Knapman v Tabro Meats Pty Ltd

[2007] VMC 10

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W00697042

Julian Knapman	Plaintiff
v
Tabro Meats Pty Ltd	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	25 & 26 October 2007
DATE OF DECISION:	5 December 2007
CASE MAY BE CITED AS:	Knapman v Tabro Meats Pty Ltd
REASONS FOR DECISION

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Catchwords: extent of injuries – whether injuries contributed to incapacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant  HIS HONOUR:	Mr Batten

1.   Mr Knapman sustained injuries to his head, neck, shoulders and arms because of an incident occurring on 22 April 2005 when boxes of frozen goods fell on him when unloading them from a container at Tabro Meats P/L.

2.  The employer does not dispute the incident occurred but contends that the injuries were not as severe or prolonged as alleged nor do they accept that those injuries have contributed to his incapacity for work from 17 August 2005. On Tuesday evening, the 16th August 2005, Mr Knapman collapsed outside a hotel and suffered a seizure after a bout of heavy drinking and he has not returned to work since.

3.  The issues for the court to determine are the nature and extent of the injuries sustained by him on 22 April 2005 and whether those injuries contributed to his incapacity for work from 17 August 2005.

History

4.  Mr Knapman commenced employment with Tabro Meats P/L in January 2005 as a load out Manager. His position was mainly administrative but did involve some physical duties including unloading containers of frozen food. On 22 April 2005, Mr Knapman and others had to retrieve a number of boxes containing frozen meat from a large container. During the process of locating the relevant boxes and removing them, a number of boxes weighing approximately 20 kg fell onto his head, neck and shoulders whilst he was in a crouched position.

5.  Mr Knapman gave evidence that he experienced pain in his head, neck, shoulders and lower back.

6.  Although the number of boxes that fell, the alleged destruction of the incident report form completed by him and the initial symptoms he complained of to the first aid officer, Mr Butler, were in dispute, in my opinion, nothing of significance turns on those issues. Neither does the fact that the employers loading area register of injuries book went “missing” in May 2005.

7.  The defendant contends that the injuries sustained by him were at best soft tissue in nature and limited in there duration. In support of their position, they rely on the fact that the injuries did not necessitate him in receiving medical treatment from a doctor, required a small amount of medication and did not require him to take time off work.

8.  Mr Knapman gave evidence that he obtained pain-killing tablets from Mr Butler immediately following the incident and a box containing 100 Nurofen tablets from him the following day. Mr Butler, although initially denying he provided Mr Knapman with subsequent medication, other than heron for headaches which he attributed to Mr Knapman needing for hangovers, ultimately conceded in cross-examination that he may have given Mr Knapman more than one box of Nurofen and become tiresome of Mr Knapman’s requests for headache tablets.

9.  Mr Knapman alleged that he continued to experience back, neck and left shoulder pain and that the level of pain fluctuated and increased when performing physical work such as loading containers. Mr Chesterfield, a fellow employee, confirmed that Mr Knapman did complain of being stiff and sore following the incident but that it did not prevent him from assisting with the loading and unloading containers between 22 April and 16 August 2005. Mr Knapman also gave evidence that he continued to take medication during this period including Nurofen that he obtained from Mr Butler and panadeine forte and panadol from home. He alleged he would consume on average 8-12 per day. He also complained of being restless at night because of his injuries so much so that he and Mrs Knapman began sleeping separately shortly after the incident. Mrs Knapman confirmed this evidence together with her husband’s regular intake of medication.

10.Mr Knapman gave evidence that he did not seek medical treatment from a doctor for the injuries sustained on 22 April 2005 for a number of reasons. Firstly, he wanted to keep working. Secondly, he was coping, as his duties were mainly administrative in nature. Thirdly, he was managing his pain by the medication he was taking, and, fourthly, he did not have time to see one because of his work hours.

11.I accept his explanation that he made no mention of his symptoms to Dr O’Donoghue whom he saw for work related eye injuries on 22 June 2005 as that appointment was to obtain urgent medical attention because of an incident at work where he had LPG spray in his eyes.

Hotel Incident

12.On 16 August 2005 at approximately 7pm, Mr Knapman attended a local hotel to participate in a pool competition. After completing two games and experiencing headaches, he left the hotel at approximately 10.30pm and collapsed outside experiencing an epileptic type seizure. He was taken to the Wonthaggi Hospital by ambulance and then transferred by air ambulance to the Monash Medical Centre. He has not worked since that date.

13.The defendant contends that Mr Knapman’s collapse at the hotel on the evening of 16 August 2005 and his incapacity to work since are not related to the injuries sustained on 22 April 2005 or the medication he was allegedly taking for those injuries.

14.It is not disputed by Mr Knapman that he had been drinking a considerable amount of alcohol that evening. He gave evidence that he had consumed between 6-10 pots of “heavy” beer after arriving at the hotel until he left at approximately 10.30pm. It is more likely and I find, having regards to the histories contained in the medical, hospital and ambulance records that he had in fact consumed up to five cans at home before arriving at the hotel and 10-15 pots at the hotel. This is consistent with the blood alcohol reading of 0.14% taken at the Monash Medical Centre in the early hours of 17 August. Mr Knapman also gave evidence that since 16 August 2005 he has experienced another 8-10 seizures.

Medical Evidence

15.The records tendered from Bass Coast Regional Health (Wonthaggi Hospital) record that Mr Knapman might have had a seizure at the hotel of which he had no recollection. It also records that he had been experiencing flu symptoms for one month and that he had consumed 10 pots of beer at the hotel. It noted Mr Knapman was disorientated and importantly that he was not taking any current medication. The history also records him being laid on his side outside the hotel and then he “started to shake all over”. There is a notation that Mr Knapman complained of being tender at the C1-T2 level for a period of 2 weeks prior to admission.

16.A report tendered and based on the records at Monash Medical Centre indicate that Mr Knapman presented at the hospital in the early hours of 17 August after being transferred by ambulance from the Wonthaggi Hospital. The records indicated he was tender in the neck and left shoulder region and CT scan demonstrated a right sided disc protrusion at C5-6. A subsequent MRI on 18 November 2005 confirmed a disc bulge at C5-6. An entry in the records from Dr Tan dated 7 December 2005 indicates that she was unable to state the age of the MRI abnormality and that it was not possible for her to state that the prolapse was directly related to the accident at work. Furthermore, she was of the opinion that Mr Knapman’s symptoms did not emanate from the cervical spine.

17.A report tendered from Dr Bower, Neurologist at the Monash Medical Centre believed the seizure might have been precipitated by alcohol and/or codeine/tramadol. He ruled out epilepsy based on normal neurological examination, brain MRI and EEG. Ultimately, he believed it was a symptomatic seizure related to alcohol intake in a person with a pre-disposition to seizures. He also indicated that if Mr Knapman was taking Tramadol for his injuries, which has a well-recognised side effect of seizures, the seizure might be related to the work injuries.

18.Dr Edwards, General Practitioner noted in his report dated 9 December 2005 to QBE which was tendered that he first saw Mr Knapman on 18 August 2005. He ultimately concluded that Mr Knapman had; “a long standing cervical neck problem at the C6-7 level which may have arisen during his earlier days, possibly playing sport (but that is just conjecture). When the boxes fell on him in the container, they no doubt caused him some soreness in his arms, back and neck but I do not believe that this accident has significantly contributed to the severe neck pain and arm tingling from which he claims to be suffering now. I do believe the fit outside the pub and a violent jerking associated with it has probably been the major source of aggravating his condition. If the neck, as is common in epilepsy, were to be violent shaking, it is quite possible that his disc lesion was exacerbated at that time. Therefore, in conclusion, I feel that the incident described in April 2005 when the boxes fell on him is not material in causing his ongoing condition”.

19.A report by Mr Kudelka, Orthopaedic Surgeon retained for medico-legal purposes by Mr Knapman was also tendered. He examined Mr Knapman on 10 July 2007 (some 2 years after the hotel incident) and was of the opinion that Mr Knapman has a cervical disc injury with outflow brachialgia in the left arm related to the work incident.

Findings

20.Whilst I accept the evidence of Mr Knapman that he did suffer neck, back and shoulder injuries because of the incident on 22 April 2005, I am unable to accept his evidence as to the severity and duration of those symptoms and the amount of medication he consumed to cope with the pain. I make these findings for the following reasons;

a.	His failure to give a history of the work accident and injuries sustained or allegedly high medication intake to either the ambulance officers or hospitals on admission;
b.	A recorded history to the Wonthaggi Hospital of tenderness between C1-T2 of only 2 weeks duration;
c.	His failure to inform Dr Bower until late October 2005 by letter that he was taking up to 12 Nurofen tablets per day depending on his pain levels;
d.	The absence of contemporaneous medical or other records verifying his complaints and high medication intake between 22 April 2005 and 16 August 2005
e.	I do not find that it is plausible that if, as alleged, his symptoms were so severe that they required him to consume between 9-12 tablets per day on average over a period of 16 weeks that he did not consider his condition warranted medical investigation. One of the reasons given by him is that he did not have time to see a doctor. I do not accept this as a valid explanation.
f.	The inconsistency between his evidence concerning medication intake and the statement he made to the insurance investigator on 29 September 2005 that he took medication 2-3 times per week;
g.	The absence of medical records verifying not only the symptoms complained of between 22 April 2005 and 16 August 2005 but also the actual diagnosis of the injuries sustained on 22 April 2005.
h.	His ability to continue working on normal duties, including assisting to load and unload containers until 16 August 2005.
i.	The fact that Mr Knapman was not taking Tramadol or codeine based medication for his injuries, which is the basis on which Dr Bower provides tentative support for the relationship between the injuries sustained on 22 April 2005, the medication taken for those injuries and the seizure on 16 August 2005.
j.	The history taken by Dr Kudelka is incorrect in a number of important aspects. Firstly, he has been given or taken an incorrect history that Mr Knapman was referred to Dr Edwards following the work incident and prescribed Nurofen by him. Secondly, he records that in August 2005 Mr Knapman collapsed at work and experienced a seizure, and thirdly, he has interpreted the report of Dr Bower as indicating that Mr Knapman experienced several seizures following the boxes falling on him.

21.In City of Brimbank v Halilovic[1], the Court of Appeal held; “An expert opinion is only as good as the foundation upon which it is based. For such an opinion to be of any value, the facts upon which it is based should be proved by admissible evidence (Ramsay v. Watson (1961) 108 C.L.R.642; Paric v. John Holland (Constructions) Pty. Ltd. (1985) 59 A.L.J.R.844). However, as the High Court pointed out in the latter case, "that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. It is only the failure to prove data significant to the formation of the opinion, which will warrant its rejection”.

[1] 2000 VSCA 12.

22.In my opinion, the historical errors contained in Mr Kudelka’s report detract from his opinion so that I am unable to rely on it.

ORDERS:

23.Therefore, based on the evidence presented, I find that Mr Knapman sustained a symptomatic seizure on 16 August 2005 because of excessive alcohol intake unrelated to the injuries sustained at work on 22 April 2005 or medication taken for those injuries.

24.I also find that his incapacity for work since that date are not related to the injuries sustained on 22 April but due to the aggravation of his underlying cervical disc condition because of the fall and seizure on 16 August 2005.