Brown v Kimpton

[2016] VCC 2005

1

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-16-01340

NEIL FRANCIS BROWN	Plaintiff
v
KIMPTON BUILDERS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Warrnambool
DATE OF HEARING:	28 November 2016
DATE OF JUDGMENT:	22 December 2016
CASE MAY BE CITED AS:	Brown v Kimpton
MEDIUM NEUTRAL CITATION:	[2016] VCC 2005

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – permanent impairment of the lumbar spine – aggravation of pre-existing lumbar disc degeneration – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB
Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I R Fehring with Mr G Pierorazio	Stringer Clark
For the Defendant	Mr W R Middleton QC with Ms D Manova	Thomson Geer

HIS HONOUR:

1 This proceeding was commenced by the plaintiff by Originating Motion. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a common law proceeding against the defendant, his former employer, claiming damages for pain and suffering only.

2 The plaintiff’s case is that he suffered an injury arising out of or during the course of his employment in May 2009. The plaintiff alleges that over a period of about three days whilst working breaking concrete, and loading it into a trailer, he aggravated pre-existing lumbar disc degeneration in his back (“the incident”). The application is thus based upon a permanent impairment of the lumbar spine within the meaning of s134AB(37)(a) of the Act..

3       For the reasons that follow, this application must be dismissed.

4       Mr R Middleton QC, who appeared with Ms D Manova, as counsel for the defendant, told me that the issue in the case for me to decide is whether or not the plaintiff can succeed in proving on the balance of probabilities that he has suffered an injury in the nature of an aggravation to his pre-existing lumbar disc degeneration that meets the definition of “serious injury”. 

5 In summary, Mr Middleton submitted that the evidence shows that the plaintiff cannot establish that his claimed serious injury meets the threshold of a “serious injury” as set out in the Act. The defence case in summary form is that if there was an injury in the form of an aggravation of pre-existing lumbar disc degeneration, any consequences to the plaintiff were transient. He submits the evidence shows that the claimed aggravation did not produce a further impairment of the lumbar spine, with consequences that were marked or more than considerable. The defence submits the evidence shows the plaintiff has continued to experience the same consequences in terms of impairment from pre-existing lumbar disc degeneration that he had previously experienced prior to the incident. I accept the submissions made on behalf of the defendant.

6 The plaintiff bears the onus of proof that the pain and suffering consequences of his injury, being the aggravation of pre-existing lumbar disc degeneration, are “serious” within the meaning of s134AB(38)(c). This issue is to be determined having regard to all of the evidence.

7 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence of the injury, being the claimed aggravation of pre-existing lumber disc degeneration is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).

8       It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) of any impairment were suffered and continue to be suffered by him.

9       The plaintiff swore two affidavits in support of his application.  The first affidavit was sworn on 8 December 2015 (“the first affidavit”) and the second was sworn on 26 October 2016 (“the second affidavit”).  The plaintiff submitted a court book which included the first and second affidavit and various medical reports.  I admitted pages 1 to 32 inclusive as the Plaintiff’s Court Book (“PCB”).

10      The defendant tended some still photographs of surveillance of the plaintiff taken on 21 September 2016 and 22 September 2016 which I admitted as exhibit 1.  The defendant also tendered a DVD containing video surveillance of the plaintiff on 21 March 2016 which I admitted into evidence as exhibit 2.  The defendant also filed a Court book containing various medical reports.  I admitted pages 1 to 19 inclusive and pages 24 to 27 inclusive as exhibit 3, the Defendant’s Court Book (“DCB”).  The defendant also tended the plaintiff’s medical records from the Warrnambool Medical Clinic between 3 August 1998 and 6 October 2016 which I marked as exhibit 4.

11      In his first affidavit, the plaintiff set out his work history after leaving school.  Relevantly, he said that whilst employed by Owens Roof Trusses in about 2005 and whilst engaged in heavy work, he “had some problems with my back and I had treatment including physiotherapy for some periods of time.  I had some time off work, I believe only a few weeks, and then went back to my normal duties.”[1]

[1]PCB 2, paragraph [1]

12      The plaintiff said he commenced work with the defendant in 2009, and he gave a description in his first affidavit of the incident which involved him breaking up pieces of concrete, carrying them some distance and depositing them for removal.  He said he went to the Warrnambool Medical Clinic where he had x-rays and, he was put off work “for a few weeks and then went back on light duties”.[2]  He said he could not do the light duties and he resigned in 2010.  The plaintiff deposed that he was off work for a couple of months before obtaining work at Dahlsens as a yardman.  He was retrenched in June 2012 but later obtained work part time, working on average 21 hours per week in the gardening section of Bunnings.  The plaintiff is still employed doing this work.

[2]PCB 3, paragraph [3]

13      Regarding his work at Bunnings, the plaintiff deposed that he could not work more than 21 hours per week “because by the time I finished a shift the back is painful.  I have to be careful doing lifting and carrying but I am able to carry out the duties required of me”.[3]

[3]PCB 3, paragraph [3]

14      The plaintiff has long suffered from a thyroid condition and he is also treated for matters related to his heart.  For this treatment he has been attending for a long period of time at the Warrnambool Medical Clinic.  He also consults a chiropractor, Kate Davis, whom he deposed to seeing every two weeks.  He said he finds treatment he receives from her gives him relief and improves the mobility of his back.

15      The plaintiff deposed that his back is painful “all the time and lifting is restricted”.  The plaintiff went on to say: “Given the work I do now I have to be very careful lifting any sort of weight.”[4]

[4]PCB 4, paragraph [5]

16      The plaintiff deposed in his first affidavit that driving for more than 30 to 40 minutes increases his back pain.  Also bending and squatting increases his back pain, as does gardening and cleaning activities, which he said are now restricted.  In his first affidavit, the plaintiff said that before his injury he used to play golf socially but now he could not do that “because the swing would be too much”.[5]  He said that he also used to go snow skiing during the season and could not do that anymore.  He said in the past he played indoor cricket but he cannot do that anymore.  In cross-examination, it transpired the plaintiff had ceased playing golf around 2000, and he had also ceased the other sports well before the incident as a consequence of suffering a fracture of his wrist.[6]  In other words, the fact he cannot enjoy these sports is a consequence of a prior injury to his wrist and not a consequence of an aggravation to his pre-existing lumbar disc degeneration from the incident.

[5]PCB 4, paragraph [7]

[6]Transcript (“T”) 24-25

17      In his second affidavit, the plaintiff said that he continues to have chiropractic treatment every two weeks and he was taking Ibuprofen two to three times a week “when I have a particularly bad day”.[7]  

[7]PCB 6, paragraph [2]

18      The plaintiff says he continues to work at Bunnings, where he works for seven hours on Thursday, eight hours on Friday, and six hours on Saturday.  He said he has to be careful with his work.  He said he avoids heavy lifting or bending.  He went on to say that when he gets home from work he has to rest because he has a painful back.[8]

[8]PCB 7, paragraph [4]

19      The plaintiff was cross examined by Mr Middleton about his work history and his history of back complaints.  The plaintiff was asked about the incident in May 2009, and the injury to his back which had occurred in 2005.  He was asked if there had been any other events involving his back.  He said: “No, not that I can remember.”[9]

[9]T11

20      The plaintiff was also asked about why he left his employment with the defendant.  When challenged, he agreed that anger management issues that he was having at the time played “a big role” in the termination of his employment with the defendant.  When pressed further, this exchange occurred:

Q:“How big a role did that issue, that’s anger and the like, play in your resignation or termination of employment?‑‑‑

A:I would say a big role. 

Q:Your back itself didn’t play a big role at all?‑‑‑

A:No, that had nothing to do with it.

Q:When you say you couldn’t cope, that meant you couldn't cope because of these ongoing issues between you and your employer?‑‑‑

A:It’s got nothing to do with my back injury.”[10]

[10]T14, L16-23

21      This evidence is contrary to the evidence given by the plaintiff in his first affidavit where he says that he left work because the light duties that he was undertaking were too heavy (because of his back), and he resigned in 2010.[11]

[11]PCB 3, paragraph [3]

22      The plaintiff was asked about the injury to his back in 2002 which had resulted in him making a claim on his the employer.  He said, “I could not answer that”.[12]  When pressed, he could not recall having told Mr Thomas Kossmann, orthopaedic surgeon, about this incident.  The medical records show the plaintiff had attended at the Cambourne Clinic on 28 March 2002 complaining of back pain after having moved furniture.[13]He subsequently completed a Worker’s Injury Claim Form where he claimed to have pinched a nerve on the lower left side of his back on 27 March 2002.[14]  By 5 April 2002, the plaintiff had told his general practitioner that he was back at work and coping but his left leg was still numb to approximately the knee on the outer lateral thigh.[15]

[12]T14, L29

[13]Exhibit 4

[14]DCB 15

[15]Exhibit 4

23      When confronted with these facts, the plaintiff recalled attending upon his general practitioner in 2002 and he agreed that his lower back was involved.  He said it was the complete lower back on both the left-hand and the right-hand sides.[16]

[16]T16

24      The plaintiff was then asked about another episode where he complained of back pain in March 2007.  Mr Kossmann had asked the plaintiff about this but nothing appears in his affidavit material.  The records from the plaintiff’s general practitioner show that he had consulted at the clinic on 5 March 2007 complaining of a stiff lumbar spine which was thought to be sciatica and he was referred for a CT scan.  On 10 September 2007, he again attended at the general practitioner complaining of a lumbar back strain, more right sided than left “from pushing on a trolley on 4/9 when wheels jammed”.[17]  He told the general practitioner that he attended the accident and emergency department at Southwest Health (Warrnambool Hospital), and subsequently underwent physiotherapy at the same establishment.[18]  When examined, the plaintiff was still stiff and tender.  A report from the physiotherapist records on 17 September 2007, the plaintiff told the physiotherapist “his back is a bit worse than he first thought as he has been putting up with it for some time.  … I think he needs a bit more time off at this stage.”[19]  A week later, on 25 September 2007, the general practitioner recorded progress but there was still right lumbar paravertebral spasm and tenderness.  By 1 October 2007, the general practitioner reported the plaintiff’s back to be good.[20]

[17]Exhibit 4

[18]T18

[19]DCB 26

[20]Exhibit 4; PCB 13; DCB 26

25      The plaintiff said that he had forgotten what had occurred in 2002 and 2007 in relation to his back.[21]  He was then asked about a history of back pain that he had given to his chiropractor whom he first attended upon on 3 January 2013 for right sacroiliac joint pain.  In her first report, chiropractor, Katie O’Keefe, reported, inter alia:

“It was aching in nature and had been present for 6-7 years.  The onset for this particular symptom was spontaneous.  Mr Brown mentioned in his history that he had a previous back injury relating to work years prior.  He presented with numbness down his left side, which he had had prior to treatment from a GP.  The GP finding no abnormalities associated with pain.”[22]

[21]T17

[22]PCB 14

26      The plaintiff agreed that he had seen the chiropractor in 2013.  When asked about the note that the onset of symptoms was spontaneous, he said: “Maybe I lifted something that I shouldn’t have in that time and I went there”.[23]  There was no reference to the incident as having been the cause of the symptoms.[24]  He said that the chiropractic treatment continued and in fact he had been to see the chiropractor on the morning of the hearing.[25]

[23]T19, L30 – T20, L1

[24]T19

[25]T20

27      The plaintiff agreed with the note of Ms O’Keefe that he is maintaining his back very well.[26]

[26]T20

28      The clinical notes from the plaintiff’s general practitioner reveal that he attended again complaining of chronic intermittent back pain on 1 November 2013.  The notes include “last 3 weeks - back pain and stiffness flare up[.] [D]oing lawn mowing – that is a big effort, can[’]t do it”.[27]  

[27]Exhibit 4

29      A CT scan carried out on 4 November 2013 reported, amongst other things:

“Mild degenerative changes at the lumbosacral spine … .

No definite traversing or exit nerve root impingement identified.”[28]

[28]PCB 28

30      The plaintiff said he could not remember this 2013 incident.

31      The plaintiff has been medically examined by Mr Timothy Gale, general and trauma surgeon, at the request of the defendant on 27 February 2015.[29]  Mr Gale took a history from the plaintiff, and noted in his report:

“The worker has had episodic back pain for almost fifteen years since a lifting incident at work in a business manufacturing timber trusses and house frames.”[30]

[29]DCB 1

[30]DCB 1

32      When first asked about this, the plaintiff denied having made this statement to Mr Gale.[31]

[31]T21

33      The plaintiff was shown the DVD of surveillance footage taken of him performing his work at Bunnings on 21 March 2016.  The plaintiff agreed that he was depicted in the surveillance moving a pallet containing bags of potting mix.  The surveillance shows that there were approximately 130, 25-litre bags of potting mix on a pallet being moved about by the plaintiff using a manual pallet mover.  At one stage of the video, the plaintiff is depicted moving the pallet, which must have weighed more than a tonne, under considerable strain from a stationary position.  The plaintiff was able to carry out this task without any obvious sign of distress or pain.  He was later depicted helping a customer to her car and loading product she had purchased into the boot of the car and into the back seat of the car again, all without much difficulty.  The video does not add a lot to the case.  The plaintiff has agreed that he can carry out his work at Bunnings but says he is generally sore after a long day at work.  The video depicts that some aspects of the plaintiff’s work at Bunnings might be regarded as heavy work but shows that despite his long-term degenerative change in the lumbar spine, he is able to carry out this work.

34      I found the plaintiff to be an unsatisfactory witness.  He made concessions but only when presented with the facts.  In my view, unless the true facts were put before the witness from other evidence, such as clinical notes, the plaintiff was content to have the Court believe that all of the consequences for the plaintiff as claimed by him in his affidavits were attributable only to what occurred in May 2009 and not otherwise.  In his affidavits, he had created the clear impression that his sporting interests such as golf had ceased because of the incident and the injury claimed to have been sustained.  The cross-examination showed this was not the case.  Further, the plaintiff, in his affidavit, had said there were only ever two previous episodes of back pain, one in 2005 and the other in the incident in 2009.  That clearly was not the case.  There were episodes in 2002, 2005, 2007, 2009 and 2013, each with its own brief history.  None of this was put before the Court in the plaintiff’s case.

35      The other matter concerns the reasons why the plaintiff ceased work in 2010.  In his first affidavit, the plaintiff made it clear it was because of the incident and the injury he claimed to have suffered in it.  When tested in cross-examination, this was demonstrated to be wrong.  The real reason was trouble the plaintiff was having with his employer because of his anger management issues.

36      Allowing for the plaintiff having a poor memory, at the very least he is an unreliable witness and I am not prepared to act on his evidence.

37      The records from the plaintiff’s general practitioner show that he is being treated for a number of differing ailments and he has been treated periodically for complaints of back pain going back to 2002.  Apart from seeing his general practitioner on about five occasions between May 2009 and August 2009 arising from the complaint of back pain in May 2009, the plaintiff has received no further treatment.  He does continue to see his chiropractor.  It is unclear whether this is for treatment specifically related to back pain suffered from any one of the incidents of 2002, 2005, 2007, 2009 or 2013.  He has continued to see his general practitioner on a number of occasions since 2009 for his other ailments and for the complaint of back pain in 2013.

38      There is no other specialist treatment and there is no mention of the likelihood of specialist treatment for the 2009 incident and injury.  The plaintiff does not take prescription medication for his low-back pain.

39      There is evidence of the plaintiff having suffered lumbar disc degeneration for a long period of time.  There is no evidence that the incident in 2009 caused any aggravation of his lumbar disc degeneration or, if it did, to what extent.

40      Mr Kossmann gave, inter alia, this opinion under various subject headings:

“DIAGNOSIS

Degenerative changes lumbar spine with diffuse disc bulge at L1/2 indenting the anterior thecal sac, diffuse disc bulge at the L2/3 level causing mild bilateral neural foraminal compromise, slightly more marked on the right side; diffuse disc bulge at the L3/4 level causing mild bilateral neural foraminal compromise and diffuse disc bulge at the L4/5 level.

ANALYSIS AND DISCUSSION

Mr Brown has worked all his life in physically demanding work and over the years from 2002 onwards has had four episodes of severe onset of lumbar back pain.  He was investigated with CT scans of his lumbar spine, which showed that he was suffering from degenerative changes throughout the lumbar spine.  Mr Brown has always been able to return to work and is currently working 21 hours in a part-time position with Bunnings on modified/light duties, however, he struggles due to his back pain.

PROGNOSIS

Mr Brown’s prognosis regarding his lumbar spine condition is poor.  I remain with my opinion that Mr Brown will continue to suffer from pain, for which he will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.  The chances of him requiring surgery in future are in my opinion mild to moderate.  He may have to undergo surgery if he suffers from a catastrophic disc prolapse with neurology.  The type of surgery will be directed by his symptoms and the pathology at that time.  I cannot anticipate an exact timeframe of if and when this may occur.”[32]

[32]PCB 23-24

41      Earlier I referred to the report of Mr Gale.  His diagnosis was as follows:

“As a result of an incident at work in May 2009 the worker is likely to have suffered symptomatic aggravation of pre-existing symptomatic degenerative changes in the lumbar spine, the first became symptomatic in 2002 after a work-related injury.  Since that initial injury the worker has had episodic back pain and a number of episodes of symptom flare-up requiring treatment.

Currently the worker does continue to suffer from low back symptoms, but I do not believe they are solely and specifically a sequel of the injury in May 2009.”[33]

[33]DCB 3

42      Dr Graham, an occupational physician, who also saw the plaintiff on behalf of the defendant, was of a similar opinion.[34]

[34]DCB 8

43      In my judgment, the evidence clearly shows that the plaintiff has suffered from long-term lumbar disc degeneration.  I accept the opinion of Mr Gale and the opinion of Dr Graham.  I note these opinions do not differ from the plaintiff’s expert, Mr Kossmann. 

44      The plaintiff may have suffered, at best, a flare-up of pre-existing lumbar disc degeneration as a result of what occurred in May 2009, but this settled fairly quickly.  The plaintiff has not proved that he suffered an aggravation of pre-existing lumbar disc degeneration in the May 2009 incident.  It is impossible to say from the evidence produced, the extent of any aggravation of pre-existing injury to the lumbar spine.  It is equally impossible to describe from the evidence, the extent to which the 2009 incident produced an impairment to the plaintiff or, whether such impairment was permanent.  The consequences claimed by the plaintiff arising from his long-term lumbar disc degeneration cannot, in my view, alone be attributed to the 2009 incident.

45      The plaintiff has failed to discharge the onus that he bears.  For these reasons, the application is dismissed.

46      I will hear the parties on costs.

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