’. She does not remember whether she hit her head or her bottom first.”
[3] Report dated 11 April 2019 at p 4
Aftermath
11After the accident, Ms Yuan’s son attended the accident scene and drove her to the Box Hill Hospital. She remained there until 12 May 2016, when she was transferred to a rehabilitation facility in Forest Hill, Peter James Centre.
12CT and MRI scans performed on 7 May 2016 showed an undisplaced transverse fracture of the sacrum, a shallow right paracentral disc protrusion at C5-6, mild, multilevel lower lumbar disc degeneration with no significant central canal or neuroforaminal stenosis anywhere.
13When Ms Yuan returned home, she struggled due to her back pain. She had difficulty cooking, cleaning and activities such as showering herself. Before the accident, she cared for her mother. After, she could not, and her mother needed to be placed in a nursing home. This left Ms Yuan feeling guilty.
14During November 2016, Ms Yuan travelled to China with her mother. While there, she underwent a health check and it was discovered she had thyroid cancer. Although the Chinese doctors wanted to operate, she returned to Australia that month. On 20 December 2016, Australian practitioners operated. After which, she underwent a course of radiotherapy.
15Ms Yuan has received treatment from Dr Tan’s clinic for many years, both before and after the accident. With this diagnosis and the need for surgery, the issue of her back faded, for the next entry in the clinical notes mentioning her back occurs on 2 February 2017. There, the record of back pain appears subsidiary to complaints about anxiety, depression, insomnia and problems with her voice following treatment for thyroid cancer.
16With the defendant’s assistance, she was given domestic aids including a “pick up stick” and an extendable handled duster.
17In February 2017, owing to her depressed state, her general practitioner referred her to a psychiatrist, Associate Professor Wong. She also saw a psychologist, Dr Lin, but stopped seeing him after two sessions because his counselling did not help.
Current state
Pain
18Ms Yuan continues to suffer from constant lower back pain. It is worsened by any form of movement. This is the most severe pain she experiences for she suffers pain elsewhere, in her upper back, neck, legs and right shoulder. She attributes the last to her use of a walking stick. She needs to change her posture, whether sitting, standing or lying down, to relieve her pain.
Treatment
19She sees Dr Tan about monthly. She also sees Dr Hau. The latter speaks better Chinese and is closer to her home.
20She received physiotherapy, which provided temporary relief. This treatment has been interrupted by the pandemic.
21She now prefers Chinese to Western medicine. She attends Dr Lu, who practices traditional Chinese medicine. She receives acupuncture and is given a powder, made of various herbs, to treat her insomnia, depression and anxiety. She finds Chinese medicine expensive. She sees Dr Lu whenever she can afford it. Nevertheless, she still takes two kinds of “Western” pain-relieving medicines: Panadeine Forte; and a medicine she calls “Panadol Os”. It appears she does not take these medicines every day but when she does, takes up to six tablets a day, two at a time. She also takes duloxetine and Endep for her mental health. These are prescribed by a psychiatrist, Dr Herur. There is another medicine prescribed by Dr Lim. She thinks its name is “Cladtinyl”. She does not know the reason for its prescription.
Walking
22Before the accident, she walked daily. Since her walking distance is limited now to about 100 metres, she does not leave the house unless in the company of her husband and then restricted to attending medical appointments and shopping at a supermarket. For those outings, she prepares by resting beforehand and taking pain-relieving medicine.
23Before the accident, Ms Yuan hiked with her husband and son on weekends. They would spend the day walking. They travelled to sites in Victoria and Tasmania to walk including the Dandenong Ranges and the Grampians. She no longer hikes.
Dancing
24Before the accident, she attended dancing classes at least once a week. It was an outing and kept her fit. She has not returned to the classes since the accident.
Tai Chi
25Ms Yuan considered herself a very active person. One of her activities before the accident was the exercises of Tai Chi. No longer does she practise Tai Chi. Although she does a “very gentle stretching routine” recommended by her physiotherapist, this is very different from the exercises of Tai Chi.
Singing
26She loved singing before the accident. It was not done in any formal sense. She would listen to music and sing along with it. She has not done that since the accident.
Domestic duties
27Her husband stopped working in order to care for her. He has assumed all of the domestic duties she performed before the accident including cooking, cleaning and gardening. She tried cooking after the accident but found the standing and bending aggravated the pain in her back.
Mother
28Before the accident, Ms Yuan cared for her mother. She could not do so after the accident. Consequently, her mother was placed in an aged care home. Owing to her background, this decision particularly affects her:[4]
“Caring for the elderly family members is a part of my culture and I feel like a failure for not being able to do this. It has a very major impact on my mental state.”
[4] Affidavit sworn 3 September 2021 at paragraph [18]
Sleep
29Before the accident, Ms Yuan slept poorly. Since the accident, her sleep has worsened due to the lower back pain. She has difficulty falling asleep. If asleep, she wakes after two hours. Often she will wake “multiple” times during the night. This disrupted sleep leaves her tired and lethargic the next day and in a bad mood.
Suicide
30Since the accident, her predicament has left Ms Yuan thinking about suicide. Candidly, she does not believe she could commit suicide.
Her husband
31Liu Gen Sun is the husband of Ms Yuan.[5]
[5] Affidavit sworn 3 September 2021
32At the time of the accident, he was working in a Chinese restaurant. Owing to his work commitments and his inability to care for his wife and mother-in-law, saw the latter placed in an aged care home. Due to the degree of his wife’s incapacity, in 2017, he stopped working and became her full-time carer.
33In his affidavit, he speaks of the significant changes in his wife since the accident involving her experience of pain, her inability to walk any but short distances, her use of a walking frame and stick, her inability to perform domestic duties, her inability to sleep well and the change in her mood and demeanour. There has been a large effect on their marriage:
“… Our marriage is now significantly strained and we are effectively separated living under the same roof.
Our intimate life is non-existent. … .”[6]
[6] At paragraphs [23] and [24]
Her son
34Yi Sun is the son of Ms Yuan.[7] At the time of the accident, he had partly moved from the family home. Owing to his mother’s condition, he moved back home to care for his mother and do household duties. Before the accident, he describes an active mother, which contrasts starkly with the person he describes after the accident. This includes her early use of a walking frame, followed by her regular use of a walking stick.
[7] Affidavit sworn 5 October 2021
Treating practitioners
Pre accident
Dr Tan
35Dr Elaine Tan is a general practitioner. She has attended Ms Yuan for many years, before and after the accident.
36An examination of her clinical notes regarding Ms Yuan reveal a long history of insomnia, anxiety and depression. She has been prescribed Circadian for insomnia, and the anti-depressants, Aropax, Lexapro and Endep. There have been widespread complaints of pain affecting all of her joints, back, neck, shoulder, hands and legs. Apart from those notes, she was treated by a physiotherapist in 2015 and March 2016 and, as recently as 13 February 2016, Dr Tan noted her insomnia and wish to see a sleep specialist.
Western Health
37Also before the accident, Ms Yuan attended Western Health, mainly for her longstanding sleeping problems.
Dr Li
38Dr Qiang Li is a consultant physician and rheumatologist. Dr Tan referred Ms Yuan to Dr Li for advice, whom she examined in about February 2016.[8]
[8] Report dated 22 February 2016
39Mrs Yuan told her of ten years of generalised arthralgia and myalgia which has been worse in the last three to five years. There was pain in her wrists, hands, neck, back, elbows, shoulders, hips, ankles and feet. The pain is constant and worse with activities. Her joints feel hot but there was no joint swelling. There was early morning stiffness lasting about 30 minutes. Her pain worsened after working in physical jobs in Australia.
40Dr Li noted a previous history of alopecia, mouth ulcers, photosensitive rash, breathlessness and chronic chest discomfort. Ms Yuan was previously seen at a rheumatology clinic and put on Plaquenil with some improvement. Ms Yuan stopped the treatment.
41Dr Li also noted a history of anxiety, depression, poor memory, poor concentration and difficulty sleeping and previous treatment for depression.
42Dr Li’s impression was possibly mild systemic lupus erythematosus and centralised pain amplification syndrome/fibromyalgia. Overwhelmingly, Ms Yuan’s symptoms are related to fibromyalgia/chronic centralised pain amplification syndrome in association with underlying psychosocial stress factors.
43As to treatment, Dr Li recommended daily Panadol Osteo, restarting Plaquenil, regular aerobic exercise (swimming, Tai Chi) and daily Endep.
44Dr Li arranged a further appointment but Ms Yuan did not attend.
Box Hill Rheumatology Clinic
45A practitioner at the Box Hill public Rheumatology Clinic saw Ms Yuan on 22 March 2016.[9] The practitioner’s impression was most likely systemic lupus erythematosus but also a degree of central sensitisation, adding, clinically, she had rotator cuff tendinopathy and bilateral gluteal tendinopathy.
[9] Report dated 22 March 2016
46For treatment, the practitioner recommended daily Plaquenil, trialling Mobic, an exercise programme and physiotherapy. Although a review was anticipated, it appears Ms Yuan did not re-attend.
Post-accident
Box Hill Hospital
47As I said earlier, Ms Yuan was taken to the Box Hill Hospital. CT scans revealed an undisplaced transverse fracture of the upper portion of the third sacral segment. This was the principal diagnosis of the injuries suffered in the accident.
Peter James Centre
48The Peter James Centre is part of Eastern Health. It offers rehabilitation services. Upon her discharge from the hospital on 12 May 2016, Ms Yuan attended the Centre. She was discharged on 1 June 2016. In its discharge summary, the Centre noted, among other things:
(a) Ms Yuan was transferred from the hospital for rehabilitation following a undisplaced sacral fracture. There was no evidence of cauda equina injury or nerve damage on MRI scans. However, there was some residual weakness affecting the right-hand side, likely due to some neuropraxia;
(b) her pain was managed with a combination of Targin, pregabalin and paracetamol and was not limiting function. Her weakness resolved. She was able to mobilise independently with a walking frame;
(c) a clinical psychologist suggested that she needed referral to a chronic pain specialist, for Ms Yuan believes this fractured sacrum will be a long-term health problem despite multiple attempts to tell her it should not be.
Ms Cooper
49Dianne Cooper is an occupational therapist. On 30 August 2016, she assessed Ms Yuan for the purposes of transport accident benefits.[10]
[10] Report dated 15 September 2016
50Ms Cooper noted the following complaints:
· constant pain from the base of skull down the entire spine to the tip of the coccyx;
· constant right and left hip pain with the right greater than the left;
· difficulty walking and moving about;
· right elbow pain;
· chest pain;
· sleep disturbance with difficulty getting to sleep and waking after one hour;
· feeling very low, upset and frustrated.
51To Ms Cooper, Ms Yuan was reluctant to participate in a physical assessment as she reported this caused higher levels of pain. She noted limited mobility (including sitting and standing) and walked with walking aids. She recommended physiotherapy and the provision of an electric scooter.
52From a psychological perspective, Ms Cooper noted Ms Yuan reported feeling very low, upset and frustrated since the accident due to the ongoing pain and physical limitations. She was also frustrated at the lack of understanding and physical assistance from her husband. Ms Cooper felt she had psychological barriers to her recovery including: increased anxiety levels. Her physical function had been slow to improve due to the anxiety that increasing her activity levels will increase her pain levels; a limited understanding of the relationship between pain and inactivity and requiring further education in this regard; and appearing to be a very cautious person who is cautious of strangers entering her property. Ms O’Connor recommended a referral to a psychologist.
Dr Lin
53Dr Shu Huei Lin is a clinical psychologist. Dr Lin saw Ms Yuan on 1 March 2017.[11]
[11] Report dated 1 March 2017
54From her psychological perspective, Ms Yuan’s symptoms had worsened due to an unexpected diagnosis of advanced papillary thyroid carcinoma. There had been surgery with radiotherapy to follow.
55Dr Lin commented:
“Ms Yuan strikes me as a sensitive, insecure, but caring and independent woman who is very family-oriented. She demonstrates little curiosity toward exploring her psychological difficulties and focuses very much instead upon her insomnia, for which I understand that she has been treated with various medications, none of which she could name, and all to little effect.
Ms Yuan admits to ideas of suicide but denies having made any immediate plan to do so. … .”
56Dr Lin thought a trial of antidepressant might help Ms Yuan manage her anxiety and depressive symptoms. Although Dr Lin planned to call her, it appears there was no further contact.
Dr Tan
57I have already referred to Dr Tan in the pre-accident period.
58Relying on CT and MRI scans taken in the days following the accident, she identified an undisplaced transverse fracture of the third sacral segment, a shallow right paracentral disc protrusion at C5-6 and mild lower lumbar disc degeneration with no stenosis.
59Since the accident, Ms Yuan has always complained of lower back pain but “her clinical presentation is definitely more marked compared to her mild radiological findings”.[12] Her lower back pain was predominantly over the lower sacrum. Occasionally, it radiated to the lumbar region and to the buttocks and knees. Her lower back pain had not responded to treatment.
[12] Report dated 23 September 2021.
60Ms Yuan suffered from anxiety, depression and insomnia before the accident. To Dr Tan, these conditions escalated significantly after the accident. Treatment has not been successful despite different anti-depressants and psychological and psychiatric treatment.
61In attempts to counteract these conditions, different forms of psychological treatment has occurred. For instance this is an extract from a November 2016 letter from Dr Tan to a psychologist, Joe Mollica:[13]
“… She has been assessed by the OT who felt that she would benefit from Psychological treatment to assist with pain management, reducing her anxiety levels, education about the recovery process and compliance with attending treatment … .”
[13] Letter dated 10 November 2016
62In her reports, Dr Tan repeatedly said Ms Yuan’s psychological state was blocking her recovery and she could not foresee improvement until her psychological state was treated successfully.
Associate Professor Wong
63Associate Professor Michael Wong is a consultant psychiatrist. Dr Tan referred Ms Yuan to him for an opinion.[14]
[14] Reports dated 22 November 2017, 30 January 2020, 29 April 2021 and 23 September 2021
64On examination, Associate Professor Wong found her to be anxious and depressed with no psychotic or manic symptoms and not suicidal. Her cognition was normal and insight and judgement, reasonable.
65To Dr Wong, the clinical picture was an Adjustment Disorder with Anxiety and Depressed Mood. He suggested changes to her antidepressant medicines and suggested medicines to assist her insomnia. Apparently, he did not see her again.
Associate Professor Lim
66Associate Professor Keith Lim is a consultant rheumatologist. He saw Ms Yuan on 12 December 2019 because of what was then thought to be systemic lupus erythematosus. Although originally diagnosed as that form of lupus, Associate Professor Lim changed the diagnosis to a mild form of connective tissue condition.[15] This condition caused mild joint pains, and some coldness of her hands. He noted Ms Yuan had some signs of osteoarthritis of her fingers. He did not expect any long-term joint damage or major disability due to the connective tissue condition.
[15] Reports dated 12 December 2019, 30 January 2020 and 23 September 2021
Dr Herur
67Dr Jagadeesh Herur is a consultant psychiatrist. At the request of Dr Tan, he saw Ms Yuan on 26 February 2020.
68Dr Herur diagnosed chronic dysthymia associated with periodic panic symptoms, generalised anxiety symptoms and some chronic REM behaviour disorder symptoms. He recommended Duloxetine and Endep and discussed other medicines.
69Dr Herur saw her again on 28 October 2020. To him, she appeared as a reactive person with only mild dysphoria in relation to chronic pain and poor sleep. Her claims about poor sleep appeared in excess of what could be expected of low-grade residual depressive features.
Ms Lumsden
70Ms Juy Lumsden is a physiotherapist. She saw Ms Yuan on reference from her general practitioner.[16] Judging from the dates in her reports, she did so initially in December 2020.
[16] Reports dated 1 December 2020 and 23 December 2020
71Ms Lumsden’s examination revealed high levels of guarding and protection through gait and active lumbar movements. There was tenderness on palpation of the surrounding lumbo-pelvic musculature. Ms Yuan had a full knee range of motion, with pain particularly through the medial joint line and on meniscus testing. Crepitus was felt during passive range of motion testing.
72Ms Lumsden’s impression was overactivity and de-conditioning as the causes of Ms Yuan’s lower back pain while her knee was arthritis related.
73Ms Lumsden set up an exercise programme aimed at improving mobility and strength. Ms Yuan undertook the programme and three weeks later, Ms Lumsden commented:[17]
“Lihong has been progressing very well with their [sic] rehabilitation.
At our last session Lihong reported a much improved pain response through her right side of her lumbar spine.
On physical examination, Lihong showed end of range pain in lumbar flexion and extension, an improved squat and a confident and safe gait without the Single Point Stick.
I have encouraged Lihong to continue their [sic] home exercise program and to trial shorter walks without aide.”
[17] Report dated 23 December 2020
Dr Hau
74Dr Tah Wei Hau is a general practitioner at the same clinic at which Dr Tan practised.[18] Since Dr Hau had seen Ms Yuan only three times, there is little to be gleaned from her report except the complaints:
“Mrs Yuan has pain over [the] sacrum as well as [the] whole back. Mrs Yuan told me she has weakness in both legs but worse on the right. Mrs Yuan said she is still struggling to sleep, can only sleep 1 hr. She is unable to lie supine or sit properly, and she needs to sit or lie sideways.”
Medico-Legal reports
[18] Report dated 8 October 2021
Associate Professor Paoletti
75Associate Professor Nick Paoletti is a consultant psychiatrist. At the request of the parties, he interviewed Ms Yuan on 11 April 2019 for the purposes of an impairment assessment.
76Associate Professor Paoletti diagnosed Ms Yuan as suffering from:
(a) an Unspecified Anxiety Disorder with traffic anxiety and some features of trauma;
(b) an Unspecified Depressive Disorder;
(c) a likely Somatic Symptom Disorder with Predominant Pain.
77Causally, the accident was a “significant contributing factor” to the above disorders. Although noting there are background issues at play including the history of depression, Associate Professor Paoletti considered the most salient factor to the Anxiety Disorder was the accident, with subsequent anxiety as a passenger on buses and cars, and total avoidance of driving, as well as some symptoms of a traumatic type.
78Regarding the depressive condition, there were contributions from her past history and medical problems. The accident provided a new component through increased pain and altered lifestyle. The effect of this component peaked in 2018 when Ms Yuan contemplated suicide. In 2019, it was more settled.
79As to the Somatic Symptom Disorder, Associate Professor Paoletti said:[19]
“I note from the notes that the GP has attempted with no success to convince Mrs Yuan that the sacral fracture should not have long term consequences. | am sure that the pain is genuine, but there is likely amplification by psychological factors. Also, the more generalised pains, previously present with the SLE, have much deteriorated. Hence a diagnosis of somatic symptom disorder with predominant pain appears warranted.”
[19] At p 12
80Since Associate Professor Paoletti was conducting an impairment assessment, he assessed Ms Yuan as having a psychiatric impairment of 25 per cent and apportioned 10 per cent to pre-existing/intercurrent factors. Of the remainder, he allocated 3/5th to “direct” (traffic anxiety and features of trauma) and 2/5th to consequential psychiatric impairment.
81As to prognosis, the outlook was static for the foreseeable future, and, overall, guarded.
82Regarding her capacity for work, he said:[20]
“From a psychiatric point of view, she would have no meaningful or sustainable work capacity in her current mental state.
This is li[k]ely to apply to the foreseeable future.
Given the passage of time since the accident and the level of symptoms, her occupational prognosis is poor.”
[20] At p 14
Dr Kennedy
83Dr David Kennedy is a sports and industrial physician. At the request of the parties, he examined Ms Yuan on 3 April 2019.
84On examination, Dr Kennedy found poor stability, with tenderness over the sacrum particularly on the left with tenderness over both sacroiliac joints, worse on the left side. There was tenderness over lower lumbar intervertebral discs and posterior facet joints from L4 to S1. There was asymmetrical loss of active range of motion. There was tightness and tenderness over the erector spinae and paravertebral musculature extending into the thoracolumbar region and also into the parascapular region. There was tenderness over lateral hip joints, worse on the left but good range of hip motion.
85Dr Kennedy diagnosed myofascial injuries to the lumbosacral spine, as well as an undisplaced fracture of the upper portion of the third segment of the sacrum. He noted minor problems with the hip and back before the accident, not requiring specific treatment before the accident. He noted significant problems following the accident with her lower back and hemipelvis, extending into the hip region. He considered the injuries to the lumbosacral spine consistent with the description of the accident without obvious discrepancies between her current presentation and the clinical findings on examination.
86The prognosis was guarded with the expectation the lumbar spondylotic changes would worsen over time and cause further problems in Ms Yuan’s lumbosacral region.
Dr Sullivan
87Dr Richard Sullivan is an interventional pain specialist and anaesthetist. At the request of the parties, he examined Ms Yuan on 1 August 2019.[21] Apart from the report arising out of his examination, Dr Sullivan provided two supplementary reports.[22]
[21] Report dated 1 August 2019
[22] Reports dated 8 and 13 October 2021
88Dr Sullivan records Ms Yuan as telling him of “no substantial past medical history and no history of accidents, illnesses or injuries that would otherwise account for her presentation aside from the details below”.[23]
[23] At p 2
89Pausing there. The Commission raised the apparent inadequacy of Dr Sullivan’s understanding of Ms Yuan’s pre-accident medical and psychological history. Many medico-legal practitioners set out the medical and other reports given them by solicitors for the purposes of seeking their opinion. Dr Sullivan does not. Attached to the written submissions filed on behalf of Ms Yuan is the joint letter of engagement. The letter has two attachments, with the second comprising a list of various medical and other reports accompanying the letter. There are twenty such reports including a report from Dr Qiang Li, quaintly not the report admitted into evidence, but presumably mentioning a “central sensitisation syndrome”. Finally, for the purposes of his third report, Dr Sullivan was given the clinical records of Dr Tan’s clinic between 29 September 2009 and 10 September 2018.
90Ms Yuan nominated two areas of her worst pain, in order of severity: on the right side adjacent to the right posterior superior iliac spine and along the right iliac crest; and adjacent to the S3 region on the left side. Additionally, Ms Yuan complained of pain extending throughout her low back, buttocks, hips, anterior thigh and into her mid and upper thoracic region and right shoulder. The last she attributed to her use of a walking stick and frame.
91On examination, Dr Sullivan considered Ms Yuan demonstrated some exaggerations in terms of pain behaviour being unable to adopt an upright posture. There were limitations in flexion and extension and “she was unable or willing to adopt an upright posture because of aggravation of back and sacral pain”. There was significant tenderness to palpation in the paravertebral musculature below the rib margin extending down and into the gluteal region.
92As to diagnosis, Dr Sullivan considered she had suffered a fracture to her S3 sacral segment and to her right sacral ala due to the accident. From these injuries, she developed a chronic pain condition in her low back, gluteal regions and sacrococcygeal area.
93As to treatment, Dr Sullivan recommended Ms Yuan be seen by a pain physician with access to a multidisciplinary team for further pain management.
94As to prognosis, Dr Sullivan said:[24]
“Whilst the initial fractures have likely healed, Mrs Yuan has developed a chronic pain condition, which is a post traumatic chronic pain condition characterised by the pathophysiological process of central sensitisation. In addition to this, I believe that there is likely psychological sequela consequent to the chronic pain condition and a behavioural component presenting as exaggerated pain behaviours. However, I believe that the majority of her presentation is organic and that this organic presentation leads to her substantial functional limitations and that these limitations due to her organic condition will likely to [sic] continue into the foreseeable future.”
[24] At p 4
95Dr Sullivan considered she had no capacity for employment. Since the chronic pain condition is likely to continue into the foreseeable future, her incapacity for work was likely to continue indefinitely.
96The views of Dr Lefkovits expressed in his report of 6 April 2020 led to Dr Sullivan fleshing out his reasons for diagnosing Ms Yuan as suffering from an organic pain disorder:[25]
“… I agree with Dr Lefkovits that your client Li Hong Yuan presents consistently with a clinical diagnosis of a chronic pain condition affecting her lower back and sacral region caused by the physiological process of central sensitization.
All of the clinical examination findings noted in the reports of Dr Lefkovits are completely consistent with the physiological process and presentation of central sensitization syndrome[,] chronic pain syndrome or nociplastic change (these terms are commonly used interchangeably in the medical literature).
I do not agree with Dr Lefkovits[’] assertion that central sensitization or the chronic pain condition is a non-organic process.”
[25] Report dated 8 October 2021 at pp 2-3
97In answer to a question posed by Ms Yuan’s solicitors, Dr Sullivan explained:[26]
“Central sensitization is a maladaptive physiological process that occurs principally in sensory nerves of the spinal cord especially those pertaining to the dorsal horn and the dorsal root ganglia at spina levels but also encapsulates ascending neural transmission and can lead to an impoverishment of descending inhibitory pathways.
It is a condition of the central nervous system whereby alterations in neuronal function in the somatosensory system results in pain amplification, persistence of pain experience and results from alterations in neuronal function occurring at a cellular level that cannot be identified on radiological examination.
Whilst the impact of having chronic pain through the process of central sensitization may result in worsening of a psychological state or indeed may precipitates [sic] onset of a psychological condition such as depress[ion] and or anxiety.[,] It is manifestly not a psychological condition in and unto itself (please see above and please refer to bibliography below).
As such in answer to your question, central sensitization is entirely a pathophysiological process.”
[26] At p 3
98As to causation, Dr Sullivan affirmed his view:[27]
“Your client Ms Yuan was otherwise fit and well aside from her treated psychological condition and quiescent arthritic condition prior to the road traffic accident. As a consequence of the road traffic accident, she sustained a traumatic injury to her sacrum (undisplaced fractured alar). This injury has in term [scil turn] triggered the processes resulting in the pathophysiological change resulting in central sensitization and her development of the chronic pain condition (also referred to as nociplastic change in the literature).”
[27] At p 4
99Dr Sullivan provided a further supplementary report. To do so, he read a report of Associate Professor Lim, dated 29 September 2021, and the clinical notes of the Plaza Medical Centre between 29 September 2009 and 10 September 2018. This information did not change any of Dr Sullivan’s opinions expressed in his August 2019 report.
Dr Low
100Dr Bruce Low is an orthopaedic surgeon. On 22 July 2021, he examined Ms Yuan at the request of her solicitors.
101To Dr Low, there was a fractured sacrum. There was no neurological loss. It was an uncomplicated, stable closed injury.
102Dr Low was aware of her extensive treatment for various complaints before the accident. He contrasted those complaints with Ms Yuan’s post-accident complaints.
103As to Ms Yuan’s treatment, Dr Low noted she took six tablets of Panadol daily and anti-psychotropic drugs for depression and sought treatment from a general practitioner, a practitioner in Chinese medicine and a psychologist.
104Ms Yuan complained of constant pain, particularly bad in the lumbar spine (including the lumbo-sacral region) and in the posterior pelvis, the sacroiliac, buttocks and the lateral hips and thighs. The pain stops her doing virtually everything and makes her depressed. She manages the pain by not doing anything and taking Panadol.
105Through his audio-visual examination, Dr Low noted marked restrictions in flexion, extension and rotation of the neck. There were no restrictions of movement in her shoulders. She could move her elbows, wrists and hands. She could stand independently. She walked very slowly and had hardly any bend in her spine.
106The diagnosis was a transverse fracture to the third segment of the sacrum due to the accident. It also caused widespread musculo-ligamentous injuries to the neck, thoracic and lumbar spine and aggravation of degeneration in the neck, thoracic spine and lumbar spine. Finally, there was a Chronic Pain Syndrome affecting the whole of the spine, but principally the lumbar spine and lumbosacral area, and sacrococcygeal and sacroiliac and buttock areas now.
107As to prognosis, Dr Low was decidedly pessimistic:[28]
“She has a past history of inflammatory arthritis with widespread aches and pains before the accident. To a certain extent there has been an aggravation of the pre-existing condition but the concentration of pain in the lumbosacral and sacrococcygeal regions is due to this injury. There is no cure. A pain clinic might have something to offer her. She has no work capacity, which is indefinite, and she will need a carer. …”.
[28] At p 8
Dr Weissman
108Dr David Weissman is a consultant psychiatrist. On 3 August 2021, he interviewed Ms Yuan, at the request of her solicitors and, perhaps, the Commission also.[29] He conducted a psychiatric impairment assessment.
[29] Report dated 3 August 2021
109As to her mental state examination, Dr Weissman noted she spoke in Mandarin. Her voice was very soft in volume. Her speech was slow and monotonous which was strongly suggestive of depression-related psychomotor retardation.
110As to her effect, its quality appeared to be very depressed and very anxious and worried, somewhat frustrated, irritable and agitated (though contained), and perhaps slightly paranoid. Ms Yuan did not smile at any stage of the interview. Her affect was markedly flat, subdued and restricted in range consistent with psychomotor retardation.
111As to the content of her thinking, it revealed mild to moderate classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the accident.
112Ms Yuan also referred to the emotional distress, fear, feeling frightened and scared and traumatised during her five-week admission to Peter James Rehabilitation Centre. To Dr Weissman, this was partly a non-secondary psychiatric phenomenon because it occurred in the early aftermath after the accident. But also, it is part of a secondary, reactive or consequential phenomenon. The content of her thinking revealed a moderately severe to severe fairly sustained, pervasive and persistent depressed and anxious mood state with intermittent passive suicidal ideation (but no current suicidal plan or intent), hopelessness, helplessness, worthlessness and uselessness, and partial anhedonia. She reported some mild quasi-psychotic or pseudo-psychotic symptoms and features, namely persecutory/paranoid ideation most probably not of delusional intensity/quality.
113As to cognition, although not formally assessed, he observed moderate slowing of some of her cognitive functions which is apparently psychiatrically based but did not exclude the possibility of a separate organic basis for this slowing.
114Dr Weissman found it difficult to assess her insight and judgment but her confidence and self-esteem appeared extremely low.
115As to diagnosis, Dr Weissman considered the accident and its aftermath had caused a mild to moderate Chronic Post-Traumatic Stress and Anxiety Syndrome, falling short of a Post-Traumatic Stress Disorder.
116Second, the accident had aggravated, at least to a moderate degree, the existing chronic dysthymia so that it had evolved into a Major Depressive Disorder with anxious distress. Symptomatically, this disorder is now of a moderately severe intensity with quasi-psychotic or pseudo-psychotic symptoms and features.
117Third, the accident aggravated the existing Chronic Pain or Somatic Symptom Disorder.
118Overall, the aggravation of the pre-existing condition was moderately severe. However, Dr Weissman considered Ms Yuan still suffered from physical injuries due to the accident.
119As to capacity for work, on purely psychiatric grounds alone, Ms Yuan remained totally incapacitated for all potential suitable paid employment.
120As to prognosis, Dr Weissman considered before the accident her psychological prognosis was uncertain and guarded and probably only fair. Now she is suffering a moderately severe to severe group of accident-related psychiatric conditions and mental injuries in addition to her pre-existing problems, and her psychiatric prognosis for the future is extremely uncertain and guarded and likely to be very poor, negative and unfavourable.
Dr Lefkovits
121Dr Robert Lefkovits is a consultant physician. On 6 April 2020 and 16 August 2021, he examined Ms Yuan at the Commission’s request.
122Ms Yuan’s main complaint was of pain in the sacrum, buttock region and radiating along to the cervical spine.
123On examination, he found Ms Yuan had a markedly stooped posture, and a marked tilt to the left favouring her right side. He felt there was significant abnormal illness behaviour being demonstrated. She had no deformity of the cervical or thoracolumbar spine, no deformity of the sacrum and variable tenderness on percussion of her sacrum, gluteal area bilaterally and along the axial skeleton. There was no abnormality of the upper limbs. On measurement, there was no wasting of the right lower limb compared to the left at 10 centimetres above the knee and at midcalf level. There was collapsing weakness of the right lower limb and although there were some diminished reflexes, they were present and global sensory changes throughout the right lower limb compared with the left. There was no evidence of inflammatory arthritis.
124As to diagnosis, Dr Lefkovits said Ms Yuan suffered an undisplaced fracture of the sacrum with no evidence of cauda equina injury or nerve damage. She had developed significant non-organic symptoms in the context of a person who had previous documented psychological/psychiatric issues. He felt a formal psychiatric review would be vital to determine what, if any, contribution her current symptomatology is as a result of the accident. He was not convinced there was any ongoing organic disability or incapacity as a result of the accident.
125Finally, Dr Lefkovits considered her prognosis was dependent on the non-organic condition and she had no capacity for work and activities of daily living due to non-organic factors.
126Dr Lefkovits re-examined Ms Yuan on 16 August 2021.[30]
[30] Report dated 16 August 2021
127He maintained his view of abnormal illness behaviour. He observed Ms Yuan struggle to get in and out of her chair and onto the examination couch. He noted there was no evidence of loss of lumbar lordosis, but there was slight scoliosis with convex to the left. She was tender over the lower sacrum and tender along the lumbar spine as far as the lower thoracic spine to T10. There was no paraspinal muscle spasm evident. She was tender along the paraspinal muscle groups to a varying degree. She had painful limitation of hip movements, but no evidence of radiculopathy in either lower limb. General examination revealed no active synovitis in the peripheral joints. She did constantly change posture whilst sitting in her chair.
128In the course of describing Ms Yuan’s present condition, Dr Lefkovits used expressions “central sensitisation syndrome”, which led to responses from Dr Sullivan:[31]
“… My overwhelming impression is that she still predominantly has central sensitisation syndrome (chronic pain syndrome), as the predominant cause of her ongoing seeming disability and incapacity. Her level of incapacity is not consistent with the description of the injury sustained initially, and the subsequent investigation results.”
[31] At p4
129To a question enquiring about the current contribution of the accident to Ms Yuan’s presentation, Dr Lefkovits replied:
“I would consider the predominant contribution from the transport accident incident would be the effects on her psyche. It is possible that she may have suffered aggravation of her mild degenerative disease in the lumbar spine, but the disease radiologically is quite mild, and the bone scan showed no evidence of ongoing inflammatory process affecting any of the axial skeleton, nor the sacrum, suggesting that she had fully recovered from the undisplaced fracture of her sacrum and sacral ala.”
130It is clear when Dr Lefkovits spoke of “central sensitisation syndrome”, he was speaking of a psychological condition. As such, there was no need for physical treatment. As to prognosis, that depended on an improvement in Ms Yuan’s non-organic issues.
Dr Strauss
131Dr Nigel Strauss is a consultant and occupational psychiatrist. On 27 October 2020, he interviewed Ms Yuan at the Commission’s request for the purposes of an impairment assessment.[32]
[32] Report dated 27 October 2020
132In his mental state examination, Dr Strauss observed Ms Yuan’s appearance and behaviour was regular. Her affect was mildly to moderately anxious and depressed. Her thought was quite pre-occupied with her physical situation and her thinking was negative but there was no evidence of any psychosis or delusions or thought disorder. As to perception, Ms Yuan spoke of intrusive memories. Her insight and judgement were limited. Her memory and concentration were patchy but she was orientated in time, place and person.
133As to diagnosis, Dr Strauss diagnosed her as suffering from some post-traumatic stress symptoms and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
134Under the heading “Analysis of findings”, Dr Strauss assumed Ms Yuan suffered from, and still did, a pre-existing psychiatric impairment and assigned a percentage value to it. To him, she was a vulnerable person when the accident occurred.
135Since the accident, Ms Yuan deteriorated markedly from a psychological perspective and continues to suffer from chronic pain which is her major cause of distress. Dr Strauss was unprepared to conclude whether or not her pain is entirely organically based but he strongly suspected some of her pain is psychologically based on an unconscious level. He rejected the notion she was deliberately exaggerating her problems.
136Dr Strauss described the complexity of her condition:[33]
“… because of her emotional distress and her incapacities, she is manifesting her upset in the form of pain to a certain extent. As well however she has significant anxiety and depression and there is an element of traumatisation because of the nature of her injury.”
[33] At p 7
137As to prognosis, he considered it poor. Ms Yuan should continue on antidepressants indefinitely. Since she had no interest in psychological treatment he would not recommend it. He thought she might benefit from a pain management programme.
138Dr Strauss doubted Ms Yuan’s ability to work for both psychiatric and organic reasons and observed her quality of life remains reduced due to the accident.
139Finally, he observed her mobility was markedly reduced because of her pain which is both organically and psychologically based.
Legal considerations
140The meaning of “serious” in s97(17) of the Act is explained in Humphries and Anor v Poljak:[34]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[34] [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
141In Transport Accident Commission v Kamel,[35] Kyrou AJA said:
“The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.
The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.”
[35] [2011] VSCA 110 at paragraphs [65] and [66]
142The reasoning for paragraph [66] comes from Richards & Anor v Wylie,[36] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the court will need to evaluate in determining whether the loss or impairment of constitute or be the producer of the impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ … Thus, the ‘serious injury’ defined in para (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to the physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[36] (2000) 1 VR 79 at 87-88. See also Buchanan JA at 90
143The principle in Petkovski v Galletti[37] is captured by the headnote:
“In an application to bring proceedings under s 93 of the Transport Accident Act, where the case is one of aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of the body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function.”
[37] Supra
Discussion
Credit
144The Commission places Ms Yuan’s credit in issue. It submits she was an unreliable and, at times, an evasive witness. It points to some of her answers to questions about the video surveillance:
(a) where the film showed her able to stand upright with a straight back, Ms Yuan said – “it looks like the pain killer worked that day”;
(b) when the film showed her in pain, she replied – “probably, yes, not much” and then “my condition was really great that day”;
(c) there were evasive answers to questions suggesting the film showed her moving freely and with an upright posture;
(d) agreeing that there is a world of difference between her depiction in the first video and in the second video, three months later; and
(e) what is said to be cavilling over the meaning of walking in a passage at p 67 of the transcript in the context of questions comparing her appearance on the films and her appearance before Dr Lefkovits, for example.
145In reply, Ms Yuan’s counsel pointed to:
(a) her acceptance of what practitioners recorded in their notes or reports despite having no specific recollection of the attendances;
(b) she gave evidence of the fluctuating nature of her pain levels and using medicines to relieve her pain;
(c) in relation to evasive answers, they should be seen as her trying to understand the questions and give accurate answers;
(d) the films shows little more than she walked with an aid in the form of a trolley. She said she needed less help from the trolley because of the flatness of the floor;
(e) no practitioner suggests she is malingering or deliberately exaggerating the level of her pain.
146Assessing Ms Yuan’s credit is complicated by her psychological state, her need to use an interpreter and, in this case, the difficulties posed to her through the use of an audio-visual link.
147Her answers to questions about her ability to stand upright and being in pain on the films are the answers one would expect if her levels of pain varied. Her answers appear glib on the transcript. Making allowances, that is not how they appeared to me.
148Much of the criticism lies in the films. Ms Yuan was filmed inside a shopping centre and near a motor vehicle. In duration, the films were relatively brief. Within the shopping centre and while Ms Yuan was walking, it was taken in difficult circumstances owing to the number of other persons moving around. The films did not show Ms Yuan stooping, tilting to the left or unable to stand or sit in an upright position. Ms Yuan was watched for 53 hours. The film I saw represented the entirety of the film taken of her. Unless I could conclude sizeable portions of the unfilmed surveillance did not reveal her stooping, et cetera, then the film is of little consequence. The film cannot be seen as representative of her. They may be highlights depicting for her an unusually good presentation. It is the 52¾ hours of unreported surveillance which is disturbing. Basing criticisms on her answers to questions about these films is precarious and of little weight.
149Bearing in mind the issues, Ms Yuan struck me as a credible and, reasonably reliable, witness, both in terms of her presentation and the content of her evidence.
Lay witnesses
150The Commission submitted the affidavits of Ms Yuan’s husband and son throw no light on her state, physical and psychological, before the accident or, indeed, the new, unrelated conditions since then. Again, Ms Yuan’s counsel responded by relying on evidence of her pre-accident activities in the form of photographs.
151The fact of the lack of mention in the affidavits is of no probative value. It cannot be used to bolster one position or the other. The fact she did not mention her sleep problems to her son is equivocal. It means she did not complain to him, or in his presence, although doing so to her practitioners. Why she would act that way could be explained in different ways. It is not for me to guess. It is of no value.
Injury
152Ms Yuan fractured her sacrum in the accident. This fracture has healed. Nevertheless, she experiences pain. No one doubts her experience of pain. What is at issue is its cause or causes.
153In Dr Lefkovits’ opinion, Ms Yuan’s presentation was due to psychological, not organic, factors:
“…her whole demeanour and presentation was not consistent with a specific organic pathology.”
154Through his use of the expression “central sensitisation syndrome”, Dr Lefkovits indirectly caused Dr Sullivan to explain in some detail what he meant by his use of the expression “central sensitisation”. Unfortunately, there was no debate between Dr Lefkovits and Dr Sullivan and I suspect Dr Lefkovits was unaware of Dr Sullivan’s views. To Dr Lefkovits, the expression encompassed a psychological condition. To Dr Sullivan, his expression encompassed an organic condition.
155There is no doubt psychological factors are present, for Dr Tan said:
“It is unfortunate that the recovery of her condition has been blocked by psychological factors (anxiety/depression/insomnia) and I cannot see any improvement in her condition unless her psychological factors can be dealt with successfully.”
156Dr Lefkovits is a physician with enormous experience. Although his fellowship was in paediatrics, he has focussed on internal medicine with special interest in rheumatology, cardiology and diagnostic medicine. There is no distinct expertise in pain medicine although an interest in rheumatology would raise the issue of pain.
157In effect, Dr Sullivan accuses Dr Lefkovits of not being up to date with medical opinion in the area of pain. Whether he is correct or not, Dr Sullivan is a pain specialist. He points to the current learning in relation to pain. Plainly, the ability to diagnose central sensitisation falls squarely within his area of expertise. Although some of his criticisms of Dr Lefkovits are expressed in unnecessarily harsh terms, there appears to be a broad acceptance by pain practitioners of central sensitisation as an organic condition.
158Apart from Dr Sullivan, there are two different organic reasons given for her experience of pain. Mr Low considered the accident caused a transverse fracture to the third segment of the sacrum and causing widespread musculoligamentous injuries to the cervical, thoracic and lumbar spine with aggravation of degeneration in the neck, thoracic spine and lumbar spine. In terms of pain, he diagnoses and uses the expression “chronic pain syndrome” affecting the whole of the spine, principally the lumbar spine and lumbosacral area and sacrococcygeal, sacroiliac and buttock areas now. When speaking of a chronic pain syndrome, given the context, Mr Low is describing an organic and not a psychological condition.
159The physician, Dr Kennedy, introduced the diagnosis of myofascial injury to the lumbosacral spine. Myofascial pain is associated with soft tissues.
160The psychiatrists do not exclude the organic in her perception of pain for they do not solely ascribe her experience to a psychological state:
161Dr Strauss interviewed Ms Yuan in October 2020. It appears he was unaware of Dr Lefkovits’ views. He was equivocal –
“Since then [the accident] she has deteriorated markedly from a psychological perspective and continues to suffer from chronic pain which is her major cause of distress. It is not for me to decide whether or not her pain is entirely organically based but I strongly suspect that some of her ongoing pain is psychologically based on an unconscious level. … .”[38]
[38] At pp 22-23
162Associate Professor Paoletti diagnosed a Somatic Symptom Disorder with predominant pain. In a passage I have already quoted, he considered her experience of pain was genuine but amplified by psychological factors.
163Dr Weissman diagnosed Ms Yuan as suffering from three complaints due to the accident: a mild to moderate chronic Post-Traumatic Stress and Anxiety Syndrome, falling short of a Post-Traumatic Stress Disorder; an aggravation, at least to a moderate degree, of the existing chronic dysthymia so that it has evolved into a Major Depressive Disorder with anxious distress and of moderately severe intensity with quasi-psychotic or pseudo-psychotic symptoms and features; and aggravation of an existing Chronic Pain or Somatic Symptom Disorder. Despite the presence of these disorders or conditions, Dr Weissman considered Ms Yuan still suffers from the effects of her physical injuries.
164Apart from Dr Lefkovits, the medico-legal practitioners identified an organic source for Ms Yuan’s experience of pain and the psychiatrists agree but point to co-existing psychological factors worsening that experience.
165Accordingly, for the purposes of this application, insofar as the experience of pain is concerned, I accept the opinions of Dr Sullivan. They are:
(a) due to the accident, Ms Yuan suffered a fracture to her S3 sacral segment and right sacral ala. These fractures are likely to have healed;
(b) from these fractures, she developed a chronic pain condition in her lower back, gluteal regions and sacrococcygeal area. This condition is the process described by Dr Sullivan.
166The defendant submits I should reject Dr Sullivan’s opinion Ms Yuan has developed an organically derived chronic pain condition because the history he took was “completely flawed”. Apparently, he was unaware of her substantial pre-accident medical history contained in the progress notes of Dr Tan. The defendant makes a similar submission regarding Mr Low, in that, he was not given the progress notes of Dr Tan.
167The Commission raised the lack of a coherent path of reasoning of Dr Sullivan, pointing to his failure to account for the pronounced and chronic complaints of multiple joint pains, insomnia, anxiety and depression which existed before the accident.
168First, it is incorrect to submit, as Ms Yuan does, that Dr Sullivan and Dr Lefkovits reached the same diagnosis – central sensitisation. In using the same term, they meant entirely different things. Dr Lefkovits meant a Chronic Pain Disorder, caused psychologically. Dr Sullivan meant a Chronic Pain Disorder, caused organically. Perhaps to avoid this confusion, Dr Sullivan should have used the alternative description of nociplastic pain.
169Second, and more significantly, given the background information available to Dr Sullivan, I cannot find any incoherence in his line of reasoning. He gave his opinion on her pre-accident condition and then proceeded in a normal fashion to his opinions.
170The Commission makes a similar submission regarding Dr Low, in that, he was not given the progress notes of Dr Tan. The plaintiff agrees he did not have those notes but was provided with many other documents. Again, without pointing to the precise deficiency in the facts assumed by Dr Low, there is no way to evaluate it and therefore no substance to the criticism.
171I agree with the plaintiff that too much is made of Dr Low’s use of the word “believes”. He intended it to mean “feels” or “experiences”. This emerges if one looks at Dr Low’s reasoning in arriving at an organic explanation of her symptoms:[39]
“… It is logical in my opinion that it was a musculoligamentous injury because everything else has been ruled out. There is no viscerogenic source of her pain, vasculogenic, neurogenic cause for the pain, psychogenic cause for the pain.
The logical conclusion you would come to is that she suffered a soft tissue injury and that is in keeping with the forces involved in creating a sacral fracture. That just did not happen spontaneously. That shows the level of the force involved in this injury. It is totally consistent with the injury as the associated soft tissue damage to the rest of the spine and her current complaints.”
[39] Report dated 24 September 2021 at p 4
172The parties engaged Dr Kennedy to examine and report on Ms Yuan. The defendant submits Dr Kennedy did not have access to her clinical records. This is incorrect as Dr Kennedy mentions them twice in his report.
173The defendant submitted Dr Kennedy took an inaccurate history but did not say in what way it was inaccurate. One must know the nature of an inaccuracy in order to assess whether it affects the validity of the expert’s opinion, for an expert must possess a “fair climate” of assumed fact for his or her opinions to be acceptable.
174It is incorrect to submit the psychiatrists, Dr Paoletti and Weissman, say the cause of her pain is psychological, not organic. Although implicating the psychological, neither excludes the organic.
175In November 2016, Ms Yuan returned from trip to China. Despite the length of the flight from China to Australia, the next entry in the clinical notes to mention her back occurs on 2 February 2017. There, the record of back pain appears subsidiary to complaints about anxiety, depression, insomnia and problems with her voice following treatment for thyroid cancer.
176After this attendance until September 2018, Ms Yuan attended the clinic on thirty-eight occasions without any mention of her back. I am invited to infer the lack of reference means she did not mention her back to Dr Tan. If I so conclude, then the views of Dr Tan, coupled with those of the psychiatrists, Dr Paoletti and Dr Weissman, and nine other factors, support its argument of the proper application of paragraph (c) over paragraph (a).
177In part, Ms Yuan’s response to this submission is her level of her activity before and after the accident: the latter being, she submits, markedly less than the former. Alongside, she points to the medical opinion concerning her pre-existing conditions.
178I agree with Ms Yuan that her pre-accident medical condition did not stop her from engaging in an active life including the caring for her mother. Despite her attendances at the clinic, the state of her pre-existing conditions was of limited significance in the eyes of her practitioners.
179More particularly, the lack of record of her mentioning her back in the thirty-eight attendances is curious, for Dr Tan says, in effect, Ms Yuan has always complained of lower back pain. The lack of record and Dr Tan’s statement cannot be reconciled unless Dr Tan was asked to explain. Without an explanation, the lack of record is too ambiguous to be of value in assessing the level of Ms Yuan’s pain.
180Earlier, I have set out the consequences for Ms Yuan of the impairment of her spine due to the accident.
181Ms Yuan suffers constant pain. Its intensity varies. It worsens at night and while she stands, sits or walks. She regularly changes her posture to relieve the pain. Ms Yuan experienced pain before the accident due to what Dr Li describes as “fibromyalgia/chronic centralised pain amplification syndrome” in association with underlying psychosocial stress factors. The level of pain after the accident is much greater than that before.
182Ms Yuan received various forms of treatment before the accident and has received various forms since. Now, Ms Yuan combines Western and Chinese medicines. The former in the form of pain-relieving medicines. She has not seen a Western medical practitioner since May or June 2021. She does not presently receive psychological or psychiatric treatment. She has lost confidence in “Western medicine” and has sought help from “Chinese medicine”. She takes “Chinese medicine” for her insomnia and to counteract her depression.
183Due to the injuries she suffered in the accident, Ms Yuan stopped caring for her mother. It was necessary for her mother to enter an aged care home. Owing to her background, this is a matter of shame for her. Absent her injuries, she would still be caring for her mother. Apart from losing a close connection with her mother, shame is a hard emotion for her to feel as it significantly damages her self-esteem.
184From the perspective of social activities, Ms Yuan no longer travels, hikes, dances or undertakes Tai Chi. Domestically, she no longer performs the routine duties undertaken before the accident. She is now helped by her husband. Her predicament is such that he has ceased paid employment and now cares for her.
185Although Ms Yuan slept poorly before the accident, she continues to sleep poorly. She says it is worse now, for she cannot fall asleep even with the aid of sleeping tablets.
186Apart from the organic source of her pain, Ms Yuan suffers from a psychological effect. She suffered from depression for years before the accident and had been medicated for it. However, at the time of the accident, to her mind, she was coping well with the condition. There is support for her view in that she last complained to her general practitioner about her mental state on 4 July 2015. The most detailed analysis, before and after the accident, comes from Dr Weissman. His analysis identifies the conditions and how the accident has either created or increased their severity.
187The Commission submitted Ms Yuan’s application should be assessed under paragraph (c) of the definition of “serious injury”, not paragraph (a). If so assessed, the application should fail, because the medical evidence would not allow disentanglement of the impairment consequences before and after the accident. In the main, reliance is placed on the clinical records.
188Naturally, there is a psychological element. Ms Yuan would be a most unusual person if there was not, bearing in mind her psychological difficulties before and since the accident. In particular, there is the presence of a Somatic Symptom Disorder. To use Associate Professor Paoletti’s language, this disorder amplifies her perception of pain. However, the source of her experience of pain is of an organic nature. Looking at the evidence overall, the predominant cause of her pain is an organic condition. In that view, I am relying on the opinion of Dr Sullivan. It could even be maintained if one relied on the opinions of Dr Kennedy or Dr Low. Dr Low lends some support to Dr Sullivan’s view.
189I would not accept the Commission’s submission, relying on Randhawa v Transport Accident Commission,[40] and the opinion of Associate Professor Paoletti, that the psychological sequelae of the accident is minimal. It is far from that. However, it is not great enough for me to find that her injury satisfies the definition in paragraph (c). In terms of paragraph (a), the permissible psychological effects add significantly to the injury in paragraph (a).
[40] [2021] VSCA 135 at paragraphs [55] and [79]
Conclusion
190I am satisfied Ms Yuan has suffered a “serious injury”. I will grant her the leave she seeks. I will hear the parties on the form of the order and the question of costs.
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