Victorian Civil and Administrative Tribunal|2001-06-22

Sharon Lovison v Transport Accident Commission [2001] VCAT 1917 (22 June 2001)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Transport accident - bilateral ulna nerve dysfunction - whether a result of transport accident - impairment assessment - AMA Guides - whether physical dysfunction attributable to psychological factors should be included in Chapter 1 assessment - likelihood of improvement following conclusion of litigation - whether injuries can be said to have `stabilised' - Transport Accident Act ss.46B(1), 47(1)(ii)

BEFORE: Judge Michael Strong, Acting Vice President

DATES OF HEARING: 6 and 7 February 2001 (Ballarat)

Medium Neutral Citation [2001] VCAT 1917

1. The decision of the respondent on 8 April 1999 that the applicant's condition had not stabilised is set aside.

2. The decision of the respondent on 8 April 1999 to pay an interim lump sum impairment benefit based on a level of impairment of 13% is set aside and in lieu therefore the Tribunal directs that the respondent pay a lump sum impairment benefit based on a level of impairment of 32%.

3. The decision of the respondent on 21 January 2000, affirmed on 21 February 2000, not to approve surgery to the applicant's left elbow is affirmed.

4. The decision of the respondent on 29 February 2000 not to accept liability for home help and travel expenses following the applicant's left elbow surgery is affirmed.

5. The decision of the respondent on 19 April 2000 not to approve surgery to the applicant's right elbow is affirmed.

1. This is an application for review of the following decisions made by the Transport Accident Commission ("TAC").

* A decision on 8 April 1999 to pay an interim lump sum impairment benefit based on a level of impairment of 13%

* A decision on 8 April 1999 that the applicant's condition had not stabilised

* A decision on 21 January 2000, affirmed on 21 February 2000, not to approve surgery to the applicant's left elbow on the ground that the injury giving rise to same did not arise out of the relevant transport accident.

* A decision on 29 February 2000 not to accept liability for home help and travel expenses following the applicant's left elbow surgery, and.

* A decision on 19 April 2000 not to approve surgery to the applicant's right elbow on the ground that the injury giving rise to same did not arise out of the relevant transport accident.

2. The circumstances of the transport accident need to be spelt out in some detail. The applicant's account, set out in her statement of 2 July 1999, confirmed in her oral evidence, is as follows:

"On 8th August 1996 I was driving my older model Holden Commodore sedan, wearing a lap-sash seat belt properly adjusted. I was stationary, in a dedicated left turn lane, at the intersection of Howitt and Gilles Streets, Wendouree, waiting for traffic to pass so I could enter the Gilles Street carriageway. I was looking over my right shoulder at traffic. Suddenly and without warning my car was hit, severely, from the rear by another vehicle and pushed violently forwards. The road surface was wet and there was no sound of brakes before the collision. My vehicle came to rest a couple of metres apart from the other vehicle.

In the collision my head and upper body was thrown violently about."

3. In cross-examination the applicant said her car had manual gears and at the moment of impact the clutch was depressed. She said the rear bumper bar of her car was damaged on the right side. She described it as "folded in". She said the Volvo which struck her car had a broken left front light. She said the cost of repairing her car was approximately $1,000. She said her car was pushed forward as a result of the impact and that it stalled. She was shown a quotation for $921.58 for repairs to her car. This quotation confirms damage to the bumper bar and the right rear tail lamp.

4. I think it would be accurate to describe the damage to the applicant's car as consistent with mild to medium impact, but closer to mild. The damage is certainly not consistent with severe impact.

5. The applicant's case is that surgery she underwent in 2000 to relieve ulna nerve entrapment bilaterally was a result of the transport accident. This is disputed by the respondent.

6. The applicant has given the following account of the onset of symptoms in the forearms and hands:

"Some months after the transport accident I started suffering "pins and needles" in my hands. I had not suffered this sensation prior to the transport accident.

On or about 17 February 1997 I attended Dr Gregory Connell and informed him of the numbness and tingling I was suffering at that stage in both hands and arms as well as my left leg.

The problems of numbness and tingling and "pins and needles" in my hands continued to worsen causing me difficulty with relatively simple tasks such as removing a screw top lid from a jar or holding cutlery, squeezing a shampoo bottle and similar activities.

My condition ultimately deteriorated to the extent that I consulted orthopaedic surgeon, Andrew Byrne, on 13 December 1999 at which time my hand had started to claw and I was unable to fully extend the fingers of my left hand. On 2 February 2000 Mr Byrne performed surgery to my left elbow.

In February 2000 I noticed that the problems with my right hand were worsening and sought further advice from Mr Byrne who has recommended surgery on my right elbow to prevent this condition from worsening."

"Since February 1997 the applicant has complained to me of numbness in both her hands and arms.

Since February 1997 I have witnessed the applicant have difficulties with her hands and arms, such as trying to remove screw top lids from jars. She also has reduced dexterity in holding even small objects.

Since February 1997 the applicant has complained regularly of pain in both hands, wrists and arms as well as numbness.

By late 1999 the applicant's problems with her hands and arms had deteriorated to the extent that she was unable to use nail clippers to cut her own fingernails. She needed my assistance for this task and similar tasks."

8. In his viva voce evidence Mr Bedford said he commenced his relationship with the applicant in January 1997 and that the problems in her arms developed later in 1997.

9. On 2 February 2000 the applicant underwent surgery to her left elbow, performed by Mr Byrne. According to Mr Byrne "an ulna nerve transposition, ostectomy of the medial epicondyle and release of the ulna nerve was performed."

10. On 27 July 2000 the applicant underwent similar surgery involving her right elbow.

11. In a report dated 1 June 2000 Mr Byrne said, inter alia:

"Mrs Lovison appears to have been involved in a serious motor vehicle accident on 8 August 1996 when she was the driver of a motor car hit from behind by another car.

Mrs Lovison was holding the steering wheel at the time of her index (viz) injury and described tingling in both hands following this injury. This chiefly involved the ring and little fingers.

Mrs Lovison stated that over time the matter worsened to a point where her left hand lost function and she had her ring and little finger "trapped" in the palm of her hand and she was unable to move these fingers at all.

It is more likely than not that [the problems in the left and right arms] are a direct result of the motor vehicle accident as an injury holding a steering wheel could reproduce similar findings."

12. It will be observed that Mr Byrne described the collision as "serious". Further, he relied on a history given to him by the applicant of "tingling in both arms following [the accident] chiefly involving the ring and little fingers." Moreover, by the time he had concluded his evidence, his views were more guarded and qualified - as to which I will say more later.

13. The applicant's general practitioner, Dr Liubinas, has the same view as that initially expressed by Mr Byrne. In a report dated 9 March 2000 he said:

"I feel that on the balance of probability, that it is extremely likely that the pains in [the applicant's] hands and arms are directly related to her car accident. The mechanism of cause and effect are easily attributable to the forces sustained while holding a steering wheel during an RTA (especially as the other car hit her from behind). She has no history of related or similar trouble with her hands prior to the RTA on 9/8/96."

14. Mr James Pryor, a general surgeon, in a report dated 24 January 2001 opined, after "a complete review of all information relating to her symptoms":

"On balance, it is more likely than not that these problems [right and left ulna nerves at the elbow] have developed subsequent to her road accident and may well be linked with elbow injury sustained at the time of the original accident, with subsequent progression in terms of progressive ulna nerve impairment."

15. Mr David Wallace, a neurosurgeon, in a report dated 23 February 2001 said:

"Whether her confirmed ulna nerve injuries are a direct consequence of the accident or not is difficult to ascertain. I did not notice any evidence of an ulna nerve palsy when I previously examined her in October 1999, but at that time she stated that she had numbness in her hands involving the fourth and fifth fingers, and on her testimony on the occasion of her most recent visit she stated that her numbness began soon after the accident. I would not take issue with the fact that her ulna nerve palsy may be a consequence of her traffic accident, though spontaneous ulna nerve palsies are fairly common neurological problems unrelated to trauma, and in the absence of direct injury to the shoulders, the possibility that the ulna nerve palsies are unrelated certainly exist."

16. Again it seems that Mr Wallace's opinion is based "on her testimony ... that her numbness began soon after the accident." This is not borne out by the evidence, as I will explain later in these reasons.

17. On the other side of the ledger, Dr Richard Stark, a neurologist, in a report dated 17 July 2000, stated:

"I believe therefore that there is a conceivable connection between this lady's ulna nerve dysfunction and the accident based on the information provided. It is of course possible that the two are unconnected and that the appearance of ulna nerve dysfunction at this time is purely coincidental."

18. The "information" upon which this opinion was (in part) based was an examination by Dr Stark of the history of the onset of symptoms. I will undertake a similar exercise in a moment. It is sufficient to observe that the history set out in Dr Stark's report is much more accurate than the history set out in Mr Byrne's report.

19. On the other hand, a hypothesis which Dr Stark thought "more likely" namely that the applicant's ulna nerve problems arose "through sleeping in a posture which has resulted in compression of the nerve between the ulna groove and the mattress" has been disproved. Dr Stark said such compression could occur if the applicant slept propped up on her back, resting on both elbows. However, the applicant gave evidence, which I accept, that she does not sleep on her back.

20. Mr Brendan Dooley, an orthopaedic surgeon, in a report dated 4 October 2000 said:

"Probably the ulna nerve symptoms, particularly in the left hand, developed naturally and are unrelated to the accident, but possibly they may have developed as a result of pressure when sleeping from over-sedation, and hence, possibly related to the accident.

21. It is clear enough that Dr Dooley's opinion was based on the opinion expressed by Dr Stark, whom Dr Dooley described as "eminent". As I say, the suggestion that the ulna nerve problems arose from pressure when sleeping was dispelled by the evidence of the applicant. Likewise the suggestion of over-sedation (which also came, initially, from Dr Stark) was disproved by the applicant's evidence that she was a light sleeper and that, prior to the onset of the relevant symptoms, she did not take any medication to enhance her sleep.

22. The timing of the onset of symptoms is of particular significance. Considerable reliance was placed on a report of a chiropractor Dr Connell dated 10 September 1998 where Dr Connell notes:

"Mrs Lovinson's initial presentation to the Clinic was on 17 May 1997 [it seems this should be 17 February 1997.] By this time she was suffering from severe headaches, neck pain, lower back and pelvic pain, thoracic spine pain with radiations to the chest. Parasthesias were present in the hands and legs, and cramps were occurring in the left lower leg. None of these symptoms were present prior to the accident and had developed progressively since the time of the accident."

23. During evidence it emerged that at the consultation on 17 February 1997 Dr Connell took the applicant through a 24 point check list headed "Have you ever suffered from" and followed by various symptoms, illness and diseases. Number 16 on the list is "numbness/tingling" which Mr Connell has ticked and alongside which he has written "hands/legs". It was by reference to this check list alone that he wrote in his report "parasthesias were present in the hands and legs" and that "none of these symptoms were present prior to the accident". Apart from the check list, there is nothing in the initial history referable to symptoms in the hands.

24. Following a reassessment performed 17 months later on 10 August 1998, Dr Connell noted:

"Dermatomal sensation on the legs and arms was found to be normal, an improvement from the initial assessment."

Dr Connell explained that he determined dermatomal sensation by a pin prick test.

25. On 18 March 1997 the applicant completed a form headed "Transport Accident/WorkCover Questionnaire" on a form provided by Dr Connell. In response to the question "What injuries did you sustain in the accident" the applicant wrote:

In response to the question "What were/are the symptoms" the applicant wrote:

"Headaches, pain in legs, stiff and painful neck, lower back pain, middle back-shoulders."

26. By reference to his notes Dr Connell was able to say that the first subsequent mention of problems in either arm or hand was on 27 January 1998 where he made a note to the following effect (I rely on Dr Connell's interpretation of his notes):

"Problem with left hand, numbness fourth and fifth digit, loss of strength."

27. On 1 August 2000 the applicant told Dr Connell about the operation which had been performed on her right arm. Dr Connell said in evidence she had previously mentioned problems with her right arm, but he didn't say when such problems had been mentioned.

28. Apart from the evidence of Dr Connell, the earliest report of tingling is in fact in a report of Mr John Aberdeen, general surgeon, dated 15 December 1998.

"She often has a tingling sensation in both arms, hands and feet."

But there is no reference to any loss of manual dexterity.

The general practitioner Dr Liubinas produced his notes of the numerous consultations he has had with the applicant since 9 August 1996. Commencing on that day, the applicant made numerous complaints of injury referrable to the collision, but the first note of any symptoms in the forearms or hands is on 15 November 1999:

"Sore left hand two months ago caused by twisting at hydro."

29. The next note of symptoms involving the right forearm or hand was on 24 February 2000, in the notes of Dr Liubinas:

"Right elbow and hand, similar but early (not as bad as when she presented with left)."

30. Dr Liubinas was at pains to emphasise that the applicant has been presenting to him with multiple complaints and that he did not necessarily record every complaint she made. He said it is distinctly possible she had previously complained to him of hand and forearm symptoms but that he did not record such complaints.

31. I am wary of placing too much reliance on the check list completed by Dr Connell on 17 February 1997. The list is headed "Have you ever suffered from...". Although Dr Connell wrote "hands/legs" beside numbness/tingling, the `check list' certainly does not record that the applicant was experiencing those symptoms at the time of the consultation. I observe that of the 24 symptoms, 9 were ticked. On the other hand, at the re-examination on 10 August 1998, Dr Connell recorded that dermatomal sensation in the legs and arms was normal "an improvement from the initial assessment". This suggests that Dr Connell was confident at that time (18 months after the first consultation) that the reference to numbness in the hands and legs in the initial history, albeit in the form of a check list, was a reference to symptoms the applicant had at the time of presentation. On the other hand, Dr Connell had seen the applicant regularly (at least weekly) between February 1997 and the time of his note of "problem in left hand" on 27 January 1998, yet had no note of numbness or tingling in the hands. Indeed the note on 27 January 1998 is non-specific: "Problem in left arm". What was the problem?

32. The applicant continued to see Dr Connell regularly in 1998 and 1999. Dr Connell made various notes. There is no further note of problems in the arms or hands until 7 October 1999.

33. Mr Pryor is known for his detailed and comprehensive histories. When he first saw the applicant on 13 July 1998, he noted 17 complaints/symptoms, none of which included neurological symptoms in the hands or forearms. When he saw the applicant on 21 July 1999, he recorded 26 symptoms/complaints including:

* she would wake with some numbness of the hands and on a recent occasion she had mistaken a hand on her thigh as that of her partner, but in fact it was her own hand

* she had suffered from periodic numbness of the whole of the right arm, particularly extending into the little and adjacent finger

* she found it difficult lifting objects with either arm and thus had a problem in carrying parcels.

34. When Mr Pryor's notes of 21 July 1999 were read to Mr Byrne, Mr Byrne described the symptoms as entirely consistent with nerve entrapment. He described the complaint of numbness in the little and fourth finger as "almost out of the book". Significance must attach to the fact that none of those symptoms was mentioned to Mr Pryor at the examination on 13 July 1998. The explanation the applicant gave for not mentioning them on that date was that her father was dying. But she was able to detail 17 symptoms/complaints to Mr Pryor that day including "she had problems in undoing shoes and undressing because of her back pain", yet no complaint of difficulties with manual dexterity.

35. I repeat, the question is whether the bi-lateral nerve entrapment is a result of the transport accident. The medical evidence shows that ulna nerve entrapment can occur spontaneously. It can also be caused or contributed to by trauma.

36. Mr Byrne is the treating surgeon. Clearly, his opinion deserves to be given considerable weight. Yet his original view was based on a history of symptom onset which has simply not been established. He now gives limited and qualified support to the contentions made on behalf of the applicant on the causation issue.

37. Although the opinions of Dr Liubinas and Mr Pryor are also favourable to the applicant on this issue, I don't think their opinions add to Mr Byrne's conclusions. Mr Pryor is a general surgeon; Dr Liubinas is a general practitioner. To the extent that Mr Byrne qualified his opinions, the opinions of Mr Pryor and Dr Liubinas must be qualified to the same degree.

38. On the other side, there can be no question of the relevant expertise of the neurologist Dr Stark, who rates the causal connection between the transport accident and the ulna nerve problems as a possibility, rather than a probability.

39. Again, I do not treat Mr Dooley's opinion as strengthening Dr Stark's opinion in any meaningful way.

40. The opinion of Mr Wallace, like the opinion of Mr Byrne, is based on a reasonably contemporaneous onset of symptoms.

41. I am satisfied that both the applicant and her husband are honest witnesses in the sense that they both did their best to be truthful. But the lack of reliable evidence of relevant complaints to medical examiners for several years after the accident is highly significant. Moreover, in view of the applicant's unfortunate psychological state and the fact that she genuinely attributes practically every unfortunate development in her life since this accident to the accident itself, there may be a natural inclination to recall the onset of the symptoms as being contemporaneous with the accident.

42. I will assume, without deciding, that the applicant bears no onus of proof of the conclusions for which she contends (see s.76(2) of the Act). But I cannot arrive at such conclusions unless they are established by the evidence on the balance of probabilities: see, most recently, Wassouf v Transport Accident Commission [2001] VSC 120 (Byrne J).

43. In endeavouring to find the answer to this difficult question, I kept coming back to the delayed onset of the right-sided symptoms. Apart from Dr Connell's check list, there is no reference in any medical report to right-sided symptoms until 1999. It is extremely unlikely, in my opinion, that the left-sided symptoms and right-sided symptoms spring from different underlying causes. If the left-sided symptoms are accident related, it is highly probable the right-sided symptoms are as well. If the right-sided symptoms are not accident related, it is highly unlikely the left-sided symptoms are either. It was therefore particularly relevant to consider when the right-sided symptoms developed. I repeat, there is no reference in any medical report to right-sided symptoms until 1999.

44. At the end of the day I can put it no higher than this: the ulna nerve problems might be accident related. But I cannot elevate that hypothesis above a possibility.

45. TAC's determinations with respect to bilateral ulna nerve injury must therefore be affirmed.

46. The relevant transport accident having occurred in 1996, s.46A(9) of the Transport Accident Act 1986 provides that s.46A:

"as in force, and the Transport Accident (Impairment) Regulations 1988 as in force, immediately before the commencement of s.8 of the Transport Accident (Amendment) Act 1998 continue to apply for the purpose of determining the degree of impairment in respect of an injury as a result of a transport accident before the commencement of the Transport Accident (Amendment) Act 1998 as if those Regulations formed a part of this section." (Check this quote)

47. Section 46A(1) provides, so far as is relevant:

"The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit as at -

(a) if the person is not a minor, when the accident occurred -

48. The word "degree" was defined in s.3(1) so that -

"`degree' in relation to impairment, means a percentage determined in accordance with the Regulations."

49. Impairment was assessed as directed by Regulation 6(1) of the Transport Accident (Impairment) Regulations 1988, as follows -

"The methods to be used in determining a percentage for the purpose of establishing the degree of impairment of a person as a result of a transport accident are those described in the `Guides to the Evaluation of Permanent Impairment', 2nd Edition, published by the American Medical Association."

50. Assessment of impairment was also effected by s.46B, as follows -

"(1) In determining a degree of impairment of a person, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

(2) Subsection (1) applies to a determination of a degree of impairment under this Act made on or after the commencement of s.35 of the Accident Compensation (Further Amendment) Act 1996, other than a determination made by the Administrative Appeals Tribunal in respect of an application for review under s.77 of this Act made before that commencement."

51. I have already affirmed TAC's determination that the bilateral ulna nerve injuries were not a result of the transport accident.

52. I refused an application made during the course of the hearing for the admission of an impairment assessment made pursuant to Chapter 2 of the AMA Guides.

53. The impairment assessment is therefore confined to injury to the spine (cervical and thoraco-lumbar) and "primary" psychiatric impairment.

54. Before turning to the assessment itself, two threshold issues must be determined. The first is whether the relevant injuries have stabilised. The second is whether, in the measurement of physical dysfunction, I should exclude physical dysfunction attributable to psychological factors.

55. My answer to the second of these questions may affect my answer to the first, so I will consider them in that order.

Physical Dysfunction Attributable to Psychological Factors

56. The respondent contends that "only the degree of permanent impairment flowing from stabilised physical injury counts towards the applicant's `degree of impairment' and that no account should be taken of any impairment flowing from the applicant's functional state."

57. There is a marked difference of approach in the assessment methodology employed by the medical examiners in this case. I will give two examples to illustrate the issue which arises.

58. In an assessment made on 23 January 2001, Mr Pryor found that flexion of the thoraco-lumbar spine was limited to 40 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right rotation 15 degrees and left rotation 15 degrees. This produced a whole-person impairment of 19 degrees. In making his assessment, Mr Pryor appears not to have distinguished between physical dysfunction attributable to physiological causes and physical dysfunction attributable to psychological factors.

59. The contrast is found in the assessment of Mr Brendan Dooley made on 3 October 2000. Mr Dooley noted that thoraco-lumbar flexion was restricted to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right rotation to 20 degrees and left rotation to 20 degrees. In the normal course this would produce a whole-person impairment of 13%, but Mr Dooley said:

"From the physical assessment point of view, it should be emphasised that apportionment is indicated in her case, because of her psychosomatic reaction. I would estimate that, from the physical point of view, her residual impairment in her cervical spine is no more than 5% whole-person due to the accident, and similarly, in her thoraco-lumbar spine."

60. The respondent submits that the methodology employed by Mr Dooley is correct. The applicant, naturally, argues the contrary.

61. I considered an identical question in Forno v Cantire Investments Pty Ltd, 21 December 1999. That case arose under the Accident Compensation Act 1985, s.91(2) of which provides:

"In assessing a degree of impairment under subsection (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a psychological injury."

This is identical to s.46B(1) of the Transport Accident Act.

"Undoubtedly, the plaintiff has a `psychological impairment' or `psychological symptoms', most of which arise `as a consequence of, or secondary to, a physical injury.' It follows that assessments of psychiatric impairment must, by and large, be disregarded in determining whether the plaintiff has the requisite whole-person impairment. But Mr Middleton [on behalf of the employer] submitted that the assessments of physical impairment should also be heavily discounted, because much of the physical impairment is attributable to psychological factors `arising as a consequence of, or secondary to, a physical injury'."

"I have reflected on the submission, but reject it. The sub-section directs that in assessing a degree of impairment `regard must not be had' to psychological injury etcetera. But the manner in which physical assessments are made does not involve having regard to psychological factors at all. The physical assessments made in this case involve, essentially, measuring movement in the left upper limb and shoulder. Because there is practically no movement at all, the assessments are very high. The fact that the plaintiff's inability to move her arm springs from psychological factors does not make it any the less a physical impairment.

I add, if Mr Middleton's submission is right, it would introduce a tortuous new element into physical assessments. There is, I suspect, a wide range of cases in which depression, anxiety and functional factors contribute to physical disability, even to a small degree. If Mr Middleton is right, in every one of those cases the physical assessments would have to be discounted."

64. The respondent urges me to re-visit this decision and, to that end, has presented an elaborate submission.

"The impairment allowable under Chapter 1 for restriction of active motion is concerned with an `analysis of anatomical and physiological factors underlying the function of the joint', and is not concerned with restriction of active motion flowing from the applicant's functional state."

66. This is in fact a corruption of the following paragraph in the Introduction to Chapter 1 of the Guides, viz:

"The criteria used to develop the relative impairment ratings in this chapter involve analysis of anatomic and physiological factors underlying the function of the joint, and observation of the following interrelationships:"

The paragraph is concerned with criteria: the criteria involve "analysis of anatomic and physiological factors". I can find nothing in Chapter 1 which requires adjustment of anatomic and physiological factors to reflect psychological contribution.

67. In Lake v Transport Accident Commission [1998] 1 VR 616, Phillips JA at page 626 emphasised that the Guides are only guides and that it would not help the experts in their assessment task if the Guides became overlayed with a lawyer's precise interpretation.

68. A unique feature of the 2nd Edition of the Guides is that impairment of physical function is measured by determining the degree of restriction of movement. This methodology has been much criticised. Clearly, it was introduced in an attempt to produce a relatively simple, standardised method for assessing physical impairment - see introduction to Chapter 1 `simple', `practical'. Those responsible for its creation must have appreciated its imperfections: they concluded, presumably, that the advantages of a simple, standardised test outweighed the disadvantages.

69. In this case, I am satisfied that the applicant is genuine (she is not a malingerer) and that she was cooperative with the medical examiners. I am satisfied that her restricted movement is the product of a genuine perception of pain. Equally, I am satisfied that her significant restriction of movement cannot be wholly explained physiologically and is partly attributable to psychological factors.

70. The implications of the submission made by the respondent need to be understood. As I said in Forno, there is a wide range of cases in which depression, anxiety and functional factors contribute to physical disability, even to a small degree. People react differently to pain and to injury. A person of stoic disposition with a soft tissue low back injury may be able to demonstrate a full range of movement. Another person might react very badly to the same injury, and demonstrate very little movement at all. The implications of the respondent's submission are that in every case in which a `range of movement' assessment is made of a soft tissue low back injury, it is permissible for the examiner to dissect the result obtained in order to determine what proportion of the restriction demonstrated is explicable by purely organic factors, and what proportion may be attributable to psychological factors. I ask, would such a measurement be made by reference to the reaction of the stoic? Would any allowance for psychological reaction to pain by permissible?

71. In my view, it would fly in the face of the objective of Chapter 2 if a dissection of the kind suggested were to be permitted. Far from providing a simple, practical, standardised method of assessment, it would lead to endless contention and difference of opinion.

72. The respondent's next submission is based on s.46B(1), which I again recite:

"In determining a degree of impairment of a person, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."

73. The respondent submits that s.46B "by its language and intention, requires the `degree of impairment' to be assessed without regard to the effects of the applicant's psychological state." In support of this contention the respondent directed my attention to the second reading speech of the responsible Minister (Mr Hallam), 4 December 1996:

"The number of workers being classified as having a `serious injury' has steadily risen due to the assessment of psychological or psychiatric impairments consequential upon an initial physical injury. To ensure that the classification of serious injury remains within the bounds originally envisaged by the Government, the Bill provides that, in assessing a degree of impairment in accordance with the American Medical Association's Guides or the prescribed methods, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

This amendment will not affect situations where the psychological or psychiatric impairment does not arise as a consequence of, or secondary to, a physical injury - for example, in the case of a bank teller who is the subject of a bank robbery and is traumatised by the actual event."

74. Later in the debate, the Minister illustrated the objective of the amendment by giving examples. The respondent relies on the fourth of the examples given:

"The fourth hypothetical example concerns a worker who suffers a minor injury to a finger of the non-dominant hand. The injury is treated and the function returns to normal, with minimum ongoing restriction. The worker is convinced that he or she is unable to do anything with the hand and avoids all activity. As a result of that inactivity the workers develops disuse atrophy of the hand and a chronic anxiety state. In this case the impairment due to the chronic anxiety state would be excluded from any assessment of the worker's impairment because it did not arise out of the workplace events or circumstances that gave rise to the initial physical injury."

75. The example postulates a minor physical injury producing a psychological reaction which in turn produces a more severe physical condition (disuse atrophy).

76. The case of this applicant is by no means identical, though comparable in several respects. There is, obviously, a marked difference between disuse atrophy and an exaggerated, though genuine, pain response to physical injury. But for the purposes of a Chapter 2 assessment, I am of the view that both cases must be treated in the same way. In the example given, the hand atrophied because the worker, being convinced that he or she was unable to do anything with it, avoided all activity. How would the assessment have been made before atrophy set in? The worker would have presented with a hand which, though not yet atrophied, was genuinely considered by the worker to be useless. An assessment made by the measurement of movement would have produced a high level of impairment. If the respondent's submission is correct, at that point, atrophy not having set in, the assessment would be heavily discounted to exclude the psychological component. Yet if the assessment was made six months later, when atrophy had occurred, an altogether different result would be achieved.

77. In Bochenska-Srdanovic v Transport Accident Commission, 4 December 1998, Senior Member Preuss found that "the applicant has significantly exaggerated the degree to which her range of movement is affected" and added "this exaggeration is not due, in my opinion, to any desire on her part to deceive the doctors, but rather to a perception by her that she suffered significant pain and restriction of movement due to her injuries." In consequence, Senior Member Preuss reduced the impairment assessments by a factor of two-thirds "to reflect the applicant's true degree of movement."

78. By "true degree of movement" Senior Member Preuss was referring to the degree of movement the applicant could have achieved in the absence of the genuine perception of pain. Senior Member Preuss appears to have distinguished between pain and the perception of pain. With respect, this is a distinction I find difficult to follow. I return to my earlier comparison between the stoic and the person who reacts badly to injury. For the purpose of the example, let it be assumed they both have the same organic injury. The stoic complains of minimal pain. The person who reacts badly complains of significant pain. If the approach in Bochenska-Srdanovic is correct, the significant pain must be broken down into what might be described as real pain (explicable by organic injury) and psychological pain.

79. With great respect to Senior Member Preuss, I reject this analysis for the reasons I have explained.

80. The method of assessing impairment prescribed in the 2nd Edition of the Guides is on any view imperfect. (It is said some of these imperfections are addressed in the 4th Edition, which I have not yet had the pleasure of considering.) I am prepared to accept that there are two respectable views as to the way in which the 2nd Edition should be applied in circumstances in cases such as here arise. There is no clear answer. This is beneficial remedial legislation: TAC v Bausch [1998] VR 249. I prefer the construction which promotes the purpose of the Act, namely, to compensate persons who are injured as a result of transport accidents: see Section 1. It follows that until otherwise directed or persuaded, I will continue to take the approach I explained in Forno.

81. I emphasise, the view I have expressed must be confined to cases where the injured person's description of his/her symptoms and behaviour at examination are genuine. As I made clear in Forno, impairment assessments must be discounted if and to the extent there is wilful exaggeration. Equally, in my view, the assessment can be discounted if and to the extent the Tribunal is satisfied (as I am in this case) that the applicant's condition will improve when litigation has concluded.

"Impairment should not be considered `permanent' until maximum medical rehabilitation has been achieved, and until, in the physician's best clinical judgment, the impairment is static or well stabilised.

A physician can determine, however, whether or not a particular medical condition has become permanent because it is static or well stabilised. When it is stable, there is no medical reason to expect that the individual will gain or lose future functional ability."

83. Given the requirement that impairment be assessed according to the methods described in the Guides, the notion of permanence described in the Guides can be approximated to the notion of stabilisation used in the legislation. Whether "maximum medical rehabilitation has been achieved" in a particular case will depend on what is sensible, practical and realistic in the circumstances of the particular case, assessed on "the probabilities".

84 The suggestion that the applicant's condition will improve when litigation has ended may seem to be at odds with the suggestion that her condition has stabilised. But one must be realistic. It is a common experience that the psychological reaction to injury is heightened whilst litigation is pending. To suggest that an assessment of permanent impairment cannot be undertaken whilst there is the prospect of improvement following completion of litigation would be a `Catch 22': it would deny compensation to a significant number of injured persons. Indeed, the swift conclusion of legal proceedings is often said to be in the interests of an injured person's recovery or improvement. In such cases courts and tribunals should be more inclined, rather than less inclined, to treat the injured persons' condition as stabilised. There is nothing novel in this: Courts and Tribunals and Boards have been making lump sum awards for permanent disability for the best part of a century.

85. In this case the various medical examiners have expressed somewhat differing views as to whether stability has been achieved. I have considered and evaluated each of those views. I do not intend to reproduce the evaluation in these reasons. I am satisfied that the injuries to the applicant's neck and low back have stabilised, subject to an adjustment for the improvement which can be expected following the conclusion of litigation.

86. That brings me, finally, to the impairment assessment itself.

87. The assessments upon which the applicant relies are those made by Mr Pryor on 24 January 2001, Mr Wallace on 23 February 2001 and Mr Gibney on 2 June 1999.

88. The assessments on which the respondent relies are those made by Mr Brendan Dooley on 4 October 2000, Mr John Aberdeen on 16 March 2000 and Dr Lester Walton on 16 March 2000.

89. I will deal first with the assessments with respect to the neck and thoraco-lumbar spine.

Having regard to my previous conclusions, I have used Mr Dooley's unadjusted figures.

90. Mr Aberdeen's assessment was made 15 months ago, yet is much closer to the two most recent assessments of Mr Pryor and Mr Wallace than to the assessment made to Mr Dooley made eight months ago.

91. There is a distinct note of cynicism in the first paragraph under the heading "Examination" on page 2 of Mr Dooley's report of 4 October 2000. In my view, this cynicism is misplaced. I am satisfied that the applicant's complaints are genuine: this, overwhelmingly, was the reaction of those who treated and examined her. Mr Dooley's cynicism may have affected his conclusions. In my view the assessments made by Mr Pryor, Mr Wallace and Mr Aberdeen are to be preferred.

92. Doing the best I can, I find that the present level of whole-person impairment is 16% in the cervical spine and 18% in the thoraco-lumbar spine, a combined total of 31%.

But this figure must be adjusted downwards to allow for improvement which can reasonably be expected when litigation has concluded. It was obvious that the applicant found the hearing very stressful. Dr Liubinas, giving evidence on 5 March, told me the applicant's condition has deteriorated over the past six months, which Dr Liubinas attributes in part to her anxiety about the case. Dr Liubinas knows her well. Mr Wallace, reporting in November 1999, thought "her symptoms are likely to improve when the stresses of medico-legal proceedings are behind her." He did not repeat that observation in his report of 23 February 2001, but in my view it holds good. I will reduce the 31% by a factor of one-fifth: the result (to the nearest whole number) is 25%.

93. That brings me to the psychiatric assessment. On 2 June 1999 Mr Gibney made a whole-person assessment of 20% of which he regarded 15% as a primary response and 5% as secondary to the applicant's physical injuries.

94. In an earlier assessment, made in August 1998, Dr Gibney concluded that there was a whole-person impairment of 15% of which 12½% was primary and 2.5% secondary. His explanation for increasing the level of primary impairment from 12½% to 15% was that, in his view, the plaintiff's post-traumatic stress disorder has worsened.

95. Dr Walton, on behalf of the defendant, made an assessment on 16 March 2000 of 16% whole-person impairment of which he regarded 7% as primary and 9% as secondary.

96. Dr Walton agrees "that there is a post-traumatic element". This is why he assessed primary impairment at 7%.

97. On the probabilities, neither psychiatrist thinks it likely the applicant's condition will improve.

98. Having had the advantage of hearing both psychiatrists give evidence viva voce, I preferred Dr Gibney's assessment of whole-person impairment and Dr Walton's apportionment between the primary and secondary elements. The result is that I find a psychiatric impairment of 20% of which I regard 9% as primary and 11% as secondary. Combining the totals for physical and psychiatric impairment, the final figure for the purposes of s.46A is 32%.

Transport Accident (Impairment) Regulations 1988

Transport Accident (Amendment) Act 1998

Accident Compensation (Further Amendment) Act 1996

Compensation Act 1985

Sharon Lovison v Transport Accident Commission [2001] VCAT 1917

At a glance

Court

Decision date

Source

Judgment (168 paragraphs)

Sharon Lovison v Transport Accident Commission [2001] VCAT 1917 (22 June 2001)

Parties

Legislation Cited (5)