(1) The decision of the respondent of 26th September 2003 that the applicant has a Whole Person Impairment of 19 percent is set aside and in lieu thereof it is determined that she has a Whole Person Impairment of 51 percent.

Ms Bourke of Counsel, instructed by Ryan Maloney & Anderson

Mr Moulds of Counsel, instructed by TAC Law Pty Ltd

1 This matter comes before me by way of an application by Carina Griffiths ("Griffiths") who is seeking a review of a decision of the Transport Accident Commission ("the TAC"), such decision being dated 26th September 2003. The decision concerns the level of impairment suffered by Griffiths as a result of a motor vehicle accident which occurred on 5th December 2001 ("the accident"). Given the date of the accident, any assessment of Griffiths' Whole Person Impairment should be performed in accordance with the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment ("the Guides"). Pursuant to the Guides, the TAC originally assessed Griffiths' Whole Person Impairment at 19 percent. Griffiths is seeking a review of that decision on the basis that her impairment is greater than 19 percent, and an application seeking such review was issued out of this Tribunal on 17th November 2003. At the hearing it was made quite clear that this was what could be described as a "50 percent" case - in other words, whilst every percentage point of assessment has the potential to be of financial significance, the plaintiff is seeking to establish that she is entitled to ongoing benefits by reason of the operation of s.53(5)(b) of the Act. Whilst the original decision of the TAC may have been of an assessment of 19 percent, the ultimate submission on its behalf was that the appropriate level of Whole Person Impairment was, in essence, 39 percent.

2 I should add that the respondent made a "with prejudice" or open offer based upon a Whole Person Impairment assessment of 49 percent. Whilst the document containing the offer of settlement is dated 18th November 2004, its existence was not drawn to my attention until 30th November 2004, the hearing of this case having commenced on 24th November 2004.

3 As with the matter of Zagar, this matter also had to be conducted in an interrupted fashion (and this is no criticism of anyone involved) and was ultimately concluded on the last working day of 2004. For the same reasons which I expressed in Zagar, I again apologise to the parties for any delay in delivering this judgment, but such delay resulted from the circumstances which arose as described.

4 In this matter Ms Bourke of counsel appeared on behalf of Griffiths and Mr Moulds of counsel on behalf of the TAC. Griffiths gave evidence and was cross-examined. Evidence was also elicited on her behalf from Dr Russell, General Practitioner; Mr Kenneth Brearley, Orthopaedic Surgeon; Mr Murray Stapleton, Plastic and Hand Surgeon; Dr Maureen Molloy, Neuropsychologist; Mr David Brownbill, Consultant Neurosurgeon; and Dr John Colman, Gastroenterologist. The TAC elicited evidence from Dr Lester Walton, Consultant Psychiatrist (who in fact examined Griffiths on behalf of her own solicitors); Dr David Weissman, Consultant Psychiatrist; and Mr Brendan Dooley, Orthopaedic Surgeon. Additional medical reports were also tendered.

5 I make the following findings of fact by way of background. Griffiths was born on 20th January 1983, and is thus 22 years of age. She is a single woman. Prior to the accident she was an independent person who worked on a full-time basis for McDonalds Restaurants. Since the accident she has attempted, unsuccessfully, to return to work at McDonalds; she did not pursue a visual arts course in which she had enrolled in Melbourne; but she has enrolled in a course at the Sunraysia Institute of TAFE and completed a certificate for that course, having been given particular consideration by that Institution. She cannot complete a diploma at Mildura, and does not believe she could cope in Melbourne, where such diploma course could be attempted.

6 The accident was a single vehicle accident, the vehicle in which she was travelling having run off the road near Ouyen and overturned several times. Whilst there may have been a very brief period of amnesia, Griffiths can remember extricating herself from the vehicle by climbing through a window. She was able to attract the attention of a passing vehicle and ultimately an ambulance was called. She was initially taken to the Mildura Base Hospital, and ultimately to the Austin Medical Centre in Melbourne.

7 The injuries suffered by Griffiths in the accident included the following:-

A burst fracture of the T4 vertebra, involving bilateral disruption of the T4 laminae and reducing the diameter of the spinal canal;

Fractures of the left transverse processes of the 3rd, 4th and 5th thoracic vertebrae;

Fracture of the body of C7 extending into the right lateral mass;

These are amongst the injuries initially noted.

8 Other impairments have since become manifest. Griffiths suffers from scarring, particularly in areas where surgery was performed. There has been the development of stomach pain and problems associated with the bowel, including the development of an anal fissure. The development of a mental or behavioural disorder has also occurred. A cognitive impairment resulting from the accident is also claimed.

9 In terms of progress following the accident, whilst at the Austin Medical Centre an internal fixation of the T4 crush fracture, which was thought to be unstable, was carried out and in addition a halo brace was fitted. After approximately four months she was flown to the Austin Medical Centre and the halo thoracic brace was removed. Subsequently there have been further developments, such as the stomach problems referred to above. These ultimately led to a lateral subcutaneous internal sphincterotomy for an anal fissure performed by Mr Gregory Mason. That surgery was performed in June 2004. In addition, Griffiths has been examined by a large number of medical practitioners, and has been on a very considerable regime of medications.

10 Before turning to the various assessments of impairment which are to be made, I shall record my impressions and findings in relation to Griffiths. I find her to be an honest witness and a witness of truth. Obviously the recounting of her various problems caused upset, distress and, at times, embarrassment, but I am satisfied that she did her best to give a truthful account of both what has occurred and of her symptoms. I accept her evidence in all relevant regards.

11 Against that background I now turn to the individual areas of impairment which require assessment.

12 In relation to this assessment, conflicting views were presented by Mr Brearley, on behalf of Griffiths, and Mr Dooley, on behalf of the TAC. There was also considerable argument concerning the method of assessment and what had been revealed by radiological investigations. As a result, Griffiths agreed to undergo further x-rays, which were taken at Sunraysia Medical Imaging on 2nd December 2004 (the case having commenced on 24th November 2004). These new x-rays were then examined by the experts. Mr Brearley viewed them and carried out various measurements. In his opinion, the x-rays revealed the severity of the compression fracture, and his calculations revealed a compression of more than 50 percent of the T4 vertebral body. This placed Griffiths in DRE Thoracolumbar Category IV and attracted an assessment of 20 percent. Mr Dooley placed the level of compression at 50 percent which, although stated in his report to place Griffiths in Category IV, in fact would place her in III. This would attract an impairment assessment of 15 percent.

13 Once the x-rays had been viewed and these reports obtained, Mr Moulds, on behalf of the TAC, had little to say on the issue of the musculo/skeletal system, and that is understandable. Mr Brearley has made a careful study of the new x-rays and made precise calculations. I might say that these confirmed his earlier opinion, which he had explained in some detail. I accept his evidence. It seemed to me to be careful and precise and little challenge was made to his most recent views.

14 In summary, I accept that the injury to Griffiths' thoracolumbar spine attracts a Whole Person Impairment Assessment of 20 percent.

15 To this must be added her level of impairment of the cervical spine. On the basis of fractures of the C6/C7 transverse processes, Mr Brearley made a Whole Person Impairment Assessment of 5 percent. Mr Dooley's assessment coincides with this. There is really no challenge as to this figure, and I accept that Griffiths' Whole Person Impairment of the cervical spine is 5 percent.

16 When the Combined Values Chart is brought into operation, this produces a Whole Person Impairment of the spine of 24 percent.

17 The competing opinions in this regard come from Dr Walton and Dr Weissman. Dr Walton, who examined on behalf of Griffiths' solicitors but was called by the TAC, assessed overall impairment at 17 percent with 11 percent of this occurring as a direct response to the accident and 6 percent being secondary or as a consequence of the physical injuries. In this regard, he was apportioning the impairment as required by s.46B(1). In cross-examination, he conceded that, in one sense, there was no great difference between a collective impairment of 17 percent and one of 20 percent, being the assessment made by Dr Weissman.

18 Dr Weissman, examining on behalf the TAC, assessed collective impairment at 20 percent, a figure from which he did not move. He appears to have carried out a thorough mental examination, and provided a detailed report. In a supplementary report, he assessed collective psychiatric impairment of 20 percent from which he excluded 5 percent as being secondary impairment. Accordingly, his assessment of the psychiatric impairment to be considered was 15 percent, and this was spelt out by him. It is also quite clear that, when making this assessment, he had before him Dr Walton's report, and specifically stated that he assessed Griffiths as being more unwell than had Dr Walton.

19 What happened next could not be regarded as being particularly satisfactory. The solicitors for the TAC forwarded to Dr Weissman a letter containing some additional material, including a report from a psychologist, Mr Bruton, to whom Dr Russell referred Griffiths in August 2004. The letter on behalf of the TAC is quite a lengthy one, highlighting various aspects of the case and of histories given by Griffiths. At least three of the points raised at some length in the letter relate to Dr Weissman's apportionment of secondary and non-secondary consequences. At the conclusion of these points, issues are raised such as "Does this impact on your assessment of the non-secondary component?" This letter was faxed to Dr Weissman on 19th November 2004.

20 Dr Weissman then reported back to the TAC by letter dated 23rd November 2004 but faxed later. He referred to the letter of 19th November and various points raised in it. Without requesting or carrying out a further examination of Griffiths, he increased the amount of secondary psychiatric impairment from one quarter to one third This had the effect of reducing Griffiths' Whole Person Impairment for non-secondary psychiatric or psychological injury from 15 percent to 13 percent. It is to be remembered that, in opening the case, Ms Bourke, on behalf of Griffiths placed before the Tribunal the assessments upon which Griffiths relied. These included the assessment of Dr Weissman of 15 percent non-secondary psychiatric injury. It is also to be remembered that, on 18th November 2004, the day before the faxing of the letter to Dr Weissman, the TAC apparently made an open offer based upon Griffiths' level of impairment being 49 percent. The existence of this "with prejudice" offer was not revealed to the Tribunal until 30th November 2004. In a situation where every percentage point has the potential to be vital, the downward revision of Dr Weissman's assessment, which arrived during the running of the case and without his having reviewed Griffiths, is something which has the capacity to create a feeling of unease. This is particularly so when, for example, the relevant aspects of Dr Russell's referral of Griffiths to Mr Bruton were not put to Dr Russell although the TAC possessed this information and, at least potentially, were going to rely upon it. Dr Russell gave evidence on 24th November 2004. Dr Weissman's additional report was faxed on 28th November 2004, but was not tendered until 30th November 2004. Further, as I understand it, there was no request that Mr Bruton attend for cross-examination.

21 I did not find Dr Weissman's explanation of the alteration to his assessment to be persuasive. I found it unconvincing. Assessing injuries of this nature and making the appropriate apportionment is a difficult task. As recently as 17th November 2004, just one week before the commencement of the case, Dr Weissman had assessed non-secondary psychiatric injury at 15 percent. Despite material put to him in cross-examination concerning a panic disorder suffered by Griffiths and diagnosed by Dr Russell, Dr Weissman was not prepared to return to that figure of 15 percent. Overall I was not impressed by his evidence as to which matters he took into account and which he disregarded when it came to altering his assessment.

22 Dr Weissman made his original assessment after a consultation with Griffiths and after receiving Dr Walton's report. It is also apparent that, in addition, he had a large number of medical reports, records, and other documents available to him. His considered opinion was that Griffiths had a non-secondary psychiatric injury which assessed at 15 percent. In my opinion, he was correct in arriving at that figure. These assessments are very much a matter of impression. Dr Walton has conceded flexibility in his assessment, and in the manner of assessment. As stated, I accept Griffiths as a witness of truth. The assessment of her non-secondary psychiatric impairment as being 15 percent coincides with my own opinion.

23 In summary, I assess Griffiths' psychiatric impairment as being 15 percent.

CHAPTER 10 - THE DIGESTIVE SYSTEM - GASTRIC AND COLON PROBLEMS

24 The only expert evidence in relation to this impairment was that of Dr Colman, an expert Gastroenterologist. There are two aspects to his assessment. Firstly, he allowed 2 percent pursuant to Table 2 on page 239 of the Guides in relation to Griffiths' reflux disease. He indicated that this symptom can be controlled by medication and is at the "milder" end of the scale. Unfortunately there seem to have been problems in relation to Griffiths' tolerance of the medication. In any event, as pointed out by Dr Colman, the symptoms commenced shortly after the accident and are continuing. They seem to me to warrant an assessment pursuant to the Table to which I have referred. Dr Colman's assessment is at the lower end of the scale permitted (0 percent - 9 percent). His evidence in relation to it was persuasive and I accept it, despite Mr Moulds' submission that the evidence fell short of demonstrating a permanent Whole Person Impairment.

25 The second part of this assessment relates to Griffiths' anal fissure, which in turn relates to her chronic constipation consequent upon the medication consumed because of her various injuries. Dr Colman assessed this impairment as being 10 percent, referring to Table 3 on page 241 of the Guides. In oral evidence, he gave what was in essence a revised opinion, increasing his assessment because of his suspicion that Griffiths had a recurring anal fissure. He increased his assessment to 13 percent. His suspicion that there might be a recurring anal fissure related to Griffiths' history and evidence concerning ongoing anal bleeding. A further report from Mr Mason, a treating surgeon, then indicated that the bleeding was due to granulation tissue after her first operation, and he did not feel it was due to a recurrent anal fissure. However, he did express the view that, if she continued to take strong pain killing drugs, she might suffer further episodes of constipation which would be extremely likely to lead to another anal fissure.

26 In her submissions, Ms Bourke urged me to accept as correct the higher assessment of 13 percent. Mr Moulds has submitted that Griffiths' Whole Person Impairment pursuant to Chapter 10 is 10 percent.

27 This is very much a borderline situation. Whether Dr Colman's assessment be made pursuant to Table 3 or Table 4 of Chapter 10, in my view the assessment urged by Mr Moulds is correct. The additional report of Mr Mason is probably sufficient to confine the opinion of Dr Colman to his original assessment. His assessment of 10 percent in this regard seems to me to be logical and I accept it.

28 After application of the Combined Values Chart, I assess Griffiths' Whole Person Impairment in relation to her digestive problems as being 12 percent.

29 The only expert evidence given in this regard was that of Mr Stapleton. I also had the opportunity of viewing the scars in question.

30 There are two areas of scarring to be considered. The TAC accepts Mr Stapleton's assessment of 1 percent Whole Person Impairment in relation to facial scarring, this assessment being made pursuant to Chapter 9 of the Guides.

31 There is a contest in relation to Griffiths' other scars, which are on the cervical spine, as a result of the surgery performed; on the left hip, which was a donor site; and a small scar on the left shoulder. Mr Stapleton's assessment in relation to these scars, which assessment is made pursuant to Table 2 of Chapter 13 at page 280 of the Guides, is that Griffiths has a Whole Person Impairment of 8 percent. In other words, he placed the impairment at the high end of Class 1 in that Table. The assessment of Mr Stapleton was one from which he could not be budged in cross-examination. He gave evidence concerning the severity of the scarring, and in particular of the cervical scar, and of the effects of this scarring upon Griffiths' everyday activities. In my opinion he fully and logically justified the assessment which he had made. Having viewed the scars and listened to the evidence of Griffiths in relation to them, I fully agree with the opinion of Mr Stapleton.

32 When the assessment of 1 percent in respect to the facial scarring is combined with the assessment of 8 percent for the other scarring, the result is that I assess the plaintiff's Whole Person Impairment in relation to scarring at 9 percent.

CHAPTER 4 - THE NERVOUS SYSTEM - MENTAL STATUS IMPAIRMENT

33 An assessment in this regard was made by the eminent Consultant Neurosurgeon, Mr David Brownbill. Pursuant to Table 2 in Chapter 4 of the Guides, he made a Whole Person Impairment Assessment of 5 percent. Evidence was also given in relation to this aspect of the claim by Dr Maureen Molloy, Neuropsychologist. In his initial report Mr Brownbill had requested that a Neuropsychologist's opinion be obtained before he made any assessment pursuant to Table 4.2. Accordingly, Griffiths was examined by Dr Molloy and a report obtained, this being forwarded to Mr Brownbill. He then made his assessment.

34 I accept Mr Brownbill's assessment. Whether Griffiths had in fact suffered any loss of consciousness in the accident was the foundation of a considerable attack upon this evidence by Mr Moulds. However, the view of Dr Molloy was that it is possible for a person to suffer from disturbances in brain function whether or not a loss of consciousness has occurred. This was a view endorsed by Mr Brownbill. Mr Brownbill referred to the mechanics of the accident and what would happen to the body, and in particular the head, during the course of such an accident.

35 I also accept that Mr Brownbill has made every effort to distinguish between Griffiths' neurological impairment and any psychological or psychiatric impairment that may have occurred. Again, he has had the assistance of the report of Dr Molloy in this regard. I am also satisfied that both Dr Walton and Dr Weissman were assessing mental and behavioural disorders, and distinguishing these from Griffiths' neurological impairment.

36 In summary, in my opinion Mr Brownbill has been careful to obtain the opinion of a Neuropsychologist before proceeding to any assessment. He has then made an assessment which I accept. He has distinguished any psychological or psychiatric impairment. I assess Griffiths' Whole Person Impairment pursuant to Chapter 4 to be 5 percent.

37 Thus, the following impairment values have been obtained:-

38 Applying the Combined Values Chart in order of decreasing magnitude of impairment values, the end result is a Whole Person Impairment of 51 percent.

39 Griffiths succeeds in this application. The decision of the TAC of 26th September, 2003, that Griffiths has a Whole Person Impairment of 19 percent is set aside and in lieu thereof it is determined that she has a Whole Person Impairment of 51 percent.

40 I shall now hear any argument as to costs.