Mam v TAC [2002] VCAT 277

1. It is not in dispute that the applicant suffered injury in a transport accident (the accident) in which she was involved as a passenger on 25 August 1994. Matters in dispute are the extent of injuries relating to that accident and the resultant degree of permanent impairment.

2. On 26 April 2000, the respondent determined that the applicant's level of permanent impairment was less than 10%. The applicant being of the view that her permanent impairment is far greater, has applied to this Tribunal for review of the decision.

3. The applicant was born in Cambodia on 1 March 1951. Her father died under the Pol Pot regime in 1976 and one of her brothers disappeared without trace. Some members of her family are still living in Cambodia. One sister there is seriously ill. The applicant came to Australia with three of her four children, the other child having been adopted out to enable him to leave the country. He now lives in France and is schizophrenic. The applicant and her three children spent a considerable period of time in a refugee camp. In 1983 whilst living in Thailand, her husband assaulted her striking her on the head with an axe as a result of which she was hospitalised for a week. In 1985, whilst working for Repco in Australia, she suffered a work related injury to her neck. She saw a medical practitioner, had physiotherapy and acupuncture for the injury and suffered badly from pain for approximately three months. Although she stopped work for approximately six months, she managed to do her housework. She was able to return to work in 1988 on a part-time basis. She maintains that, at the time of the accident, she still had some neck pain but only when lifting something heavy. From 1987 to 1989, she worked in a factory as a machinist. She claims that she did so without difficulty save that occasionally, she felt pain in the neck which was not so severe that she was unable to work. In 1989, she began doing contract work as a machinist at home which she claims she was able to do without problems save for occasional twinges of neck pain. She said that by the time of the accident, her neck had recovered to the extent of 80%.

4. In 1992, she separated from her husband and stopped work. Since then, she has commenced studying English. Last year her relationship with her then current partner broke down although for a time they remained under the same roof. She has since moved to her daughter's house. There is an ongoing dispute between her and her former partner about ownership of a house property. She claims that after the accident, she immediately noticed pain again in her neck and also pain in her lower back. Although her back and neck were x-rayed in 1985, she claims that she had not suffered any problem with her back until after the accident. She also claims that in the accident, she suffered injury to her right arm. She concedes that all of her symptoms have improved since the accident occurred save on some bad days. She claims :

(i) that she has not returned to the level of improvement experienced just prior to the accident;

(ii) that she has been unable to return to sewing because she is no longer able to sit for long periods;

(iii) that she is unable to do all of her housework because of neck and back pain;

(v) that the accident caused injuries to her neck, lower back, right arm, right knee, and right wrist; and

5. Although the applicant's claim for compensation was apparently signed by her on 31 August 1994, she did not submit it until April 1995. By way of description of her physical disabilities pre-existing the accident, the claim form notes whiplash. By way of description of injuries sustained in the accident, the claim form refers to a medical certificate which specifies the injuries as :

Bruise/haematomas R upper arm, R little toe, L lower leg"

6. Following the accident, the applicant was admitted to the Box Hill Hospital Emergency Department. A letter from the hospital dated 1 March 2001 (Exhibit 3) records that she was alert and oriented but complained of a mild headache, that she had bruises on the upper lip and tenderness on the mid to upper cervical spine as well as bruising to the right upper arm, to the left lower leg and also to the right little toe. The applicant was discharged from the hospital after a period of observation.

7. The applicant was shown a short video taken on 27 April 2001 which depicted her moving her neck apparently freely to the left and to the right and, to a lesser extent, forward. It also showed her walking freely and bending her back. As to her neck movements, she stated that sometimes, she was able to move her neck.

8. The applicant's former partner, Iain Douglas Campbell, gave evidence. In a statement filed with the Tribunal (Exhibit C), he recorded his observations of her suffering from severe back and neck pain following the accident, problems he had not observed prior to it occurring. He also stated that she was nervous as a passenger and constantly vigilant when in a car.

9. The applicant's daughter Saruon Khuon also gave evidence. In a statement (Exhibit K), she said that after the accident, she noticed that her mother began to complain about her back and that she was in pain. She had not done so before the accident. She also noted that since the accident, her mother was "a terrible passenger".

10. There is no record of the applicant having sought treatment for her neck until some 18 months after the accident. However, she claims to have received treatment in 1995. There was no evidence corroborating that claim. She has not received any treatment for accident-related matters since 1999. She claims to have consulted Doctors Moll and Freeman, general medical practitioners, but they were not called to give evidence. Her current general medical practitioner Dr Kabourakas, whom she first saw in May 1998 at the Doveton Clinic and who subsequently moved to a practice in Hallam where the applicant continued to consult him, did not produce any clinical notes.

11. I now turn to the particular areas of alleged impairment.

12. Orthopaedic surgeon Mr G Grossbard saw the applicant on 12 August 1998 at her solicitor's request. She denied to him any pre-existing neck pain problems despite having had an x-ray of the cervical spine in 1985 from which there appeared to be an abnormal alignment of vertebrae. In his report dated 18 August 1998 (Exhibit L), he concluded that she had developed symptoms relating to her cervical spine as a result of the accident. He was unable to say when observed minor cervical disc protrusion at a number of levels might have occurred. He observed that the presence of pre-existing x-ray raised an element of doubt as to how asymptomatic the applicant was prior to the accident. In his report on re-assessment carried out on 14 November 2001 (Exhibit M), he noted the possibility of slight improvement but recorded that her neck remained constantly painful. By reference to the AMA Guides to the Evaluation of Permanent Impairment 2nd Edition ("the Guides") , he assessed cervical spine impairment at 5% by reference to table 53 of Chapter 1. He could not say when disc injury occurred but considered that it was likely to have been at the time of the accident.

13. Neurologist Professor Stephen Davis examined the applicant at the request of the respondent on 10 September 2001. In his report (Exhibit 7), he noted that she still had neck pain and stiffness. He considered that, in the accident, she suffered soft tissue musculo ligamentous injury to the cervical spine but no neurological impairment. He also considered that there was likely to be have been some orthopaedic impairment. In his oral evidence, he said that there was no doubt that the applicant had a pre-existing neck condition probably age-related but possibly aggravated by the 1985 industrial accident. In cross-examination, he conceded that Mr Grossbard's assessment of 5% by reference to Table 53 of Chapter 1 of the Guides was reasonable.

14. Neurosurgeon Mr David Wallace saw the applicant at her solicitor's request on 10 June 2000. He concluded in his report (Exhibit Q) that she had suffered an earlier work-related neck injury and soft tissue injury to the neck in the accident. He assessed her cervical spine impairment at 10%. After re-assessment of her on 4 February 2002 by which time he considered that her condition was "fairly stable" and that she had ongoing problems with her neck, he again assessed cervical spine impairment at 10%. He conceded that in making his assessments of restriction of motion, he did not use a goniometer being of the view that it was as accurate to rely upon trained observation.

15. The applicant saw general medical practitioner Dr B Saravanamuttu at the Access Medical Group Clinic from time to time. In her report dated 25 April 2001, the doctor said that the applicant presented at the clinic with chronic neck pain from 22 January 1996 to 27 June 1998. The doctor herself saw her on 10 July 1997. She recorded that the applicant had neck pain since an earlier work-related accident which was exacerbated by the accident in 1994. In the clinic's medical records (Exhibit T), in a note of 22 January 1996, it is stated that the applicant turned her neck awkwardly with resultant pain. Although she attended the clinic on 25 November 1994, there was no report of neck pain. Neither was there any mention when she attended on 29 December 1995. Having presented again on 12 November 1996 with recurrence of neck pain, she had a CT scan of the cervical spine on 19 November 1996 which disclosed a small central disc protrusion at C4/5 and C5/6 levels. She was later referred to the neurological department of Monash Medical Centre for an MRI scan which showed central and para-central disc protrusions at 4/5 and 5/6.

16. Orthopaedic surgeon Mr David Dickens assessed the applicant on 12 October 2001 at the request of the respondent. The applicant described severe neck pain to him. He said that films which the applicant brought with her and which were dated 28 June 1985 were "essentially normal with no evidence of any narrowing of the disc spaces". He noted that x-rays did not suggest any major pathology in the cervical spine but that subsequent CT scans and the report of the MRI scans suggest that she has multi-level disc pathology. He did not, however, find that surprising in view of her age and was of the view that it did not suggest any isolated traumatic condition but only the normal ageing process. He conceded that in accident, she may have caused some soft tissue aggravation to her cervical spine. He assessed her whole person impairment of the cervical spine at 2% by reference to the Guides. He conceded that the accident may have given rise to the difference noted at the time of a CT scan in 1991 and an MRI scan in 1998. In effect, he did not disagree with Mr Grossbard's assessment of 5% by reference to Table 53.

17. A report of physiotherapist Lesley Hurrell dated 10 July 2001 (Exhibit P) records a history of "sudden onset of acute cervical spine pain" when she presented at the physiotherapy clinic on 24 January 1996. He recorded that when she was reviewed on 29 January 1996, the applicant said that she had improved considerably and was now at her previous pain level. He noted that her active cervical movements had improved significantly and that she had pain only at the end of her available range of movements.

18. In determining orthopaedic impairment, I prefer to be guided by orthopaedic surgeons. In this case, they were Mr Grossbard and Mr Dickens . Mr Grossbard found impairment of 5% and Mr Dickens 2%. In the light of the evidence, it cannot be concluded on the balance of probabilities, that any restriction of movement to the applicant's cervical spine is a consequence of the accident rather than the combined effects of an earlier work-related accident and the ageing process. Indeed, it was an awkward movement of the neck which caused the applicant to consult her general medical practitioner in January 1996 and she did not seek treatment for her neck for some 18 months after the accident. Although there was some uncertainty as to the cause of disc injury for which there was a measure of agreement that 5% was the appropriate assessment by reference to Table 53 of the Guides, Mr Grossbard's evidence was that it was likely to have been caused at the time of the accident. In the circumstances, I find that the assessment of 5% is both fair and reasonable as an assessment of impairment arising out of the accident.

19. Neurosurgeon Mr Wallace found that the applicant tested positive for the condition known as thoracic outlet syndrome. It was not diagnosed by Professor Davis who did not conduct any test as to whether the condition existed. His evidence was that for a diagnosis, an invasive test was necessary. Mr Wallace, however, found the condition to exist by application of a non-invasive test which he referred to as "the surrender test". However, he conceded that the incident in 1996 may have been the cause of the condition. In view of the considerable time which has elapsed between the occurrence of the accident and Mr Wallace's diagnosis, I am unable to find, on the balance of probabilities that, if the condition exists, it is more probably than not a consequence of the accident.

20. When Mr Grossbard examined the applicant on 14 November 2001, he recorded that her thoraco lumbar spine impairment related to the accident was 3%. Mr Dickens assessed lumbar spine impairment at 1% and Mr Wallace 17%. Because both Mr Grossbard and Mr Dickens are orthopaedic surgeons, I prefer to be guided by their assessments of orthopaedic impairment and am prepared to find that the applicant has thoraco lumbar spine impairment as a result of the accident of 3%.

21. Following the accident, the applicant did not complain of knee symptoms and there is no record of her having sustained any blow to her right knee in the accident. Furthermore, right knee does not appear in the description of injury sustained in the applicant's claim for compensation. Mr Grossbard assessment impairment of 10% lower extremity by reference to Table 38 of the Guides. Mr Dickens detected no abnormality in the applicant's knees when he examined her in October 2001. Mr Wallace found no neurological abnormality in her lower legs. The evidence does not warrant a finding on the balance of probabilities that any impairment to the right knee from which the applicant suffers is a consequence of the accident.

22. Dr Paul Kornan, psychiatrist, first assessed the applicant on 1 July 1998. He re-assessed her on 1 November 2001. In his report of 2 November 2001 (Exhibit O), he recorded his assessment of whole person psychiatric impairment as 15%. He found that impairment of 12% arose directly from the accident.

23. Psychiatrist Edward Cole examined her at the request of her solicitors on 29 March 2000. In his report dated 17 April 2000 (Exhibit J), he concluded that she was suffering from a chronic anxiety state and reactive depression of mild to moderate degree. He conceded in effect that it was probable that she was anxious and depressed to some extent prior to the accident but considered that the shock of the accident and the injuries she received had the effect of aggravating her condition. He considered her collective whole person impairment to be 20%. He further conceded that if there was evidence that her depression had lifted, he would put her in the mild category with an overall impairment of 15% rather than 20% in which case her primary impairment would be 5%.

24. The applicant was also assessed by psychiatrist Dr Maxwell Gayner on behalf of the respondent. He saw her on 28 September 2001 and in his report of his examination (Exhibit 10), he concluded that a "temporary state of heightened irritability and depressed mood may have impaired the quality of Ms Mam's relationship with immediate family members for a period of between 6 and 12 months after the accident". However, he was of the view that anything beyond that period was most unlikely. He also commented :

"It is now 7 years since the accident and I am not satisfied that Ms Mam suffers from anything more than a very minor degree of travel anxiety, with possibly some interference with concentration due to persisting neck and back pain. At psychiatric assessments she presents as a particularly bright and lively person whose main issue in life at the moment is disharmony in her relationship with her partner".

25. By application of the median method for assessment of psychiatric impairment, he found her to have a psychiatric impairment of 5%, half of which he attributed to a direct response to the accident and half to psychological reaction to physical injury.

26. The applicant did not complain of psychiatric symptoms to her treating medical practitioner and she has not had any significant psychiatric treatment. In arriving at an impairment assessment, the Tribunal must disregard injury impairment and symptoms secondary to or arising as a consequence of physical injury (s.46B Transport Accident Act 1986). I am satisfied that the impact of the accident upon the applicant's psychiatric state was of a minor order and that the assessment of Dr Gayner of primary impairment of 2½% rounded off to 3% is appropriate in the circumstances.

27. In the result, I find the following whole person permanent impairment to have resulted from the accident :

By reference to the Combined Values Chart of the Guides, these impairments represent a total whole person impairment of 11%.