Brown v Victorian WorkCover Authority
[2016] VCC 769
•8 June 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05319
| ANTHONY JAMES BROWN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 3 and 6 June 2016 | |
DATE OF JUDGMENT: | 8 June 2016 | |
CASE MAY BE CITED AS: | Brown v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 769 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine in the course of employment as a carer for Department of Human Services – previous low-back injury – disentangling of consequences of low-back injury from degenerate left and right hips – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to issue proceedings claiming pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr G Pierorazio | Maddens Lawyers |
| For the Defendant | Mr R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
Preliminary
1 Mr Brown suffered injuries to his lower spine in two workplace incidents in January and March 2012. In the first, he was moving a bed rail in the course of his work as a carer for the Department of Human Services, and in the second, he was spreading bedding over a bed when he says he felt “excruciating pain”, to the right side of his back. He has had a range of conservative treatment from that time to the present.
2 The situation is complicated as, in 2013, he started to feel pain and restriction in his left hip which eventually led to left hip replacement surgery. The same occurred in relation to his right hip, with replacement surgery being undertaken in January 2016. He says the pain in his hips is different and distinct from that in his lower spine. He says the hip replacement surgeries have been successful and left him with little disability.
3 Mr Brown claims a range of recreational and domestic activities have been lost or curtailed and he has recently taken leave of absence from his employment with a view to living in Eden and finding less strenuous work.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered to Mr Brown’s lower spine in the course of his employment, in particular in January and March 2012.
5 The body function said to be lost or impaired is the lower spine.
6 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
7 Mr Brown was the only witness called to give evidence and be cross-examined. In addition, affidavits of Mr Brown, his partner and several work colleagues, various treating and consultant medical reports, radiological reports, clinical notes and Claim Forms were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment.
8 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
9 Mr Brown was born in 1963 and is now fifty-three years old. He went to secondary school to Year 10. He has three children from a previous marriage and now lives with his partner, Leigh.
10 Mr Brown has worked in various areas of employment after leaving school, including as a baker, on the railways and as a prison officer.
11 In 2002, he started work as a carer for the Department of Human Services and in 2003, commenced at Colanda, an institution for disabled clients, near Colac.
12 In April 1993, Mr Brown made a claim for a back injury when he slipped on steps at work. He was unable to recall the incident in cross-examination. He made a WorkCover claim, but I am satisfied any disability arising from the incident was short lived.
13 In September 2007, Mr Brown hurt his lower back attempting to catch a disabled client. He saw his general practitioner, had a period of light duties and returned to normal duties in October 2007. According to the report of his treating general practitioner, Dr Sarkis, Mr Brown was prescribed an anti-inflammatory and Panadeine Forte for pain. Several weeks later, Mr Brown said he was only suffering residual pain and stiffness.
14 Dr Sarkis noted episodic pain in Mr Brown’s left leg in July 2008 for which he was prescribed Voltaren, and on that occasion, said that he had suffered recurrent low-back pain, together with pain radiating into his left leg since about September 2007. A CT scan was ordered, but apparently not undertaken.[1]
[1]Plaintiff’s Court Book (“PCB”) 31
15 Dr Sarkis commented that in 2009, Mr Brown was hospitalised in Melbourne after developing a “life-threatening illness”. This was related to psoriasis which at the time was said to cover his whole body.
16 Mr Brown had pain in the lower back from time to time as his work was strenuous and involved assisting heavy patients.
17 In July 2008, he said he had some sciatic pain in his left leg but kept working, although he found the work difficult.
18 According to his affidavits, prior to 2012, he enjoyed a range of recreational activities including bike riding, kayaking and walking regularly. He said he was able to do a range of domestic duties.
The injury and its consequences
19 On 22 January 2012, Mr Brown was attempting to lower a bed rail of a client’s bed. He said the bed rails were often difficult to move. He lifted and released the rail and, in doing so, suffered severe back pain, worse than he had experienced in the past.
20 In cross-examination, Mr Brown said that he was definite he saw Dr Sarkis after this incident, although there is no record in the general practitioner’s clinical notes to any attendance by Mr Brown until 2 March 2012 when he complained of the bed rail incident several weeks before, which had resulted in jarring pain in his lower back, with pain radiating to the left leg. He reported numbness in the left foot. Again, Dr Sarkis prescribed Panadeine Forte. A CT scan was arranged[2] which noted degenerative disease at L4-5, and at L5-S1:
“There is diffuse posterior disc bulge that indents the anterior aspect of the thecal sac. There is only minor contact of the origins of the S1 nerve roots. The L5 nerve roots are not involved. There is slight narrowing of the facet joints.”
[2]PCB 76
21 An earlier CT scan taken at the request of Dr Sarkis in May 2011[3] showed no significant abnormality in the lower spine.
[3]PCB 75
22 Although it is not certain from the medical records, it would appear on the same day Mr Brown saw Dr Sarkis, that is 2 March 2012, he suffered another back incident at work when he was flicking blankets over a bed and felt what he has described as “excruciating pain” in his lower back, with numbness down the left leg.[4]
[4]See Claim Form at PCB 101
23 Mr Brown had pre-planned an overseas trip to Hong Kong.
24 On a number of occasions in 2012, Mr Brown was treated by Grant Brauer, physiotherapist.[5]
[5]PCB 15 – 18
25 Despite conservative treatment, the pain and restriction in his lower spine did not improve, and in June 2012, he was referred to Mr Greg Etherington, spinal surgeon, of Melbourne. According to the report of Mr Etherington,[6] by the time he saw him, he was better than he had been in March. Mr Etherington noted bilateral foot paraesthesia. At that time, he was taking Tramadol, and Endone as needed. On examination, Mr Etherington noted wasting of the quadriceps muscles on the left side. When he saw the CT scan, he said the findings were not consistent with the thigh pain of which Mr Brown was complaining.
[6]PCB 21
26 By August 2012, Mr Etherington said that the lumbar pain seemed to have come under control but Mr Brown was still suffering pain in his left groin and thigh. He noted degenerative changes at L4-5 and L5-S1 on the MRI scan.[7] Mr Etherington arranged x-rays of his hips which he said showed moderate osteoarthritis in both hips. He said it was likely the hip pathology was causing left groin and thigh pain. He referred Mr Brown to Mr Richard Angliss, orthopaedic surgeon, in August 2012.[8] According to a letter of Mr Angliss,[9] he received a history of the 2007 incident and then more recently, low-back pain since March of 2012. He thought Mr Brown had dual pathology, with some pain hip related and some related to the lower back. He suggested a back rehabilitation plan.
[7]PCB 29
[8]PCB 26
[9]Exhibit 6
27 In a report of November 2012,[10] Mr Etherington said that the degenerative changes present on the MRI and CT scans would have been there before March 2012. He described it as lumbar degeneration of a mild-moderate degree. While noting the incident of 2007, he said that while both the 2007 and 2012 incidents contributed to his then current lower back symptoms, he thought the 2012 incident led to more persistent symptoms than the earlier one.
[10]PCB 19
28 In a report of November 2012,[11] Dr Sarkis said that after physiotherapy, Mr Brown underwent a graduated return to work program on modified duties, although still suffering pain in his back and leg. Stronger analgesics were prescribed. Dr Sarkis noted Mr Brown had been suffering psoriasis most of his life and that there was a relationship between psoriasis and osteoarthritis.
[11]PCB 31 – 32
29 Physiotherapy with Mr Brauer continued in March 2015.
30 In a report of April 2016,[12] Mr Brauer said that Mr Brown had attended occasionally for lower back problems. He noted that by December 2012, the lower back symptoms had settled, and Mr Brown had made a return to work on full normal duties.
[12]PCB 36
31 In November 2013, Mr Angliss performed a total hip replacement. Mr Brown said he had a good result from this surgery and no longer suffers significant issues with the left hip. He had time away from work in 2013 because of this. He returned to work in February 2014 on modified duties. Dr Sarkis prescribed OxyContin for pain relief.
32 In September 2014, Mr Brown went to Dr Sarkis complaining of a flare up of his lower back pain with right sciatica. Analgesia was increased, including Targin and Lyrica. In January 2015, there was a further exacerbation of back pain while assisting a disabled client, although he was able to keep working on modified duties.
33 A MRI scan of the lumbar spine was again undertaken in March 2015 which (surprisingly, according to Dr Sarkis[13]) showed only minor degenerative changes at L4‑5 and L5-S1, without neural compression.
[13]PCB 36
34 Dr Sarkis said that the prescription of the pain-relieving medication was both for his lower back and for worsening right hip pain.
35 In early 2016, Mr Brown was referred to another orthopaedic surgeon, and a total hip replacement of the right hip was performed in January 2016. Again, Mr Brown said that the surgery was successful, and has left him with little pain or restriction in the right hip.
36 Dr Sarkis noted that Mr Brown had been able to successfully return to his work in the disability services area by modifying the way in which he went about his duties.
37 In March 2016, Mr Brown and his partner moved to Eden on the New South Wales coast, where he had a property which had been rented out. The tenants had caused some damage and he arranged for this to be repaired. He stopped work before the hip operation in January 2016, and has not returned to the Department since. He has taken leave of absence without pay.
38 According to Mr Brown’s most recent affidavit,[14] he still suffers pain in his lower back with referred pain into both legs, worse on the right. He takes Targin, both morning and night, and Panadeine Forte each morning and night. He says the medication is for his back and not his hips. He continued physiotherapy with Mr Brauer until November 2015 when the insurer refused to pay for further treatment.
[14]PCB 8 – 9
39 Mr Brown claims that his sleep is interrupted because of his back pain. He can no longer go bike riding and has sold his kayak. He has a reduced capacity to undertake his domestic tasks and has suffered a Reactive Depression. He has been prescribed antidepressants since September 2015.
40 Mr Brown said while he was able to work in the disability care area, he modified his duties and, by mid-2015, thought that he would be unable to continue that work. He is looking around for suitable alternative employment in Eden.
41 An affidavit of John Veale was tendered. He is a deputy unit manager at Colanda. He described the duties which were required in looking after the clients, which he said could be physically and emotionally demanding. He described Mr Brown as a very good worker and valued within the Colanda community. He noticed Mr Brown had problems with his back on and off over recent years. He said it was difficult for him to perform his duties and that he had to be very careful about physical tasks. He took regular breaks and undertook his duties in a way to protect his back.
42 According to an affidavit of Mr Gordan Saravanja, he has known Mr Brown since about 2000, when they both worked at Colanda. They became friends. He left Colanda in 2009. He said he could not recall Mr Brown having problems with his back before 2009 but said, in the last few years, he had complained a lot about back pain. Before his back problems, Mr Brown exercised regularly to maintain fitness, but since, noted that he no longer kayaked, rode his bike or walked as much. Mr Brown had asked him to mow his lawns on occasions.
43 An affidavit of Mr Brown’s partner, Leigh Rooke, was tendered. She supported Mr Brown’s complaints of back pain since the 2012 incidents.
Consultant medical opinions
44 Various reports of Mr Etherington, who Mr Brown saw on a number of occasions in 2012, related lower-back symptoms to an incident of 2 March 2012. He said imaging showed degenerative changes at L5-S1, and facet joints at that level and L4-5. He said those changes would most likely have been present before March 2012. He referred to an earlier incident of 2007, and said both incidents contributed to his problems. In August 2012, he thought Mr Brown’s lumbar pain was under control and concluded that, due to the osteoarthritis in both hips, it was more likely that the hip pathology was causing left groin and thigh pain.
45 Dr Sarkis, in his first report of November 2012,[15] referred to treatment following the 2007 incident. He received a history when Mr Brown attended on 2 March 2012 that, several weeks’ prior, he had jarred his back while lifting a bed rail. Since that time, Mr Brown said that he had pain radiating from his spine into the left leg. He saw Mr Brown on a number of occasions in 2012 for increased lower-back pain related to his work duties. In his final report of April 2016, he noted that he had seen Mr Brown on only eighteen occasions in relation to his lower back, despite seventy attendances at the clinic from November 2012. He referred to various flare-ups, including in September 2015. He thought that, subsequent to the second hip operation, his long-term prognosis for his lower back was good, but guarded.
[15]PCB 31
46 Mr Brown was examined by Mr William Huffam, surgeon, in 2015 and, more recently, in May of this year.
47 He obtained a history of an injury in March 2012 when Mr Brown was lifting safety railings. In his first report he said:
“My conclusion is that Mr Brown’s current condition is completely compatible with having sustained an initial injury to his back lifting one struggling man off another in the course of his work as described with multiple exacerbations of lower back injury over the years since then with a more severe exacerbation on 2 March 2012, resulting in an intervertebral disc protrusion causing nerve root irritation and radicular symptoms down the right leg.”[16]
[16]PCB 69
48 He described the injury as “quite serious”.
49 When he was more recently seen by Mr Huffam, neurological examination was relatively normal, although there was some mild weakness in the muscles of the right buttock. He confirmed Mr Brown’s back condition was related to the injuries caused in the course of his employment at Colanda. He commented that it appeared to him Mr Brown was only just coping with his work.
50 Mr Brown was examined by Mr Paul Kierce, orthopaedic surgeon, in July 2013. He thought Mr Brown had suffered a work-related aggravation of pre-existing lumbosacral spondylosis without any radiculopathy. He thought, at that time, that Mr Brown would not be able to return to pre-injury employment.
51 Mr Kendall Francis, surgeon, saw Mr Brown in December 2012. He received a history of a first back incident in 2007, the diagnosis of diabetes in 2011 and the development of psoriasis some years before. He was told, on 2 March 2012, Mr Brown was lifting a bed rail when he suffered sudden recurrence of the back pain, with referred pain to the thigh. When he saw Mr Francis, Mr Brown said that he had lower-back pain, but that the major limiting factor was left hip pain. Neurological examination was normal. Mr Francis said that he had suffered a lower-back injury in March 2012. He said his symptoms were partially due to multi-level disc degenerative changes, as well as the work incident. He noted the development of osteoarthritis in both hips. He noted the high doses of Tramal that Mr Brown was taking. He thought the left thigh symptoms would be related to his hip problems.
52 In February 2015, Mr Brown saw Mr Clive Jones, orthopaedic surgeon.[17] He complained of morning back stiffness and pain in the lower lumbar region. He said there was pain in the right thigh and the outside of the right calf. Given the absence of right ankle reflex and sensory alteration, Mr Jones thought Mr Brown had suffered a disc injury, although was unable to say when that had occurred. He described Mr Brown’s back as “vulnerable”. He noted a number of straining injuries since October of the previous year. He said the injury could be associated with the nature of Mr Brown’s work and thought he had a normal work capacity. He suggested conservative management.
[17]Defendant’s Court Book (“DCB”) 45
Conclusions
53 I did not find Mr Brown to be a particularly satisfactory witness. He was somewhat confused and unclear as to what occurred in January and March 2012 in the bed-rail and sheet-spreading incidents. In evidence, he said he was certain he went to see his general practitioner after the January event, but there is no confirmation in that doctor’s clinical notes or reports. To a number of doctors, he appears confused as to what happened in January 2012 and what happened in March.
54 Further, I found in his evidence before the Court, and in some of the histories to the doctors, a preparedness to downplay the pain and restriction caused by his arthritic hips in favour of elevating the lower-back condition. He said, in cross-examination that not only were the symptoms in his hips and thighs modest, but that he has had a very successful result from surgery to both hips, and the medication he has been taking is in relation to his lower back only. That is clearly not the case, when an examination is made of general practitioner’s notes.
55 Mr Middleton, for the defendant, submitted there was a significant disentangling exercise to determine the consequences arising, on the one hand, from the hips and, on the other, from the lower back. He said, when the back was looked at in isolation, there had, in reality, been little treatment over the years, and much of the focus by the general practitioner and the surgeons who had examined Mr Brown, was related to his hip problems. He said that when one looked only at the lower back, the consequences did not reach the “very considerable” test the legislation required.
56 I am satisfied that from as early as 1993, when Mr Brown slipped on some stairs at work,[18] he suffered problems with his lower back. There was another episode in 2007 relating to an incident at work which led to increased pain, treatment by his general practitioner and some medication. However, I accept the submission of Mr Bird that, over the years from 2007 to 2012, he had very little in the way of treatment, no medication, and was able to return to work in a demanding occupation requiring significant physical effort, working with disabled patients.
[18]See Exhibit 2
57 I am satisfied that, on two occasions, in January and March 2012, there was a further significant assault to his lower spine which led to the development of more significant and regular symptoms in his lower back. The bed rail incident would seem the more significant of the two.
58 I accept that prior to this time, he was able to engage in a range of recreational activities, including bike riding, walking and kayaking, and that, from 2012, those activities were certainly reduced, if not lost completely.
59 There is not a great deal of difference in the various medical opinions. It is clear that in 2013, Mr Brown developed problems with his left hip, which led to replacement surgery. In 2014, he started to develop problems in his right hip, which led to replacement surgery in 2016. That, combined with, generally, the lack of neurological findings by most of the medical practitioners, and lack of clear evidence of nerve root compression on the MRI and CT scans, leads me to conclude that the pain of which Mr Brown has complained in his thighs and down his legs cannot be attributed to his lower-back condition. In my view, there is confusion as to the origin of those symptoms. From all of the evidence, I cannot be satisfied that the problem with the pain into his leg is related to his lower-back injury of 2012.
60 Mr Middleton raised, although did not pursue with vigour, that an element at least of Mr Brown’s lower back condition was related to his psoriatic condition. This arose out of comments by Dr Sarkis[19] that there is a strong relationship between psoriasis and arthritis. However, there was no medical opinion that his current lower back condition was due to that disease rather than the incidents in 2012.
[19]PCB 32. See further comments by Mr Huffam – PCB 66
61 Mr Brown has had little other than conservative treatment over the years since 2012 and, according to the report of Dr Sarkis, from November 2012, despite attending at the practice regularly, there are only a limited number of visits where he complained only of lower-back pain. He has been taking strong pain-relieving medication, and I accept that, at least in part, this has been related to his hips. According to his most recent affidavit, he takes powerful pain-relieving medication, Targin, each day, and Panadeine Forte.
62 Notwithstanding I have some reservations about his evidence, I do accept that, by and large, the hip surgery has been successful and while he does have some restriction from the most recent hip operation, significantly, at the present time, his problems are with his lower back. I accept that he does have pain in the lower back and that, indeed, restricts him in the range of recreational activities to which I have referred.
63 I was impressed with the affidavits of Mr Brown’s co-workers, in particular, Mr Veale, his immediate supervisor, who described him as a very good worker, but who observed significant problems with his back on a number of occasions. He has observed Mr Brown protecting his back and having to change the way he undertook his tasks. In my view, that affidavit, and the affidavit of Mr Saravanja, indicate a significant impact upon his work and recreational duties as a result of his lower-back complaint.
64 There is clear evidence on pathology of a degenerative condition in his lower spine, although more pronounced in the CT scan of March 2012[20] and July 2012,[21] than the subsequent MRI scan of March 2015.[22] In the latter, the degenerative changes are referred to as “minor”. I accept the opinion of Dr Sarkis, that he found the latter as surprising.
[20]PCB 77
[21]PCB 80
[22]PCB 84
65 Given a number of incidents causing back pain and some treatment prior to 2012 which Mr Brown suffered in the course of his employment, it is necessary to assess the incidents of that year as an aggravation of a pre-existing lumbar spinal condition. I accept the medical opinions to the effect that it was likely Mr Brown had pre-existing changes before 2012. Nonetheless, he was able to maintain normal work duties on a full-time basis and enjoy a range of recreational activities without apparent difficulty. He did not attend for treatment with his general practitioner over a number of years before 2012. The incidents of 2012 I accept marked a turning point in his condition and required more regular treatment and medication.
66 I generally accept the complaints of Mr Brown of ongoing pain requiring medication and a restriction in various activities. Of significance is that he has taken leave without pay from his employment and gone to Eden with the prospect of obtaining alternative, less demanding, employment.
67 In these circumstances, I am satisfied the consequences to Mr Brown, viewed objectively, do meet the “very considerable” test the legislation requires.
68 I shall make consequent orders.
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