Kiropoulos v Victorian WorkCover Authority
[2020] VCC 96
•21 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02923
| LUCAS KIROPOULOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 January 2020 | |
DATE OF JUDGMENT: | 21 February 2020 | |
CASE MAY BE CITED AS: | Kiropoulos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 96 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the bicep tendon – causation – other events not reported – incomplete history
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
Judgment: Application unsuccessful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Slater and Gordon Lawyers |
| For the Defendant | Ms K A Galpin | Wisewould Mahony Lawyers |
HER HONOUR:
Preliminary
1 Mr Kiropoulos claims that on 5 March 2013, he injured his right biceps tendon whilst moving a heavy roll of cable in the course of his employment as a delivery driver with the defendant (“the 5 March incident”). A week later, whilst moving a fridge with his brother at home, Mr Kiropoulos said he heard a popping sound and suffered a worsening of pain in his right elbow region (“the fridge incident”). Mr Kiropoulos then had a short period of time off work, but subsequently returned to work and continued to perform his normal work duties for the defendant. In June 2013, Mr Kiropoulos said that he suffered a further increase in pain in his right arm whilst moving heavy items at work (“June work incident”). Soon thereafter, Mr Kiropoulos was diagnosed as suffering a complete rupture to his right biceps.
2 Mr Kiropoulos seeks to claim pain and suffering damages for the injury he suffered to his right biceps in the 5 March incident. In order for Mr Kiropoulos to be entitled to claim such damages, he must satisfy me that he injured his right biceps in this incident and that the resulting impairment satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).
3 The defendant disputed that Mr Kiropoulos ruptured his right biceps in the 5 March incident. It did so in part based on the conflicting evidence as to when Mr Kiropoulos first reported his injury to his employer, and when he first saw a doctor regarding it. Further, the defendant submitted that Mr Kiropoulos’ evidence as to what occurred in the fridge incident had not been detailed to any of the medico-legal doctors who examined Mr Kiropoulos and therefore on the evidence before me, I could not be satisfied that the 5 March incident was a cause of Mr Kiropoulos’ claimed impairment.
4 Only Mr Kiropoulos was called to give evidence and he was cross-examined. I considered Mr Kiropoulos to be an unimpressive witness, who gave vague, and at times, confusing evidence, especially in relation to the 5 March incident and the events that occurred thereafter.
5 For the reasons that follow, Mr Kiropoulos has failed to satisfy me that he sustained an injury at work on 5 March 2013. None of the medico-legal doctors had a complete history as to the incidents involving Mr Kiropoulos’ right arm between March and June 2013. I consider there is a void in the evidence in respect of causation, which is so great that I must dismiss Mr Kiropoulos’ application.
Mr Kiropoulos’ evidence as to the three incidents involving his right arm and the relevant sequence of events
6 Mr Kiropoulos worked as a delivery driver for the defendant since 2010. Mr Kiropoulos said that in this role he was required to deliver heavy rolls of cable. He said the cables varied in weight from 5 to 100 kilograms.
7 Mr Kiropoulos alleged that on 5 March 2013 around lunch time, whilst moving a roll of heavy cable, he experienced the sudden onset of pain in his right arm. In cross-examination, Mr Kiropoulos indicated that the pain was in the crease of his inner arm, just below his elbow.
8 Mr Kiropoulos said that there was no noise associated with this incident, just sudden pain. Mr Kiropoulos said that he completed the rest of his day’s work and continued to work his normal duties for the remainder of that week.
9 Mr Kiropoulos said that the pain in his right arm has continued from that time on and never ceased.
10 In his first affidavit, Mr Kiropoulos claimed that almost one week after the 5 March incident, he reported his injury to the defendant. However, in cross-examination Mr Kiropoulos said he “would have” told his boss, Mr Rabah, about his right arm injury on the day of the incident or the following day. Later in cross-examination, Mr Kiropoulos said that he could not actually recall telling Mr Rabah and did not give any details of this.
11 Mr Kiropoulos said that on 12 March 2013, whilst attempting to lift a fridge at home with his brother, his right arm pain got worse and he screamed out in immediate pain. Mr Kiropoulos said that he heard a noise at the time which he accepted sounded like a “popping” noise. Mr Kiropoulos later said that the noise sounded like “something that just burst” and he felt that his “tendon just tore”.
12 Mr Kiropoulos accepted the fridge could have weighed up to 100 kilograms.
13 I note that this fridge incident was not mentioned in Mr Kiropoulos’ first affidavit but was referred to in his further affidavit.
14 Also in evidence was an affidavit from Mr Kiropoulos’ brother, John.[1] In his affidavit, John stated that whilst moving the fridge his brother “yelled out in pain”. John said his brother subsequently told him that he had “already injured his right elbow” in an incident at work in early March 2013.
[1]The defendant did not require John to be cross-examined
15 On 12 March 2013, Mr Kiropoulos attended upon general practitioner, Dr Reddy, who took a note that Mr Kiropoulos had injured his right arm whilst lifting a fridge. There was no mention in this record of right arm pain prior to this date.
16 Mr Kiropoulos alleged that prior to the fridge incident, he had seen a general practitioner in Station Street, Fairfield, who had given him medication for his arm pain. Mr Kiropoulos said that he could not remember this doctor’s name. Later in cross-examination, Mr Kiropoulos said Dr Reddy was the first doctor he saw after injuring his right arm. When questioned on this further, Mr Kiropoulos said he could not recall whether he saw the doctor in Fairfield before or after he saw Dr Reddy. There were no clinical records or medical reports produced from any such doctor in Fairfield.
17 The defendant relied upon an affidavit from Mr Rabah. In his affidavit, Mr Rabah stated it was not until 20 March 2013 that Mr Kiropoulos informed him that he had injured his right arm at the weekend whilst moving a fridge at home.[2]
[2]Mr Rabah provided a signed statement in December 2013, and subsequently adopted its contents as accurate in an affidavit sworn 29 November 2019. Mr Kiropoulos did not require Mr Rabah to be cross-examined.
18 The defendant’s employment records indicated that Mr Kiropoulos was absent from work from 12 March until 19 March 2013. Mr Kiropoulos did not dispute these records and accepted that after this short period of time, he returned to work. Mr Kiropoulos also accepted that he was not given certificates which restricted him in his lifting capacity thereafter. Mr Kiropoulos said he was still able to lift cables at work after the 5 March incident and said that it “would have been maybe between 20 to 40” kilograms.
19 In April 2013, for reasons unrelated to Mr Kiropoulos’ injury, his workplace was restructured. Mr Kiropoulos then worked predominantly in the defendant’s storeroom, as a storeman, whilst also doing some sales work. Mr Kiropoulos accepted that in this role he was still required to move heavy cables.
20 Mr Kiropoulos said that during this period, his right arm pain continued, and he took Panadol for pain relief.
21 On 16 July 2013, Mr Kiropoulos attended his family general practitioner, Dr Con Perkoulidis, and reported, amongst other things, right elbow pain. Dr Perkoulidis recorded a history that whilst at work three weeks earlier, Mr Kiropoulos had “developed acute right elbow pain while doing some very heavy work”. Dr Perkoulidis noted that Mr Kiropoulos had a similar episode in March 2013 but continued working in the hope that things would improve.
22 In cross-examination, Mr Kiropoulos said he could not recall this further incident in June 2013, but believed that it would have been whilst lifting cables and boxes.
23 Dr Perkoulidis arranged for an ultrasound to be performed, which demonstrated a tendinosis of the right distal biceps with an adjacent partial tear and haematoma. Dr Perkoulidis recommended rest, massage and medication.
24 On 26 July 2013, Mr Kiropoulos ceased work with the defendant for a period.
25 On 2 August 2013, Mr Kiropoulos lodged a WorkCover claim in respect of his right arm injury. In the Claim Form he stated he injured his right arm on 5 March 2013, when lifting a 40 to 50-kilogram cable. On the form, Mr Kiropoulos stated that he reported this injury to Mr Rabah on 12 March 2013, and then again on 26 July 2013. In cross-examination, Mr Kiropoulos initially accepted that 12 March 2013 was the first time he reported his injury, although he later stated that he “would have” reported it to the defendant on the day of the incident or the day after. Mr Kiropoulos was unable to offer a satisfactory explanation as to why on the Claim Form he had stated he had first reported the incident on 12 March 2013.
26 Mr Rabah denied that he was informed of Mr Kiropoulos’ right arm injury at this time. He stated he was on leave from 11 July 2013, and it was only when he returned to work in September 2013 that he first became aware that Mr Kiropoulos had injured his right arm at work.
27 As Mr Kiropoulos’ right arm pain did not improve, in August 2013, Dr Perkoulidis referred Mr Kiropoulos to orthopaedic surgeon, Dr Anita Boecksteiner. At Mr Kiropoulos’ first attendance on Dr Boecksteiner on 21 August 2013, she recorded a history that Mr Kiropoulos injured his right arm in the elbow region in mid-March and he felt that his biceps muscle and tendon had been strained. It was noted that Mr Kiropoulos continued working and that for about four months thereafter, was lifting a number of heavy items including cables of up to 60 kilograms. It was noted that Mr Kiropoulos’ pain had increased in the lead up to his first consultation with Dr Boecksteiner and he had started to wear a sling.
28 To assist in a diagnosis of his condition, Dr Boecksteiner arranged for further medical imaging to be performed.
29 On 11 October 2013, an MRI scan was taken of Mr Kiropoulos’ right elbow which was suggestive of abnormality in the biceps tendon, and repeat imaging was recommended.
30 On 18 October 2013, a further MRI scan was performed. It was reported as demonstrating a chronically ruptured biceps tendon, which had retracted into a “ball” within an approximate 5-millimetre gap.
31 Dr Boecksteiner was of the opinion that this was a permanent rupture of Mr Kiropoulos’ biceps tendon. She stated that tendon grafting could be surgically performed, but that the outcome of such surgery was unpredictable. In any event, Mr Kiropoulos did not proceed to have this surgery.
32 Mr Kiropoulos resigned his employment with the defendant in approximately January 2014, as he felt he had been bullied and harassed by his employer.
33 In May 2014, Dr Perkoulidis certified Mr Kiropoulos to return to normal duties without restriction. Thereafter, Mr Kiropoulos’ entitlement to weekly payments of compensation ceased.
34 Mr Kiropoulos said that save for a short-term job working as a security guard, he has not worked since ceasing employment with the defendant. Currently, Mr Kiropoulos is the full-time carer for his elderly parents and is also responsible for the full-time care of his teenage son.
35 Mr Kiropoulos claims that his biceps injury has prevented him from doing work which involves heavy lifting. He also claimed it has prevented him from doing weight training which he previously did at his gym, as well as boxing. Mr Kiropoulos claims that he suffers pain daily, for which he takes Panadol and Nurofen, and applies Voltaren Gel to his right elbow.
Medico-legal summary
36 In December 2013, Mr Kiropoulos was examined by occupational physician, Dr David Barton. In his first report dated 3 December 2013, Dr Barton obtained a history from Mr Kiropoulos that he had suffered an injury at work on 5 March 2013. However, Dr Barton noted that Mr Kiropoulos “struggled to identify any particular work activities that may have triggered this injury although he was emphatic that he had done a lot of lifting”. Dr Barton noted that Mr Kiropoulos said a few days after the 5 March incident he saw his local doctor and was prescribed a variety of medications. Dr Barton then noted that Mr Kiropoulos ultimately ceased working approximately four months prior to this examination.
37 At the time that Dr Barton initially saw Mr Kiropoulos, he was not aware of the MRI findings and therefore was of the opinion that Mr Kiropoulos was not suffering any physical injury which prevented him from returning to work. However, in a subsequent report dated 27 February 2014, Dr Barton acknowledged, after reviewing the MRI scan, that Mr Kiropoulos had suffered a rupture to his biceps tendon.
38 In September 2018, Mr Kiropoulos was examined by orthopaedic surgeon, Associate Professor Miron Goldwasser, for the purpose of assessing Mr Kiropoulos’ permanent impairment to determine his entitlement to compensation under s98C of the Act. In his report dated 7 September 2018, Associate Professor Goldwasser noted that Mr Kiropoulos stated on 5 March 2013, whilst flipping a heavy cable weighing approximately 80 kilograms, he experienced pain in his right arm. It was noted that despite his pain, Mr Kiropoulos continued working for the defendant, including loading and unloading cables, whilst his “pain gradually got worse”.
39 Associate Professor Goldwasser noted that Mr Kiropoulos told him he continued working and did his normal work for some time, but felt with time his pain got worse. Associate Professor Goldwasser then noted that Mr Kiropoulos was later referred to an orthopaedic surgeon and for a period worked modified duties before ceasing employment. Associate Professor Goldwasser provided an opinion as to Mr Kiropoulos’ permanent impairment but was not asked to comment on the cause of such impairment because, at the time it was referred to him, it was an accepted claim.
40 In March 2019, Mr Kiropoulos was examined by pain specialist, Dr Clive Kenna. In a report dated 26 March 2019, Dr Kenna noted that on 5 March 2013, whilst performing duties which involved a significant amount of lifting, Mr Kiropoulos started to experience problems lifting, particularly with right elbow pain. Dr Kenna then noted that Mr Kiropoulos endeavoured to continue working, but ultimately ceased work with the defendant around August 2013.
41 Dr Kenna acknowledged that he was aware, from a report of Dr Perkoulidis, there had been a further episode of pain at Mr Kiropoulos’ work. Dr Kenna ultimately concluded that Mr Kiropoulos had sustained a tear of the right biceps tendon of the elbow which had resulted in decreased capacity in his right arm.
42 In April 2019, Mr Kiropoulos was examined by occupational physician, Associate Professor Umberto Boffa. In his report dated 19 April 2019, Associate Professor Boffa noted that on 5 March 2013, Mr Kiropoulos developed “sudden right cubital pain” lifting a 100-kilogram cable reel. It was then noted Mr Kiropoulos had continued working normally for a few months following the injury with increasing pain and weakness and that he subsequently performed light duties for a period. Associate Professor Boffa noted Mr Kiropoulos had not worked since 2014.
43 Associate Professor Boffa re-examined Mr Kiropoulos in November 2019, and noted the same history. Associate Professor Boffa was of the opinion that Mr Kiropoulos suffered chronic symptomatic right distal biceps tendon rupture and lateral cutaneous neuropathy.
44 In October 2019, Mr Kiropoulos was examined by occupational physician, Dr Robyn Horsley. In her report dated 22 October 2019, Dr Horsley noted Mr Kiropoulos suffered his injury on 5 March 2013 whilst moving a large cable weighing in the vicinity of 100 kilograms. Dr Horsley noted that Mr Kiropoulos said he experienced pain in his right arm at the time of the incident.
45 Dr Horsley then obtained a history from Mr Kiropoulos that he reported the 5 March incident but was encouraged to keep working. Mr Kiropoulos said he subsequently consulted a local doctor at the Fairfield Medical Clinic on one occasion, and later saw his regular general practitioner, Dr Perkoulidis, in July 2013.
46 Dr Horsley was of the opinion that the events of 5 March 2013, as described to her by Mr Kiropoulos, together with his clinical presentation, were consistent with his work having been a significant contributing factor to Mr Kiropoulos’ right arm injury. Dr Horsley listed the work restrictions on Mr Kiropoulos, which she considered were imposed by virtue of his right arm injury.
47 In October 2019, Mr Kiropoulos was also examined by orthopaedic surgeon, Mr Garry Grossbard. In a report dated 30 October 2019, Mr Grossbard noted that Mr Kiropoulos stated on 5 March 2013, whilst lifting a 100-kilogram roll of cable, he noticed immediate pain in his right elbow. Mr Grossbard noted that Mr Kiropoulos stated he worked for another one or two days before attending his local doctor, who prescribed him medication. It was then noted that Mr Kiropoulos saw Dr Perkoulidis, who arranged an ultrasound and subsequently diagnosed a rupture of the biceps tendon.
48 Mr Grossbard was of the opinion that Mr Kiropoulos suffered a tear to his right biceps tendon six-and-a-half years ago and has continued to have pain and a feeling of weakness in his arm since that time.
Dispute as to causation
49 The defendant accepted that Mr Kiropoulos continues to suffer from a ruptured biceps tendon but disputed that the 5 March incident was a cause of Mr Kiropoulos’ injury.
50 Counsel for Mr Kiropoulos submitted that I should be satisfied that the 5 March incident was a cause of his injury, and relied in part upon the acceptance by the defendant for liability to pay Mr Kiropoulos’ medical expenses and his lump sum compensation. It was submitted that as the defendant knew of the fridge incident, since Mr Rabah’s statement was first provided in December 2013, if the defendant wished to challenge Mr Kiropoulos’ claim on the basis of causation, it should have asked the medico-legal doctors to comment on the role of the fridge incident prior to the hearing date.
51 In the Court of Appeal decision of Ansett Australia Ltd v Taylor,[3] it was noted that the acceptance of liability under the statutory scheme should be considered a “very significant”[4] admission, yet not conclusive, nor an estoppel.
[3][2006] VSCA 171
[4](Ibid) at paragraph [36]
52The principle in Ansett Australia Ltd v Taylor was subsequently considered in Sednaoui v Amac Corrosion Protection Pty Ltd,[5] and the Court of Appeal observed that, whilst such an admission should ordinarily be treated as significant, this was an observation only and not a statement of legal principle.[6] It was noted that the acceptance by the insurer of the claim was “a piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary”.[7]
[5][2017] VSCA 66
[6](Ibid) at paragraph [67]
[7](Ibid) at paragraph [62]
53The defendant submitted that Mr Kiropoulos’ oral evidence as to what occurred during the fridge incident, including the sound that he heard, is highly relevant to the determination of causation in this matter. Such level of detail had not been given in Mr Kiropoulos’ affidavit material or in the histories given to medico-legal doctors.
54Given the detail provided by Mr Kiropoulos in his oral evidence had not been previously provided, I am not influenced by the prior acceptance of Mr Kiropoulos’ non-fault benefit claim. Instead, I consider it appropriate that I determine the issue of causation afresh on the whole of the evidence before me.
55 Of some marginal relevance to the issue of causation is when Mr Kiropoulos first sought medical advice and when he reported the 5 March incident to the defendant.
Did Mr Kiropoulos see a doctor after the 5 March incident, but prior to the fridge incident?
56 Mr Kiropoulos gave confusing and conflicting evidence as to whether he saw a doctor before the fridge incident. His first affidavit only referred to him seeing a “local doctor” shortly after the 5 March incident. Mr Kiropoulos did not say when this was.
57 There is no record from any doctor in Fairfield corroborating Mr Kiropoulos’ evidence that he saw a general practitioner after the 5 March incident and prior to the fridge incident. The first documented mention of Mr Kiropoulos seeing a general practitioner in Fairfield was in a medico-legal report of Dr Horsley in November 2019.
58 There is a clinical record from Dr Reddy that confirms Mr Kiropoulos attended him after the fridge incident and at that time, there is only a record of the fridge incident.
59 In circumstances where Mr Kiropoulos himself was equivocal as to whether Dr Reddy was the first doctor he saw for his right arm injury, and in the absence of any contemporaneous medical record from a clinic in Fairfield, I am not satisfied that Mr Kiropoulos saw a doctor prior to the fridge incident. I consider this, in part, an indication that Mr Kiropoulos’ pain following the 5 March incident was not as significant as he now claims.
When did Mr Kiropoulos first report the 5 March incident to his employer?
60 Mr Kiropoulos claimed he “would have” told his boss about his right arm injury the day following the 5 March incident. However, this vague assertion is inconsistent with what he stated in the Claim Form he completed in August 2013 and is also inconsistent with what Mr Kiropoulos stated in his first affidavit. I consider Mr Kiropoulos’ evidence on this point an example of his unreliability as a witness.
61 This finding by me that Mr Kiropoulos did not report his arm injury to the defendant until after the fridge incident is also consistent with the 5 March incident being of less significance than Mr Kiropoulos now claims.
62 I note that Mr Rabah stated he was initially only advised of the fridge incident. This again is consistent with the 5 March incident being of less significance than Mr Kiropoulos now claims.
63 Given Mr Kiropoulos’ vague evidence as to what occurred in the week following the 5 March incident, he has failed to satisfy me as to what condition his arm was in during that time. I consider there is a real prospect he has conflated events during this time, which makes it difficult for me to assess if he suffered an injury prior to the fridge incident.
64 Having considered all the evidence, I regard the following to be a fair and accurate summary of the three incidents relevant to Mr Kiropoulos’ right arm injury:
(i) On 5 March 2013, Mr Kiropoulos suffered some right arm pain after an incident moving heavy cables at work. The pain came on suddenly, and Mr Kiropoulos thereafter experienced ongoing pain. However, Mr Kiropoulos did not seek medical attention for his pain, did not report the incident to his employer, and, despite his reports of pain, was able to continue working his normal duties;
(ii) On approximately 12 March 2013, whilst attempting to move a fridge at home, Mr Kiropoulos experienced further pain in his right arm, at which time he heard a popping or bursting sound, of which he cried out in pain. Soon thereafter, Mr Kiropoulos sought medical treatment and had approximately one week off work. He returned to work and continued to perform some heavy lifting;
(iii) In mid to late June 2013, there was an acute increase in right arm pain after heavy lifting at work.
65 Unfortunately for Mr Kiropoulos, this complete history was not given to any of the doctors who have treated or examined him in relation to his right arm injury.
66 The relationship, if any, between the fridge incident and Mr Kiropoulos’ symptoms from the previous week is unknown.
67 There is no report from Dr Reddy as to his treatment of Mr Kiropoulos’ right arm injury. Therefore, there is no opinion from him as to the cause of Mr Kiropoulos’ ruptured biceps. From his clinical notes, it would appear that Dr Reddy was only aware of the fridge incident. I note that Dr Perkoulidis and Dr Boecksteiner are the only treating doctors who have provided medical reports in this matter, and neither refer to the fridge incident. In such circumstances, I am not assisted by any of Dr Kiropoulos’ treating doctors in determining the issue of causation.
68 None of the medico-legal doctors were told of the fridge incident. Counsel for Mr Kiropoulos suggested that he may have mistakenly forgotten about it, or simply considered it to have been irrelevant. Whatever the reason, I consider the history Mr Kiropoulos gave to the medico-legal doctors was incomplete, as a result of which I consider their subsequent opinions flawed.
69 None of the doctors were given adequate information to enable them to proffer a reasoned opinion on causation. The doctors were not informed that, after the 5 March incident, Mr Kiropoulos worked his normal duties without the need for medical treatment, and that it was only after the fridge incident that he stopped work and consulted a doctor.
70 There is no medical opinion as to whether or not a physiological change was sustained in Mr Kiropoulos’ biceps tendon in the 5 March incident. There is no medical opinion as to whether, with his reports of pain in his elbow region, the 5 March incident created a predisposition in Mr Kiropoulos’ right biceps which rendered him susceptible to suffer an injury whilst moving a fridge.
71 I note that Mr Kiropoulos heard a noise at the time of the fridge incident, and he felt that his bicep tore at the time. However, as he is a lay person, I have had no regard to Mr Kiropoulos’ observation of this.
72 It may be that the doctors, properly informed, would say that the fridge incident resulted in the biceps tendon tear, irrespective of the 5 March incident. It is entirely speculative as to what such doctors would say if provided with a complete history. In the absence of such medical opinion, and considering the whole of the evidence, I simply do not know what role, if any, the 5 March incident plays in Mr Kiropoulos’ right biceps injury.
Conclusion
73 On the evidence before me, I cannot be satisfied that the fridge incident is so trivial as to be disregarded in my assessment of Mr Kiropoulos’ application. I do not consider the evidence before me sufficient to enable me to satisfactorily evaluate whether Mr Kiropoulos suffered an injury in the 5 March incident. I therefore dismiss his application.
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