Kyriakou v TAC [2003] VCAT 441

1. This is an application to review a decision of the respondent made on 2 January 2002 whereby the respondent determined that the applicant is not or is not likely to be, entitled to impairment benefits resulting from injuries in a transport accident occurring on 4 March 1999 ("the transport accident").

CIRCUMSTANCES OF THE TRANSPORT ACCIDENT AND SURROUNDING MATTER

2. The applicant was driving along Chedder Road, Reservoir, at the intersection of Keon Parade, the lights facing the applicant were green. The applicant proceeded through the intersection when another vehicle turned into her path, causing the front of the applicant's vehicle to collide with the near side of the other vehicle. At the time of the transport accident, the applicant's vehicle was travelling approximately 60 kph. An ambulance was called to the scene of the accident, but after the ambulance officer examined the applicant, she was advised to see her local doctor. Approximately two days later, the applicant consulted her general practitioner Dr Pahtsivanidis.

3. At the time of the accident, the applicant was in the final year of her university course of Intellectual Disability Studies and was working part time at Safeway Stores in Epping as a delicatessen assistant. The applicant alleges that, as a result of the transport accident, she suffered injury to her back with whiplash to the neck, and right leg referred pain, headaches and nervous shock.

4. It should also be noted that immediately subsequent to the transport accident, the applicant saw an empty baby seat which had been thrown about in the other vehicle. She immediately thought that a baby or a child had been killed or injured in the other vehicle. However, it soon became clear that at the time of the transport accident, the baby seat was empty.

5. Subsequent to the transport accident, the applicant took three weeks off work in order to recover from her injuries. However, she successfully completed her University course in 1999.

6. The applicant has had numerous treatments since the transport accident. She has been treated by an osteopath and a physiotherapist Mr Lin for her musculo- skeletal problems. She has been prescribed Feldene, Celebrex, Voltaren Gel, Panadeine, Panamax as well as Mersyndol. Approximately 12 months ago, the applicant stopped seeing her physiotherapist and has been exercising herself by way of gymnasium for back strengthening. It is also noted that she consulted Professor Donnan, a neurologist, in relation to her headaches and Dr Tom Malios, a physician, in relation to her back and neck pain. She was also treated by Andrew Mavroudis, a psychologist, in relation to her psychological problems.

7. The applicant had a previous transport accident in 1996 when the vehicle she was driving collided with a pole. However, it would appear that by the time of the transport accident, she had recovered from any injuries she might have suffered in the 1996 transport accident.

8. The applicant seeks impairment assessment pursuant to the 4th Edition of the AMA Guides in relation to psychological impairment, her cervical, thoracolumbar and lumbosacral spines.

9. The applicant has been assessed in relation to her whole person psychological impairment at the request of her own solicitors by Dr Kaplan on 1 August 2002 and at the request of the respondent by Dr Neill on 23 August 2002.

"Any exposure to motor accidents or incidents on the road, still arouses intense anxiety. She experiences phobic anxiety regarding travelling as a car passenger, and she experiences anxiety regarding the safety of her family on the road. Given the long duration of these symptoms, they are likely to persist for a prolonged period of time.

Ms Kyriakou has also developed an Adjustment Disorder with mixed anxiety and depressed mood as a result of her chronic pain and the impact this pain has had upon her life".

As a result, Dr Kaplan assessed the applicant's whole person impairment at 15% and found that half of that figure was from primary factors resulting from the transport accident itself.

"A mild chronic pain disorder associated with a general medical condition and psychological factors ...

The psychological factors are her initial acute stress reaction, which was followed by a mild adjustment disorder with depressed mood; both these conditions have resolved, and she has some isolated symptoms (anxiety passing an accident site, irritability, illness behaviour), the later incorporated into her pain disorder ...

She has no ongoing driving anxiety or post-traumatic stress symptoms, and reports a good response to early psychological treatment. Her acute stress did not comprise a post-traumatic stress disorder".

She thus concluded that the applicant had a 5% whole person impairment all of which was secondary to the transport accident.

12. Dr Kaplan formed the following impression of the applicant's current psychiatric symptoms :

"Ms Kyriakou stated that she panics if she experiences an incident on the road. Since the accident, she has become an intensely anxious passenger and she avoids travelling as a passenger if possible. She avoids travelling through the intersection where the accident occurred as the prospect of doing so arouses her anxiety. She worries about her father driving in his truck and if she hears of a traffic accident in the area where a family member may be travelling, she will telephone to reassure herself that that family member is safe.

Mrs Kyriakou stated that if the scene of a traffic accident appears on her screen, she immediately turns her television off as these scenes induce anxiety. She commented, 'Before I never minded all the gory stuff'. If she sees an accident scene while travelling on the road, she becomes intensely anxious and remains anxious until she reaches her destination".

13. As I have previously mentioned, the applicant was treated by Andrew Mavroudis, a psychologist. He noted :

"By the end of treatment, Ms Kyriakou was able to self manage and it was pleasing to see that her confidence was being restored. We both agreed that there was no longer a need for her to continue seeing me. I was confident there would be no long term impairments".

Mr Mavroudis also reported, that the applicant was able to use her newly learnt skills of self-managing her psychiatric condition when she was in a difficult situation to the point where her condition improved dramatically in terms of her presenting psychological complaints/symptoms.

14. Dr Neill reported on the vast improvement in the applicant's psychological symptoms since the happening of the transport accident :

"She said (the applicant) apart from the irritability, she does not have any other difficulties with her mood. She does not feel sad, tearful or depressed, and does not ever feel her life is not worth living; 'that is why it is so good having a big family around - there are always cousins to go to and do things with'.

She was asked especially about anxiety and she said 'if I see a car accident, I am anxious, feel tense, have to wind the window down'. She does not have panic attacks, or any typical symptoms of anxiety attacks. She was not certain of the last such occasion - 'probably a year ago'.

She believes she is a good and confident driver, and her driving habits have not changed in any way : 'just stick to the limits and stuff like that'.

She does not have any intrusive or distressing memories, images or other experiences of the accident, currently or ever.

She did have nightmares 'of the baby seat' for about two months after the accident, and then they ceased.

In the first few months after the accident, she saw a psychologist, Andrew, a few times, and he helped her to use relaxation strategies. At that time, 'if I was a passenger I would freak out' in accident like situations, and it all settled down with counselling.

She has not sought nor considered she needed, any counselling since. She has not been treated with antidepressants, anxiolytics, or any other psychotropic medication at any time".

15. I accept that the present psychiatric history as taken by Dr Neill is correct. So it necessarily follows, that that given to Dr Kaplan is somewhat exaggerated. On hearing Dr Kaplan give evidence, it was quite clear to me that he did not perceive that the applicant had the dramatic improvement in her psychological condition, particularly relating to primary factors, that she has managed to achieve. Given those circumstances, I will put Dr Kaplan's view to one side.

16. However, it is equally clear to me that Dr Neill did not perceive that the applicant still has some problems with driving. First, the applicant does avoid the intersection where the transport accident had occurred. This involves her taking a different route to work each day. Secondly, at times, she does have to stop her motor vehicle and take "a breather" at the side of the road if an incident occurs such as her being cut off. Thirdly, she is more nervous as a passenger than a normal person. When Dr Neill was giving evidence, I put to her these matters and asked her if they were true then at what primary psychiatric impairment would she assess the applicant. She stated given those circumstances, she would believe that the applicant had a 3% to 5% whole person psychiatric impairment.

17. I find on the evidence that the applicant did have the problems, referred to in the last paragraph, which I put to Dr Neill when she was giving evidence. Doing the best I can and giving the applicant the benefit of the doubt, I find that the applicant has a 5% whole person psychiatric impairment.

18. The applicant seeks impairment in relation to her cervicothoracic, thoracolumbar and/or her lumbosacral spine. She gave evidence that she has severe pain in her lower back and neck and at times has numbness down her right leg. She stated that none of these conditions existed prior to the transport accident. She stated that upon completing her course of intellectual disability training at the end of 1999, it took her 12 months to obtain full time employment. The reason that it took her such time to obtain full time employment was that she was unable to do a number of physical things that would normally be required in such jobs. However, since obtaining employment, she has worked continuously up until the time of the hearing of this application.

19. The applicant was examined by Mr Flaim, a general surgeon, on 21 August 2002 at the request of her solicitors. He found that the applicant had an impairment in her cervical spine, DRE cervicothoracic Category 2 minor impairment at 5% and that she had an impairment in her thoracolumbar spine, DRE thoracolumbar Category 2 minor impairment which he assessed at 5% whole person impairment. Mr Flaim found that the applicant had :

"Mild restriction of neck movement, back movement, was also slightly restricted and her posture was normal ....

The most likely diagnosis is that of soft tissue injuries related to the muscles, ligaments and joints of the cervical spine and low lumbar spine".

20. Dr Malios to whom the applicant was sent for an opinion, examined the applicant on 10 October 2001. Dr Malios found :

On examination of her cervical spine, there was considerable stiffness and tightness over the paravertebral musculature. There was nearly a full range of movement with some pain and discomfort at the extreme of motion ....

There was nearly a full range of movement with respect to the thoracolumbosacral spine. There was considerable stiffness and tightness of the paravertebral musculature".

Dr Malios then concluded that the applicant's DRE cervicothoracic spine Category 2 was 5% whole person impairment and a DRE lumbosacral spine Category 2 was 5% whole person impairment.

21. The applicant was examined at the request of the respondent by Mr Michael Shannon, orthopaedic surgeon, on 31 July 2002. Mr Shannon found :

"She has a normal range of movement of the cervical spine with slight hesitancy of extension. She has a normal range of movement of both shoulders, and a virtually normal range of movement of the lumbar spine. ...

As a result of the accident, Ms Kyriakou sustained essentially soft tissue injuries to her neck and back. Her major ongoing problem is headaches, which may be tension or stress related, and she has little evidence of disability in either the neck or the back.

Although she has some vague sensory alteration in her right lower limb, she has no objective neurological abnormality, and her CT scan of the lumbar spine has been normal".

Mr Shannon then found that the applicant has a DRE for both cervicothoracic and lumbosacral spine to be Category 1 with a 0% whole person impairment.

22. The applicant was also examined by Professor Davis, a neurologist, on 24 July 2002. This examination was performed at the request of the respondent. Professor Davis found that there was no radiculopathy in spite of the complaints of occasional radiation of pain down to the legs. In dealing with the current impairment Professor Davis stated as follows :

"She (the applicant) has complaints or symptoms, and I do not really think that the clinical history or examination of findings are compatible with 'a single specific injury or illness' as indicated under DRE category II for lumbosacral spine. She states that the neck pain is more severe than the low back pain, and I thought it was reasonable to say that she was DRE cervicothoracic Category II: Minor impairment for neck - 5%, but she would be DRE lumbosacral Category 1 - 0% for low back. Hence, I think she has a 5% impairment as a result of this accident, and this is giving her the benefit of the doubt".

23. Neither Professor Davis nor Dr Malios was called for cross-examination. Dr Malios was not called because he was unavailable through no fault of the applicant and Professor Davis was not called with the consent of the parties. The criteria for the DRE assessment for Categories I and II of the lumbosacral spine, the cervicothoracic spine and the thoracolumbar spine as referred to in the 4th Edition of the Guides are all similar save for a slight exception. The DRE lumbosacral descriptors are described on page 102 of the Guides as follows :

Description and Verification: The patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p.109), or nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity. ......"

24. Descriptors for cervicothoracic spine vary from the descriptors in lumbosacral spine :

A. In Category I the words in the lumbosacral category of "muscle guarding" read in the cervicothoracic category to be "muscular guarding";

B. The word "may" after the word "findings" in the lumbosacral descriptors for category II do not appear in the cervicothoracic descriptors for category II.

25. The descriptors for DRE thoracolumbar category are also slightly different :

A. After the words "clinical findings, no" are inserted in relation to the thoracolumbar Category I, "documented or observed"; and

B. The first sentence after description and verification in thoracolumbar category II reads as follows :

"The patient's history and findings are compatible with injury or illness and may include significant, intermittent or continuous muscle guarding observed by a physician ...".

26. In my view, for this particular application, there is no significant difference in the meaning of the wording used in the Guides in relation to assessing the three different parts of the anatomy therein referred to. I note that the Guides were prepared by committees and obviously written by different persons without full coordination and without the benefit of parliamentary counsel as one would find in a statute. On the first page of the foreword of the Guides it is written :

"In preparing the 4th Edition, the guides' editors, AMA staff members, and the Council's liaison members first selected well-qualified individuals, who, as chairs, would be responsible for preparing the chapters on organ system impairments and other subjects. Then the AMA staff requested nominations of knowledgeable, interested physicians from all the state medical societies and medical specialty societies that make up the AMA federation. Thereafter, the chairs and committee members selected by them and the AMA staff prepared the text".

27. Thus it is clear to me that these Guides should not be interpreted as a statute and I note what was said by Phillips JA in the Court of Appeal in Lake v Transport Accident Commission (No 2) (1997) 11 VAR 260 at 272 :

"It must be remembered that the Guides are only guides, though they are to be applied as required by the Regulations. The task of assessment is far from being an exercise in an exact science and plainly it is to be assisted by medical opinion - in this instance from experts in neurology. Their efforts will not be helped if the Guides become overlaid with lawyers precise interpretation, derived from one or two cases that they are regarded by the lawyers as testing and which are probably governed, to a greater or lesser degree by their own particular facts. In too short a time the Guides would become a legal 'minefield', and be of much less help to doctors and lawyers alike, although for different reasons. ... "

Even though the above quotation from Phillips JA is referring to the 2nd Edition of the Guides, I see no reason why a similar approach should not be adopted to the 4th Edition of the Guides. Further, I note that I do not believe that the difference in wording in the descriptors for the different parts of the anatomy to which I have referred make any significant difference, and I will not interpret those differences as I would interpret a statute. I bear in mind, that these Guides have not had the scrutiny of a parliamentary draftsman, which is usually afforded to a statute.

28. Ms Forbes for the applicant argued that both in relation to the neck and the lower back, there was guarding within the meaning of the Guides. Mr Flaim suggested that a loss of range of movement was equivalent to guarding because the particular part of the body in this case, the neck and the back movement was restricted even though marginally because of the soft tissue injury. However, Mr Shannon said that he did not believe that that was the meaning of "guarding". His view was that for there to be guarding, there must be some type of muscle spasm that is protecting a particular part of the anatomy. In his view, having a slight restriction of a range of motion did not constitute guarding.

29. "Guarding" is defined at p.109 of the Guides as follows :

"Paravertebral muscle guarding or spasm or non-uniform loss of range of motion, dysmetria, is present or has been documented by a physician. Radicular complaints that follow anatomic pathways but cannot be verified by neurological findings belong with this type of differentiator".

30. While I do not find this definition of very much assistance in this particular instance, in my view, the term "guarding" cannot be that described by Mr Flaim. "Guarding" must be associated, as Mr Shannon has stated with some kind of muscle spasm. In my view, the same should be evident on examination. Mr Flaim admitted there was no evidence of spasm on palpation. Thus, I find that there is no guarding as used in the Guides in relation to the applicant's neck or back.

31. Ms Forbes further submitted that the applicant did not fit any of the descriptors in Category I for either the lumbosacral, the cervicothoracic or the thoracolumbar spines. However, on further questioning, it became apparent that what in fact she was referring to was that in this particular case, the applicant did have "an impairment related to injury". The impairment related to injury was the soft tissue injury which had manifested itself with pain and some limitation of range of movement.

32. Ms Forbes thus suggested that as the applicant did not fit into Category I, her injuries should fit into Category II. She stated that the applicant was suffering a restriction in her range of movement although slight in relation to both the neck and lower back and that she had pain resulting from the injury. She also stated correctly that the applicant was taking non-prescription medication for these injuries, self-exercising and was only able to perform limited activities.

33. Ms Forbes then stated that the descriptors in Category II were not all inclusive and it was clear that the writers of the Guides intended matters to be taken into account which were not there mentioned which would cause a person's injuries to be assessed as a Category II impairment. In this particular instance, both the soft tissue injury, the consequent pain and loss of range of motion are sufficient to enable the applicant to be assessed in accordance with Category II.

34. Mr Myers, for the respondent, suggested that I should reject the notion that the applicant has a loss of range of motion in both the neck and the lower back. He referred to the report dated 16 October 2002 of Mr Lin, who was the treating physiotherapist. There Mr Lin stated :

"On examination she had good movements in her cervical and lumbar areas in all directions without any noticeable restriction".

35. In my view, the preponderance of the medical evidence is that the applicant has a very slight restriction of range of movement both in the neck and lower back. Both Mr Flaim and Mr Shannon agreed that her forward flexion in relation to her lower back was 80o, whereas full flexion is 90o. This they stated would have given her an impairment pursuant to the 2nd Edition Guides of 1%.

36. In relation to the neck, Mr Shannon found that the applicant had a normal range of movement of the cervical spine but with some slight hesitancy on extension. Professor Davis did not make any comment on the range of movement but he did note that Dr Malios found stiffness and tightness of the neck muscles, tenderness in the lumbar spine but nearly a full range of movement in the thoracolumbar and lumbosacral regions. I note that Mr Flaim found that there was a restriction of movement in the neck, particularly in extension. Taking all these matters into account, and taking into account the evidence of the applicant herself, I have formed the view that the applicant does have a restricted range of movement of both the neck and the lower back. However, that restriction of the range of movement is very slight.

37. Mr Myers submitted that I should look at the applicant's entire condition, taking a global approach, and see whether or not it is appropriate to come to a particular assessment in relation to her neck and back. He suggested taking this approach would leave me with the view that it would be appropriate to say that for the applicant's neck and back she should have a total of 5% whole person impairment.

38. In my view, taking a global approach to an assessment of an applicant is not what the Guides intended. The way the Guides are set out clearly suggest that particular parts of the anatomy should be assessed individually according to certain criteria. Taking a global approach would fly completely in the face of that method.

39. The first question that must be asked is "Does the applicant have an impairment?". Page 1 of the Guides states :

"An impairment is a deviation from normal in a body part or organ system and its functioning".

Here, the applicant does have a deviation from normal in both the neck and the lower back. She has pain in both regions and a slight loss of range of motion. I note here that the applicant is 25 years of age having been born on 13 October 1977 and I find that it is probable that a person of her age would have a full range of movement and that she would have had a full range of movement if not for the transport accident. Thus, as a result of the soft tissue injuries which the applicant received in the transport accident to her neck and lower back, she has, "a deviation from normal" in both the neck and lower back, which deviation is caused by the soft tissue injuries to those parts of her body. Thus I find that she has an impairment related to injury in both her neck and lower back but the injury takes the applicant outside DRE Category I for the lumbosacral, cervicothoracic and thoracolumbar spines. It necessarily follows from this finding that Ms Forbes' submission that the applicant does not come within the DRE descriptors of Category I is correct.

40. The difficult question now arises as to whether the injuries to her neck and lower back come within DRE Category II. It is clear from the evidence and the findings which I have made, that her injuries do not come within any of the descriptors in Category II. It is conceded that Professor Davis is correct and that the applicant does not have radiculopathy. She does not suffer from non-uniform loss or range of motion. Mr Shannon said that in relation to flexion and extension movements, they cannot be non-uniform ranges of motion because there is nothing to compare them with. He said rotation could be non-uniform if it was different to the right or to the left. He also said that range of motion of the limbs could be non-uniform if that was different to the right or the left. But he suggested that flexion and extension do not fit into that category. I agree with that part of the evidence given by Mr Shannon. I have already found that there is no muscle guarding. Under those circumstances, it is clear that the applicant does not fit into any of the descriptors in Category II.

41. However, that is not the end of the matter. I agree with Ms Forbes that the descriptors in Category II are not all-inclusive and the categories are certainly not closed. The words "may include" as used in the descriptors for lumbosacral Category II and thoracolumbar Category II clearly indicate that other matters may be taken into account. Further, as far as the cervicothoracic Category II is concerned where the word "may" is not used, on the whole reading of the criteria, it is clear to me that that is also a non-inclusive definition and other injuries or illnesses may be taken into account. I have received some assistance, from the second column on page 100 of the Guides, where it is stated :

"Spine-related complaints in Category II involve mild or moderate impaired spinal function but are considered to be minor impairments".

42. In this particular instance, the applicant does have a slight or moderate impairment to her spinal function in the neck and lower back by a slight restriction in her range of motion.

43. Mr Myers stated that if the writers of the Guides intended that loss of range of motion should be a descriptor for Category II it would have been very easy for the writers to include that in such a description. While that may be so, to interpret the Guides in such a manner, in my view, would be interpreting them in a manner like a statute which Phillips JA in Lake's case suggested would not be proper.

44. In my view, the applicant's injuries clearly fit into the definition of "impairment" on page 1 of the Guides. If the applicant's injuries do not fit into Category I and I have found that they do not, then if they did not fit into Category II, there would be no category for them whatsoever. In my view, that cannot be correct. Having resort to the overall words as used on p.100 ie "Complaints in Category II involve mild or moderate impairment of spine function" the applicant's slight loss of range of motion seems to fit within this category. Thus, under those circumstances, it is proper that the applicant's neck complaints and low back complaint should be within DRE II of the Guides. Thus, in my view, the neck fits within the DRE cervicothoracic Category II and should have a 5% whole person impairment. The lower back problem is more than likely within the lumbosacral area rather than the thoracolumbar area. Thus, the applicant should have a 5% impairment in relation to her lumbosacral spine (DRE II).

45. The applicant has a whole person impairment assessment in relation to her psychiatric impairment of 5%, in relation to her cervicothoracic impairment of 5% and lumbosacral impairment of 5%. Combining those totals, I find that the applicant has a 15% whole person impairment.