Kilpack, Robert v HS Building Industries Pty Ltd
[2009] VCC 1610
•11 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-01578
| ROBERT KILPACK | Plaintiff |
| v | |
| HS BUILDING INDUSTRIES PTY LTD | Defendant |
---
| JUDGE: | Judge Howie |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 9 December 2009 |
| DATE OF JUDGMENT: | 11 December 2009 |
| CASE MAY BE CITED AS: | Kilpack, Robert v HS Building Industries Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1610 |
REASONS FOR JUDGMENT
---
Catchwords: serious injury; section 134AB Accident Compensation Act 1985
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC and Mr R Stanley | Slater & Gordon |
| For the Defendant | Mr P Elliott QC and Ms F Ryan | Lander & Rogers |
| HIS HONOUR: |
1 By an originating motion the plaintiff seeks leave pursuant to section 134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering for an injury to his lumbar spine in the course of his employment by the defendant. He relies upon paragraph (a) of the definition of serious injury. The body function said to be impaired is the function of the lumbar spine.
2 The plaintiff is a relatively young man, who was born on 27 April 1967 and is now 42 years of age. He left school at the age of 16 or 17 and completed a spray painting apprenticeship. He worked as a spray painter, but some years ago he lost his hair and ceased working full time as a spray painter because he regarded it as being unhealthy. He then worked as a labourer in the building trade and as a concreter. In the years before May 2006 his employment seems to have been somewhat spasmodic. His gross income for the years 2002, 2003, 2004 and 2005 was $8700, $9664, $19,006 and $7414 respectively. His explanation for these modest sums was, “I was a single man, I was here and there…. I was doing a bit of travelling around and subcontracting here and there and not working, and I had no responsibilities.” He has been living with a partner and her three children since January 2007.
3 The plaintiff deposed that on 5 May 2006 when working for the defendant he was required to carry bags of sand, bags of concrete and bricks upstairs and experienced significant pain in his back and right leg. He attended his general
practitioner Dr Bashir at the Goonewarra Medical Centre in Sunbury on 16 May 2006 with back pain and difficulty sitting, standing and lying. Dr Bashir advised rest and physiotherapy and referred him for a CT scan. The scan
performed on 18 May 2006 revealed a “[m]ild posterior annulus bulge at L4/5
and L5/S1 with likely right L5 nerve root compromise at the L4/5 level.”4 Dr Bashir reviewed the plaintiff on 23 May 2006 and 30 May 2006. As the plaintiff said that he was no better, Dr Bashir referred him to an orthopaedic surgeon, Mr Mills. However, the plaintiff did not keep the appointment with Mr Mills and did not return to see Dr Bashir until 31 August 2006, some three months later, when improvement was noted. In 2006 he was reviewed again by Dr Bashir on 16 October, 30 October, 28 November and 21 December. He was given a further referral to Mr Mills.
5 Mr Mills assessed the plaintiff on 21 December 2006. He advised Dr Bashir in a letter dated 21 February 2007 that the plaintiff probably had a disruption of his L5/S1 disc and a bulge at L4/5. He did not think there was radiculopathy and did not recommend surgical intervention. He did however recommend that the plaintiff “see a more involved spinal advisor” and forwarded a copy of his letter to Dr Kavar, a neurosurgeon at the Royal Melbourne Hospital. Mr Mills advised the plaintiff to continue with exercise and physiotherapy and to “gradually ease himself back into the workplace.” In a report to the plaintiff’s solicitors dated 16 May 2008, Mr Mills stated, “the two-level degenerative bulges are probably age-related and activity-related and may or may not relate to his work-related events on the day in question but certainly he was much more symptomatic after that day’s activities.”
6 The plaintiff did not see Mr Kavar, as Mr Mills had recommended. He continued to attend Dr Bashir during 2007. On 14 June 2007 he was assessed by Mr Jones, orthopaedic surgeon, for medico-legal purposes. In the history he obtained Mr Jones stated that the plaintiff was having treatment in the form of physiotherapy combined with swimming. He noted, “It appears Panadol is the only medication his family doctor is willing to prescribe for him, so he buys Nurofen over the counter when the pain is particularly bad.” Mr Jones diagnosed the plaintiff as suffering from aggravation of established but asymptomatic lumbar disc degeneration at L4/5 and L5/S1 with a small right sided protrusion at L4/5, possibly the cause of his intermittent leg pain. He considered the condition to have improved, but not resolved. In his opinion at that time the plaintiff had no capacity to return to work in labouring or the building trade, or if he was to work again would require lighter work with weight under 5 kilograms, with rest breaks, of a sedentary or semi sedentary character. He urged retraining.
7 The clinical notes of Dr Bashir for 11 October 2007 record a lack of co- operation by the plaintiff with the rehabilitation consultants. A vocational assessment report by Industrial Work Conditioning Clinic (IWCC) dated 20
July 2007 recommended the implementation of return to work services with a short retraining program. Dr Bashir’s notes of 11 October 2007 suggest an unwillingness to attend rehabilitation appointments.
8 In 2008, in each month from February to October, the clinical notes record an attendance upon a doctor at the clinic, principally Dr King. On 20 October 2008 the notes record prescriptions of Oxazepam and Brufen.
9 On 26 March 2008 the plaintiff was assessed for medico legal purposes by a rheumatologist, Dr Fraser. He reported as follows:
This worker probably sustained aggravation of pre-existing degenerative changes in the lumbar region as a result of his activities at work on 5 May 2006.
Although there has been significant improvement, there is, in my opinion, some permanent incapacity as a result of the injury, such that he will never be able to return to pre-injury duties as a Builders Labourer, or to any other form of work requiring bending and/or heavy lifting (>5 kg).
Within the bounds of these restrictions he is, in my opinion,
fit for any other form of work for which he is otherwise suited.His condition has stabilised and I see no point at all in ongoing physiotherapy. Self-directed water exercise such as he has been doing is appropriate and will minimise the risk of recurrence. He should also continue with simple analgesics as necessary.
10 Mr Mills reviewed the plaintiff on 16 July 2008. This was the second occasion that the plaintiff saw Mr Mills. An MRI carried out on 26 June 2008 revealed a broad disc bulge at L4/5 and an annular tear and disc bulge at L5/S1. Mr Mills reported confirmation of the diagnosis of L5/S1 disc disruption and an element of congenital spinal canal stenosis at L4/5. The plaintiff was considering the
possibility of returning to work as a truck driver. Mr Mills advised him against
forward flexion under load and rotation under load and to use safe lifting
practices. He recommended supportive and conservative treatment, postural
management and management of his activities.11 Mr Fish, a consultant occupational and environmental physician, assessed the plaintiff for medico legal purposes on 27 October 2008. He diagnosed aggravation of lumbar disc degeneration with referred symptom to the right leg. He noted that the plaintiff had been retrained as a truck driver. Dr Fish considered that work to be inappropriate as likely to aggravate the plaintiff’s back. He considered retraining in a less physically demanding job would be more appropriate.
12 Dr Cheema at the Goonawarra Medical Centre became the plaintiff’s treating doctor in February 2009. The clinical notes show that he prescribed Oxazepam and Panadeine Forte on 11 February 2009. In his report of 16 November 2009 Dr Cheema stated that the plaintiff has continued to complain of chronic back pain, that his condition has not responded well to treatment, that it prevents him from participating in normal activities, that he is being treated conservatively with pain and anti-depressant medication, that he is not fit to return to pre-injury duties and that alternative employment should have restriction on lifting, bending and twisting, and also standing, sitting or walking for extended periods without a break.
13 Mr Miller, orthopaedic surgeon, assessed the plaintiff for medico legal purposes on 9 November 2009. He reported as follows:
This man has suffered an injury to his lumbar spine with disc bulges and disc injury probably at the L4/5 and L5/S1 levels and it is likely that he has an underlying small canal.
He has had a poor response to conservative measures. I do not believe he will be helped by operative intervention. The prognosis for this is fair/poor.
It is likely that this man had pre-existing, but asymptomatic disease in the lumbar spine. It is likely this was rendered symptomatic by his work and work injury around the 5/4/2006 and I believe this accounts for his current clinical status.
He will require ongoing conservative treatment. His current regime is appropriate and will need to continue indefinitely. He may benefit from a back rehabilitation program and pain management program. It is possible, but in my view unlikely that he would benefit from surgical intervention. Requirement
for treatment is accident related.
He is not fit for pre-injury work. He could not return to work as a labourer. He will have long term work descriptions which will include no repetitive bending, no repetitive lifting, not lifting of weights more than 5 kg and will have a requirement to shift his posture on a regular basis. He could return to limited work as a trick driver provided the above restrictions are in place.
I do not believe this man could return to work as a spray painter because of the repetitive bending that would be involved.
His injuries have substantially stabilised and have been so since approximately April 2008.
14 In order to succeed with an application pursuant to section 134AB the plaintiff must establish that he sustained an injury arising out of or in the course of, or due to the nature of, his employment by the defendant. With respect to
paragraph (a) of the definition of serious injury, for the plaintiff to establish that
his injury is a serious injury as defined, he must prove that the consequences
to him of the impairment of the function of his lumbar spine with respect to
pain and suffering are, when judged by comparison with other cases in the
range of possible impairments of a body function, fairly described as being
more than significant or marked, and as being at least very considerable. He
must also prove that the impairment to the body function is permanent.15 Although the plaintiff has received weekly payments of compensation and payment of medical and like expenses, and the defendant has admitted liability for a section 98c impairment claim, the defendant does not concede that he suffered injury to his lumbar spine in the course of his employment by the defendant. Mr Elliot did concede that the payment of compensation and admission of s98c liability were admissions against interest, and while not determinative of the issue as to whether the plaintiff suffered an injury, were probative on that issue.[1]
[1] See Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 per Ashley J.
18 function of the plaintiff’s lumbar spine with respect to pain and suffering can
16 The plaintiff has deposed to the occurrence of the injury. While there was some challenge to his evidence as to what occurred on 5 May 2006 he maintained his account. It is consistent with the account given in the workcover claim form he competed on 11 June 2006, in which he stated that the injury occurred on 5 May 2006, that he thought it was minor and would go away, and that he reported it to his boss Daniel Smidt on 10 May 2006. Mr Smidt was not called as a witness and no evidence was given contradicting the plaintiff’s account. Curiously, in his first report Dr Bashir stated that when he first saw the plaintiff on 16 May 2006 he told him that he had injured his back “on Friday a week ago (on 5th April 2006).” The date in April appears to be a mistake. The clinical notes record “Friday week on 5th”.
17 I am satisfied that on or about 5 May 2006 in the course of the plaintiff’s employment by the defendant he suffered an injury to his lumbar spine. I am satisfied that the injury he sustained was aggravation of previously asymptomatic disc degeneration of the lumbar spine at levels L4/5 and L5/S1 and that this injury has caused impairment of the function of the plaintiff’s lumbar spine.
However, I am not persuaded that the consequences of the impairment of the very considerable. The injury sustained by the plaintiff involved disruption of discs at two levels. I accept that it caused him pain and disability. It is the level or degree of pain and disability that is in issue. Evaluation of that can be difficult as matters of fact, degree and impression are involved. Objective information such as treatment received can be of assistance in making the evaluation. Of critical importance is the credit of the plaintiff himself.
19 In this case the plaintiff has had a modest amount of conservative treatment. In his first affidavit sworn on 21 October 2008 he deposed that he was under the care of his general practitioner, that he was given medication and
deposed that he continued to “require pain killing medication and medication
to sleep.” He also referred to psychological problems that he experienced, but
these consequences cannot be taken into account in assessing the
consequences of impairment of his lumbar spine. The clinical notes of the
Goonawarra Medical Centre record prescription of Panadeine Forte andattended physiotherapy. In his second affidavit sworn on 3 December 2009 he Dr Cheema on 11 February 2009. Mr Jones noted treatment for pain by Panadol and Nurofen in June 2007. The plaintiff has had two attendances on orthopaedic specialist Mr Mills for advice. A recommended consultation with Mr Kavar was not pursued. He has had some physiotherapy, but the amount is unclear. The limited nature and amount of the plaintiff’s treatment tends to detract from an assessment of his pain and suffering consequences as more than significant or marked and at least very considerable. 20 There are issues of credit concerning the plaintiff. In his affidavit sworn on 21 October 2008 he deposed that he had “been unable to resume employment because of my back pain.” In cross examination he agreed that he had panel beaten and spray painted a car for a friend “about three years ago” for which he was paid $6500 - $7000. The impression was that this work was done after the injury in May 2006. Mr Mighell submitted that “about three years ago” could have meant before May 2006, but if that is a possibility it remained unclarified by re-examination, and at least raised an issue about the plaintiff’s credit.
21 July 2009, 22 September 2009, 23 September 2009 and 5 December 2009.
As seems to be often the case, much of what was shown was of little
assistance. Nevertheless, the impression given by the snapshots of theSurveillance film was taken on 31 July 2007, 15 April 2009, 22 April 2009, 30 purposefully. Two sections of film had greater impact. On 31 July 2007 he is shown washing a motor vehicle, a utility, at a service station, using a broom or sponge on a hose and then a high pressure spray. The task appeared to take about 13 or 14 minutes and included walking, bending, squatting, and twisting, which the plaintiff appeared to be able to perform without difficulty. On 30 July 2009 the plaintiff is shown working on a car with the bonnet raised. He was removing shock absorbers and springs. The times on the film indicated that it was a task that lasted about 40 minutes. It involved leaning under the bonnet using tools, squatting beside the front wheel working with tools, bending, twisting, and a period of about 6 minutes working in apparently awkward conditions inside the car removing the transmission cover. Again, the plaintiff appeared to be able to perform these actions without difficulty.
22 Considerable caution should, I think, be exercised in making judgments on such limited snapshots of time. The plaintiff’s explanation in response to what was shown was instructive. He said that before doing these tasks he had taken Panadeine Forte, that he experienced pain doing the work, and that he paid for it afterwards with pain. It seemed to me a glib and unconvincing response and I was not persuaded as to the veracity of it. As Dr Bashir’s notes do not disclose prescription of Panadeine Forte other than on 16 May 2006, I am not persuaded that the plaintiff was taking Panadeine Forte at that time.
23 Other aspects of the plaintiff’s evidence were troubling, such being unable to afford a stamp to post accounts for medication to the insurer, being unwilling to take a train to a medical appointment, suggesting that Oxazepam is pain
killing medication, and his evidence that he wore a back support when
working on the car as shown in the film, a matter not previously mentioned.24 In 2009 the plaintiff has been able to do some work as a truck driver. Early in the year he worked for some weeks as a truck driver in the clean up process after the bushfires and also doing delivery jobs. Since early December 2009 he has had full time employment as a truck driver.
25 The overall affect of these matters is that I am unable to accept as reliable the evidence of the plaintiff concerning the level of his pain and disability as a consequence of the injury to his lumbar spine, or the manner in which the injury has restricted his activities. While I accept that he has a measure of pain and restriction, I am not satisfied that it can be fairly described as being more than significant or marked and at least very considerable.
26 I am not satisfied that the injury is a serious injury as defined. Leave is not given to bring proceedings for the recovery of damages in respect of the injury.
0