The decisions of the respondent under review in this proceeding are affirmed.

1. Ms Ayse Kadir was involved in two separate motor vehicle accidents.
2. On 15 March 2015 (2015 accident) she was struck as a pedestrian by the driver of a car in the car park outside Queen Victoria Market.
3. The Transport Accident Commission (TAC) accepted her claim for compensation. It paid compensation including loss of earnings benefits and medical and like expenses in respect of the injuries.
4. The medical expenses included funding January 2017 cervical spine surgery, by Mr Craig Timms Orthopaedic Surgeon. TAC accepted the 2015 accident was a cause of injury to Ms Kadir which required the surgery.
5. On 25 April 2018 (2018 accident) Ms Kadir was driving in a car park at an IGA. She hit a car reversing out of a parking bay.
6. In June 2020, Mr Timms sought TAC funding for further spinal surgery.
7. In July 2020, TAC rejected that request:

The TAC notes that under the above claim your injuries listed were lumbar spine an injury to the left hip. There is no evidence that your cervical spine was injured in this accident. [1]

Therefore the TAC cannot accept any treatment or services related to the cervical spine including Mr Craig Timms's request for a discectomy and spinal fusion from C5-6 to C6-7.

1. In the above, the TAC was referring only to the 2018 accident as Ms Kadir's claim was made only with reference to that accident.
2. In 2021, Ms Kadir applied to VCAT under the Transport Accident Act 1986 (Vic) (the Act) for review of TAC's decisions refusing to fund the further surgery.
3. In August 2022, Dr Zahid Hussain, General Practitioner, requested chronic pain management treatment for Ms Kadir's 'significant past history of accident related neck, back and pain in multiple sites of the body' related to the 2018 accident.
4. In September 2022, TAC rejected that request:

... TAC does not accept that your chronic pain or pain to your neck, back is a direct result of the transport accident which occurred on the 25 August 2018[2] and therefore is unable to pay for any treatment, services including a pain management program.

1. On 11 January 2023, the TAC affirmed the 'pain management program decision' on internal review. The parties agreed to the second decision being a decision under review in this proceeding. VCAT agreed that the two decisions be reviewed in this proceeding.[3]
2. Over 22, 23 and 29 March 2023, I heard the application and reserved my decision. Both parties were legally represented.

1. VCAT's role when undertaking a review under section 77 of the Act and section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is to make the correct or preferable decision on the application exercising all of TAC's functions.
2. VCAT may take into account evidence before TAC at the time the original decisions were made as well as additional evidence provided by the parties.
3. The questions for me to consider are:

a) Is Ms Kadir's neck condition an injury 'caused by a transport accident' - the 2018 accident - (s 3(3) of the Act)? > > b) Is Ms Kadir's condition requiring a pain management program an injury 'caused by a transport accident' - the 2018 accident - (s 3(3) of the Act)? > > c) Where the answer to either question is yes, is the TAC liable to pay the reasonable costs of medical services for the injury/ies (s 60(2)(a) of the Act)?

4. 'Injury' is relevantly defined in s 3(1) of the Act as physical or mental injury by a person who was directly involved in the transport accident.
5. Concerning causation, what is required is that the injury be 'directly caused by' the transport accident. It is sufficient that, here, the 2018 accident be a cause of injury/ies.[4] It need not be the sole cause.
6. The causation question now to be answered is whether the evidence before VCAT justifies an inference of probable connection between the 2018 accident and Ms Kadir's neck condition and/or condition requiring a pain management program. Neither party bears a burden of proof.
7. TAC submitted, and I accept, that in this proceeding VCAT is not reviewing any TAC decision relating to the 2015 accident. It is not open to VCAT to make a finding that the 2015 accident is a cause of Ms Kadir's current conditions and then consider whether on that basis, TAC is liable to pay the reasonable costs of medical services. That said, TAC submitted it remained open to Ms Kadir to make a later request to TAC on that basis.

1. These reasons are long and detailed, necessary given the complexity of the evidence and issues.
2. I set out:

a) Ms Kadir's evidence given at the VCAT hearing. While I include some quotes from documentary evidence contained in the 1843 page Tribunal Book, at times the documentary evidence is set out later in the reasons. > > b) evidence from medical records; > > c) the expert evidence of four specialists; > > d) a summary of the parties' submissions; and > > e) my decisions and reasons.

1. At hearing, Ms Kadir confirmed that her 1 March 2021 witness statement was true and correct.
2. She spoke of the 2015 accident (see below for a description), followed by physiotherapy, cortisone injection some Pilates and eventually the 2017 surgery.
3. She spoke of experiencing a lot of pain before the surgery; really sharp pain where she would lose strength in her hands and drop things and severe headaches. The pain was at the base of her neck and then along the right arm with pins and needles in her fingers. This happened every day.
4. Following the surgery, she described initially having pins and needles in her right hand and arm and stabbing headaches. She spoke of the pain in her arms and her headaches stopping, leaving her neck tender. She spoke of improvement after three to four months, although she still experienced pins and needles and sharp pain. She could carry her head, it felt lighter with better movement. She described her pain becoming very mild. She did experience spasms, in her view due to implants as part of the surgery.
5. Ms Kadir described the 2018 accident:

[I] was driving into a car park and then a car just reversed into me suddenly without realising. She didn't notice a car was coming up and slammed into the back left side of the car. ... [I] went to the side, the right side where my neck sort of went to the side, and my left hip from the seat belt. ... I was actually in shock. I looked at my daughter [In the passenger seat ] and said, 'I think something just happened to my neck'. ... The left tail [and] the bottom part near the tyre [were damaged and needed repair]. [5]

1. She provided more detail than that in her witness statement:

In the second motor vehicle accident on or about 25 April 2018 my vehicle was struck by another vehicle reversing out whilst l was driving my car on Fawkner Street, and the second motor vehicle accident also aggravated my neck, left hip and back injuries. ... [6]

1. Concerning the days after the accident, her evidence was:

I felt aggravation that my lower back and hip were concerned. The neck part, I wasn't so concerned due to the back that must have aggravated and just ... I don't know, I wasn't paying attention, because there was so much more going on ... my partner ... had cancer ... [he passed away in] July 2018.

sharp pain, burning sensation, stiffness. ... [sharp pain] in back of the neck, and then it goes to the top of my shoulder, through the shoulder blades, down my [left] arm ... burning sensation ... That's in my neck, below the neck where, I'd say about the C6, C7 and lower, down my spine ... And suffering headaches.

Well I try to block [the pain] most of the time to keep moving on, pretend that it's not there, take painkillers, so I can't party as much as I'd like to, I can't socialise as much as I'd like to. Yeah, basically just put off a lot of things at the moment.

... at home I drop things that I hold, plates. I lose grip, drop things [from my left hand]. Vacuuming causes a lot of ... pressure and pain in my shoulder, my neck, my lower back.

I don't work but I go into a salon and attempt to do an hour or two for mental health because I love my trade.

1. In cross-examination, evidence of her past medical history was put to Ms Kadir. She mainly agreed with the records, although not recalling everything.
2. Concerning the 2015 accident, she agreed that a 16 March 2015 note by Dr Roger King, her then general practitioner and Brandon Park Medical Centre (Brandon Park) was accurate, except she says she did not work on that day after the accident. She agreed Dr King referred her to Mr Craig Mills, an orthopaedic surgeon and then to Mr Timms. She said she could not recall whether she gave either of them a history of her past medical conditions including headaches, sciatica, facial pins and needles, tingling in her fingers and abdominal pain.

1. She agreed she was referred to Mr Armin Drnda, neurosurgeon, and that his record of her description of the 2015 accident was accurate. She could not recall discussing Mr Drnda's recommendation of multidisciplinary pain management with Dr King as an alternative to surgery.
2. Ms Kadir confirmed that after the surgery her symptoms became mild and stayed that way, although she added that she had her 'off days' such as when it was cold her neck becomes uncomfortable, in her understanding given the metal implants.
3. It was put to Ms Kadir that in fact that her symptoms became worse after the surgery, which she denied.
4. She was taken to Dr Clayton Thomas' report of 14 February 2023.[7] He is a consultant in rehabilitation and pain medicine. She agreed she told him that she did some occasional hairdressing from home, adding that she occasionally went to a friend's salon (generally working for two hours at a time, four hours a week for the sake of her mental health). She disagreed with Dr Thomas' statement that she was working 30 hours a week before the 2018 accident. She said that between the 2015 and the 2018 accidents she was studying, 'a diploma course of practice management to change fields'. When a note by Dr King in October 2016 reported that she studied from 2013 to 2015, she agreed that was the case and she finished her studies in July 2015. She was not studying between the accidents.
5. Ms Kadir agreed with Dr King's note of 20 November 2016 that in late November that year she was reporting ongoing back pain and leg pain and on 9 January 2017 she was reporting to him pain in her hips and tops of thighs with some discomfort in her calves.
6. She agreed that shortly after the surgery and through February 2017 she was reporting various neck pain to Dr King. He increased her OxyContin from 10 mg to 15 mg. While she could not recall the consultation, she agreed that a 21 March 2017 note by Dr King about her still having difficulty lifting her arms above the horizontal, unable to do hairdressing and neck being stiff would have been accurate.
7. She agreed that the letter from Mr Timms to Dr King on 1 May 2017 concerning the pain she was experiencing then and that Mr Timms thought more time and physiotherapy were needed was accurate.
8. In July 2017 she was referred to Mr Mills for opinion and management concerning pain in her hips causing problems with sitting and mobility. She agreed with the statement in Mr Mills' 15 August 2017 letter to Dr King that she was experiencing multiple ongoing issues. Concerning Mr Mills writing, 'She has had her cervical disc surgery and has a residual C6 radiculopathy by her account', she said she could not remember if she was experiencing symptoms down either or both arms, saying her problems were more in her lower back, which was the reason she was seeing Mr Mills. She agreed that, as Mr Mills had reported, that in August 2017 she was experiencing ongoing low back pain, some sciatica and bilateral hip pain. She received steroid injections to the lumbar spine.
9. Returning to Dr King, Ms Kadir could not recall telling him on 5 September 2017 that she was having pain in her neck and some shooting pain down the left arm. It was put to her that her earlier evidence was that the left arm only became a problem after the 2018 accident. She responded that she always experienced pain in her left arm due to 'nerve damage'. She said this had been the case before the 2015 accident when she started having shooting pains, after the surgery she still had pain and the 2018 accident aggravated it, 'I believe there is nerve damage which is the cause of this pain'.[8]
10. Concerning Dr King's 1 October 2017 note of left arm pain with repetitive movement, with it being painful to turn her neck to the left side and extend and difficulty elevating her left arm above the shoulder, Ms Kadir said that she had reported all of this to Dr King, repeating it was due to nerve damage.
11. Ms Kadir said she did not recall seeing Dr Bruce Hocking, Specialist in Occupational Medicine engaged by the TAC, with his report dated 6 December 2017[9] and in part did not agree with what he reported she had told him. Dr Hocking in part recorded:

She has constant pain in the back of the neck which is worsened when she turns or bends her neck ... Both shoulders feel tense. She has shooting pain down the left arm and knots in the left shoulder blade. She has been advised against further surgery ... She has pain felt along the thoracic spine

1. She agreed the following from Dr Hocking would be correct

She has pain in the low back which is worsened if she sits or walks or stands for too long. She also has pain across the left buttock. She was treated by epidural injection but only obtained relief for four days ... She experiences pain in the left and right hips which radiates into her groin ... At times her legs feel weak ... 'She recently had injections to both hips without benefit ... She has spontaneous episodes of pain in her knees ... She has difficulty with her housework and has received assistance from TAC ... she cannot vacuum or clean the bath and has difficulty cutting hard vegetables or lifting pots and making the bed and cannot reach up to hang out the washing ... 'She presently does some hairdressing at her house for about two hours per week ... She has difficulty combing and blow drying due to pain in her shoulders

1. Concerning the report from Dr Stephen Jones, treating psychiatrist, who Dr King referred her to in early 2018 (before the 2018 accident) and she saw two or three times, she agreed that as he recorded in his report:

In terms of stressors, Hazel reports the experience of chronic pain has been challenging and currently she reports her left arm is particularly painful, though she also reported pain in her groin, hips and lower back ... She attributes this pain as resulting from the pedestrian versus motor vehicle incident that occurred in 2015 and involves her TAC claim ... In terms of anxiety Hazel reported that she feels generally anxious and tense with recurrent panic attacks of up to four times per week ... She does not report any clear precipitants

1. Cross-examination turned to Ms Kadir seeing Dr King on 7 May 2018. She recalled seeing him and experiencing pain from early that morning, not earlier after the accident 12 days earlier. Her neck movement was okay. She said that Dr King did not prescribe painkillers because, 'I take my own painkillers when I'm in pain, Mersyndol, [obtained from the pharmacy over-the-counter] as well as Celebrex and Advil'. She gave evidence of taking these painkillers probably every second or third day including from 7 May 2018 until today. However, her evidence on the taking of medications was confusing.[10] Ms Kadir denied that it was not possible to obtain Mersyndol 'over-the-counter', as it can only be obtained on prescription.
2. Ms Kadir agreed that she did not refer to neck injury in her TAC claim related to the 2018 accident. She said she regarded the surgery on her neck as done and she just had to live with pain. She agreed that she did not report any problems with her neck from the date of the 2018 accident until early 2019:

Because it didn't feel right and then I thought there was something not right there, that's when I referred the pain back to the doctor.

1. Concerning Dr Jones in June 2018 reporting, having seen Ms Kadir for the third time, not reporting being told of the 2018 accident, but recording life issues such as Ms Kadir's partner being terminally ill and a move to a new home, Ms Kadir said she could not recall whether she told him about the 2018 accident.
2. Ms Kadir agreed that she changed GPs, first seeing Dr Zahid Hussein, general practitioner at Greenvale Medical Centre (Greenvale), on 4 June 2018 concerning pain in neck and hands due to a foraminal stenosis of C5-6, Dr Hussein referred to an MRI, and prescribed Lyrica 25 mg twice a day. She also agreed that on 8 July 2019 she first told Dr Hussein about the 2018 accident, saying that it had worsened her neck pain.
3. For some reason it was Dr King who in January 2019 made a referral about Ms Kadir's neck, with a short note saying, 'surgery consultation needs letter re metal in neck'.
4. On 13 March 2019, Ms Kadir returned to Mr Timms, with an MRI taken a couple of weeks earlier. While he did not make any record of the 2018 accident, Ms Kadir's evidence at hearing was that she remembers telling him of the accident, but then said she could not remember when she told him.
5. Ms Kadir was then taken to a 9 March 2021 note by Dr Hussein, where he in part recorded that she had suffered from chronic neck and back pain for a long time now.
6. The general practitioner records then available indicated that she had not seen a general practitioner for a year, from 9 March 2021 to 14 March 2022.[11] Ms Kadir did not disagree.
7. It was at this point, she first told all concerned that she also attended the Craigieburn Super Clinic (CSC) for 'other personal issues', such as needing painkillers. She has been seeing doctors at CSC for over four years and the clinic is 10 to 15 minutes closer than the Greenvale Medical Centre.
8. When Ms Kadir was taken to Mr Rogers' reports, where he recorded her telling him that she experienced only short-term benefits from the 2017 surgery, she said she could not recall.[12] There was an exchange between Mr Bourke, Counsel for TAC, and Ms Kadir:

I'm suggesting to you that that pain came back at some time after the operation and before your further accident?---No, it was mild. I was having these pains due to nerve damage that I had in my arm which was restricting me doing certain things.[13]

1. Ms Kadir agreed with Mr Rogers' record that she was taking four tablets of Celebrex 200 mg a week, two Advil tablets a day and a Valium tablet once a week. She said she made no reference to Mersyndol because she discovered that later and has been taking it for about two years. She said she never reported taking Mersyndol to any medical practitioner given it is an over-the-counter medication, like Advil. She again rejected that Mersyndol is a prescription only medication.
2. Given Ms Kadir's medication history, it was put to her that when she saw Mr Rogers it was unlikely she had a current prescription for a painkiller from a general practitioner. She disagreed. Concerning the lack of evidence of any prescription for Celebrex, she said she might have been taking Brufen, which she described as much the same and she does not like 'sticking to' one medication.
3. Ms Kadir confirmed her earlier evidence that she tended to drop things she carried in her left hand. She tries to carry things in her right hand. She uses her mobile phone with the right hand, 'most times'. She drops her phone from time to time if she carries it in her left.
4. Ms Kadir recalled telling Mr Rogers she can only drive for short distances. Giving evidence she said she can drive up to 30 or 40 minutes. Her maximum is 50 minutes and usually she will have someone in the car who can take over if she can go no further. If she drives more than that she experiences inflammation and a burning sensation in her neck and lower back. When asked whether driving 50 minutes is more than driving the short distances that she had told Mr Rogers was her limit, she said she lives in a rural area and 50 minutes is a short drive. She needed to drive 50 minutes, probably once a fortnight, to see her parents.
5. Ms Kadir confirmed she told Mr Rogers she could walk once a day for five minutes and now does not do that every day and if so, 'usually in my backyard'. She said that if she walks any longer she starts to get inflammation in her lower back. That said, she does push herself to walk further than five minutes on occasion. It depends on how she feels and whether her pain is excruciating or mild. Her maximum is 10 or 15 minutes. She said the situation has improved since she saw Mr Rogers as she is trying to build her muscles.
6. Ms Kadir confirmed she told Mr Rogers that before the 2015 accident she could perform all household chores enjoyed doing them and that was the case. She spoke of, after the 2015 accident, pushing herself to do some chores with easier cleaning aids and equipment, but now she requires help.
7. Concerning her social life, Ms Kadir described going to nightclubs, maybe once every month or so. She now goes occasionally if there is an occasion, with someone else driving, socialising for several hours and someone driving her home.
8. Ms Kadir recalled seeing Dr Hazem Akil, a neurosurgeon, in February 2022. He had only recorded her reporting taking Celebrex. While Dr Akil recorded she had not worked since the 2017 surgery, she did not agree she had told him this.
9. A medical record of 25 April 2022 recorded Ms Kadir seeing Dr Chathurika Wansupura, general practitioner at Greenvale, due to lower back pain recent flareup and wanting to return to Lyrica as she found Celebrex was not then helping. Ms Kadir said she did not recall this.
10. The last entry from Greenvale was a note by Dr Wansupura, on 4 June 2022. It recorded Ms Kadir was on regular medication for chronic pain and was requesting medication because she was unable to be seen by her usual doctor.[14]
11. Ms Kadir agreed that she returned to see Mr Rogers on 1 February 2023. She agreed that he had accurately recorded the symptoms she told him of, except concerning him recording pain in her lower back on both sides, she said she would have reported pain in the middle of her back.
12. While Mr Rogers recorded Ms Kadir spending a lot of her day sitting in a massage chair at home using heat packs, she then responded she does not spend a lot of the day in her chair, on average only 30 minutes a day.
13. She confirmed the report saying that at the time she was taking Celebrex 200 mg daily, she needed Valium to sleep at night and had stopped using Lyrica about two or three months ago.
14. She told him she was still limited to walking five minutes a day, not telling him that she could now walk 10 to 15 minutes a day because, 'I didn't think it was relevant'. She confirmed she told him her driving was limited to short distances, again saying that for her, a 40 minute drive is a short distance.
15. Concerning her ability to bend forward, she spoke of being able to bend all the way when she does not have inflammation. When asked whether she would try to avoid bending as much as possible, she replied that she tried to push herself because, 'there is no such thing as can't'.
16. When she saw Dr Thomas on 14 February 2023, a couple of weeks after seeing Mr Rogers, she spoke of taking over-the-counter analgesics, occasionally Mersyndol and occasionally Diazepam. She said she did not report using Celebrex because she liked to change medications to make herself more comfortable.
17. She confirmed she told Dr Thomas that her walking was limited to 10 minutes. Giving evidence at the hearing she said this is variable. When asked why she did not tell that to Dr Thomas she said 'Did I need to? I'm not sure.' Her evidence concerning the rest of Dr Thomas's report was of the same vein, yes that is what she told him, no, that is not the whole story because the condition changes day to day and she only answered the questions he asked.
18. It was put to Ms Kadir that her report to Dr Thomas indicated she mainly took painkillers to address back and neck pain. She responded that she takes painkillers for her pain irrespective, back, neck and/or hips.
19. On 8 February 2019, Ms Kadir experienced chest pain and was taken by ambulance to Dandenong Hospital Emergency Department. She disagreed that the discharge summary accurately said she was on no medications at the time, while recording the 2017 surgery. She said she did not tell the hospital that because she was taking over-the-counter medications, not regularly, 'every second, third day is not classified as regular medications'. The discharge summary advised that she should take Panadol and Nurofen to address muscular pain. It was put to her that at that stage she would have said she was already taking painkillers if she was. Ms Kadir responded that she could not take Nurofen due to, 'certain circumstances'.
20. TAC provided four videos of Ms Kadir, which I describe as follows:
    • Video 1 (4 min, 27 secs, starts on 1 February 2023 at 11:52) shows Ms Kadir walking down a footpath with her phone in her left hand to her left ear. She appears to be moving comfortably. It then shows her filling her car at a petrol bowser and getting into the driver's seat, with no evidence of discomfort and driving off. On close watching, she has a slightly uneven gait to the left.
    • Video 2 (27 secs, starts on 1 February 2023 at13:01) shows Ms Kadir walking down a footpath with her phone in her left hand to her left ear, with no evident discomfort.
    • Video 3 (37 secs, starts on 1 Feb 2023 at 16:11) shows Ms Kadir opening the passenger side door of her car with two pizza boxes in her hands and bending at the hips into the car with her head going well into the car as she puts them inside.
    • Video 4 (49 secs, starts on 11 February 2023 at 1:22 pm) shows Ms Kadir in a car park greeting a person, appearing happy and comfortable and getting into a car as a passenger.
21. Ms Kadir disagreed that the videos showed her walking without discomfort. In her view, she was slightly limping in the first video. She was holding her telephone in her left hand having given evidence that she generally holds it in her right hand. She responded that her left hand is usable but at times she loses grip. The problem, she said, is not constant it's not every day. She agreed she could turn her neck without apparent difficulty. She agreed that the video showed her bending into the car and she said she can bend to a certain extent.
22. She agreed she had driven from Mill Park to Cabrini Malvern, to Stud Road Dandenong, to see her parents, to Dallas to a pizza shop and back to her home in Beveridge. She rejected the suggestion that this did not discomfort her, and that she is able to live life normally largely unaffected by pain in her neck saying she has to live life:

I am doing everything in my power to get back on track with no reliance on medications and things like that because it's ridiculous that it effects other parts of your body taking medications constantly, so I've learned to block and do things naturally.

1. Medical records showed Ms Kadir reporting long standing pain before either accident.
2. Dr Ganga Ganesvaran, Consultant Neurologist treated Ms Kadir from August 2011. An August 2011 report said that Ms Kadir had a history of migraine over about 30 years with typical attacks once a month.[15] It appears she continued under Dr Ganesvaran's care for three years.
3. Ms Kadir had an MRI scan of her cervical spine on 28 September 2011. In December 2014, Dr Ganesvaran wrote that Ms Kadir was recently experiencing daily headaches.[16]
4. In December 2014 Ms Kadir was under the care of Mr Karl Schwabedissen, Physiotherapist who wrote that Ms Kadir reported a long history of sciatica pain since pregnancy, long history of right lower quadrant abdominal pain, pain ranging from 0-8/10. Aggravating factors include walking, sitting and standing.[17]
5. On 23 December 2014, Mr Schwabedissen further reported that Ms Kadir had, since 4 December 2014, attended five sessions and had 'highlighted' more injuries that she had been struggling with for a long time. This included, 'her wrist and neck/headaches which I understand she is under a neurologist. There may be a cervicogenic component to her symptoms that I can help her with.' [18]
6. I note here that there are various reports by Dr King, made after the 2015 accident, which refer to Ms Kadir's history of reporting pain. In June 2018, Dr King recorded Ms Kadir reporting right side sciatica, first experienced 19 years ago, which recurs and at that time making walking painful and reporting back pain.[19]

1. After the 2015 accident, Ms Kadir was under the care of Mr Timms. She was referred to Mr Drnda for a second opinion. In a 21 July 2016 letter, Mr Drnda reported to Dr King about the 2015 accident:

It was a low [im]pact injury in a car park. She was hit over the upper thighs by a car, which immediately reversed them. He braced herself with her hands onto the car. At that moment, she was more shocked. The next morning she awakened stiff all over the body and started visiting GP with aches and pains. She had some pain in the whole back and neck. Three or four days later she started experiencing pain down the ulnar side of both arms. Occasionally she would get pain on the base of the 3rd and 2nd fingers.[20]

Medical records form the 2015 accident to the 2018 accident

1. Mr Drnda's 21 July 2016 letter, related to the 2015 accident continued:

She had an MRI scan of the cervical spine, right hip and leg and lumbar spine. I am not sure why, as it looked like she really did not have any symptoms to point towards that but anyway, it was done. She was even suggested to have cervical surgery by Mr Craig Timms.

On my examination, I did not find any signs of radiculopathy or myelopathy either in the upper or lower limbs. She had some aches and pains in the neck and mid-spine today. Straight leg raising was negative.

I reviewed MRI scan of the cervical spine from last year and this year, they looked identical. She has got very chronic C5-6 osteophyte complex in both foramina causing up to moderate foraminal stenosis. ...

The patient is not for any kind of surgery. Cervical surgery would only be treating the scan but not the patient. Her ulnar side of the pain is probably irritation in the thoracic outlet as she has got some tenderness there. She generally does have tenderness of the muscles, so my suggestion is that the patient have multidisciplinary pain management. [21]

1. On 8 August 2016, Dr King reported to Ms Kadir's then solicitors:

Her diagnosis when I assessed her in May 2016 was pain in her lower back, neck and right hip. The back, neck and hip problems may be at least in part related to her accident that occurred on 15 March 2015. I saw her the day after this accident. When I saw her, she said she did not need a medical certificate, that she had worked that day. However, she did have significant prior problems with her neck and lower back predating the accident.

A pre-existing neck MRI from 28 September 2011 is attached showing disk being a phenomena known to occur at C56 and foraminal narrowing, some cord flattening and borderline cord compression. She also had pre-existing sciatica and lower back problems. It is possible that the accident exacerbated her previous conditions.' [22]

1. On 20 September 2016, Dr King recorded Ms Kadir as reporting:

Pain lower back, [right] hip and [right] thigh. Has worsened recently. Getting physiotherapy twice a week. Lyrica helps with neck. At times, get paraesthesia in right foot.[23]

1. On 21 September 2016, Ms Kadir reported to Monash Hospital Emergency Department with right hip pain radiating down the front of thigh. The Discharge Summary referred in part to 'Nil back pain, Nil sciatica'. There was no reference to neck pain.[24]
2. On 1 November 2016, Dr King provided a further report to the solicitors. He repeated his comments from his previous report dated 8 August 2016 but further said, 'I believe that she is currently receiving appropriate treatment although I'm not sure to what extent a neck operation will relieve her pain.'[25]

1. On 20 November 2016, Dr King noted Ms Kadir reporting back pain and leg pain in both legs over the last four days and was taking Endone and Advil.[26] On 9 January 2017, he noted, 'Pain in hips and tops of thighs, was mainly on [right], but now on [left] side too. Also, some discomfort in thighs'.[27] On 22 January 2017, the day before the surgery, Dr King recorded that Ms Kadir had full range of movement in her neck.[28]
2. About three months after the surgery, on 18 April 2017, Dr King re‑referred Ms Kadir to Mr Timms, noting that she is still in a lot of pain and also having difficulty lifting her arms and had pain at the top of her scalp.[29]
3. Mr Timms referred Ms Kadir for a further MRI of her cervical spine on 18 April 2017. The MRI report observed 'Anterior cervical disc fusion. recent increased neck pain ? adjacent significant disease.'[30]
4. On 1 May 2017, Mr Timms reported to Dr King:

She has obviously had her recovery from surgery delay whilst caring for her husband ...

She has pain in the neck between the shoulder blades and the top of her shoulders bilaterally. Occasionally, some symptoms down the arms, but mainly the upper shoulder girdle area is where she's having discomfort.

Her recent MRI scan does show some foraminal stenosis at 5-6, which may cause symptoms down the arms but is unlikely to cause the other symptoms that she is referring to. From my point of view, she still has quite severe restrictions in her mobility, in particular sitting, which has left her completely incapacitated.

1. On 30 July 2017, Dr King re-referred Ms Kadir to Mr Mills for his opinion and management concerning bilateral hip pain.[31]
2. On 15 August 2017, Mr Mills reported to Dr King:

Thanks for the updated referral ... She has had her cervical disc surgery and has a residual C6 radiculopathy by her account. She has ongoing low back pain, some sciatica and also bilateral hip pain, which may be partially referred lumbar spine, but is also clearly trochanteric and glutei dysfunction, tendinosis and bursitis, and she has had steroids without lasting effect.[32]

1. Mr Mills noted that Ms Kadir had undergone an MRI concerning her right hip and after an MRI on her left hip he would see her again to discuss options concerning her hips.
2. A series of progress notes by Dr King start on 5 September 2017:[33]

Has pain in neck and some shooting pain down left arm ... worse if uses computer or keyboard or if using her arms much ... some pain on rotation neck.

1. On 1 October 2017, Dr King recorded, '[Left] arm pain with repetitive movement ... Painful to turn neck to [left] side and extend. Difficulty elevating [left] arm above shoulder'.[34] On 26 October 2017, Dr King recorded, 'complaining of severe shoulder pains'. On 1 November 2017, Dr King recorded, 'Almost full [range of movement] both back and neck but pain both neck and back on extension.'
2. On 28 November 2017, Dr King recorded, 'Neck range of movement to [right] is painful, also a bit sore to [left], flexion OK, Extension slightly limited.'
3. On 6 December 2017, Dr Bruce Hocking, Specialist in Occupational Medicine reported to TAC.[35] Under Current Complaints, he in part recorded, TAC submitted, a lengthy list several months before the 2018 accident:
   • Neck pain. She has constant pain in the back of the neck, which is worsened when she turns her neck.
   • Shoulders. Both shoulders feel tense. She has shooting pains down the left arm and knots in the left shoulder blade. She has been advised against further surgery.
   • Spinal pain. She has pain felt along the thoracic spine.
   • Low back pain. She has pain in the lower back which is worsened if she sits or walks or stands for too long. She also has pain across the left buttock. She was treated by the epidural injection only obtained relief for four days.
   • Hips. She experiences pain in the left and right hip switch radiating to her groin. At times her legs feel weak. She recently had injections to both hips [greater trochanter?] Without benefit.
   • Knees. She has spontaneous episodes of pain in her knees.
4. On 12 February 2018, Dr Jones reported:

In terms of stresses, Hazel reports the experience of chronic pain has been challenging and currently she reports her left arm is particularly painful, although she has also reported pain in her groin, hips, and lower back. She attributes this pain as resulting from the pedestrian versus motor vehicle accident that occurred in 2015 and involves her TAC claim.[36]

1. Dr Jones continued, 'In terms of anxiety, Hazel reported that she generally feels anxious and tense with her current panic attacks of up to four times per week ... She does not report any clear precipitant'. Ms Kadir agreed that she reported this to Dr Jones.[37]

1. The April 2018 accident is described in a Common Law (Accident Circumstances) Report of 25 June 2018 by Verifact, which in part records evidence from the driver of the other car:

Driver Hamlin confirmed the accident occurred on Wednesday 25 April 2018 at approximately 06:00 pm in the Claudio's IGA car park on Fawkner St, Westmeadows VIC.

Driver Hamlin was parked in the bay facing south towards Fawkner Street in front of the IGA flower section. She put her car in reverse and began to slowly reverse out of the car park with the intention of driving forward in an easterly direction out of the carpark. When there was a break in traffic she continued to reverse out, being of the belief that vehicles that would come along would wait for her to get out of her parking space.

While Driver Hamlin was in the process of reversing, the Client was driving her vehicle in the carpark in an east to west direction and did not wait for Driver Hamlin. The Client drove around the rear of Driver Hamlin's vehicle.

Impact was made with Driver Hamlin's rear passenger side corner and the Clients passenger side door at low speed. The two parties exchanged details and went their separate ways.

...

Police did not attend the scene of the MVA. No police action was taken

1. Driver Hamlin provided a witness statement to Verifact. It said in part:

... I began to slowly reverse while still keeping a lookout. With the intention of driving forward in an easterly direction out of the car park.

As I was out of the [parking] bay a little bit and normally it is courtesy to wait reversing vehicles in that car park. However, a female driving her car east to west in the car park did not wait for me and drove around the rear of my vehicle.

At that precise time rear passenger side corner my car made impact with her passenger side door. This occurred at very low speed from me but she was driving pretty quickly.

As soon as the collision happened I drove back into my parking bay and got out of the car. The female parked beside me and got out. We exchanged details of everyone seemed okay. Her daughter was in the passenger seat and never got out.

She apologised to me and told me she suffers from anxiety. She said she called someone in shortly after, 3 males showed up. The men said hello that everything was exchanged, I gave her a cuddle and apologised. She said she might get a new car because of the accident and I told her, I think the car needs to be write off and we left.

1. Photographs attached to the report show minor damage to Driver Hamlin's car.
2. A motor vehicle repair quote for Ms Kadir's car, a 2015 4WD Wagon also attached to the Accident Report quoted $3,018 for repairs. It described the passenger rear door as dented, damage to the passenger rear wheel ring and arch. It said the airbag was showing but had not completely discharged. There was a rattling noise coming from the car. The car was not written off.
3. The accident is also described, in varying detail and substance, by Ms Kadir, Dr King, Mr Timms, Dr Akil, Mr Rogers and Dr Thomas as recorded in these reasons.

Had car accident on 25th April 2018. Has had sore back and hip. Has been getting acupuncture prior to that. Has booked in to see Craig Mills on Tuesday. some tenderness over [left] trochanter and upper lateral pelvic rim, reduced ROM hip all directions due to pain. Back ROM OK, some slight tenderness lower lumber [left] side. Diagnostic Imaging requested: X-ray - Hip ([eft]) - Injury to [left] hip in car accident. Copy to Craig Mills. Review with results; patient told to come back to see doctor to get results, as we do not contact them about results. Also for follow up with Craig on Tuesday.[38]

1. On 7 May 2018 Ms Kadir saw Dr King who recorded that from early that morning she experienced left upper sternomastoid insertion pain since that morning. Dr King noted, 'Review few days if not settling, or sooner if worsening or any other symptoms'. Later notes make no mention of this.
2. On 9 May 2018, Ms Kadir lodged her TAC claim, listing her injuries of lower back aggravation and left hip pain aggravation.
3. Ms Kadir's full prescription history was in evidence, starting from May 2007 to 4 June 2022.[39] After the first accident, Ms Kadir was prescribed Tramadol. Between 31 January 2017 and the 2018 accident she was variously prescribed with Endone, Oxycontin, Celebrex, Endep, Panadol Osteo, and Lyrica.
4. After the 2018 accident, records do not show Ms Kadir being prescribed any painkiller until 4 July 2019 and that was Lyrica.
5. Ms Kadir gave evidence that she not asked Dr King for a prescription for a painkiller on 2 or 7 May 2018, because 'I was taking Mersyndol over the counter'. She denied she was just making that evidence up.[40] TAC submitted this evidence was a fabrication.
6. On 28 May and 16 August 2018, Mr Mills reported to the TAC that Ms Kadir was involved in the 2018 accident with increased low back and left hip pain, making no mention of neck pain.
7. On 4 June 2018, Dr Hussain recorded, 'Has got long-standing (chronic) back pain.'[41] The notes indicate Ms Kadir continued to see Dr Hussain through 2018.
8. On 8 February 2019, Ms Kadir was taken to hospital with chest pain. Records say she reported no regular medications and indicate Ms Kadir drove from her home to see a client in Chadstone, about 65 kilometres it appears.[42]
9. On 13 March 2019, Mr Timms' reported to Dr Hussain, 'I reviewed [Ms Kadir] today. She has problems with her neck and down the left arm.' He did not see 'operative intervention' as appropriate, recommending alternatives. He concluded, 'From my point of view, I think she has escaped surgery at this stage and I would encourage her to use all normal operative measures first before considering more procedures'.[43] He did not mention the 2018 accident.
10. On 4 July 2019, Dr Hussain recorded, 'Pain in neck and hands which is due to foramina stenosis at C5-6 (MRI done in Epworth)' to be managed by Lyrica on low-dose. [44]
11. On 8 July 2019, Dr Hussain notes first learning from Ms Kadir of the 2018 accident:[45]

For referral to a specialist for Neck pain, which is ongoing since 2015, following MVA and had ACDF in 2017. In 2018 March, she had another MVA which has triggered off neck pain, radiating to arm. She also has pain in lumbar spines.[46]

1. On 14 February 2020, Dr Hussain noted Ms Kadir presented with worsening neck and left arm pain for few months:

For referral to neurosurgeon for ongoing left hand shoulder pain. Has had ACDF in 2017. Very complex history. Has had MVA a few years back and had surgery. ACDF in 2017. Pain is getting worse.[47]

1. On 30 March 2020, Mr Timms reported to Dr Hussain:

I reviewed [Ms Kadir] today [telehealth due to Covid-19] who's been having problems in her neck and now problems in her left arm and dropping things at times. Previously, she had an ACDF at C56, which helped her, but now she's getting symptoms back again.

The recent MRI scan shows adjacent segment disease with a mild to moderate central wall for Amelia will stenosis which is likely were problems are coming from at the level of C6-7.

...

The very last resort would be further decompressive surgery and extension of ACDF from C5-6 to C6-7. Obviously, we are trying to avoid that and I am hopeful that the steroid injections will bring her back to health again.[48]

Hazel is in the wars again. She has increased lower back pain and marked referred pain to thighs. She has also recently been treated with cervical injections and is awaiting outcome for those'.[49]

1. On 1 June 2020, Dr King provided a report to Ms Kadir's solicitors. He said in part:

I saw her on 2/5/2018 about an injury she claims she sustained on 25/4/2018. At that time she complained of left hip and lower back pain. She has had ongoing back pain for a long time prior to this accident, and has had injury to her back in the past. At the time of the consultation I found that she had good range of movement of her back, but some slight tenderness on the left side. The movement was restricted and painful. ...

She states that her hip pain was related to the accident and that he also made her back pain worse than usual.

...

Therefore it would be very important to ascertain to what extent (if any) the [2018] accident under consideration is contributing to her current condition, rather than any pre-existing and documented problem with her back and hip being the major issue. I am unable to answer this question.[50]

I reviewed [Ms Kadir] today via telehealth. She is still getting problems in her neck and arms, which is really struggling and limiting her when she attempts to do hairdressing. The back legs and getting sciatica down to the feet tops of the foot as well.

The facet joint injection to the left didn't help for any significant period of time. I think in regards her cervical spine, I can offer her an extension of the anterior cervical discectomy and fusion from 5/6 to 6/7, decompressing her spine and that may help her symptoms quite a bit. ...

[Ms Kadir] has instructed me to write to the TAC to seek approval for the extension of the cervical surgery.[51]

1. On 9 March 2021, Ms Kadir returned to see Dr Hussain concerning neck pain, stress and incontinence. He prescribed Celebrex 200 milligrams. He noted, 'Has been suffering from chronic neck and back pain for a long time. No tingling, right numbness. Wants more medications'.
2. The medical records in this proceeding at the 22 March 2023 VCAT hearing indicated that that was her last GP visit for more than a year, until 14 March 2022.
3. When asked about this, Ms Kadir said she saw another GP at the Craigieburn Super Clinic (CSC) for 'other personal issues, say if I needed painkillers ... when I need painkillers it's more convenient to get there'.[52] She said she had been prescribed Celebrex or Brufen by CSC.
4. Overnight, Craigieburn Super Clinic records (202 pages) were obtained and were in evidence at the 23 March 2023 VCAT hearing.
5. The CSC records showed that on 7 November 2019, Ms Kadir presented to Northern Health Emergency Department with chest pain radiating to her left shoulder and arm. The 'ED' records said in part:

Past medical history: multiple [musculoskeletal] injuries following TAC accident (struck by car). Spinal fusion C5-6. Hip bursitis bilateral. Long-standing [left] shoulder pain. states on nil medications.[53]

1. On 29 February 2020, Ms Kadir was prescribed Brufen 400 milligrams for a left ankle sprain that she reported that day. On 11 March 2020, she presented with right side lower back pain and received a tramadol injection. She returned later that day reporting acute right loin to groin pain, diagnosed as renal colic. She asked for and was given a referred to the Northern Hospital Emergency Department[54]
2. The ED Discharge summary noted, 'Right flank pain. Likely renal colic'. Past Medical History included 'Hit by Car 2015'. Examination findings include, 'nil midline cervical, thoracic, lumbar back pain. nil paraspinal lumbar back pain. weight bearing freely'.[55]
3. On 27 July 2020 Ms Kadir returned to CSC with chest pain, which following an ECG, on 1 August 2020 was diagnosed as musculoskeletal pain, not posing cardiac risk, to be reviewed in two years. [56]
4. On 23 March 2021, Ms Kadir again returned with chest pain, followed by an ECG and the above diagnosis again provided.[57]
5. On 5 May 2021, Ms Kadir presented at CSC reporting, 'mid-thoracic pain since morning, no trauma, no radiation, no paraesthesia and complaining of chronic back, neck, shoulder and hip pain' also saying 'had mva in 2016[58] needs repeat script.' She was prescribed Celebrex 200 milligrams.
6. On 26 May 2021, Ms Kadir returned to CSC complaining of abdominal pain. referred to Royal Melbourne Hospital ED and was admitted from 27 to 28 May 2021.
7. The CSC records continued, 21 June 2021 - diverticulitis diagnosed, prescribed Endone, 4 August 2021 - same diagnosis, prescribed Celebrex, 8 September 2021 - same diagnosis, ceased Celebrex (adverse reaction), 25 November 2021 - worsening abdominal symptoms, prescribed Celebrex'.
8. CSC notes of 9 March 2022, record in part, 'Would like to have a prescription for Celebrex and pantoprazole - [history of] neck pain, takes meds as needed.'[59] TAC noted this was two weeks after her telling Dr Akil that she was on Celebrex.[60]
9. On 21 April 2022, Ms Kadir's daughter called CSC reporting Ms Kadir was experiencing worsening abdominal pain; Endone prescribed.
10. On 25 April 2022, Ms Kadir attended Greenvale and asked for Lyrica for a recent flare-up of lower back pain, as Celebrex was not helping.[61] That day she also presented at Royal Melbourne Hospital with abdominal pain.[62]
11. On 18 May 2022, Ms Kadir presented at CSC with abdominal pain. She was advised to use paracetamol or neuro and go to hospital with the pain increased or she was concerned. At a 20 May 2022 telehealth appointment, she advised the pain had resolved and an ultrasound scan showed nothing of concern.[63]

1. Mr Craig Timms is a neurosurgeon holding a Fellowship of the Royal Australian College of Surgery and Neurosurgery and a Masters in Surgical Education. He performed the 2017 neck surgery and in 2020 recommended the second surgery, one of the subjects of this proceeding.
2. Mr Timms gave evidence at the VCAT hearing.
3. He first saw Ms Kadir on 17 July 2015, after the 2015 accident. She was experiencing symptoms in her neck and her arms. She reported hurting her neck, her back and her hips.
4. He reviewed a 19 June 2015 MRI, in his opinion showing a large disc prolapse at the cervical spine level of C5-6. On examination she had neck pains with decreased range of movement and she had some weakness in her right arm and sensory changes (sensation to touch, some numbness and tingling down the arm, abnormal sensation). Her left arm was 'pretty normal'.
5. In his view the cervical disc in her neck was causing neural compression. That was consistent with his findings that it was causing pressure on the nerve and the symptoms down her right arm. In his view, the 2015 accident was the most likely cause of her injury. Based on the history Ms Kadir gave him, she had no previous traumatic injury to her spine.
6. Mr Timms was taken to the 2011 MRI, which he had not previously seen. It did not change his opinion. He said the finding was that there was a mild mechanical change to the disc at C5-6, but when he saw her there was a large disc prolapse at the level of C5-6, in his view a clear change.
7. In June 2020, he recommended that she consider surgical decompression surgery of the spine, which TAC funded and he performed in January 2017. He then saw her three times; in February, May and November 2017. She had responded well with some residual symptoms. In February she was improving, and just needed to do the normal post operative rehabilitation, things like physiotherapy to get stronger and fitter. In May she had some pain across the top of her shoulders and she had an up-to-date MRI scan that revealed a foraminal stenosis. Mr Timms was hopeful that ongoing rehabilitation would improve things. When he saw her in November 2017 he was focused on her lumbar spine, making no notes about Ms Kadir's neck.
8. When he next saw Ms Kadir on 13 March 2019 she had increasing problems in her neck and the left arm, as well as problems in her lumbar spine. He was hoping pain management and rehabilitation therapy such as physiotherapy would help her. He did not see further neurological surgery as needed.
9. By March 2020, Covid had hit. Mr Timms saw Ms Kadir via tele-health consultation. She had an up-to-date MRI. In his view there was neural compression from the disc at C6-7, which was the level below her previous surgery. He commented that if there is pressure on a nerve the person is usually getting symptoms down the neck and arm. He spoke of where compression is on the level below previous surgery, it can be adjacent segment disease, a common phenomenon with spinal surgery, or it can represent a further injury to the neck. He was then hopeful it could be treated with a cortisone injection. While the injection only provided short term relief, diagnostically the injection indicated that Ms Kadir's symptoms were coming from C6-7.
10. Mr Timms formed the opinion that a second operation was required. Ms Kadir had tried the normal conservative measures, medicines and physical therapies. The MRI scan showed the adjacent segment disc injury at C6-7 and given that the injections had helped a little bit, he felt that decompressing the spine at that level would likely give Ms Kadir the best chance of an improved outcome. He hoped it would particularly improve the symptoms down her arms, noting she would still need to have post operative therapies like physiotherapy and medication.
11. At this time, no note by Mr Timms indicates he was aware of the 2018 accident.
12. His first record of that accident was in a 9 July 2020 letter to TAC. He advised Ms Kadir had been involved in the 2018 accident, which had led to an exacerbation of the injuries both in her cervical and lumbar spine, the exacerbation causing neck pain and radiculopathy, which had resulted in the need for further cervical surgery. He formed the view on causation because he then understood Ms Kadir was involved in the 2018 accident where her car was badly damaged and she had worse symptoms after the car accident.
13. Mr Timms disagreed with Mr Rogers' opinion that both accidents would have, at most, caused a soft tissue injury to the neck and low back which would have healed. Mr Timms' view was that the 2015 accident clearly caused a large disc prolapse in the neck, which he regarded not disputable and more than a soft tissue neck injury. He understood that in the 2018 accident her car was written off, so there was obviously considerable force and it is likely, looking at the scans of the disc injury, that the level below was again more than soft tissue injury.
14. He disagreed with Mr Rogers' opinion that no radiculopathy arises from the cervical or lumbar spine. Ms Kadir reports symptoms down her arms, weakness and sensory deficit, consistent with radiculopathy.
15. In cross-examination, Mr Timms:

a) disagreed with the proposition that taking an accurate history of the patient was critical, saying that he treats the patient as he finds the patient; > > b) agreed he had not taken any history of pre-existing lower back pain or sciatica, that Ms Kadir had been referred to physiotherapy in December 2014 with a reported long history of right-sided sciatica and at that time she was finding walking to be painful and also had pain in her back; > > c) agreed he was not aware of the physiotherapist reporting to Dr King in 2014 concerning potential long-term complaints in relation to neck pain and migraine headaches, pre-existing neck pain, facial pins and needles, tingling symptoms in her fingers; > > d) agreed he was not aware that Dr Ganesvaran, a neurologist, treated Ms Kadir from 2011 through to 2014; > > e) agreed he was not aware of the 2011 MRI, until just having been taken to it. On this it was put to him that Mr Rogers had provided an opinion that that scan demonstrates chronic degenerative change at C5-6 as at September 2011. Mr Timms responded he thought the conclusion was that it showed a mild disc injury at C5-6; > > f) concerning parts of his first report and the 2011 MRI and foraminal narrowing, he responded his first report focused on the disc bulge at C5-6. Concerning his second report describing foraminal stenosis at C5-6 that was also shown on the 2011 MRI, Mr Timms responded that his more recent report was focused on the stenosis at C6-7; > > g) agreed with Mr Rogers that a description of degenerative changes at C5-6 as at 28 April 2011 is similar to that which appeared on the MRI scan from 2015 but added that in 2015 there was an extra finding of a large disc prolapse at C5-6 and his surgery concerned that prolapse; > > h) when taken to his operation report,[64] agreed he was mistaken in recording that the 2015 accident resulted in Ms Kadir suffering fractures (it did not). He confirmed the report's observation that Ms Kadir was found to have a disc osteophyte causing a neural compression;

1. concerning Dr King re-referring Ms Kadir to him in April 2017 for an opinion and management after the January surgery, he agreed Ms Kadir was reporting a lot of pain and also having difficulty raising her arms which is why post-operative scans were done. In a 1 May report to Dr King, Mr Timms described the recent MRI focusing on foraminal stenosis at C5-6, which he agreed was described in the 2011 MRI report. He described a range of other symptoms and Ms Kadir having quite severe restrictions in her mobility, in particular sitting which had left her completely incapacitated. In cross-examination he noted that this incapacity was probably due to lumbar spine and hip injuries.

j) agreed that the last time he saw Ms Kadir, in relation to her neck, before the 2018 accident, was on 1 May 2015; > > k) was advised that on 5 September 2017, Dr King noted Ms Kadir reporting pain in neck and some shooting pain down left arm, which was worse if she uses a computer or keyboard or if using her arms much. Mr Timms was not previously aware of this;

1. was advised that on 1 October 2017, Dr King noted Ms Kadir reporting it was painful to turn her neck to the left side and extend and she was having difficulty elevating left arm above shoulder. Mr Timms was not previously aware of this;

m) Mr Timms saw Ms Kadir in November 2017 concerning her lumbar spine, but did not then record any issues concerning Ms Kadir's neck. He said he would have been focused on her spine issues; > > n) when put to him that in November 2017 Ms Kadir's condition had all the hallmarks of a chronic pain syndrome, Mr Timms agreed Ms Kadir had some, chronic or long-term symptoms; > > o) it was put to him that in December 2017 that Dr Hocking, a TAC examiner recorded, 'She has constant pain in the back of the neck which is worsened when she turns or bends her neck. Shoulders. Both shoulders feel tense. She has shooting pains down the left arm and knots in the left shoulder blade. She has been advised against further surgery.'[65] He agreed he had not recorded at that time providing any advice concerning further cervical surgery; > > p) when Dr Hocking's description of Ms Kadir reporting back pain, pain across left buttock, hip pain radiating to her groin, leg weakness and knee pain was put to him, Mr Timms agreed that reflected a significant array of ongoing problems for Ms Kadir in December 2017; > > q) Mr Timms was advised that in February 2018 Ms Kadir's treating psychiatrist recorded her reporting experience of chronic pain that had been challenging for her and that her left arm was particularly painful as well as having pain in her groin, hips and lower back. Mr Timms was not previously aware of this; > > r) agreed that when Mr Timms next saw Ms Kadir in March 2019, he noted left arm symptoms. He agreed that the evidence from Dr King's notes, and Dr Hocking's and the psychiatrist's reports (of which he was not then aware) indicated that Ms Kadir was having problems with her left arm during the latter part of 2017 and the early part of 2018;

s) when it was put to Mr Timms that given he had not recorded it when seeing Ms Kadir on 13 March 2019, 30 March 2020 (via tele-health) and 11 June 2020 (via tele-health), it was possible that Ms Kadir had not told him of the 2018 accident, he agreed that was possible but noted that during the Covid-19 crisis record keeping was not as good as it could have been;

Mr Timms commented that when treating Ms Kadir's cervical spine, that in relation to one accident (say the 2015 accident) there can be adjacent segment disease which is a level above or below can be injured or have an accelerated rate of deterioration at that area, a report of the 2018 accident probably would not have made a huge difference to his diagnosis and treatment;

t) agreed that if the 2018 accident was not reported to him, he could not be specific about progress of symptoms following that accident;

u) agreed that his 18 June 2020 report to Ms Kadir's lawyers attributed her injuries and symptoms only to the 2015 accident;

1. agreed his first reporting of the 2018 accident was in his 9 July 2020 report, with Ms Kadir presumably reporting that day, with him not ruling out an earlier report by her which due to the Covid environment he may not have recorded;

w) opined that the 7 May 2018 note by Dr King of Ms Kadir experiencing pain just anterior to left upper sternomastoid insertion since that morning is evidence of neck pain which was relevant to her overall clinical condition. Concerning her not further reporting this issue to Dr King, Mr Timms observed she had been reporting neck pain since the 2015 accident. (In my view, at this stage of cross-examination Mr Timms gave no opinion that the 7 May 2018 report of neck pain was related to the 2018 accident, in the context of earlier neck pain);

1. agreed that while Ms Kadir gave evidence at the hearing of after the surgery having a feeling like there was a constant golf ball in her throat which was quite uncomfortable, there is no record of her reporting this to him;

y) agreed that he last saw Ms Kadir of 9 July 2020 and said he would defer to later findings by Mr Rogers, Dr Akil and Dr Thomas of no evidence of any ongoing cervical radiculopathy;

z) concerning Mr Rogers' view that the 2018 accident caused only soft tissue injury, he responded that his report was about the 2015 accident;

aa) not being a pain management specialist, declined to comment on Mr Rogers' opinion that Ms Kadir had an entrenched chronic pain syndrome associated central sensitisation, noting that neither was Mr Rogers a pain management specialist;

bb) agreed with Mr Rogers' opinion that persisting foraminal stenosis had hardly progressed between 2011 and 2015 MRI's (with neither Mr Rogers nor him seeing the actual films); and

1. after reviewing at the hearing a 2022 CT scan, concerning Mr Rogers' opinion was this did not show any indication of neural compression at any level at that date, Mr Timms commented that comparing a CT scan to an MRI was comparing apples and oranges.

In his view, her spine in 2015 was in quite different condition to 2011, which led to the 2017 surgery. Further change to her condition was most likely attributable to the 2015 accident and the surgery and adjacent segment disease being a phenomenon known to occur after such surgery. That said, in his view the 2018 accident was likely to have led to an exacerbation of her condition. As to current need for surgery, while he had not seen Ms Kadir for three years, if her symptoms persisted then usually the surgery would be a reasonable course of action.

1. Following cross-examination I asked a couple of questions. Mr Timms answered:

My initial reports are based on the original accident and it's likely the development of neural compression and adjacent segment disease, but the [2018] accident is probably or likely to have made the condition worse.

I believe [the 2018 accident was a car park accident and the car was a write-off], which sounds to me like a significant force if the car was written off.

1. In re-examination, Mr Timms confirmed that the reported neck pain to Dr King on 7 May 2018 was consistent with a neck injury.
2. He said that radiculopathy describe symptoms down a limb, it can be an arm or leg. It usually presents as pain, weakness or numbness and/or a sensory deficit.
3. Turning to reports by Mr Rogers of current symptoms of pins and needles in the little, ring and middle fingers of both hands which are constant, pain which radiates along the ulna border of both forearms, more so on the left, also constant. Mr Timms said that if Ms Kadir was experiencing sensory deficit, that's consistent with radiculopathy.
4. Ms Kadir's evidence at VCAT about the 2018 accident (para 27 above) was put to Mr Timms. Given the mechanism of the reported injury, in his opinion the 2018 accident was likely to have injured Ms Kadir's neck.

1. Dr Hazem Akil is a neurosurgeon holding a Fellowship of the Royal Australasian College of Surgeons, membership of the Royal College of Surgeons of Edinburgh, a Fellowship of the American Association of Neurological Surgeons and memberships of the Congress of Neurological Surgeons in the US and the Neurosurgical Society of Australasia.
2. Dr Akil gave evidence at the VCAT hearing.
3. He provided reports of 22 February and 22 November 2022. He was aware of both accidents. He agreed that the 2015 MRI and reported symptoms radiculopathy, caused by nerve compression at the level of C5-6, appropriately gave rise to Mr Timms conducting the 2017 surgery.
4. Ms Kadir had told him that after surgery her arm symptoms settled completely, indicating that there is an adequate decompression of the C6 nerve that was giving her the arm pain. She told him her neck pain had also improved, but not completely settled. He was not surprised, the surgery was not primarily for neck pain, it was basically for arm pain.
5. Concerning her past medical history, Dr Akil understood she experienced neck pain in 2011 most likely related to previously working as a hairdresser. In his view, the 2011 MRI showed some degeneration at C5-6 with mild foraminal narrowing, more to the right. This did not contraindicate the 2015 accident causing the neck condition leading to the 2017 surgery.
6. Concerning the 2018 accident, at the VCAT hearing he said:

She was this time driving at low speed as she explained it to me inside a car park when another car reversed and clipped her car. After this accident she felt further aggravation of the neck pain and radiation of the pain with numbness towards the left scapula region and the left triceps region and the posterior forearm all the way to the hand. The reason why I put this description was because when the pain radiates towards the left triceps and the left scapula, usually this is the distribution of the C7 myotome which is the level below Ms Kadir's previous surgery and previous injury.[67]

1. Dr Akil agreed with Mr Timms' diagnosis of C6-7 disc disease, in part having noticed a March 2019 scan noting a central disc bulge at the level of C6-7. There was definitely worsening of the C6-7 region compared to her previous scans.
2. Dr Akil viewed the proposed surgery as 'not unreasonable'. However, he would have some further investigations done before concluding surgical intervention is required to improve the symptoms.
3. Dr Akil turned to the relationship between Ms Kadir's injuries and the 2018 accident. Research literature indicates the risk of adjacent segment failure following spinal fusion is approximately 3% a year or 30% in 10 years. To have adjacent segment failure happen as quickly as it has, with Ms Kadir having reported experiencing whiplash in the 2018 accident, makes it very possible that the 2018 accident accelerated the occurrence of adjacent segment failure. This is in context that he understood that immediately before the 2018 accident while Ms Kadir still had some symptoms, she was not experiencing severe pain that made her later return to Mr Timms.
4. Dr Akil took issue with Dr Roger's opinion that each accident caused 'soft tissue injury' which had healed. He said he did not understand the term, noting that in part, discs are soft tissues. In his view the 2015 accident clearly caused a radicular aspect of Ms Kadir's pain, the scan showed C6 nerve compression and the pain improved after surgery. If the 2015 accident had only caused soft tissue injury, the pain would have lasted only up to about three weeks. On the 2018 accident, there was the prior fusion at C6-7 and a worsening of the disc bulge at C6-7. Dr Akil found it very strange to assume that this bulge was a soft tissue injury, which could not be quantified.
5. He also regarded Dr Roger's opinion that there is no evidence of radiculopathy as 'strange' on the basis of the pain reported to him by Ms Kadir and scan evidence of worsening of this bulge at C6-7.
6. In cross-examination:

a) Dr Akil appeared reasonably but not completely informed concerning Ms Kadir's medical history before the 2015 accident, none of which in his view necessarily related to her post 2015 accident symptoms. He agreed that the 2011 MRI showed chronic degenerative change at C5-6 including foraminal stenosis (while in evidence in chief he had referred to this as mild, it was pointed out to him that the report described it as moderate). That said, in his view, without a trigger such as an accident causing abrupt movement of the neck, this condition will likely cause no symptoms; > > b) concerning post-accident symptoms, he was not concerned that Dr King re-referred Ms Kadir to Mr Timms with pain symptoms, commenting that the first six months after surgery can be, 'incredibly stormy'; > > c) he was not aware of Dr King's September 2017 note of neck pain and shooting pains down left arm, nor of Dr King's October note of Ms Kadir finding it painful to turn her neck to the left side and difficulty with elevating her left arm above the shoulder. He agreed these symptoms were a new problem because Ms Kadir did not report them until after the surgery. In his view the surgery would have to be considered as a significant factor in these new symptoms, related to C6-7. The surgery could have addressed symptoms in the right arm but unfortunately caused problems in the left arm; > > d) neither was he aware of the symptoms reported to Dr Hocking, on 6 December 2017. He agreed if this report was accurate it reflected significant ongoing problems for Ms Kadir following the January 2017 surgery; > > e) he was not aware of the February 2018 report to Ms Kadir's psychiatrist of her experience of chronic pain that had been challenging for and that she was at the time reporting that her left arm was particularly painful; > > f) in the context that it had been reported to him that following the surgery Ms Kadir's arm pain had resolved and her neck pain had improved, he understood that the symptoms following the 2018 accident probably occurred soon after. This was not a direct recollection of her report but his inference based on the usual experience that people often are in shock or suffer adrenaline rush and do not notice pain immediately but notice it soon after. > > g) in the context of Dr King's notes of 2 and 7 May 2018, the new pre-accident symptoms Dr Akil just learned of and the fact that Ms Kadir eventually returned to Mr Timms and in the context of the new MRI further surgery was recommended, he confirmed his opinion that the 2018 accident probably accelerated adjacent segment disease. > > h) turning to his February 2022 report, Dr Akil reported Ms Kadir was taking Celebrex to address neck, left arm and lower back pain. He regarded her main ongoing problem to be neck pain with the arm pain not bothering her much.

1. concerning Mr Rogers' view that the CT Scan demonstrated only mild degenerative change at C4-5 and C6-7, Dr Akil said that CT scans are incredibly unreliable in showing neural compression in the cervical spine. This is in context that the MRI after the accident shows quite significant disc degeneration at C6-7. He regarded the CT scan as completely unhelpful.

j) he agreed that the bottom line (my term) of his February 2022 report was that the 2015 accident caused injury at C5-6, requiring the surgery, with the surgery in turn causing segment disease at C6-7, with the 2018 accident being if anything only indirectly responsible for Ms Kadir's current condition. In his view, the 2015 accident is overwhelmingly responsible for the need for further surgery. Drawing from transcript he continued:

... on the balance of probabilities, based on the information that we have, the progression, the previous accident, the previous surgery, the second accident, that it is very likely on the balance of probability that the second accident is a significant factor in accelerating an adjacent segment disease and that's why I mentioned it actually. That's why I said. I didn't say that the second accident caused this or the main factor behind it, I just said that it's contributed to the acceleration of degeneration, which is what causes the problem. Which is what is Ms Kadir's current problem at the moment now.

k) that said he agreed that his opinion was based on Ms Kadir's apparent successful recovery from the surgery before the 2018 accident and her report of development of worsening symptoms, including left arm problems after that accident;

1. he agreed that Dr Thomas in February 2023 obtaining a report from Ms Kadir that her neck pain was 2 or 3 out of 10, that would 'absolutely' indicate improvement since he saw her a year earlier; and

m) confirmed that if Ms Kadir with his patient, he would have further investigations done and obtain an opinion from his pain specialist colleagues as to whether something could be done in the interim to improve her pain situation.

1. In re-examination, Dr Akil was advised that two cortisone injections at C6-7 provided short-term relief. He agreed that to an extent this gave reliable, if subjective evidence, given it relied on the patient's report, similar to that provided by a nerve conduction study which he preferred because that study provides objective evidence.
2. Also, in his view, nothing that might have been discovered in the previous surgery, focused only on C5-6 would have assisted in assessing C6-7.
3. In terms of the 2018 accident causing a whiplash as described by Ms Kadir in her evidence at the hearing, Dr Akil did not contribute significance to movement of the head from side to side, saying all abrupt movement is basically the same mechanism.

1. Mr Myron Rogers is a neurosurgeon with post-fellowship training in spinal surgery and in skull-based surgery. He practices at the Cabrini and Austin Hospitals.
2. Mr Rogers gave evidence at the VCAT hearing.
3. On 13 October 2021, at TAC's request, he performed an independent medical examination of Ms Kadir and provided a report of that date.[68]
4. Ms Kadir told him of her undergoing surgery in January 2017, which provided transient improvement of her neck and upper limbs symptoms, however the symptoms gradually recurred.
5. Mr Rogers detailed Ms Kadir's current symptoms in October 2021:

(i) pins and needles in the little, ring and middle fingers of both hands which are constant > > (ii) pain which radiates along the ulnar border of both forearms, more so on the left, it is also constant > > (iii) pain at the lateral aspect of the axilla, it is more pronounced on the left > > (iv) pain in the interscapular region and across both shoulder blades, this is constant > > (v) nuchal (posterior neck) pain which is more pronounced on the right it radiates through the neck toward the occipital region, it is also constant > > (vi) midline lumbo-sacral pain which is constant > > (vii) a burning sensation at the front of the thighs and hips.[69]

6. In cross‑examination, he went through them as not reflecting C7 radiculopathy.
7. Concerning the 2018 accident, she described driving her car through a carpark when another vehicle reversed out of a parking bay. Her vehicle was hit on the rear passenger side. She did not attend hospital and went home. Following this incident, her neck, arms, back and legs became increasingly painful. She reported that the symptoms now are worse than they were before the initial 2015 accident.
8. Noting Ms Kadir's reporting of current symptoms and her medical history, Mr Rogers formed the opinion that she has an 'entrenched chronic pain syndrome and associated central sensitisation', which she was attempting to address via her current medications. In his opinion her condition should be treated by a psychologist or psychiatrist, who deals with chronic pain patients.
9. Concerning the available scans, having seen a report of the 2011 MRI and directly viewed the 2015 MRI, he regarded the 2015 MRI as showing at C5-6 posterior annular bulging and an osteochondral bar that projects into the canal, with mild compromise of both C6 nerve roots. In his opinion, there was no spinal cord compression.
10. On 13 October 2021, Ms Kadir told him that she could drive short distances, walk once a day for five minutes and spends the rest of the day sitting in her massage chair. She described before 2015 performing all household chores, enjoying that, and enjoying socialising and going to nightclubs, which she no longer does.
11. Mr Rogers confirmed his opinion as set out in his report that the 2015 and 2018 accidents would have at most caused soft tissue injury to the neck and low back and that there is no evidence that she has a crevicular or lumbar radiculopathy. By soft tissue injury, Mr Rogers means there is no fracture to the spine, there is no disc prolapse and relevant scans are for all intents and purposes normal. By exclusion, there may be some muscular injury.

1. Mr Rogers had recorded that Ms Kadir maintains that most of her current symptoms occurred after the 2015 accident, treatment had not provided any significant symptomatic improvement and the 2018 accident exacerbated her current symptoms.
2. Mr Rogers spoke of basing his diagnosis of Ms Kadir's complaints of symptoms and a 'lack of any structural changes to drive those symptoms as seen on imaging'. His report said:

In my opinion, none of the symptoms are consistent with the accident circumstances. The 2015 incident would appear to have been extremely low impact. and in my opinion, Ms Kadir at most may have sustained soft tissue injuries to the cervical and lumbar regions. These injuries should have settled within several weeks of the incident. From the evidence supplied in the documentation indicates the 2018 incident was also low impact. There is no clinical or radiologic evidence of a cervical or lumbar radiculopathy. [70]

Ms Kadir has a chronic pain condition and this has not been adequately managed. She requires referral to a non-interventional rehabilitation and pain management specialist for assessment for a rehabilitation and pain management program, that includes psychologic and psychiatric input. There is no indication for surgery for C6-7. There is no clinical evidence of a C7 radiculopathy. There is no MRI evidence of C7 compromise and no instability. This is on a background of the C5-6 ACDF not providing a significant sustained symptomatic improvement.

1. Mr Rogers was then taken to his 1 February 2023 report.[71] In his view there was no significant change in Ms Kadir's symptoms. She again reported spending a lot of her days sitting in a massage chair at home with heat packs, walking for five minutes most days limited by discomfort and pain in her lower back, able to still drive short distances and if she goes shopping it is usually with a family member. His physical examination of Ms Kadir revealed much the same situation as earlier, except while she previously reported loss of pinprick sensation, this examination, this was normal. He confirmed his diagnosis of chronic pain syndrome and that in his opinion she did not suffer from crevicular radiculopathy.
2. Mr Rogers did not regard the notes by Dr King on 2 and 7 May 2018 as recording 'any major issue with Ms Kadir's neck ... it may [describe] soft tissue injury to the neck [which will usually] resolve over several weeks'.
3. Mr Rogers was taken to his 10 March 2023 supplementary report. In his view, the March 2022 CT scan demonstrates the C5-6 fusion, mild degenerative change at C4-5 and C6-7 with no neural compression at any level. He reported that Ms Kadir had experienced mild degenerative change over the years and any changes after the 2018 accident were natural progression of degenerative change, unrelated to that accident.
4. Mr Rogers disagreed with Mr Timms' opinion that the 2015 accident clearly caused a large disc prolapse in Ms Kadir's neck, saying that on his review of the relevant imaging, 'no evidence of any disc prolapse or any damage to the C67 disc apart from normal wear-and-tear change'.[72]
5. He disagreed with Mr Timms' description of the 2018 accident of the car being written off and there obviously being considerable force involved in the accident. Based on Ms Kadir's reporting to him of that accident, the mechanism of injury was not going to be high, it was not a high velocity accident. He maintained his opinion when told of Ms Kadir's evidence about the 2018 accident at the hearing which led Mr Timms to say that he thought the accident was likely to have injured her neck. Mr Rogers responded that there is no objective evidence of injury.
6. When taken to Dr Akil's opinion about whiplash injury, Mr Rogers says he did not understand what Dr Akil was 'driving at'.
7. In cross-examination:

a) he described C7 radiculopathy pain usually beginning in the neck and around the scapula or potentially around the back of the scapula, usually radiating down the back of the upper arm and then through the forearm and typically into the index and middle fingers. Occasionally it may radiate into the thumb but more typically to the index and middle fingers; > > b) in his opinion, none of the current symptoms as described by Ms Kadir, as set out in his report, were 'C7 radiculopathy symptoms'. When asked about pins and needles symptoms in the fingers, in his view, for them to be relevant, there also needed to be evidence of radiating symptoms This was in context that he did not see symptoms together with evidence of neural compression; > > c) when taken to Dr Akil's evidence as to the imaging evidence indicating neural compression after the 2018 accident, Mr Rogers disagreed the imaging showed compression. Given the 2018 accident was in a car park and the impact was to the passenger side of the car, Mr Rogers did not accept Dr Akil's description of a 'high impact accident', describing it as low impact; > > d) Mr Rogers rejected the proposition put to him, that he was led by TAC to believe that the 2018 accident was low-impact and he did not take the time to fully understand whether that was so. Evidence from the transcript of Ms Kadir was read out. Mr Rogers relied on his recording of events as set out in his reports saying that in a car park the accident would not be high velocity. Mr Rogers viewed as objective evidence of Dr King's notes and the lack of any reporting of significant injury to the neck after the 2018 accident, preferring that to Ms Kadir's evidence of her experience in the accident. In his view significant physical injury to the neck will cause immediate significant neck pain for which a person would seek medical assistance. He rejected the proposition that he had underestimated the impact of the crash and the force of that on the upper body and so his diagnosis was 'perhaps, a little shaky'. He responded that his diagnosis was 'extremely accurate'; > > e) in Mr Rogers' opinion, Ms Kadir's complaint to Dr King on 7 May about her sternomastoid muscle was not significant. The onset was reported to have happened that morning. While this is a muscle in the neck, his opinion has nothing to do with the neck itself. He regarded giving this report significance as 'a very far stretch'. He agreed the muscle must have been causing Ms Kadir significant pain, because she went to see her GP; > > f) when it was put to Mr Rogers that Mr Timms' recommendation to Ms Kadir that she undergo the 2017 surgery was 'not unreasonable', he agreed. He declined to comment whether it was a reasonable decision at the time because surgeons' views on surgery may vary with respect to the whole circumstances at the time of the decision, of which Mr Rogers was not aware. He noted that Ms Kadir told him that the surgery did not improve things much; > > g) Mr Rogers did not agree that the 2015 MRI showed disc prolapse, in his interpretation it only showed chronic degenerative change; > > h) when it was put to Mr Rogers that Mr Timms' current recommendation of further surgery was not unreasonable, he disagreed, saying that the 2017 surgery was not warranted and further surgery is unreasonable. He returned to the 2015 MRI and the radiologist's report that recorded degenerative change at C5-6 with no nerve compression. In his view Mr Timms operated, 'for just pain, and we know the results from that aren't very good'. In Mr Rogers' opinion, there is no evidence of the recompression after the surgery nor of radiculopathy, therefore, 'there is no role for surgery at C6-7'. He described the outcomes of surgery in these circumstances as, 'dismal'.

1. Mr Rogers was taken to words of the 2015 MRI report concerning C5-6, 'moderate bilateral foraminal narrowing without definite exiting C-6 nerve root compression'. He commented that if this is the basis for surgery, everyone over the age of 45 would have neck surgery.

1. Dr Clayton Thomas is a Consultant in Rehabilitation and Pain Medicine. At TAC's request he provided a 20 February 2023 report.[73]
2. As he was not called for cross-examination, he did not appear at the VCAT hearing.
3. He recorded the following history:

She relays two accidents. She is 51 years of age. The first one was on 15 March 2015. She was in a carpark. She was standing. She was struck in the pelvic region. She went forward onto the bonnet of the vehicle. She did not fall to the ground. After the incident she left the scene having reported this to the police. She returned sometime later. This was about 4 pm. At that time when she returned the police were interviewing the driver. The next day she saw her GP. She indicated that she had neck pain and lower back pain. The neck pain, however, was worse. She had physical therapies and an injection via radiological practice. She reported injections to the neck and lower back without benefit.

She was referred to Mr Craig Timms, Neurosurgeon. On 23 January 2017 she had an anterior cervical discectomy and fusion at C5-C6 level. She reported that the operation was beneficial. The pain was not as bad as it was prior to the operation but she told me she was left with nerve damage into the left and arm and left shoulder, pain was exactly the same.

Prior to the operation she reported pain down both arms but mostly the left arm. Pins and needles in the left arm more than the right arm. Headaches and dizziness.

She thought after the operation that the tingling in her arms went away and her headaches had improved.

She had physical therapies with massage for about one year after the accident. The left arm she said was still symptomatic.

The second motor vehicle accident was on 25 April 2018. She was the driver of the car. She was in a carpark. Another vehicle reversed out of the parking bay and hit the passenger side of her vehicle. Airbags did not activate. She reported worsening of her pain in her neck. She indicated that she had whiplash (sic). She had pain in the left hip region. She was in shock. She was with her daughter. She called her partner. The other driver was apologetic. She then returned to see her local doctor.

She had ongoing physical therapies and osteopath and then a physiotherapist.

She returned to see Mr Craig Timms who suggested further surgery at the C6-C7 level with an ACDF at that level.

1. Concerning Ms Kadir's current medical complaints he recorded:

... She has neck pain in the middle of the neck and to the right-hand side. She has pain in the upper thoracic spine between the shoulder blades. She reports shooting pain down both arms. She reports pins and needles and numbness when she sleeps involving the whole of her hands. When she wakes up and moves the hands the numbness will improve after 5 to 10 minutes.

During the day she loses grip in her hands and drops objects. Either one. One generally worse than the other at any one time but no reason why one is worse than the other at that time. It could be either the left or the right or vice versa.

Lower back pain. Standing, walking limited to 10 minutes. If she sits more than 20 minutes she starts getting pain into the tops of both thighs, a burning sensation.

She indicates that her back becomes severely inflamed (sic). Pain level in her neck is 2 to 3. Pain level in her back is generally 6. She indicates both her neck and her back limit her ability to function. If her back is particularly sore she will lie down. When she initially lies down her back will throb. Walking about 10 minutes. When she walks about 10 minutes her legs feel is as if they are like jelly.

At home she does very little. She has a lightweight vacuum cleaner but occasionally when she uses that she drops it. She watches television. She does occasional hairdressing from home. Prior to the second accident she told me she was working 30 hours per week. The week before I saw her she indicated she worked some two hours.

1. Dr Thomas diagnosed chronic pain syndrome, with a significant non‑organic component, no evidence of neurological compromise with the dominant pain relating to the axial skeleton either neck or lower back. He reported, 'It is not really a case of radiculopathy. Imaging shows longstanding degenerative problems at C4-5 and C6-7 with moderately narrow disc spaces. Marginal osteophyte formation.' He also said, 'It does appear there have been continuity of pain complaints from the first accident through to the second accident.' He said, 'I would accept that the genesis of her condition stemmed from her first accident of 15 March 2015. The second accident led to a slight aggravation of her condition before the second accident.' [74]
2. Concerning treatment, Dr Thomas reported (agreeing with Mr Rogers):

Treatment is primarily chronic disease management, supporting her and empowering her with pain management focus. This, therefore, is a social, biophysical model. A pain management program would be ideal for her. Unfortunately, it has been suggested that she consider additional surgery at the C6-C7 level. There is no rational reason why this required. She does not have any clinical evidence of radiculopathy, and the imaging does not support that the C67-C7 level is actually impaired.

1. In summary, TAC submitted that the applications for review are misconceived and seemingly, detrimental to Ms Kadir's interests and TAC's decisions should be affirmed.
2. This was in the context that on the basis of Mr Timms' opinion, based only on the 2015 accident TAC funded Ms Kadir's January 2017 surgery. When in June 2020 Mr Timms recommended further surgery, he did so with respect to the 2015 accident, not mentioning the 2018 accident. It appears Mr Timms did not learn of the 2018 accident until July 2020.
3. TAC noted that Ms Kadir's claims for funding for surgery and pain management could be made with respect to the 2105 accident, without relying on the 2018 accident.
4. It submitted that Ms Kadir's medical evidence discloses chronic pain before the 2015 accident, chronic pain after that accident and before the surgery, chronic pain after the surgery and before the 2018 accident.
5. It submitted the 2018 accident is not differentiated in any way by the medical evidence, other than a complaint by Ms Kadir of an aggravation of her back and hip pain. If anything, Ms Kadir's overall condition appears to have improved over the last couple of years.
6. TAC relied on various reports of Ms Kadir's treating practitioners, the report dated 21 July 2016, from Mr Drnda, from Dr King, Ms Kadir's histories of ongoing pain, post-surgery and before the 2018 accident, Dr Hocking, and to Dr Jones.
7. TAC submitted that VCAT should prefer the opinions of Mr Rogers and Dr Thomas on the basis that they grappled with the evidence where, it was submitted that Mr Timms had not and while Dr Akil, presented well, and made appropriate concession, in oral evidence based on medical material from before and after the 2018 accident, it appeared that he had not closely reviewed such evidence when writing his first report. Therefore, TAC submitted, his report and opinions are compromised by the histories that he was provided with.
8. TAC submitted VCAT should have grave concerns about the reliability and veracity of Ms Kadir's evidence. She appears to have a poor memory and confusion in relation to the sequence of her injuries, complaint, and treatment. While that is understandable, to the extent that her recollection and her evidence does not agree with the medical records, VCAT should prefer the records.

1. TAC submitted that Mr Timms was unable to assist concerning the relationship, if any, between the 2018 accident and Ms Kadir's ongoing cervical spine condition. He did not know about the second accident until after he recommended further surgery. He was not aware of Ms Kadir's apparently worsening neck and left arm symptoms following the 2017 surgery to before the 2018 accident.
2. It submitted that on learning of the 2018 accident, Mr Timms' 9 July 2020 note; very briefly saying the 2018 accident had exacerbated injuries provided no path of reasoning, nor analysis. Mr Timms had not reviewed the records, as Mr Rogers and Dr Akil attempted to do.
3. TAC submitted that during re-examination, Mr Timms fell back on to the described mechanism of injury in the 2018 accident, which does not stand up in the face of the medical record, which completely undermines some of the histories that Ms Kadir has provided of immediate neck symptoms, such as that given to Dr Akil following the 2018 accident.
4. TAC submitted Ms Kadir appears to be attempting to use the mechanism of the accident as a 'life raft' in the absence of any other supporting evidence.
5. It was submitted that Ms Kadir's delay in seeking medical attention after the 2018 accident, and what she reported when she sought medical attention, weighs extremely heavily against both significant impact and anything other than minor injury. As Mr Rogers described, if the 2018 accident had aggravated Ms Kadir's condition, she most likely would have reported immediate and significant neck pain. She did not.
6. When TAC suggested to Mr Timms that he was unable to make meaningful comment on the progress of Ms Kadir's symptoms after the 2018 accident. He replied, 'I can't be specific in relation to the second accident if it wasn't reported to me'.[75]
7. Mr Timms recommended surgery under the 2015 accident claim before having any awareness of the 2018 accident, now supporting surgery resulting from the 2018 accident, which until July 2020 he knew nothing about.
8. Ms Kadir's solicitors provided Dr Akil, with history that, 'In between surgery and [2018] accident, although our client was unable to return to her previous work as a hairdresser, she had recovered to the point she was able to complete a course and was about to commence work as a medical receptionist'.[76] He obtained a history of pre-surgery right arm pain that settled after the surgery.[77]

1. Concerning the 2018 accident, the history he was given was:

The accident rendered our client unable to work at all and caused her to experience severe pins and needles, swelling, and shooting pain in both arms. In addition, she began to feel loose feeling in her arms and was dropping things such as coffee mugs.[78]

1. For the purposes of his report dated 22 February 2022, Dr Akil did not appear to be aware of Ms Kadir's post-surgical complaints. He probably wasn't aware of the left arm pain, the new shooting pain from 5 September 2017.[79] He considered that the complaints appeared to indicate a new problem post‑surgery.[80]
2. He said:

So, basically, the left arm - I think it's probably, to me, it's a side effect of the surgery because it's an adjacent segment. It's related to the C6/7. So you will have to consider the surgery as a significant factor here.[81]

1. And he agreed that the current symptoms obtained by Dr Hocking, as at 6 December 2017, reflected significant ongoing problems.[82]
2. Dr Akil set out his examination findings:

I noted that Ms Kadir has restriction in the range of movement on the forward flexion and extension of her cervical spine.

I noted that she has no clear sensory or motor deficit on the examination of her upper limb.

I noted that her deep tendon reflexes are present and normal and that includes both triceps jerks.[83]

1. TAC submitted these lack detail, compared to the examination findings obtained by Mr Rogers, who examined Ms Kadir twice, 18 months apart.
2. Dr Akil's diagnosis was:

Ms Kadir's main problem currently is her neck pain. Her left arm pain is not bothering her as much as her neck. I do believe that she has aggravation of cervical spondylosis that is caused by the second accident. I take note that Dr Craig Timms diagnosed her with a C6-7 adjacent segment disease that was aggravated by the accident. This could be the case; however, in order for me to be convinced of this diagnosis, I would recommend a CT SPECT scan. From looking at the MRI scan in 2020 and comparing it with the MRI scan in 2019, the degree of disc protrusion at the level of C6-7 appears to be unchanged.[84]

1. TAC suggested to Dr Akil, that for the purposes of his report, even based on the history that he had obtained, he had concluded that the first accident was overwhelmingly responsible for any need for further surgery. He agreed saying if anything, the 2018 accident was only indirectly responsible.[85] He agreed that his opinion was based on Ms Kadir's history of a successful recovery from the surgery, and the development and worsening of her symptoms after the subject accident.[86]
2. Dr Akil described Ms Kadir reporting the development of new left arm symptoms, only after the 2018 accident.[87]
3. TAC submitted that Mr Rogers appears to have been given an accurate history by Ms Kadir for his 13 October 2021 report. He noted, 'Following the surgery, Ms Kadir reported some transient improvement of her neck and upper limb symptoms. However, they gradually returned.'[88]
4. TAC submitted Mr Rogers detailed Ms Kadir's symptoms in October 2021 and in cross‑examination, persuasively went through them as not reflecting C7 radiculopathy.
5. Mr Rogers set out his examination findings and opined that both accidents would have, at most, caused soft tissue injury to the neck and low back and there was no evidence of radiculopathy. If anything, TAC submitted, he strengthened his position in oral evidence, particularly in his review of the 2015 accident.[89]
6. TAC submitted this strengthened the opinions of Mr Rogers and Dr Thomas, in relation to what they say about Ms Kadir having had an entrenched chronic pain syndrome. That appears to be the most accurate diagnosis. Mr Rogers has maintained his opinions in his subsequent report and has clearly performed the most thorough exercise in terms of not only his examination and listening of history from Ms Kadir, but also his review of the medical evidence, and the actual medical records, particularly in relation to after the 2018 accident.
7. It was submitted that while Dr Akil had medical records of both before and after the 2018 accident, it does appear that he had not carefully reviewed them for the purposes of his report.
8. Dr Thomas provided his 20 February 2023 report, recording history and current medical complaints.
9. Dr Thomas diagnosed chronic pain syndrome, with a significant non‑organic component, no evidence of neurological compromise with the dominant pain relating to the axial skeleton either neck or lower back. He reported, 'It is not really a case of radiculopathy. Imaging shows longstanding degenerative problems at C4-5 and C6-7 with moderately narrow disc spaces. Marginal osteophyte formation.' He also said, 'It does appear there have been continuity of pain complaints from the first accident through to the second accident'. He said, 'I would accept that the genesis of her condition stemmed from her first accident of 15 March 2015. The second accident led to a slight aggravation of her condition before the second accident.' [90]
10. TAC submitted that, from Ms Kadir's point of view, that is likely a high point of her evidence, in terms of linking ongoing chronic pain to the 2018 accident. But, TAC submitted, the whole of the evidence related to Ms Kadir's presentation before the 2018 accident, and her present position indicates otherwise.
11. It was submitted that GP notes, Dr Hocking's report and Dr Jones' February 2018 report, show apparent worsening of pain before the 2018 accident.
12. TAC submitted Ms Kadir now appears somewhat improved. Dr Akil agreed that if Dr Thomas' pain report is accurate, the condition of Ms Kadir's neck is significantly better than when Dr Akil saw Ms Kadir a year earlier.
13. TAC submitted that the surveillance material supports Ms Kadir's condition having improved.
14. Also, the CSC medical records appear to indicate a more recent and sustained focus on abdominal pain complaints, which may or may not reflect chronic pain. That said, they are not really part of this case.
15. Concerning treatment, Dr Thomas reported (agreeing with Mr Rogers) that there is no rational reason for the further proposed surgery.
16. Concerning Ms Kadir relying on VCAT's decision in Mitkov v TAC [2002] VCAT 4 (see below) in relation to the reasonableness of the proposed procedure, TAC submitted, Mr Timms' report is nearly three years old, there is no apparent evidence of deterioration in Ms Kadir's cervical spine condition, or of significant ongoing complaint.
17. As to Ms Kadir's current condition, Mr Timms agreed that he would have to defer to the findings of other more recent medical examiners.[91] He was unaware of events since examining Ms Kadir in 2020.[92]
18. TAC submitted that Dr Akil's evidence also weighs against further surgery. He agreed that Ms Kadir reporting neck pain was 2 or 3 out of 10 (to Dr Thomas in February 2023) was an improvement on the higher pain level she reported to him a year earlier.[93] Dr Akil would not proceed to such surgery without further investigations.[94]
19. TAC repeated that Ms Kadir may make a further request under the 2015 accident claim at any time in relation to surgery. To succeed on the 2018 accident as a cause, requires a probable connection between the 2018 accident and her ongoing cervical spine condition and/or chronic pain condition. TAC submitted the weight of the evidence does not justify that inference of a probable connection.
20. TAC submitted that Ms Kadir's lack of reporting of the 2018 accident works in two ways. First, it undermines the significance of the accident and the existence of any pain complaints following the accident. Second, it also makes it impossible to reconstruct to establish a probable connection between the 2018 accident and current symptoms. Dr King posed the correct question in his report to Ms Kadir's solicitors in June 2020:

It will be very important to ascertain to what extent, if any, the accident under consideration is contributing to her current condition rather than any pre-existing and documented problems with her back and hip being the major issue.[95]

1. As long-term treating GP, Dr King was unable to answer the question. It is virtually impossible to answer it in anything other than the negative. Only Mr Rogers and Dr Thomas have really grappled with that question. Mr Rogers conducted a comprehensive review of Ms Kadir's medical history in conjunction with the two physical examinations more than a year apart. He opined that her current presentation related to her entrenched chronic pain syndrome; that any injury sustained in the 2018 accident would have resolved within six weeks of the accident.
2. We have, for instance, the 7 May 2018 note by Dr King of the sternomastoid complaint, which appears to have started that morning and does not reappear in the records and nor does any other neck complaint during 2018.
3. Mr Rogers' opinion appears to be consistent with the opinions of Dr King, and Mr Drnda, neurosurgeon and, critically, consistent with the actual medical records.
4. Dr Thomas considered that Ms Kadir had long-standing degenerate problems in her cervical spine that did not appear to be contributing to her current condition to any extent, that she did not require surgery and that she had a chronic pain syndrome that may have been slightly aggravated by the 2018 accident.
5. TAC submitted VCAT should conclude on the weight of the evidence that that any aggravation of a pre-existing complaint was not significant and does not persist. The opinions of Mr Rogers and Dr Thomas should be accepted by VCAT which should affirm TAC's decision.

1. Concerning the request for funding for a pain management program, TAC submitted that the thrust of TAC's entire case is that Ms Kadir suffers from a long-standing, entrenched chronic pain condition (pain management was being recommended to Ms Kadir before the 2018 accident), with history of multiple and quite severe complaints leading up to the accident. The 2018 accident did not change this. There is no difference since the accident, concerning reports of pain.

1. Ms Kadir submitted that the evidence in support of the 2018 accident being a cause of injury giving rise to the recommended surgery and pain management program is significant.
2. On 9 May 2018, TAC accepted liability for lower back aggravation, left hip pain, and in doing so, it was submitted TAC accepts not only that Ms Kadir was injured in the 2018 accident, but that she suffered injuries to her back and hip. TAC also accepted liability concerning the 2015 accident and the 2017 surgery.
3. Ms Kadir has given evidence as to why she did not include neck aggravation on her 2018 claim form, thinking, 'the neck's done, and it is what it is. I've got screws and a plate in there, so I didn't think anything of it. Just learnt to live with the pain.' [96]
4. Ms Kadir had significant surgery to her neck 16 months before the 2018 accident. She had ongoing neck pain up to and at the time of the 2018 accident, which she described as mild. That was not her focus. After the 2018 accident, her immediate pain was in her lower back and hip, for which she had not had significant surgery. Also, her partner was dying of cancer. Less than two months later, he passed away.
5. It was submitted, that while there is by no means a perfect history of Ms Kadir reporting the 2018 accident, she reported it to Dr King on 2 May 2018 and to Mr Mills on 28 May 2018.
6. At hearing, Ms Kadir described the 2018 accident and the pain that followed.
7. While, it was submitted, TAC has attempted to downplay this accident, often being described as a 'low-level impact', significant weight must be given to Ms Kadir's recollection.
8. Driver Hamlin's statement acknowledged that the accident occurred at very low speed from her but Ms Kadir was driving pretty quickly.
9. Ms Kadir submitted that while her car was not a write-off, the repair quote for $3,018 was not insignificant. It described significant damage. It was submitted that a light bump to her car would not cause the described damage, which partially triggered an airbag.
10. Even if VCAT were to find that the 2018 accident was not as Ms Kadir described and was of a lesser impact, Dr Akil appeared to, wrongly, understand when writing his report, that it was low impact, noting the cars clipped.
11. That said, Dr Akil still opines that the mechanism of such an accident is likely to have caused an acceleration of adjacent segment disease. Ms Kadir submitted that the consequence of her injuries is significant including, but not limited to the following.
12. It was submitted that Ms Kadir has provided extensive persuasive evidence of her symptoms and impact on her life.
13. Concerning Ms Kadir's credit, her below statement, it was submitted, is in keeping with her living with pain:

I'm not going to let this take over my life. I am doing everything in my power to get back on track with no reliance on medications and things like that because it's ridiculous that it affects other parts of your body taking medications constantly, so I've learned to block and do things naturally.[97]

1. While TAC challenges Ms Kadir's credit with surveillance taken on 1 February 2023. Video shows her walking for four minutes, 27 seconds, and again that day, a couple of hours later, for 27 seconds, holding her phone to her head with her left hand, then for 32 seconds that day, her getting into her car as the driver, and then on 11 February 2023, for 49 seconds, getting to a car as a passenger.
2. Ms Kadir's explained, 'My left hand is usable, just, at times, I lose grip. It's not constant. It's not every day.' She readily admitted she can turn her neck, she can sit in her car, she can bend to a certain extent, saying she never said she could not do these things. [98]
3. Concerning her travelling in a car on 1 February 2023, as shown in surveillance, Ms Kadir unwavering and honestly answered that she was discomforted but had to go see her parents. When pressed on her ability to travel in a car for over 86 kilometres, she answered:

Correct, it's very tiring and very stressful but, as I said, I do not let pain take over my life. If I need to get somewhere, I will go somewhere, irrespective. I will not ask for help to do so to go see my parents.[99]

1. It was submitted Ms Kadir has a stoic and admirable desire to continue on with her life as normally as possible.
2. Dr Thomas provided an opinion on the footage:

There is nothing in the surveillance that causes me to alter my opinion in any way. Though it shows her walking at a medium pace in a symmetrical manner, it does not show her walking beyond what she said was what she could tolerate.[100]

1. In light of the above, and given 25 hours, 55 minutes of surveillance footage was taken, it was submitted that there is no adverse inference to be drawn from such footage and that it should be disregarded by the Tribunal. TAC places stock in Ms Kadir's ability to continue to socialise to an extent, to sit in a car and to drive, to lead VCAT away from a finding that the 2018 accident caused any injury to her neck.
2. Ms Kadir's evidence is that she struggles with activities of daily living, but she stoically continues with life nonetheless in the face of pain. She should not be marked down as a consequence.
3. Sutton v Laminex Group [2011] VSC 52, citing Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, was relied on:

... the cases recognise that some plaintiffs may be more 'stoical' than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the 'stoical' plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the 'objective' evidence of the disabling effect may be of less significance than usual.

1. In respect to assessing the probative value of the contents of the clinical notes, it was submitted that the following should be acknowledged. Ms Kadir was attending for treatment, not for incident reporting purposes.
2. She told Dr King and Mr Mills about the 2018 accident and 12 days after the accident, she complained of pain in her neck. There was nothing to be improved or advanced in Ms Kadir's treatment by the doctors recording a detailed recitation of the nature of her injury. Dr King's notes are brief. Ms Kadir had no appreciation of the significance or importance of the mechanism of her further injury to her neck. Dr King and Mr Mills at the time likely had no appreciation of the significance or importance of Ms Kadir's injury.
3. There is also a real possibility of cross-contamination of the histories, such that one has simply led to the next without necessary involvement of Ms Kadir. For example, there is a referral from Dr King on 14 February 2020 to Mr Timms. Dr King of course on 2 May 2018 took a history from Ms Kadir as to the 2018 accident. However, his referral to Mr Timms, did not mention this.
4. It was submitted that the Court of Appeal's decision in Woolworths Ltd v Warfe [2013] VSCA 22 at [112] provides salutary advice regarding reading too much into medical histories:

... it is important to bear in mind the limitations which attend the reliance, by a court, on the records by medical practitioners, in their reports, of the histories and symptomatology described by plaintiffs to medical practitioners. Those histories are an important part of the information, upon which the medical practitioner forms a view as to matters such as the diagnosis and prognosis in relation to the plaintiff's injuries. However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. They are often, at best, an approximate paraphrase or précis of the account given by the plaintiff to the medical practitioner. Sometimes, the discrepancy, between the account recorded by the medical practitioner, and the evidence of the plaintiff, cannot be adequately explained, even taking into account the limitations which attend the recording by a medical practitioner of the history given to the practitioner by the plaintiff. Nevertheless, it is important to bear in mind the nature and purpose of the history, recorded by medical practitioners in their reports, and of the limitations on their accuracy which I have just described.

1. Also, in Hettiarachchi v Transport Accident Commission 2023 VSCA 27 [at 57] the Court of Appeal said:

We have not lost sight of the fact that a Court needs to be careful in accepting apparent statements of fact made by patients (or plaintiffs in a medico-legal setting) and recorded by medical practitioners and contained in their notes or reports. At times what might appear to be a statement of fact may simply be an observation or impression of the doctor. Or, in some cases, may simply be an incorrect record of what was said during a busy consultation.

Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff's) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. However, in this case it is relatively clear from the terms of both reports that the doctors were recording statements made by the applicant to them, thus providing a proper basis for cross-examination directed towards establishing an admission against interest and a finding based (at least in part) upon such an admission.

1. Concerning Dr King's 7 May 2018 note, Ms Kadir submitted that Mr Timms' evidence about this entry is significant. When asked about what pain related to the sternomastoid means in lay terms, he answered 'neck pain'. Mr Timms agreed the note reflects a complaint of pain just anterior to left upper sternomastoid insertion since that morning.
2. When put to Mr Timms that that the complaint was not relevant to Ms Kadir's overall clinical picture, he answered, 'Excuse me? You don't think neck pain's relevant to her overall clinical picture?[101] He viewed the report as consistent with a neck injury.[102] In his opinion, the reported pain in the neck is consistent with a neck injury.[103]
3. Submissions turned to Dr Hussain's clinical note on 8 July 2019:

For referral to specialist for neck pain, which is ongoing since 2015, following MVA, and had ACDF in 2017. In 2018, March, she had another MVA, which has triggered off neck pain, radiating into arm. She also has pain in lumbar spines. [104]

1. Dr Hussain referred her to Myron Rogers, which did not happen. On 14 February 2020, Dr Hussain referred her to Mr Timms, noting, 'Referral to neurosurgeon for ongoing left hand shoulder pain ... MVA a few years back ... Pain is getting worse.'
2. His referral letter of the same date set out in part, 'Ayse presented with worsening neck and left arm pain for few months. Past medical history, as you know, is marked by ACDF surgery? in 2017.'[105]
3. Ms Kadir has given evidence that she did have left arm pain before the 2018 accident and that the pain in her left arm has worsened since the accident.
4. She reported this to Mr Mills on 28 May 2018 whom Ms Kadir saw one month after the accident, and whom she reported the accident to. He sought TAC approval for six months clinical Pilates physiotherapy for the left hip and lumbar spine following the 2018 accident. [106]
5. It was submitted that the question of causation is predominantly a medical question. Doctors routinely assist courts and tribunals by providing medically trained opinion as to the connection of an injury to the transport, and to the claimed consequences. The medical opinion of Mr Timms, in respect to this, and to the history and development of pain is this: he notes in response to being shown the 2011 scan of the neck, before the first accident, that the finding of the 2011 scan was that there was a mild mechanical change to the disc at C5-6.
6. He went on, 'But when I saw her, there was a large disc prolapse at the level of C-56, which is a clear change.'[107] Mr Timms, in his report of 18 June 2020, and in evidence, noted that when he saw Ms Kadir on 13 March 2019, she had increasing problems in her neck and then the left arm, as well as problems in her lumbar spine. He saw her again on 30 March 2020. She had a 6 March 2020 MRI scan. 'I felt that there was neural compression from the disk at C6-7, which was the level below her previous surgery.'[108]
7. He diagnosed her with neural compression at level of C6-7. 'I was hopeful that we could try and treat it with a cortisone injection.'[109]
8. Mr Timms is ultimately of the view that the 2018 accident led to an exacerbation of the injuries in her cervical and lumbar spine. The exacerbation causing neck and radiculopathy, resulted in the need for further cervical surgery, a direct result of the exacerbation from the 2018 accident.
9. Mr Timms' evidence was that he came to that conclusion on the basis that in the 2018 accident the car was badly damaged and Ms Kadir had worse symptoms after the car accident.[110]
10. Dr Akil says the 2018 accident accelerated Ms Kadir's neck injury. Concerning post‑surgery symptoms he said:

She told me that her arm symptoms settled completely: indicating that there is an adequate decompression of the C6 nerve that is giving her the arm pain. She told me that her neck pain also has improved, not completely settled. Which is also again not something that I'm surprised for because these types of surgeries are not really for the neck pain, they're basically for nerve pain, i.e. arm pain.'[111]

1. He was asked about the 2011 MRI, and asked whether this changes his opinion regarding a relationship between the injuries in the 2015 accident:

No, not at all. I mean the issue with the C5-6 and C6-7, those two levels are usually, and even in someone who doesn't have any pain at all, they can be degenerative just because they are at the bottom of the cervical region and they are the most commonly affected in any injury. So the presence of degeneration at C5-6, or C6-7, doesn't necessarily mean - because these are radiological features, it doesn't mean, in a scan 2011, that's where her neck pain is coming from. Nor does it mean that it is something that is completely abnormal. As a matter of fact, it's very common. Usually the MRI I look at it as - the MRI reports generally speaking are radiological description of an anatomy that may not be compatible with a completely ideal anatomy, but no one has completely ideal anatomy in the neck or back after the age of 20 or 25.[112]

1. Dr Akil had taken a history in his report of the 2018 accident, (see para 167) and Ms Kadir driving at low speed inside a car park when another car reversed and clipped her car, after this accident feeling a further aggravation of the neck pain and radiation of the pain with numbness towards the left scapula region and the left triceps region and the posterior forearm all the way to the hand.
2. He went on to say that there is definitely worsening of the C6-7 region, evident in a March 2019 scan (after the 2018 accident) compared to her previous scans.[113]
3. Ultimately, he opined that on the balance of probabilities, based on available information, it is very likely, on the balance of probability, that the 2018 accident is a significant factor in accelerating adjacent segment disease.[114]
4. It was submitted that Mr Rogers accepted there was a soft tissue injury. He disagreed as to the degree. There is evidence in opposition, regarding Mr Rogers' opinion.
5. In answer to Question 3 of his first report, Mr Rogers is asked for his opinion on whether the symptoms he records are attributable to the 2018 or to the 2015 accident.
6. It was submitted that Mr Rogers simply recorded that what Ms Kadir is complaining of, noting Ms Kadir maintains the 2018 accident resulted in an exacerbation of all symptoms. He does not appear to grapple with which accident caused what symptoms. He does not provide his opinion on the question asked. It was submitted the reliance on his answer to Question 3 is misplaced, as it adds nothing. When asked about what information he collected from Ms Kadir about the collision and the impact on her body, he answered that he could not recall. It was submitted that his opinion is compromised by the history he has been given by the respondent.
7. In answer to Question 4 of his report, Mr Rogers does not provide his opinion as to whether any of the pre-existing or unrelated conditions are or maybe effecting the current presentation. He just states what they are. Ultimately, his opinion is provided later on that she has an entrenched chronic pain syndrome, despite him not being an expert in this particular field. And he notes that psychosocial issues, as per the question, need to be addressed by a psychologist or a psychiatrist.
8. Mr Rogers was shown the notes by Dr King on 2 May and 7 May 2018. He says they do not record any major issue with Ms Kadir's neck, therefore at most she had a mild soft tissue injury to the neck. When asked in evidence about whether the sternomastoid is in reference to the neck, he said he did not agree. Yet he described what the sternomastoid was by pointing to the (indistinct) muscle being in the neck. It was submitted that Mr Timms' and Dr Akil's evidence should be favoured in this regard.
9. It was submitted that Mr Rogers focused on the history Ms Kadir gave to Dr King and did not take a proper history of the 2018 accident and the impact it had on Ms Kadir and was inconsistent in his opinion. He could not say what documentation he relied on to conclude that the 2018 incident was low impact. He could not say if the first surgery performed by Mr Timms was reasonable, or not initially, as he didn't have a record of the symptoms, but later he goes back to the scan, at around that time being 19 June 2015,[115] and comes to the conclusion, based on the scan only, that it was not reasonable.
10. On Mr Timms' clinical notes, he acknowledged there is no record of the 2018 accident, commenting on telehealth records in the Covid-19 crisis, being not as good as what they could have been.[116]
11. He said:

She may have said that to me, but the conditions that I treat are her cervical spine, and often in relation to one accident, there can be adjacent segment disease, which is a level above or below, can be injured or have an accelerated rate of deteriorating at that area, so it probably wouldn't have made a huge difference to me, if that makes sense.[117]

1. On 9 July 2020, Mt Timms first records the 2018 accident. He ultimately opines that the 2018 accident is likely to lead to an exacerbation of her condition.[118]
2. In respect of the reports from the psychiatrist Dr Jones, the report dated 22 June 2018, was put to Ms Kadir and she was asked whether she said anything to Dr Jones about being involved in the 2018 accident. She said she could not recall.[119] It was submitted that little weight should be given to this, given Dr Jones is a psychiatrist assessing her from a psychiatric perspective, and as noted by him in his report, that at the time she was preoccupied to an extent as she was currently experiencing the stresses of having a partner who has a cancer diagnosis with poor prognosis.[120]
3. TAC contends that given Dr Thomas and Mr Rogers have seen Ms Kadir more recently, their assessment and opinion should be preferred, and that their opinion that Ms Kadir has no radiculopathy should be accepted. Yet when read out the symptoms, as recorded in Mr Rogers' reports to Mr Timms, Mr Timms says, 'If she had a sensory deficit, then that's consistent with her radiculopathy.'[121]
4. It was submitted that VCAT should accept Mr Timms' opinion on Mr Rogers recording of her current symptoms as being symptoms of radiculopathy.
5. In respect to the record of medication in the CSC notes, it was submitted that prescriptions were provided to Ms Kadir for predominantly abdominal discomfort. However, this was not put to Ms Kadir, and so therefore little weight should be given to it.
6. There are prescriptions for Brufen on 29 February 2020 and 22 February 2023. There's a tramadol injection for low back pain on 11 March 2020. Celebrex is prescribed on 5 May 2021, in response to notes of chronic back, neck, shoulder, hip pain, and thoracic back pain. A 9 May 2022, note says, 'She would like to have prescription for Celebrex and pantoprazole, noting history of neck pain, takes meds as needed.'
7. Concerning the need for neck surgery, the legal test is set out in Zimmer v Transport Accident Commission [2004] VCAT 1355 at [23].
8. Judge Bowman considered the proper test to be applied in a case where a claim is made for medical services for a secondary injury under s62A
9. In determining whether there is a liability in TAC for medical and like which relate to the victim of a transport accident, there are three steps to be taken.

(i) Was there a transport accident - that is, did the accident arise directly out of the driving of a motor vehicle? > > (ii) Did the victim of the accident sustain an injury within the meaning of the Act - that is, did the person so involved suffer an injury as described, and was that person directly involved in the transport accident? > > (iii) If the person was involved in a transport accident and did suffer an injury within the meaning of the Act, were the services provided because of the transport accident?

10. The case involved medical services related to an ankle injury sustained by Ms Zimmer when she was nudged or bumped at a hotel and fell down. The evidence suggested she fell because of weakness in her left leg arising from an earlier transport accident. It was held that the motor vehicle accident was the predominant cause of Ms Kadir's compensable injury.
11. Bowman J decided that Ms Zimmer had established for the purposes of s.60 of the Act that the injury suffered in the transport accident was a cause of the provision of medical services.
12. It was submitted the same approach should be taken here when considering Dr Akil's evidence in his report of 15 November 2022 when he concludes the C6-7 injury is indirectly a result of the injury sustained in the 2018 accident.

1. In respect to causation, Dr Thomas provided a report (which is unchallenged) that he accepts that a genesis of her condition stemmed from the 2015 accident and the 2018 accident led to, 'a slight aggravation of her condition.'[122]
2. Turning to evidence in support of surgery, that is Mr Timms' opinion. He explains his opinion that a further operation was required:

She tried the normal conservative measures - medicines and physical therapies - and the MRI scan showed the adjacent segment disease injury at C6-7 and given that the injections had helped her a little bit, I felt that decompressing the spine at that level would likely give her the best chance of an improved outcome. [123]

1. Dr Akil's opinion regarding the surgery is that Mr Timms'

... suggestion is not so unreasonable, but I would probably take a few extra steps to reach a conclusion that surgical intervention is required to improve her symptoms.

So probably first do [a]dynamic neck x-ray, which is a flexion and extension x-ray of the neck just to see how stable the C6-7 is. And I would definitely - I'm a big fan of bone scans because if the bone scan shows me that there is a significant pathology at C6-7, even if the MRI doesn't show me that there is actually nerve compression it might be because we are taking an MRI scan when Ms Kadir is lying down static in one single position, but if there is a movement there might be a nerve compression when she moves her neck but not when she's not moving her neck.

... personally I would probably take a step back. But that doesn't necessarily mean his suggestion is entirely unreasonable. The fact is that there is actually an adjacent segment disease, ie there is a problem that worsened at the level of C6-7 which is below the fusion level.

1. When asked about the relationship of adjacent segment failure and the 2018 accident, Dr Akil said:

Adjacent segment failure is, as I mentioned, in the probability of it happening in 10 years is roughly under, just under 30 per cent, but that doesn't mean it's going to happen. Now, what I just thought, that the first accident was in 2015, the second accident 2018, so only three years between them, and to have the adjacent segment happen that quickly, you always kind of wonder whether the accident itself or whether the whiplash mechanism of forward and backwards, flexion and extension of Ms Kadir's neck, accelerated the adjacent segment and in my opinion it is very - and all these things are on balance of probabilities. In my opinion this is actually very possible. So she's had a very rapid movement of her neck forward and backward that put extra pressure on the C6-7 that has already extra pressure and accelerated the failure. This is my kind of interpretation. But before the accident, immediately before the accident, she was actually okay. Well, I mean she still had some neck pain but she wasn't having this severe pain that requires her to go back to her neurosurgeon again.[124]

1. Dr Akil's evidence is in part that while it was not unreasonable for Mr Timms to recommend the surgery, Dr Akil would want to do more before undertaking surgery. It was submitted that it should be noted that he mentioned steps such as carrying out a nerve conduction study and a CT specs scan. When it was brought to his attention that Ms Kadir had undergone two cortisone injections and that Mr Timms used that diagnostically, Dr Akil agreed that is quite similar to a nerve conduction study.
2. The evidence in opposition for surgery is from Mr Rogers. He comments on the, latest, 12 March 2022 CT scan. He says it demonstrates no neural compression at any level and minimal progression of degenerative change.
3. Dr Akil responds:

Again, CT scans are incredibly unreliable to show a neural compression of cervical spine. They may be okay for lumbar, not in the cervical.'

The value of CT is to assess bony fusion and the position of the implant. It doesn't really have great value because if you compare this report to the MRI scan from before, the MRI scan does show that there is actually quite significant disk degeneration at C6-7.

1. In his view the further report is unhelpful, and it shouldn't be relied upon.
2. It was put to Mr Rogers that Dr Akil and Mr Timms disagree with his diagnosis of the soft tissue injury and it was put to him in particular what Dr Akil said:

I have a few basic issues with the word 'soft tissue injury' because I've got no idea what that mean[s]. There are lots of soft tissues in the neck. Is it muscle injury, is it ligament injury, is it disc injury? Discs are soft tissues as well. I do believe that - I disagree with that because the first accident there was a clear radicular aspect of the pain. What I mean by that, there is an arm pain here, and this arm pain, looking at her scans, there is a C6 nerve compression and this pain has improved after surgery. So that's the thing. So it can't be a soft tissue. Soft tissue injury lasts for one, two, three weeks and then goes away, but to persist, that's kind of strange and unusual. And so for the second accident. For the second accident we have a prior fusion at C5-6. We have an adjacent segment at C6-7. We have a worsening of a disc bulge at C6-7 and to assume that it is soft tissue injury that you cannot quantify, you cannot see on a scan, basically just an assumption, I just find it very strange, I must say. I put my disagreement here.[125]

1. Mr Rogers disagreed and came back again to the radiology. But he said himself that in making a diagnosis you need to look at more than just radiology, which is what we submit Dr Akil has done here and Mr Rogers has not.
2. Mitkov v TAC was a TAC decision to deny liability to pay for the costs of treatment to Ms Mitkov's lumbar spine including the need for fusion. Those deposed said it was pointless and fusion was not a viable option.
3. In setting TAC's decision aside, Vice President Strong, the view taken in the form of Administrative Appeals Tribunal of Victoria case of Tompkins

The necessity for some type of treatments for the applicant's problem was not in dispute; rather, the method of treatment was in issue. In this case, while expert opinions differed as to the proper method of treatment, it is clear that the applicant was treated by well-qualified, properly motivated experts. The fact that the treatment does not accord with the treatment favoured by the respondent's expert does not make it unreasonable and, indeed, I am not concerned to determine which treatment is best.

1. Having regard to the decision of Judge Bowman in Zimmer, it was contended that it is sufficient if the car accident was a cause of the need for treatment for a consequential injury.
2. For this reason, it was submitted it does not matter whether the 2015 accident and subsequent surgery was a cause or whether the need for further treatment has contributed to Ms Kadir's prior neck pain or other matters. It's acknowledged that the surgery may have been a cause of the deterioration in her neck but, again, it does not matter, because the test to be applied with reference to whether or not the aggravation or acceleration of the neck as a result of the 2018 accident is whether it was a cause. And overwhelmingly, we submit, the evidence supports that finding.
3. Turning to the need for a pain management program for Ms Kadir's neck and back, Dr Clayton says it would be ideal for her.[126] Mr Rogers says she has a chronic pain condition and requires referral to a non-interventional rehabilitation and pain management specialist for assessment for rehabilitation and pain management program.
4. Ms Kadir submitted that it would be against the weight of evidence to find that no injury occurred. All experts who have given evidence in this case opine that there has been an injury to Ms Kadir's neck, albeit they disagree as to the degree of injury. For example, Mr Rogers says at most there was a soft tissue injury to the cervical and lumbar spine.
5. It was further submitted that there is a body of evidence supporting the requisite connection between the 2018 accident and it being a cause of her current condition, and it should require far more than the smattering of a lack of clinical history and Mr Rogers' opinion to reject it. This was an unguarded accident - an unguarded accident where Ms Kadir did not see it coming. She's got a previously fused neck and she's hit with, considerable impact.
6. While TAC submits that VCAT should affirm both decisions, noting that there are other avenues open to Ms Kadir with respect to treatment that may be made with respect to the 2015 accident, Ms Kadir submitted TAC's decisions should be set aside and that there be a finding that the 2018 accident was a cause of Ms Kadir's neck and back injuries and that liability then flow to the TAC to pay for treatment, and reasonable treatment consists of surgery to her neck as suggested by Mr Timms and chronic pain management.

1. In relation to case law on the use of medical records as evidence, TAC brought my attention to the Court of Appeal said in Philippiadis v Transport Accident Commission [2016] VSCA 1 [at 105]:

We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor's own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance. The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author's area of expertise.

Ordinarily, a patient who visits his or her longstanding general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient. Also, a general practitioner who makes notes of each attendance would be expected to record the main health complaints made by the patient and the practitioner's observations and actions taken in relation to such complaints. It may be accepted that, in respect of some attendances, there may be departures from what would ordinarily be expected. However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner's clinical notes not to refer to them over a lengthy continuous period of time.

1. I have affirmed TAC's two decisions under review.
2. I find:

a) that the 2018 accident was not a cause of any current condition with respect to Ms Kadir's cervical spine; and > > b) while I accept Ms Kadir is diagnosed as suffering a chronic pain condition, which requires treatment, I find that the 2018 accident was not a cause of her suffering that condition.

3. The complex, conflicting evidence and opposing submissions are set out above.
4. The evidence, including from Ms Kadir where she agrees that medical records concerning her health from 2007 to the 2015 accident are accurate, where understandably there are records of which she does not recall, demonstrate that Ms Kadir has for many years suffered a variety of pain. The records show her suffering a range of symptoms from the 2015 accident until the January 2017 surgery.
5. In January 2017 she underwent the surgery, with TAC accepting the 2015 accident was a cause of the injury to be addressed by that surgery.
6. Ms Kadir's evidence is that after a few months of recovery, the surgery had good effect. The records of her reports to medical practitioners over 2017 into early 2018 say otherwise.
7. In this case Ms Kadir's experience after the surgery until the 2018 accident is critical. If her symptoms were much reduced after the surgery until the 2018 accident and they then returned, causation would be evident. If her symptoms returned after the surgery and stayed much the same after the 2018 accident, causation appears unlikely.
8. Therefore, one question is where Ms Kadir's evidence conflicts with medical records, which should be preferred? In my view the medical records should be preferred.
9. Ms Kadir's credibility as a witness concerning her health over the years, including before and after each accident, is very important in this case. She is the only person who can report her experiences with pain and the impacts of the challenges she faces on how she lives her life.
10. Ms Kadir impresses as a brave person living her life, rejecting the idea that she should be limited by pain. For example, she gave evidence of regularly driving to see her parents, despite pain that follows. She gave evidence of socialising having taken painkillers to do so, but not disclosing this to those she is with.
11. However, she does not appear to be a person who accurately and consistently reports her experiences of pain, medical history and her physical abilities. I do not view Ms Kadir as dishonest; I am speaking of her apparent inability to accurately recall.
12. That inability is demonstrated by

a) Her at the VCAT hearing, giving evidence of undertaking study between the 2015 and the 2018 accidents. When it was put to her that based on a record by Dr King that she completed that study before the 2015 accident, she agreed; > > b) Her reports on her physical abilities vary. For example, Mr Rogers recorded her saying she could walk no longer than 5 minutes at a time. In evidence at hearing she spoke of being able to walk up to 15 minutes, or further if she did not suffer inflammation and she needed to push herself; > > c) She reported only being able to drive short distances. At hearing she defined 'short distances' as meaning up to 50 minutes. When surveillance evidence showed her driving longer for longer times, she agreed she could push herself to do so; > > d) Dr Thomas recorded her telling him she worked 30 hours a week before the 2018 accident. While I accept her evidence that she could only work a few hours a week to benefit her mental health, it appears unlikely that Dr Thomas would inaccurately record what he was told on such an important issue; > > e) Her evidence about her history of taking pain medications is inconsistent and, with respect to being able to buy Mersyndol over the counter (it is a prescription only medicine), perplexing; > > f) It is surprising that the first time she disclosed attending the CSC for medical treatment was at the VCAT hearing; and > > g) During re-examination, Ms Kadir's counsel asked her about her neck movement. She replied that after the surgery it felt like she had a constant golf ball in her throat, something she now experiences at times. She described never having full movement since the surgery, but her neck is 'okay to move'. I understand this was the first ever mention of this symptom. In evidence Mr Timms said that he had not obtained any history of a golf ball sensation.

13. As best as I can tell, Ms Kadir will answer a question by a medical practitioner or by a lawyer on the basis of what she thinks the person needs to know, seeing that need within a limited scope at the time. Presumably, direct questions on the pain she is more recently experiencing will provide more accurate information, compared to questions focusing on more removed history.
14. Noting and accepting the judicial observations set out above about evidence from patients, they are made in the context of apparently reliable witnesses.
15. In Woolworths Ltd v Warfe the trial judge found Mr Warfe to be a credible witness. That finding was appealed. The above observation was made in that context. On appeal the Court, [at 120], 'could not conclude that the finding by the trial judge, that the respondent was a credible witness as to nature and extent of his disabilities, was so 'glaringly improbable' or 'contrary to compelling inferences' that it should be set aside on appeal.' The appeal was allowed on other grounds.
16. After in Hettiarachchi v Transport Accident Commission providing general caution about reliance on medical records, the Court of Appeal concluded that the medical records in that case could be relied on. The Trial judge had generally accepted that Mr Hettiarachchi was a credible witness.
17. I note an observation made in the recent VCAT decision Strojek v TAC [2023] VCAT 388 at [51]:

Ms Clark cited Hills v Transport Accident Commission [2021] VCAT 1512 (Hills) where VCAT referred to the following observations by Lord Pearce on the subject of credibility in Onassis v Vergottis (Onassis) [1968] 2 Ll Rep 403 at p 431:

'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability.

1. Here, where there is conflict between Ms Kadir's evidence and notes taken by a medical practitioner at a consultation, I see the notes as the most reliable evidence of what Ms Kadir reported to that medical practitioner.
2. Turning to another issue concerning the weight that should be given to Ms Kadir's evidence, in my view the surveillance video does not undermine her credibility.
3. The available short video does not corroborate Ms Kadir's evidence that she lives with constant pain. Walking along the street, walking in a car park and putting pizza boxes in her car before driving off, she is not guarded in how she walks, holds her phone in her left arm to her left ear and bends from her hips into her car. Ms Kadir said the videos showed her having a left hand limp. To my 'lay person observation', viewing her from her back as she walks down the street, perhaps her gait is slightly uneven to the left, but it is hard to tell.
4. That said, I do not accept the four short videos establish that Ms Kadir lives with less pain than she reports. I am mindful of a submission by counsel for Ms Kadir who commented that these videos are all that TAC puts before VCAT from 25 hours of video. Counsel for TAC did not dispute that. Presumably, the rest of the video does not contradict Ms Kadir's evidence.
5. Turning to evidence about the 2018 accident, in my view the most credible evidence is that of the other driver set out above and the repair assessment and quote. Driver Hamlin said 'At that precise time the rear passenger side corner of my car made impact with her passenger side door. This occurred at very low speed from me but she was driving pretty quickly.' This description of Ms Kadir driving 'pretty quickly' in the car park is the closest the evidence comes to a collision of significant force.
6. Driver Hamlin's statement speaks of Ms Kadir and her getting out of their cars with no concern as to injury and a polite and supportive exchange before everyone left.
7. The repair quote does not in my view support a finding of a high speed impact. It is common knowledge that modern cars are designed to absorb impact, to protect those inside. A $3,000 quote does not reflect extensive damage.
8. Ms Kadir's evidence at hearing of suffering whiplash ('... [I] went to the side, the right side where my neck sort of went to the side, and my left hip from the seat belt') in the 2018 accident is, as far as I am aware, the first evidence of this injury. Given my reservations as to her accuracy as a witness, I do not rely on her description.
9. Moving past the 2018 accident, I also see what Ms Kadir did not report as highly significant.
10. After the 25 April 2018 accident, on 2 May 2018 when Ms Kadir told Dr King about the accident, he does not record her reporting concern that 'she may have done something to her neck' as she now gives evidence she told her daughter in the car at the time. She did not report neck injury or pain, nor any change concerning pain in her left arm. Dr King's notes give no sense of a serious nor high impact accident. While on 7 May 2018 she reported the pain which Dr King recorded as left upper sternomastoid insertion pain, noting the disagreement between experts in this case as to its significance, it was apparently short term. There is no mention in medical records of her again reporting it.
11. On 28 May and 16 August 2018, Mr Mills made no record of her complaining about neck pain, noting she was seeing him about hip and lower back pain.
12. The circumstances that Ms Kadir found herself in after the 2018 accident, with her partner terminally ill, suffering at least some ill effects of that accident, of course evoke great sympathy. It is well recognised, and described in a variety of VCAT decisions, that pain in one part of the body can mask pain in other parts of the body causing later reports when the masked pain emerges, here, there is no medical record of Ms Kadir reporting neck pain until Dr Hussein makes such a record on 8 July 2019.
13. Mr Timms made no record of Ms Kadir reporting the 2018 accident to him until July 2020 (on her third visit to him in 2020). While he said during the Covid crisis records at telehealth consultations were not what they could have been, which I accept. While I accept his evidence that in terms of required treatment whether it was one or two accidents that caused injury would not be important to him, it seems surprising that he would not record a patient reporting a second accident. More likely than not, he was not at the time aware of the 2018 accident.
14. I also regard it as significant that the medical records of Ms Kadir's general practitioners over more recent years, and the hospital records disclose little information concerning Ms Kadir suffering neck pain, including the very recently available CDC records. Given my view of the lack of reliability of evidence from Ms Kadir, I do not accept the submission that the CDC records should be given less weight because TAC did not seek to recall Ms Kadir to cross-examine her concerning those records.
15. Mr Timms, Dr Akil and Dr Thomas have provided opinions that the 2018 accident caused injury to Ms Kadir's cervical spine. Mr Rogers opines that the 2018 accident caused at most soft tissue injury.
16. On the basis of Ms Kadir's reports to him and the more complete picture now available to him through this proceeding, Mr Timms' view is that Ms Kadir's symptoms improved after the 2017 surgery, the 2018 accident had sufficient impact to aggravate her condition, her symptoms worsened and so it is probable that the 2018 accident was a cause of her current condition.
17. In my view the difficulty with Mr Timms' opinion is, as TAC submits, the evidence indicates only short-term improvement in Ms Kadir's symptoms after 2017 surgery, the evidence as to the circumstances of the 2018 accident indicating a low impact collision, followed by the lack of reporting by Ms Kadir to her treating medical practitioners after the accident of any significant neck pain.
18. Dr Akil's opinion is that at its highest, the 2018 accident was only an indirect cause of Ms Kadir's neck condition, causing aggravation to already present segment disease. However, his opinion in my view was premised on the 2017 surgery having good effect, diminishing symptoms until the 2018 accident, first reported to him by Ms Kadir as being at low speed, where further significant symptoms occurred after that. As I described above, in my view the full scope of evidence concerning the progress of Ms Kadir's symptoms does not support that being the likely sequence of events.
19. I once again return to the lack of evidence as to the 2018 accident involving substantial physical impact on Ms Kadir and the lack of reporting of neck pain after the accident.
20. One element of Dr Akil's evidence concerns 3% risk of segment disease each year after the 2017 surgery if there is no intervening factor. In his view it is unlikely Mr Kadir's cervical spine would be in its current condition due to adjacent segment disease, if the 2018 accident was not an aggravating factor.
21. However, with the approximately six years that have passed since the 2017 surgery, at 3% per annum, as I understand his evidence, the probability of adjacent segment disease in 2020 was about 9% and in mid-2023 is about 18%. In the context of the conflicting expert opinion in this case, those probabilities are not insignificant.
22. Dr Thomas' unchallenged opinion, described by TAC as perhaps the high water mark in evidence in support of Ms Kadir's position, speaks of aggravation caused by the 2018 accident. However, that report gives no sense of any opinion that the aggravation would have continued to result in the 2018 accident being a cause of Ms Kadir's neck condition in 2023.
23. Mr Rogers' opinion is emphatic, the most the 2018 accident would have caused was soft tissue injury which would have long since resolved. In my view his opinion is based on a fair understanding of the experts, in light of all the evidence now available, as I describe above, concerning the lack of severity of the 2018 accident.
24. Fundamentally, the conflicting expert evidence with some opinions apparently based on inaccurate reporting over the years, as a whole does not persuade me the evidence justifies an inference of probable connection between the 2018 accident and Ms Kadir's neck condition and/or condition requiring a pain management program.

1. The overwhelming focus of the evidence and submissions at the VCAT hearing was on the surgery request.
2. That said, they in part addressed TAC's decision to refuse to fund a pain management program.
3. I have affirmed TAC's decision.
4. I agree with TAC's submission that Ms Kadir's reporting of chronic pain over the years, has not much varied, including before the 2015 accident, between the 2015 and the 2018 accidents and after the 2018 accident.
5. The evidence includes diagnosis of and reporting of Ms Kadir suffering long term chronic pain by Dr Hussain in 2021 and 2022, Dr Hocking in 2018 (before the accident), Dr Wansupura in 2022, Dr King over the years, Dr Jones in February 2018, at CSC on 5 May 2021 and by Mr Timms concerning Mr Rogers and Dr Thomas' opinions.
6. Given this consistent pattern of evidence, the evidence does not establish that the 2018 accident was a cause of any pain condition which Ms Kadir now suffers, which requires treatment.

1. As I have not been satisfied that the 2018 accident was a cause of the relevant conditions, on that basis TAC's two decisions are affirmed.
2. There is no need to turn to the complex evidence concerning whether, if the 2018 accident was a cause of Ms Kadir's neck condition, whether TAC should fund the proposed, on some views controversial, surgery in terms of likely benefit, or not, for Ms Kadir and so whether it is reasonable.
3. If I had found that the 2018 accident was a cause of Ms Kadir's continuing chronic pain symptoms, given Mr Rogers' and Dr Thomas' strong opinions in support of such treatment, I would have set TACs decision aside and ordered that funding.
4. It remains to be seen whether Ms Kadir will make similar request/s based on the 2015 accident, on which it is not appropriate for the Tribunal to now comment.

[1] Tribunal Book 11 (decision) related to 9 May 2018 application by Ms Kadir to TAC concerning the 2018 accident Tribunal Book 16.

[2] This date is a typo, should be 25 April 2018.

[4] Gennimatas v TAC [2002] VSC 552 at [45]

[38] Tribunal Book 70 (format condensed)

[45] Ms Kadir agreed this was when she first told Dr Hussain about the 2018 accident - Transcript 75/23.

[47] Tribunal Book 1588 - referral letter at 1480.

[58] "2016" appears in records. Assume it is a typo.

[60] Dr Akil's report from February 2022.

[89] which is less relevant, obviously, to what we're talking about. - just a note to probably delete

[100] Supplementary report dated 21 March 2021.

[111] Transcript 168/14 - Dr Akil was referring to his report at Tribunal Book 1645.

[114] Transcript 119/19. - does not look right

[119] And that was at transcript 72, line 11.