IN THE COUNTY COURT OF VICTORIA Revised AT … The plaintiff received WorkCover payments for about...
Transcript of IN THE COUNTY COURT OF VICTORIA Revised AT … The plaintiff received WorkCover payments for about...
COUNTY COURT OF VICTORIA 250 William Street, Melbourne
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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION
Revised Not Restricted
Suitable for Publication
SERIOUS INJURY LIST Case No. CI-14-02492
VENDA OGNENOVSKA Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant
--- JUDGE: HER HONOUR JUDGE K L BOURKE
WHERE HELD: Melbourne
DATE OF HEARING: 27 January 2016
DATE OF JUDGMENT: 29 February 2016 (Revised)
CASE MAY BE CITED AS: Ognenovska v Transport Accident Commission
MEDIUM NEUTRAL CITATION: [2016] VCC 150
REASONS FOR JUDGMENT
--- Subject: TRANSPORT ACCIDENT Catchwords: Damages – transport accident – serious injury – injury to the cervical
spine Legislation Cited: Transport Accident Act 1986, s93(4)(d) Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000)
1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering v McKenzie [2014] VSCA 67; Bezzina v Phi & Anor [2012] VSCA 161; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Judgment: Leave granted. ---
APPEARANCES:
Counsel Solicitors
For the Plaintiff Mr R W McGarvie QC with Mr L Paine
Grando & Breheny
For the Defendant Mr W R Middleton QC with
Ms D Manova Solicitor to the Transport Accident Commission
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Ognenovska v Transport Accident Commission
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff
applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986
(“the Act”) to bring proceedings to recover damages for injuries suffered by
her arising out of a transport accident (“the accident”) which occurred on 2
February 2011 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is
the cervical spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first,
upon whether the injury has produced an organic impairment or loss of body
function, and then by reference to the consequences of that impairment, to
determine whether it is serious and long term.
6 In forming a judgment as to whether the consequences of an injury are
serious, the question to be asked is, can the injury, when judged by
comparison with other cases in the range of possible impairments, be fairly
described as at least “very considerable” and more that “significant” or
“marked”.1
7 The serious injury defined by subparagraph (a) can have its seriousness
measured in part by a mental response to a physical impairment. What it will
1 Humphries & Anor v Poljak [1992] 2 VR 129 at [140] – [141]
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not recognise is that the mental disorder can, of itself, constitute or be the
producer of the impairment of a body function.2
8 The plaintiff swore two affidavits and was cross-examined. Both parties relied
on medical reports and other material that was tendered in evidence.
The Plaintiff’s evidence
9 The plaintiff is presently aged sixty-five, having been born in June 1950 in
Macedonia. She arrived in Australia in February 1969. She is married with
two adult children.
10 After arriving in Australia, the plaintiff undertook packing duties in various
factories and on the assembly line at Holden. Whilst working for Pelaco as a
presser in 1983, the plaintiff developed right Carpal Tunnel Syndrome,
following which she had to cease work. She underwent a right carpal tunnel
release that resulted in only limited improvement of her symptoms.
11 Gradually, the pain and numbness in the plaintiff’s right hand improved.
Around the year 1986, she received a $25,000 lump sum payment for this
injury.
12 The plaintiff returned to work in about 1989 and worked for B & B Hosiery for
about four years as a packer.
13 The plaintiff then worked for Carborundum as a machinist and packer for
approximately three years. During that time, she developed pain in her left
arm and wrist, as well as the neck region, and back.
14 In evidence in chief and in cross examination, the plaintiff stated the reference
to the neck region was incorrect.3 She had pain from her wrist up to her
shoulder and the side of her neck.4 The neck region meant the pain spread
2 Richards v Wylie (2000) 1 VR 79 3 Transcript (“T”) 11 4 Transcript 26
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from her wrist to her arm.5
15 The plaintiff however went on to say that since the accident, she had neck
pains. The pains have not stopped. She has continuous headaches and neck
pain since the accident.6
16 Before the accident, her arm was always hurting. It felt numb and she had
difficulty sleeping.7
17 The plaintiff was treated by Dr Gorgioski. She had to stop work because of left
arm pain.
18 The plaintiff underwent a left carpal tunnel release (“the left carpal tunnel
surgery”) in November 1997, after which she had physiotherapy for about two
years. There was some relief after this surgery. The plaintiff was not in as
much difficulty as she has been since the transport accident.8 Since then, her
neck and headaches have been persistent, not her carpal tunnel condition.9
19 The plaintiff received WorkCover payments for about two years for her back
injury10 and a lump sum of about $50,000 for her back and left arm injuries.11
20 Following the left carpal tunnel surgery, the plaintiff continued to have
numbness and weakness in the left hand, as well as intermittent back and
right leg pain.
21 The plaintiff had a CT scan of her lumbar spine on 3 February 2010. She also
had problems with nasal stuffiness, although she was otherwise in reasonably
good health prior to the accident.
22 In cross examination, the plaintiff initially could not remember any claim
5 T44 6 T12 7 T11 8 T13 9 T14 10 T24 11 T23 and T42
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brought by her against Galbally & O’Bryan for its failure to bring serious injury
proceedings in relation to her lumbar spine and left arm complaints, however
she later recalled she received some settlement monies.12
23 Since injuring her back and left wrist the plaintiff has been in receipt of an
invalid pension.13 She wanted the pension because of her “difficulties and
suffering” – for the back, leg and the arm.14
24 Much of the cross examination focused on the plaintiff’s pre-accident back
and arm conditions.
25 The plaintiff gave confusing answers about her medication intake pre-
accident, for example:
taking Panadol for pains, regardless of what they were then she said
the medication was for her back.15
not taking medication every day, now she takes it continuously every
day.16
had tried all sorts of tablets and none had helped.17
only taking intermittent medication when in severe pain. It could have
been once or as many as three times a week.18
26 The plaintiff needed to take sleeping tablets for her back prior to the accident.
She could not remember if she was taking them immediately before the
accident.19
27 The plaintiff could not remember a lot about the matters set out in her 1999
12 T22 ($50,000 – letter from Grando & Breheny to the Transport Accident Commission dated 15 May
2015) 13 T24 14 T37 15 T40 16 T16 17 T31 18 T44 19 T13
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affidavit in support of her s98 claim.
28 At the time she swore that affidavit, the plaintiff’s shopping was limited to
small items because of her back and her wrist. It has been a very long time
since she has been able to do any shopping. She cannot lift.20
29 The plaintiff’s daughter was then living at home and she helped out a lot after
1997, as the plaintiff could not do vacuuming or cleaning. The plaintiff felt bad
as her daughter had to look after her and she should have been taking care of
her as her mother.
30 Since the accident, the plaintiff has tried to do her own chores, but found it
very difficult and has been unable to do many of them. Her daughter moved
out a year ago but still regularly calls in at least twice a week to help.21
31 The plaintiff could not remember problems with socialising as described in her
1999 affidavit. She could recall not being able to visit friends because she
could not visit and then ask to lie down.22
32 The following table is a summary of the plaintiff’s attendances with Dr
Gorgioski and her response in cross examination when the various entries
were put to her.
Date Summary of Doctor’s Entry Plaintiff’s Response
3 February 2009 Carpal tunnel syndrome deteriorating.
Agreed.
11 February 2009 Left hand persisting. Ultrasound left shoulder, tendinopathy, partial tear.
Denies left shoulder ultrasound.
14 May 2009 Reviewing medication. Headaches. Carpal tunnel syndrome worsening.
Can’t remember.
3 August 2009 Headaches. Can’t remember.
28 August 2009 Severe headaches. Referred to physio.
Can’t remember.
16 November 2009 Headaches and dizziness. Can’t remember.
20 T18 21 T19 22 T20
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Date Summary of Doctor’s Entry Plaintiff’s Response
21 December 2009 No difference – headaches and dizziness.
Can’t remember.
28 January 2010 Referral to Mr Flood about carpal tunnel.
Can’t remember.
30 January 2010 Severe lower back pain. Can’t sit and walk. Tramadol injection, Panadeine Forte, Nurofen and Panadol.
No. I can’t remember. Just knew I took medication when I had pain.
February 2010 Severe pain in left shoulder. Don’t remember.
4 September 2010 Left wrist pain. Persisting restricted movement. Operation scheduled.
Don’t remember.
25 October 2010 Anxiety. Headaches for two days. Dizziness.
Don’t remember.
23 November 2010 Lower back pain persisting. Carpal tunnel stable.
Can’t remember.
14 December 2010 Left wrist. Review carpal tunnel syndrome and medication.
Recalls taking Panadol and Nexium.
33 The plaintiff agreed she was taking Panadol in December 2010. She was
taking it for her pains, whatever they were, and then said she was taking it for
her back.23
34 The plaintiff saw Mr Flood in 2010 because she was experiencing numbness
in her arm and she wanted to ask what he could further offer. He advised her
that surgery could not help anymore.24
35 The plaintiff could not remember seeing her general practitioner in January
2015 about her left wrist.25
36 The plaintiff did not think she mentioned neck pain when she saw Mr Battlay
in June 2010. She must have indicated her pains were in the arm up to the
shoulder.26
The accident
37 On the said date, the plaintiff’s vehicle was struck on the left while in a
23 T42 – WorkCover printout Claim No 97 7531 (Defendant’s Court Book (“DCB”)) 24 T15 25 T15 26 T42
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roundabout, forcing it into the median strip. The plaintiff was shaken up by the
collision and then drove home.
38 The next day, the plaintiff’s neck felt very stiff and she also had a headache.
She thought the symptoms would resolve but they did not.
39 The plaintiff attended Dr Gorgioski on 8 February 2011. He prescribed
medication and arranged for a cervical CT scan.
40 The plaintiff was then referred for physiotherapy in Lalor, where she first
attended on 9 March 2011 twice per week for approximately twelve months,
and then once per week until late 2012 when the defendant ceased funding
for the treatment.
41 The plaintiff could not remember whether she had challenged the defendant’s
decision to terminate funding.27
42 The plaintiff has continued to have five physiotherapy visits a year funded by
Medicare. These provide temporary relief for her neck discomfort. If funding
had not been ceased, she would have had more regular physiotherapy
because she is still in pain.28
43 Dr Gorgioski arranged an MRI scan of the plaintiff’s cervical spine, which took
place in September 2011. He then referred her to Mr Timms, a neurosurgeon,
whom she first saw on 11 November 2011.
44 Mr Timms advised the plaintiff to continue physiotherapy. Acupuncture was
suggested by the physiotherapist. The plaintiff had one session in late 2011
but she was scared of the treatment and felt nauseous and did not continue.
45 The plaintiff returned to Mr Timms on 15 February 2012. Her neck pain
seemed to be spreading into her right shoulder and arm and he suggested
neck surgery. The defendant denied his request for funding.
27 T28 28 T42
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46 If surgery had been funded, the plaintiff would have had it because, “even
today, she still has a lot of trouble.”29 She denied that she had not gone on the
public waiting list because she did not want to have surgery. She was not
lying in this regard because she was having pain and difficulty sleeping. She
wanted to have surgery privately and get it over and done with. She could not
remember how long Mr Timms told her she would be on the waiting list.30
Symptoms
47 As of March 2014 when she swore her first affidavit, the plaintiff had constant
neck pain which was a tight and aching feeling, made worse if she turned her
head too quickly or too far. She also had increased neck pain if she held her
head in the same posture, particularly if bending forward for longer than a few
minutes. If she was on her feet for more than a few hours at a time, she felt
more fatigued and wanted to rest her head on something.
48 The plaintiff’s neck pain was worse on the left but turning to the right usually
produced the most discomfort. She also had a pulling feeling in the top of both
shoulders when she moved her head. Raising her arms above chest height
could also increase neck pain. She tended to now move slowly and stiffly and
she was conscious to avoid any activity that would jar her neck.
49 In cross examination, the plaintiff confirmed this pain persisted. There was
nothing she could do about it and she could not get rid of it.31
50 The plaintiff has had a good recovery from bowel cancer. She underwent
surgery in July 2013, and requires check-ups every three to six months.
51 The plaintiff could drive but preferred to be a passenger and often only drove
locally. She used her mirrors more and avoided reverse parking. She could
drive for about 30 minutes before her neck seemed to become increasingly
stiff and she experienced headaches. She gently did tilting and rotation
29 T28 30 T29 31 T31
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movements and rubbed her neck whenever she was sitting, which could
reduce the stiffness. Sometimes when sitting, the pain seemed to spread
down her shoulder blades, at which time she found it best to get up and move
around.
52 The plaintiff’s neck pain also spread into the back of her head, worse on the
left. That caused headaches, particularly above and behind her left ear.
These occurred daily and usually lasted between 30 minutes and one hour.
53 The plaintiff found it hard to get comfortable to sleep and used heat packs on
her neck in winter on her shoulder blades, as well as a pillow under her neck.
That seemed to make it more comfortable. Nearly every night, she tossed and
turned a lot because it was hard to get to sleep with neck pain. When that
happened, she often got up and sat in the lounge room and watched
television for about half an hour. She found it too uncomfortable to stay in bed
and was better off sitting in a recliner, purchased before the accident, which
she could adjust for neck support.32
54 The plaintiff’s sleeping has been worse since the accident. It is causing her
more stress and she is “more frightened”. She always had difficulty sleeping,
but when she had pain and difficulty sleeping, there was not much she could
do.33
55 The plaintiff has not taken sleeping tablets since the accident, and could not
remember taking them before.34
56 In the morning, the plaintiff’s neck was always stiff. She reheated the heat
pack and wrapped it around her neck if the weather was cold. She also had a
hot shower, which seemed to loosen her muscles. She dressed slowly and
tried to keep her head up.
32 T33 33 T32 – never taken sleeping tablets cf T13 34 T33
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57 As of March 2014, the plaintiff’s daughter and rand daughter still lived at
home. The plaintiff still did much of the cooking but could only stand at the
bench for about 10 to 15 minutes before needed a break and move around.
58 The plaintiff used to make homemade pastry that her husband liked but she
could no longer do so as it involved prolonged working of thin pastry. She
now just prepared basic foods and tended to buy more take-away food.
59 The plaintiff could put washing in the top loader machine. Her husband or
daughter then hung most of the washing on the line and she only hung light
clothes on a low line or clotheshorse. The plaintiff’s daughter or husband did
the vacuuming as that caused the plaintiff too much neck discomfort with
bending and stretching.
60 After the accident, the plaintiff’s daughter moved in because the plaintiff could
not cope.35
61 The plaintiff’s daughter and granddaughter moved out in about late 2014. Her
daughter still comes and visits most days however and helps with the
housework. Her son also lives close by.
62 The plaintiff’s granddaughter moved in two or three years ago to help out. Her
school was close by. The plaintiff tells her what to do with cooking. Her
granddaughter does most of the cooking.36
63 The plaintiff’s husband puts the washing in the machine. However, the plaintiff
does not have to depend on him for everything.37
64 The plaintiff is upset that she cannot cook, socialise or drive to visit friends.38
65 The plaintiff deposed in her first affidavit she had never been much of a
gardener.
35 T35 36 T34 37 T35 38 T43
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66 The plaintiff had socialised less since her injury. She previously went to
barbecues, picnics and hosted friends and family at home. She also attended
functions organised by her local community. When her neck pain was worse,
she could no longer attend those activities and generally looked for excuses
not to attend unless there was a social obligation.
67 Standing and sitting around was likely to cause more neck pain and if the
plaintiff did attend social occasions, she usually left after two or three hours
because of increased neck discomfort. She now could only go four times a
year to these events.
68 Socialising had also been restricted since the accident because of the
plaintiff’s headaches. She denied headaches before. When it was suggested
that there were records of headaches prior to the accident, the plaintiff said
they were not the same as those complained of now. Since the accident, she
got a lot of headaches associated with neck pain.39
69 The plaintiff also used to accompany her husband fishing at times but no
longer did so and he just went with his friends.
70 The plaintiff could not remember when she went fishing with her husband. It
was maybe three years before the accident. It was not something she did
regularly.40 He usually went fishing with his friends and she had probably
been a few times before the accident. She did not remember exactly when
and she did not know the places they went to. She agreed her husband had a
debilitating back injury.41
71 The plaintiff went camping and fishing after her back injury. She was not
“paralysed to be stuck at home.”42
72 The plaintiff felt frustrated at the restrictions on her activities because of her
39 T36 40 T36 41 T37 42 T37
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neck discomfort. She became teary at times and was generally more anxious
about the future.
73 In her recent affidavit sworn in August 2015, the plaintiff confirmed she
continues to see Dr Gorgioski every few weeks for neck pain and also blood
pressure treatment.
74 Dr Gorgioski referred the plaintiff to Mr Timms in 2015. When she saw Mr
Timms in March, he arranged a further MRI scan of the plaintiff’s brain and
neck, which took place in June 2015.
75 The plaintiff was sent back to Mr Timms by Dr Gorgioski and her lawyers in
May 2015. Dr Gorgioski had advised the plaintiff that just taking tablets and
physiotherapy was not going to cure her and she was not going to improve
anymore. She did not know whether she had arm symptoms when she saw
Mr Timms on that occasion.43
76 When the plaintiff saw Mr Timms again on 19 June 2015, he told her that he
did not think he could help her discomfort with an operation. He advised her to
keep to keep taking medication and have physiotherapy.
77 The plaintiff now takes two Panadol or one Nurofen or one Panadol Extra
every morning for neck pain, about every four hours during the day. About
every second night, she also takes two Panadol because she cannot sleep
with neck pain and headaches. She usually takes Panadol Extra before she
goes to bed as that seems to help her get to sleep.
78 The plaintiff also takes blood pressure medication and Nexium for her
stomach. She has had a stomach ulcer for a long time which prevents her
from taking strong painkillers.
79 The plaintiff takes Panadol some days and when she is in severe pain, she
43 T30
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takes Panadeine Forte for which her doctor gives her prescriptions.44
80 Panadol helps with the plaintiff’s back pain. It helps a little with her neck but
after less than four hours, the severe pains continue.45
81 In re-examination, the plaintiff described having side effects from painkillers
after the accident and the medication was changed. Since then, she has
taken Panadol, Panadeine, Nurofen and sometimes used Voltaren cream.
She takes one Nurofen or Panadol every morning for her neck pain and about
every four hours during the day thereafter.46
82 The plaintiff deposed that since swearing her earlier affidavit, her neck pain
has remained much the same, although she believes her neck now feels
stiffer. She also believes she gets more headaches, mainly on the left side of
the back of her neck. She tends to have a headache associated with neck
pain nearly every morning that can last for an hour or so, improving after
medication. She then usually has a further headache with worsening neck
pain after the pain-relieving medication wears off in a few hours and then she
takes further medication.
83 The plaintiff believes, since swearing her previous affidavit, her neck pain has
got her down more and that she has become more anxious.
84 In re-examination, the plaintiff said that her neck pain, in particular, and other
pains are worse now than before the accident.47
85 The plaintiff’s sleeping remains poor and she usually wakes several times
during the night with neck pain and headache.
Medical evidence
86 The plaintiff’s general practitioner, Dr Gorgioski, saw the plaintiff on a number
of occasions in February 2011 after the accident.
44 T31 45 T32 46 T45 47 T43
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87 On initial presentation, the plaintiff complained of severe headaches, neck
pain and lower back pain and was feeling anxious about her pain.
88 Dr Gorgioski organised various investigations. The plaintiff’s treatment was
conservative with analgesics and physiotherapy.
89 As of March 2013, the plaintiff still complained of severe neck pain aggravated
by physical activities. She told Dr Gorgioski she could not do heavy domestic
duties, nor could she do chores requiring her to lift her arms above her
shoulder. Her sleep was poor and she was very anxious.
90 On examination, the plaintiff had restricted neck movement with marked
stiffness and she had numbness in her upper limbs.
91 In that March 2013 report, Dr Gorgioski noted the plaintiff had a past history of
chronic lower back pain and bilateral Carpal Tunnel Syndrome.
92 At that stage, taking into account her previous medical history, clinical findings
and MRI results, Dr Gorgioski thought the plaintiff suffered from a whiplash
injury of the cervical spine, especially with trauma at C5-6 and C6-7, as a
result of the accident. He considered her condition to be stable and
permanent and that she could continue with conservative treatment
indefinitely. He noted that a neurosurgeon had advised the plaintiff would
benefit from surgery.
93 In his most recent report of July 2015, Dr Gorgioski noted he saw the plaintiff
regularly. She still complained of headaches, insomnia and neck pain. She
told him that the headaches and insomnia were caused by her neck pain.
She advised she tried to stay mobile and took painkillers. She drove for short
trips and did light housework.
94 Dr Gorgioski noted that on examination, the plaintiff had always been very co-
operative and did not exaggerate her symptoms. She had restricted
movements of her neck in all directions and marked stiffness. The neck
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movements triggered headaches more on the left side of her head.
95 Dr Gorgioski noted the recent examination by Mr Timms, who advised that
surgical treatment was not indicated.
96 Dr Gorgioski thought the plaintiff suffered whiplash of her neck and also a disc
injury to her neck with some bulges in the lower part of the cervical spine and
some foraminal stenosis. She also suffered from post-traumatic headaches
and insomnia.
97 Dr Gorgioski noted that since the accident, the plaintiff had had some
restrictions of a social and domestic studies. Her recreational activities had
been curtailed. She used to enjoy camping and fishing trips with her husband.
She also used to help taking care of her elderly parents. Now she drove for
only very short distances.
98 Dr Gorgioski thought the plaintiff’s injuries were permanent and stable and
that she should continue with the conservative treatment for an indefinite
period.
99 The plaintiff’s attendances following the accident commenced on 8 February
2011.
100 During that year, there were numerous attendances for neck pain, headache
and a referral to Mr Timms on 18 November 2011.
101 Investigations were arranged and a prescription of Digesic continued. The
following is a summary of relevant attendances since that time.
24 January 2012 - Severe neck pain and headaches – Panadeine.
2 February 2012 - Neck pain deteriorating. Refer to Mr Timms.
9 February 2012 - Review meds.
23 February 2012 - Review meds. Seen Mr Timms, who says
needs operation.
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20 March 2012 - Neck pain persisting.
19 April 2012 - Neck. Painful movement. Review meds.
Panadeine.
19 April 2012 - Prescription for Panadol Extra and Valium.
26 April 2012 - Review neck pain, stiffness +++.
19 May 2012 - Neck pain persisting. Tramal.
14 June 2012 - Neck pain persisting. Tramal. 100 milligrams
(previously 50 milligrams).
26 June 2012 - Neck pain persisting. Tramal.
12 July 2012 - Neck pain persisting. Headaches.
30 July 2012 - Neck pain persisting. Prescribed Panadeine.
13 August 2012 - Severe neck pain. Seen Mr Timms. Tramal.
28 August 2012 - Pain the same.
25 September 2012 - Digesic.
October 2012 - Neck pain persisting. Insomnia because of
pain.
1 November 2012 - Severe headaches. Neck pain persisting.
16 November 2012 - Review meds. Neck pain persisting.
Prescription for Digesic.
8 January 2013 - Neck pain persisting. Refer for operation.
18 January 2013 - Restricted neck movement. WorkCover low
back pain. Discontinue brufen.
1 February 2013 - Neck pain. Persisting stiffness. Discontinue
physio.
20 March 2013 - Neck pain persisting with stiffness.
8 April 2013 - Review and headaches. Digesics, Nexium,
Valium.
20 May 2013 - Neck pain persisting.
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11 June 2013 - Neck pain persisting. Tramal.
June 2013 - Colonoscopy.
July 2013 - Very upset regarding bowel cancer.
6 August 2013 - Neck pain persisting. Restricted movement.
OxyContin, 10 milligrams twice a day.
30 August 2013 - Review meds. Nexium and Panadol
9 September 2013 - Neck pain. Review meds. OK. Panadol.
WorkCover prescription for Valium.
13 March 2014 - Severe neck pain persists.
8 April 2014 - Nexium and Panadol.
3 June 2014 - No difference. Still persisting neck pain.
13 June 2014 - Voltaren and Nexium.
27 June 2014 - Referred to psychologist. Post-operative
depression.
17 November 2014 - Neck pain persists. Stiffness +++.
29 January 2015 - Neck pain persisting. Refer to Mr Timms
regarding operation.
9 February 2015 - Wants operation.
20 February 2015 - WorkCover review. Lower back pain.
Persisting restricted movements.
2 March 2015 - Month of headaches and neck pain.
9 May 2015 - Still headaches.
25 May 2015 - Seen Mr Timms. Neck pain persisting.
102 Mr Timms first saw the plaintiff on 11 November 2011 on referral from Dr
Gorgioski for symptoms of neck and arm pain since the accident.
103 On initial examination, the plaintiff demonstrated decreased range of
movement in the cervical spine, mainly due to midline posterior pain. There
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was reduced power bilaterally of Grade 4/5. Bilaterally, the plaintiff had
decreased sensation in the C5-6 and C6 distribution.
104 Mr Timms noted the mild weakness in the plaintiff’s arms and the sensory
disturbance with recent imaging suggesting neural compression. He felt that
was the disc and osteophyte formations at C5-6 and C6-7 that were most
likely causing her symptoms and recommended she consider more intensive
physiotherapy and if that was not successful, she may require surgery.
105 There was a review on 15 February 2012 before which the plaintiff had had
physiotherapy and acupuncture but her symptoms were worsening. Mr
Timms then felt it reasonable to offer her surgery and wrote to the defendant
to seek approval for an anterior cervical discectomy and fusion, with partial
vertebrectomy at C5 and C6-7.
106 The plaintiff was re-examined in August 2012, at which stage the defendant
had denied liability for surgery.
107 The plaintiff then reported she was pursuing legal process to resolve her
complaint. Mr Timms offered to place her on a public waiting system to
pursue surgery. At that consultation, the plaintiff opted to pursue the
defendant through her solicitors.
108 Mr Timms noted that prior to the accident, the plaintiff did not have any
cervical pain or upper limb symptoms. From the mechanism described, he
thought it was likely she suffered a whiplash type injury to her cervical spine.
109 Mr Timms thought the plaintiff had limited cervical spine movement, as well as
symptoms in her upper limbs which had caused weakness, pain and tingling.
He was not specifically aware of her exact social and recreational activities
but suspected her domestic life and day-to-day activities had been impaired
by her current physical limitations.
110 Mr Timms noted, despite a number of treatments, the plaintiff’s symptoms had
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slowly worsened and he had recommended surgery.
111 The plaintiff was most recently reviewed by Mr Timms on 21 May 2015. She
was then complaining of cervical spine pain with decreased range of
movement secondary to pain and that was causing stiffness, spasms in her
neck and triggering headaches, worse on the left. She told him those
symptoms had persisted since the initial consultation.
112 Following this examination, Mr Timms thought the plaintiff warranted an up-to-
date MRI scan.
113 On review on 19 June 2015, the plaintiff had similar complaints. She felt her
pain medication was useful.
114 Mr Timms reviewed the June 2015 MRI. He noted a number of disc injuries
throughout the spine, the worst at C5-6 and C6-7 with only mild stenosis.
115 In Mr Timms’ view, there was now no indication for neurological operative
intervention. He recommended continuing physiotherapy and massage and
thought that a pain management course may be of some benefit. The plaintiff
was discharged from his service as there was no indication for operative
treatment.
116 In summary, Mr Timms noted the plaintiff had no symptoms down her arms
but described a tension headache originating from the base of the neck,
extending up, and worse on the left than the right. Mr Timms thought the
plaintiff was incapacitated due to her symptoms but could not be more specific
in what regard.
117 Mr Timms concluded the plaintiff had suffered a whiplash-type injury that had
caused neck pain, decreased range of movement and headache. She had no
focal or neurological deficit but disc injuries in her cervical spine at C5-6 and
C6-7. He thought her condition had stabilised.
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Investigations
118 Dr Gorgioski organised a CT scan of the cervical spine in February 2011.
119 It was reported that at C5-6, there were minor lipping changes impressing on
the thecal sac. There was some disc narrowing evident but no disc
herniation. There was bilateral bony narrowing of the neural exit foramina
more marked on the left side. There were some uncovertebral degenerative
joint changes.
120 At C6-7, there were minor lipping changes impressing on the thecal sac.
There was no disc herniation. There was some disc space narrowing. There
were some uncovertebral degenerative joint changes and there was some
bony compromise of the neural exit foramina bilaterally.
121 There was an MRI scan of the cervical spine organised by Dr Gorgioski in
September 2011.
122 It was reported there was multi-level spondylosis and disc disease. That was
most prominent at C5-6 and C6 where associated nerve root
contact/impingement was present.
123 There was an MRI scan of the cervical spine arranged by Mr Timms in June
2015.
124 It was reported there was no central canal stenosis. There was multi-level
mild disc disease. At C6-7, there was a mild to moderate broad disc bulge
which just reached the cord but did not cause central canal stenosis.
125 There was severe left C5 and C7 neural foraminal stenosis demonstrated
elsewhere. There was no traumatic lesion.
The Defendant’s medical evidence
126 On 3 November 1997, Mr Flood, plastic surgeon, requested WorkCover pay
for left carpal tunnel surgery which was carried out on 19 November 1997.
127 Following surgery, the plaintiff developed “sudden severe and out of
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Ognenovska v Transport Accident Commission
proportion to surgery type pain,” which may well have been reflex sympathetic
dystrophy. She was referred to a pain management specialist.
128 When examined on 3 March 2010, Mr Flood noted that post-surgery, the
plaintiff failed to thrive. She complained of numbness persistent in the hand,
especially at night. Repeat EMGs had suggested mild Carpal Tunnel
Syndrome. An ultrasound had showed thickening of the median nerve
compared to the normal right median nerve. Mr Flood requested permission
to re-release the median nerve on the left side.
129 Mr Flood advised the plaintiff’s solicitors in October 2010 that she may benefit
from further surgery.
130 The plaintiff was seen by Mr Peter Kudelka, orthopaedic surgeon, in July
1998. He then thought her capacity for work was considerably limited due to
her back and left arm condition. He thought she had no capacity for factory
work as of 2008.
131 The plaintiff was examined by Mr Peter Mangos, general surgeon, in October
1998.
132 The plaintiff told him that she had chronic back pain, suffered sleep
disturbance and was anxious about her future. He doubted she could perform
any serious regular work.
133 The plaintiff was examined by Mr McDermott in March 1999.
134 The plaintiff’s complaints then were of constant left upper extremity pain.
There was sudden onset of lumbar spinal pain which radiated to the right leg.
135 Mobility was restricted and pain increased after walking more than 15
minutes. The plaintiff drove a car only short distances. She had less social
contact with her friends. She was helped at home by her husband and
daughter. She managed some cooking but no cleaning or gardening. Leisure
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Ognenovska v Transport Accident Commission
activities had not been affected.
136 Mr Carmine Vinci, physiotherapist, wrote to CGU in September 2007. The
first treatment was in August 1998 and continued until May 1999. Mr Vinci
then diagnosed chronic lumbar musculoskeletal dysfunction and chronic left
Carpal Tunnel Syndrome.
137 The plaintiff recommenced treatment in October 2006. Mr Vinci then noted
deterioration was evidenced by reduced tolerance to static postures,
increased pain level and significant disrupted sleep. Since resuming
treatment, those parameters had been steadily improving. The plaintiff was
not yet stable and therefore required ongoing treatment three times a month.
138 Mr Neil Sherburn, physiotherapist, conducted an independent physiotherapy
assessment, having examined the plaintiff on 25 January 2008.
139 The plaintiff then reported she had pain across the lower back but more on the
right, with referral down the right leg. She also had numbness down the right
leg and she mentioned pain could radiate from the lower back to an area
between the shoulder blades. The pain was constant, varying in intensity, and
did not change significantly over the last year.
140 The plaintiff said she could do activities of daily living, albeit slowly at times.
She reported her sleeping was disturbed by lower back pain and she was
often stiff and sore in that area when she got out of bed in the morning, taking
a while to get going. She had been in so much pain in the past, she required
injections from a doctor.
141 The plaintiff reported she had a reduced sitting and standing tolerance due to
lower back pain. She gave the impression she led a very quiet and inactive
life due to pain levels.
142 At that stage, the plaintiff reported that she was attending a doctor regularly
for review of her condition and provision of certificates and medication. She
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Ognenovska v Transport Accident Commission
was having physiotherapy twice a week with some transient pain reduction
thereafter. She was taking Panadol on an ‘as needs’ basis.
143 On examination, there was very limited movement of the cervical spine and
the movement was variable on repeated testing, indicating a functional
overlay.
144 In Mr Sherburn’s opinion, the plaintiff presented with a chronic pain scenario
of lumbar spine as a result of her 1997 work injury. He thought ongoing
physiotherapy was not appropriate or reasonable. In his view, the plaintiff
should be given an appropriate exercise program. He thought there should be
limited physiotherapy in the future to implement a comprehensive exercise
and stretching program.
145 The plaintiff saw Mr Peter Battlay, orthopaedic surgeon, on 25 June 2010.
146 The plaintiff told him of pain in her left hand since injury, as well as tingling
and numbness at night. She said the pain spread to her shoulder and neck
and she had been on medication continuously.
147 Mr Battlay noted the plaintiff had basically put up with pain ever since and had
been seen by Mr Flood, who advised a further decompression.
148 The plaintiff then described pain in the volar aspect of the wrist and spreading
up the arm, as well as a continuous numb feeling in the left hand, worse at
night. She only took Panadol for pain, although when severe she had
Panadeine Forte. She generally coped with housework, although her
husband had to help her with vacuuming, mopping and anything else heavy.
149 Mr Battlay noted there may have been episode of Reflex Sympathetic
Dystrophy to perpetuate the plaintiff’s symptoms but he could not find any
evidence of it then.
150 Mr Battlay thought an operation would not help from a physical point of view
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Ognenovska v Transport Accident Commission
and it may well make the plaintiff’s symptoms worse.
151 Mr Battlay changed his view as to compensability because of recent literature
as to the carpal tunnel and its relationship to work. He then thought the
plaintiff’s initial condition would not have been compensable and the case for
operative intervention was not strong.
Vocational evidence
152 In April 1998, Work Solutions carried out a vocational assessment, following
which it concluded the plaintiff did not possess a capacity for employment.
Her physical injuries involved her left wrist and lower back, affecting her ability
to undertake any work, and outside of the workplace, she did not have any
transferrable skills as she had been largely involved in process and packaging
work.
Medico-legal examiners
153 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined
the plaintiff in February 2011.
154 The plaintiff told him of the accident circumstances and treatment thereafter.
She denied any past history of neck pain, even after he specifically indicated
that this was documented in her local doctor’s notes.48
155 The plaintiff complained of neck pain and headaches, pain in the upper
thoracic spine and both shoulder girdles. She did not specifically complain of
arm pain or numbness in the left arm.
156 Dr Thomas noted the plaintiff had been in receipt of a Disability Support
Pension since 1997 due to back problems and left Carpal Tunnel Syndrome.
157 On examination, the plaintiff was tender to palpation in the cervical and upper
thoracic spine. Neck movements were limited, with flexion reasonably well
preserved. She reported decreased sensation to the left fingers. Power in
both upper limbs was only mildly limited.
48 There is no reference in Dr Gorgioski’s notes to neck pain pre-accident
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Ognenovska v Transport Accident Commission
158 There was marked limitation of movement of the lumbar spine.
159 Dr Thomas noted the MRI scan of the cervical spine of September 2011.
160 Dr Thomas concluded the plaintiff had whiplash and associated disorder and
there may be some symptoms emanating from the cervical spine discs. He
accepted the symptoms had been aggravated by the accident and given that
she denied any previous neck problems and the difficulty deciphering the
handwritten notes from her general practitioner, he thought that was
reasonable.
161 Dr Thomas noted the plaintiff had pre-existing unrelated conditions but they
did not seem to be involving her cervical spine. He thought she had poor
overall coping strategies and that had impacted on her recovery.
162 Dr Thomas thought recurrent physiotherapy was inappropriate and
counterproductive and needed to be discontinued. Accepting ongoing pain
and neck stiffness, referral to a pain management program would be
reasonable.
163 Given the plaintiff’s neck pain was the dominant problem and there was no
evidence of radiculopathy and she did not complain of brachialgia, Dr Thomas
thought there was no indication to consider cervical fusion and that surgery
was most unlikely to help the plaintiff’s cervical spine complaint.
164 Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff in June 2015.
165 The plaintiff then complained of neck pain along the length of her neck, going
up the back of her head and out towards the left shoulder and down into her
thoracic spine. She described a pulling feeling in the neck and the pain did
not go into her arms. With neck pain, there was an associated significant
problem with headaches.
166 The plaintiff rated her neck pain on a visual analogue scale as 8 to 9 out of 10
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Ognenovska v Transport Accident Commission
and she was never free of pain. The pain was constant and woke her at night.
It was improved by medication and hot packs, but physiotherapy only gave
temporary relief.
167 The plaintiff confirmed medication then consisted of Panadol Extra every four
hours – two tablets – and also Nurofen – two tablets a day, mostly at night.
168 The plaintiff indicated she had past injuries which included WorkCover claims
for a back injury and bilateral Carpal Tunnel Syndrome. She indicated she
was still having symptoms referrable to the lower back and was being treated
by her general practitioner for this with injections.
169 Mr Dickens thought the plaintiff’s presentation was straightforward, without
any suggestion of embellishment. In his view, the overall contour of the
cervical spine appeared to be relatively normal, although the plaintiff tended to
hold her neck slightly forward. She was tender throughout the cervical spine
and tenderness appeared to be maximal high up in the occipital region.
170 To formal testing, neck range movements were significantly restricted. Mr
Dickens thought that seemed in excess of what would be expected, noting the
plaintiff had virtually no flexion and minimal rotation.
171 Upper limb reflexes were normal.
172 Mr Dickens noted the range of investigations undertaken.
173 Mr Dickens diagnosed a soft-tissue injury to the cervical spine, causing
aggravation of underlying degenerative disc pathology. He thought there was
no evidence of radiculopathy.
174 Mr Dicken thought other pre-existing other problems had not been aggravated
by the accident, the exception being the degenerative pathology in the
cervical spine shown on investigations immediately following the accident.
175 Mr Dickens thought there had been no other injuries or disease arising since
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Ognenovska v Transport Accident Commission
the accident influencing the course of the current injury.
176 The plaintiff confirmed that her biggest problem was her neck, not her lower
back.
177 Mr Dickens did not get the impression that there were any major psychosocial
issues impacting on the accident-related neck injury. He thought the plaintiff
sounded quite straightforward in her presentation, although a little flat in
affect, which may suggest an element of depression or anxiety, a diagnosis
which should be left to psychiatric colleagues.
178 Whilst the plaintiff indicated a major problem was her neck, Mr Dickens had
no doubt there were other physical problems, including a preceding back
problem, which were impacting on her domestic activity.
Claim documentation
179 The plaintiff lodged a Claim for Compensation on 22 January 1997 for injury to
the left wrist.
180 The plaintiff lodged a Claim for Compensation in relation to her back on 12
November 1997.
181 The plaintiff lodged a Claim for Permanent Disability for her back, right leg, left
hand and left arm in January 1999. She received a lump sum payment of
$50,709.
182 A WorkCover payment printout set out an attendance with Dr Gorgioski on 3
January 2015 in relation to the left carpel tunnel claim.
The Plaintiff’s 1999 affidavit
183 The plaintiff filed an affidavit in support of her s98 claim for her left carpal
tunnel and back in January 1999.
184 In that affidavit, the plaintiff deposed to her left carpal tunnel problems from
1997 and that prior to surgery in relation thereto, she suffered an injury to her
back on 7 October 1997.
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Ognenovska v Transport Accident Commission
185 As of January 1999, the plaintiff was taking Panadol daily and Panadeine
Forte occasionally. She had difficulty sleeping due to the pain since the
development of her injuries but she did not take medication.
186 The plaintiff was restricted in her ability to lift or sit for long periods.
187 The plaintiff’s left arm was weaker than her right and she had pins and
needles.
188 The plaintiff suffered from anxiety and depression due to her injuries, inability
to work, and financial pressure.
189 The plaintiff only did light shopping and her twenty-five-year-old daughter did
the cleaning. The plaintiff had assistance from her sixty-five-year-old mother.
190 The plaintiff could not do gardening. She used to take care of the house and
work hard and now could not do either. She did not socialise very often and
became very upset and frustrated at her family.
Overview
191 It is not disputed the plaintiff suffered an injury to her cervical spine in the
accident.
192 The plaintiff’s cervical injury has been diagnosed as a soft-tissue/whiplash
injury causing aggravation of underlying degenerative disc pathology.
Credit
193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:49
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
194 Counsel for the defendant submitted that the plaintiff was an unreliable
witness and the lack of supporting lay evidence was very significant.50
49 (2010) 31 VR 1 at paragraph [12] 50 Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23] (per Harper JA and Beach AJA)
VCC:AS/LW/AS 29 JUDGMENT
Ognenovska v Transport Accident Commission
195 Further, in her viva voce evidence, the plaintiff disavowed her affidavit or
rejected material that went against her interests, such as her description of
pain in the “neck region” prior to the accident when she had complained of
neck pain to Mr Kudelka and Mr Battlay before the accident.51
196 The plaintiff deposed in her second affidavit that her neck condition had been
the same since she swore her first affidavit, but then said in her viva voce
evidence that her condition had worsened.52
197 In her viva voce evidence, the plaintiff admitted to having sleeping tablets
before the accident, but later in her evidence denied this was the case.
198 Counsel for the plaintiff submitted the plaintiff’s evidence should be accepted
despite the absence of a supporting lay affidavit. It was submitted the plaintiff
was a frank witness who tried to give a good account of herself.53
199 I did not think the plaintiff was a particularly reliable witness. She tended to
attribute all the blame for her current problems to her neck injury when her
current restrictions are clearly related also to her back and left wrist,
conditions for which she has been in receipt of a Disability Support Pension
since 1997.
200 Further, the plaintiff attempted to minimise the seriousness of her pre-accident
complaints. One such example was the plaintiff said that in 2010, Mr Flood
had advised her left carpal tunnel surgery would not help, yet it is apparent
that he requested funding and he advised the plaintiff’s solicitors of the need
for this surgery.
201 Whilst the plaintiff’s credibility is compromised, there is objective evidence to
support her claim that she suffers from a serious injury to her cervical spine.54
51 T51, see also Mr Sherburn - 2008 52 T52 53 T75 54 Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108 paragraph [171]
VCC:AS/LW/AS 30 JUDGMENT
Ognenovska v Transport Accident Commission
Unrelated conditions
202 In Peak Engineering & Anor v McKenzie,55 Maxwell P described the difficulty
faced when a separate injury is also producing pain and suffering
consequences for the claimant, as well as the relevant injury.
203 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”56
204 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the
plaintiff of the knee injury; and
(b) when the consequences properly referable to the relevant injury were
identified, identified them as “serious”.57
205 I am therefore bound to identify, and exclude, the continuing consequences
for the plaintiff of her various unrelated conditions and consider whether the
consequences referable to her neck injury are “serious”.58
206 Whilst the plaintiff lists a number of activities she claims are compromised by
her neck injury, the plaintiff’s ability to engage in these activities is also
significantly affected by her chronic back pain and left wrist conditions.
207 Counsel for the defendant submitted there is a lack of medical evidence as to
the plaintiff’s pre and post-accident condition as to what ongoing problems are
related to the transport accident. There is nothing from the general
practitioner in this regard.59 He clearly failed to do any analysis, simply
referring in one sentence to chronic low back and chronic carpal tunnel, not
55 [2014] VSCA 67 56 Peak Engineering & Anor v McKenzie (supra) at paragraph [1] 57 Supra at para 2 58 Supra 59 T50
VCC:AS/LW/AS 31 JUDGMENT
Ognenovska v Transport Accident Commission
exploring the issue in any way.60
208 It was submitted that none of the other medical practitioners who have opined
in this case address the plaintiff’s neck condition in the detail that is required
by the Court of Appeal in Bezzina v Phi & Anor.61
209 In that case, Harper AJ stated that the trial judge was required to examine the
impact of the injury on the applicant as a whole. When examining the
consequences of the claim for serious injury, the trial judge was bound to look
at how they affected the applicant as he was, and would likely have been,
absent the injuries he sustained in the transport accident.
210 This included looking at and considering the effect (and likely effect in the
future) of the applicant’s pre-existing injuries. To the extent that the evidence
was said to be so sparse as to impede the judge in that task, the responsibility
lies with the applicant or his legal advisers.62
211 The plaintiff’s affidavit did not include any comparison of her medication intake
pre and post accident. Her general practitioner was also silent in this
regard.63
212 It was submitted it was wrong for the plaintiff to say that she was in
reasonable health prior to the transport accident. Medical records made that
suggestion “farcical”.64 She clearly had ongoing left limb problems, with Mr
Flood suggesting further surgery in late 2010.
213 It was submitted it was impossible to say which injury was productive of
impairment of body functions to the point where the plaintiff suffers
consequences that are serious.65
60 T57 61 Supra 62 T23 63 T53 64 T55 65 T56
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Ognenovska v Transport Accident Commission
214 I accept this submission generally and have difficulty identifying any particular
activity where the plaintiff’s neck injury has produced consequences that meet
the narrative test.
215 In my view, many of the plaintiff’s other activities were significantly
compromised before the accident – housework, shopping, cooking, socialising
and driving.
216 Further, pre accident, the plaintiff was having significant headaches and she
had difficulty sleeping because of her arm and back pain.
217 The plaintiff’s lifestyle difficulties were clearly set out in her 1999 affidavit and
more importantly, mentioned by her to medical examiners in the years leading
up to the accident.
218 Accordingly, at the time of the accident, the plaintiff’s activities were
significantly restricted by her back and left arm conditions.
219 However, it is clear that since the accident, a further major factor has been
added to the plaintiff’s pre-accident presentation, namely severe, persisting
neck pain. Until recently, this was accompanied by arm pain such that her
treating orthopaedic surgeon, Mr Timms, thought the plaintiff’s condition
warranted cervical surgery.
Pain
220 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:66
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
221 I accept that since the accident, there has been a very consistent pattern of
ongoing complaints of neck pain and stiffness by the plaintiff to Dr Gorgioski.
66 (Supra) at paragraph [11]
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Ognenovska v Transport Accident Commission
Whilst the plaintiff continued to complain of back and left arm pain before the
accident, during that time, there was no complaint of neck pain or any
treatment in relation thereto by Dr Gorgioski.
222 Counsel for the plaintiff relied heavily on Dr Gorgioski’s clinical notes showing
ongoing complaints of neck pain and treatment after the accident of a
significant nature.67
223 It was submitted on Dr Gorgioski’s notes, the predominant problem since the
motor vehicle accident had been the neck.68
224 Counsel for the defendant relied on the comments of Ross AJA in Tatiara
Meat Company Pty Ltd v Kelso,69 where his Honour noted that a complaint of
pain even repeated many times does not establish the veracity of the
complaint.
225 However, in the present case, it is not just a situation of complaint of pain, the
assessment of pain and suffering consequences also involves what the
plaintiff has done about the pain.
226 Clearly, post incident there are numerous attendances on Dr Gorgioski when
the plaintiff complains of severe persisting neck pain. Pre accident, she was
not attending her general practitioner as frequently, as is now the case with
her neck.70
227 Whilst the exact nature of the plaintiff’s medication regime post-accident is
unclear, I am satisfied that on numerous occasions she has been prescribed
Tramal for her neck, as well as Panadeine, Voltaren and Digesic. There
appears to be one neck-related prescription of OxyContin in August 2013
when the note of that date detailed neck pain persisting and restricted
movement.
67 T63 68 T73 69 [2010] VSCA 12 at paragraph [46] 70 T60
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Ognenovska v Transport Accident Commission
228 Whatever be the correct picture in terms of prescribed medication for the
neck, I accept that since the accident, the plaintiff has been taking painkilling
medication on a regular basis for her neck pain.71 Pre accident, Dr
Gorgioski’s notes do not indicate ongoing prescription of medication or the
use of painkillers on a regular basis for the plaintiff’s back and left arm
condition.
229 Whilst surgery was suggested at an early stage by Mr Timms, the plaintiff did
not go ahead with it as a private patient. She recently sought a referral back
to Mr Timms seeking surgery because of her ongoing neck pain and
restriction. However, as she no longer complained of arm pain, he did not
consider surgery was warranted.
230 Taking into account all the evidence, I am satisfied that the consequences
referrable to the plaintiff’s compensable neck injury – persisting pain,
restriction of movement and the need for medication – excluding the
consequences of her back and left arm injury, meet the narrative test of
“serious”.
231 Accordingly, I grant the plaintiff leave to bring proceedings for damages for
pain and suffering.
- - -
71 T64