Lewis v Brines Pty Ltd (in liq)
[2014] VCC 593
•19 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03607
| MARK LEWIS | Plaintiff |
| v | |
| BRINES PTY LTD (in liquidation) | First Defendant |
| and | |
| WORKSAFE VICTORIA PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2013; 14 and 15 April 2014 | |
DATE OF JUDGMENT: | 19 May 2014 | |
CASE MAY BE CITED AS: | Lewis v Brines Pty Ltd (in liq) & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 593 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the left shoulder – whether the consequences are “at least very considerable” – whether there was an aggravation of a pre-existing injury.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Lewis v Brines Pty Ltd (in liq) & Anor [2014] VCC 590
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone |
| For the Defendants | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
1 Mark Lewis alleges that he suffered injuries to his left shoulder in the course of his employment with the first defendant on or about 18 May 2009. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Mr Lewis’ left upper limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c) of the Act
7 Mr Lewis submits that the pain and suffering consequence of his injury can be fairly described as being more than significant or marked, and at least very considerable. The defendants deny this is so.
8 Mr Lewis swore three affidavits in support of his application, sworn on 29 February 2012, 7 November 2013 and 10 April 2014.
Background
9 Mr Lewis is aged forty-one. He completed his education in Melbourne to Year 10 level.
10 After leaving school, he undertook an apprenticeship as a cabinetmaker and, on completion of that apprenticeship, remained with the same company for a period of about three years.
11 His evidence concerning prior injuries to his shoulder was:
(a) In 1995, he dislocated his left shoulder whilst water skiing. The shoulder re-enlocated naturally and with good recovery.
(b) In 1998, he again dislocated his left shoulder after falling onto it whilst playing baseball. Again, the shoulder re-enlocated naturally.
(c) After both the 1995 and 1998 dislocations, he underwent physiotherapy for a relatively short period, before recovering fully.
12 Counsel for Mr Lewis submitted that there was no evidence that Mr Lewis had suffered any problems with his left shoulder during the period from 1998. The defendants pointed to a number of evidentiary matters which cast doubt on this assertion.
13 Prior to June 2008, Mr Lewis said he had attended at a clinic in Hampton Street, Hampton, where he principally saw a Dr Appleby, who he believes was now retired. There were other doctors at that clinic. He said that he had attended at the Hampton Street Clinic since soon after his birth. From June 2008, he had attended upon Dr Brasier and other doctors at a medical clinic at Young Street, Frankston. He continues to see Dr Brasier up to the present time.
14 In October 2008, Mr Lewis commenced employment with the first defendant as a cabinetmaker.
15 On 18 May 2009, he injured his left shoulder at work whilst lifting a sheet of medium-density fibreboard (“MDF”). He felt a “click” in his shoulder and experienced immediate pain.
Aftermath of injury
16 On the date of the injury, Mr Lewis consulted his general practitioner, Dr Brasier.
17 A CT scan conducted two days later was reported as showing no bone or joint abnormality.[4] An ultrasound of the shoulder conducted on 25 May 2009 was reported as showing a small amount of bursal fluid but no evidence of any acute rotator cuff tear. No impingement was demonstrated.
[4]Plaintiff’s Court Book (“PCB”) 36
18 On 30 July 2009, an MRI scan was conducted of the shoulder. Again, the radiologist’s report disclosed no particular damage.[5]
[5]PCB 38
19 In August 2009, Dr Brasier referred Mr Lewis to an orthopaedic surgeon, Mr Weber, who was of the opinion that his symptoms suggested a significant labral tear, notwithstanding that this was not obvious on the MRI scan. Mr Weber suggested an arthroscopic investigation and, if warranted, a repair of the shoulder.
20 On 16 September 2009, Mr Lewis underwent surgery by Mr Weber. The operation note discloses that, in the glenohumeral joint, a superior labral tear was obvious.[6] There were no other findings of significance made.
[6]PCB 55
21 Following surgery, Mr Lewis was referred for post-operative physiotherapy with a Ms Blake, initially on a twice-weekly basis.
22 In November 2009, Mr Lewis was certified fit to return to work with restrictions that he avoids lifting more than 5 kilograms and avoid pushing and pulling. It is not clear from the evidence whether he did actually return to work again.
23 In any event, he resigned from his employment with the first defendant in January 2010 and, within two weeks, commenced work with Mitchell Laminates Pty Ltd as a sales representative. This was a company which supplied materials to cabinetmakers. He remains in that employment. His duties involve driving between 600 and 700 kilometres per week. He works five days a week.
24 In November 2010 and January 2011, Mr Lewis underwent two hydrodilatation procedures with respect to his left shoulder.
25 In June 2011, Mr Lewis underwent a further MRI scan, which was reported as showing mild joint fluid and moderate capsular thickening at the AC joint. These joint changes were said to be likely post-traumatic/mechanical in nature. Mild supraspinatus and infraspinatus tendonosis was reported. Mild degenerative change of the superior labrum was also reported. Changes related to the glenoid and anterior inferior labrum appeared to be in keeping with the previous surgery. There was no evidence of any recurrent labral tear.[7]
[7]PCB 42
26 In February 2014, Mr Lewis had a cortisone injection to his shoulder.
Diagnosis of injury
27 The defendants did not dispute that, at work on or about 18 May 2009, Mr Lewis suffered an injury to his left shoulder. The dispute was limited to the nature of that injury, the extent of any aggravation of pre-existing injury to the shoulder, whether the injury had resolved by the date of the hearing, and the current consequences (if any) of that injury.
28 During the surgery referred to, Mr Weber found a superior labral tear.[8]
[8]PCB 55
29 Mr Weber had been given a history of earlier problems with Mr Lewis’ left shoulder, consisting of a dislocation of the shoulder whilst water skiing about ten years before and then, a few years later, a further dislocation when he fell playing baseball. On both occasions, he recorded that the dislocation had “self reduced”.
30 Mr Weber was of the view that the injury to Mr Lewis’ shoulder had been exacerbated by the episode at work lifting the sheet of MDF. Given the “strong history of multiple dislocations prior to this and a sense of apprehension over years”, Mr Weber considered that Mr Lewis’ employment was by no means the only causative factor.[9]
[9]PCB 61
31 Mr Lewis had sought a second opinion from another orthopaedic surgeon, Mr Ashley Carr. He was also of the opinion that the workplace injury had exacerbated a pre-existing condition.[10] Mr Grossbard had a similar opinion.[11]
[10]PCB 90b
[11]PCB 108
32 Mr Polke was of the view that Mr Lewis had suffered from an unstable left shoulder for many years and had sustained a labral tear with mild post-operative adhesive capsulitis. He considered that employment with the first defendant was a contributing factor, albeit “negligible”.[12]
[12]Defendant’s Court Book (“DCB”) 40
33 Mr Buzzard considered that Mr Lewis had had pre-existing recurrent dislocations of his left shoulder. However, he did not think, on the history that he was given, that the recurrent dislocation of the shoulder was, by the date of his examination in January 2012, relevant to Mr Lewis’ then presentation. He did not consider that it was relevant to the injury of 18 May 2009. In his report of January 2012, Mr Buzzard did not express a diagnosis of Mr Lewis’ injury.
34 On balance, I consider that in the course of his employment in May 2009, Mr Lewis suffered an aggravation or exacerbation of a pre-existing injury to his left shoulder which had been a cause of, or had resulted from, prior dislocations. I am unable to form an opinion as to whether the workplace incident caused the labral tear or aggravated it.
Consequences of injury
35 Where a physical injury for which leave is sought pursuant to s134AB(16) of the Act consists of an aggravation of a prior injury, that aggravation or additional impairment must, itself, involve serious and permanent impairment or loss of a body function. The pain and suffering consequence of the aggravation must be at least very considerable. An applicant must establish what additional injury was caused by the workplace incident and the consequence of that additional injury. An analysis must be made of the extent of the impairment of the body function before and after the relevant injury.[13] The onus lies on the applicant to establish that additional component.
[13]Petkovski v Galletti [1994] 1 VR 436 at paragraph [443]; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraph [11]
36 Any attempt by an applicant to satisfy the before and after test referred to in Petkovski v Galletti[14] is inevitably made more difficult, if not impossible, where the applicant fails to give a frank and full account of his pre-injury symptoms and difficulties. Without reliable evidence concerning the full extent of prior problems, a meaningful before and after comparison can rarely be made.
[14] Supra
37 On the evidence before me, I am not satisfied that Mr Lewis has established that the severity of his symptoms of pain and reduction of his quality of life after his workplace injury are significantly different to those experienced by him before. The principal reasons for that conclusion is the paucity of evidence concerning his pre-May 2009 condition and Mr Lewis’ inconsistent and misleading evidence concerning that condition.
38 Dr Brasier saw Mr Lewis on 18 May 2009 (the day of the workplace incident). Mr Lewis complained of pain and restriction of movement in his left shoulder as a result of lifting a board at his workplace. Dr Brasier reported:
“He admitted to several previous dislocations of the shoulder and was noted to have significant wasting in the musculature of the left shoulder.”[15]
(My emphasis)
[15]PCB 43
39 Dr Brasier’s clinical notes were tendered.
40 On 18 May 2009, he noted the following:
“CO pain in sh[o]ulders. L shoulder recurrent dislocations 5 - 6 times. Has not had the shoulder investigated. Having trouble getting shoulder above the 90 degree.”[16]
(My emphasis)
[16]DCB 66
41 Dr Brasier had referred Mr Lewis soon after for physiotherapy.
42 On 10 June 2009, Mr Stokoe, accredited exercise physiologist of The Sports Injury Clinic in Frankston, reported that:
“Mark was diagnosed with shoulder instability, a possible labral tear and severe thinning of his supraspinatus tendon. Mark has a history of dislocating his left shoulder 5 - 6 times while playing basketball or water skiing in the past.”[17]
(My emphasis)
[17]PCB 72
43 The parties agreed that the reference to “basketball” was probably an error and that Mr Stokoe had intended to refer to “baseball”.
44 Mr Lewis had given a number of different histories to various practitioners concerning his past history of dislocation of his left shoulder:
(a)In his affidavit sworn in February 2012, he stated that he had dislocated his shoulder in 1995 whilst water skiing and in 1998, when he fell onto his left shoulder whilst playing baseball. He consulted a physiotherapist and the pain subsided and his left shoulder subsequently regained its full strength.[18]
(b)In April 2011, Mr Lewis told Dr Mutton that there was a history of two dislocations of his left shoulder which had been treated by physiotherapy – in 2000 and 2004.[19]
(c)In January 2012, Mr Lewis told Mr Buzzard that there had been two previous dislocations of the left shoulder. These had occurred in about 1998 in a water skiing injury and in early 2000, playing baseball.[20]
(d)In July 2013, Mr Lewis told Associate Professor Myers that he had previously dislocated his left shoulder on two occasions – the first occasion in 2005 and the last occasion in 2007.[21]
(e)Mr Lewis had told Mr Carr, Dr Kaplan and Mr Grossbard that he had had two prior dislocations in the 1990s.
[18]PCB 2- 3
[19]DCB 29
[20]DCB 45
[21]PCB 92
45 In his oral evidence in cross-examination, Mr Lewis stated that, for many years prior to 2009, he had seen doctors at a medical clinic in Hampton. There, he had been seen on occasions by a Dr Appleby. Further, Mr Lewis stated that prior to May 2009, he had received physiotherapy treatment in relation to his left shoulder from a physiotherapist at the Sandringham Sports Physio.
46 Mr Lewis led no evidence from the medical clinic in Hampton, or from Dr Appleby.
47 No evidence was led as to the nature of any treatment from the Sandringham Sports Physio. A letter from that practice was tendered stating that Mr Lewis had attended the clinic prior to 1999 and up until 2004, that severe storms in 2011 had caused flooding in the area of its storage facility, and that the paper records of the practice had suffered irreparable damage. As a result, it did not have any clinical records remaining relating to Mr Lewis.
48 The letter from the Sandringham Sports Physio was tendered to explain why it was that no records of that practice were tendered. There was no explanation however for the failure to call evidence from general practitioners who Mr Lewis had consulted prior to 2009. Some nine days after the hearing concluded, Mr Lewis sought leave to re-open his case so as to tender clinical notes from the Hampton Medical Centre. Leave was refused for the reasons set out in my separate Ruling on that application.[22]
[22][2014] VCC 590
49 In his first affidavit sworn in February 2012, Mr Lewis swore:
“39Prior to my workplace injuries I used to enjoy keeping fit and would spent most weekends playing golf or baseball with my friends. I now find it too difficult to partake in these sports as the movement aggravates the pain in my left shoulder.”[23]
[23]PCB 6
50 In paragraph 4 of his second affidavit sworn in November 2013, Mr Lewis swore:
“… I state further that although I hurt my shoulder at the time [this being a reference to dislocations in 1995 and 1998], my condition was stable and I did not actively seek continuing medical treatment. I also returned to playing full competitive baseball since the second injury. I remained [a] very active sportsman playing a variety of sports such as golf and water skiing until sustaining the injury which is the subject of this application.”[24]
(My emphasis)
[24]PCB 10
51 Neither of those statements set out in his first and second affidavits were corrected in his third affidavit sworn on 10 April 2014 (four days prior to the hearing). In that third affidavit, he swore, in relation to his 1995 and 1998 dislocations, that:
“5… I recall that I received treatment at the Sandringham Sports Medicine Clinic for a period of approximately six weeks of physiotherapy. I further state that I was able to continue with my sporting hobbies such as baseball thereafter.”[25]
(My emphasis)
[25]PCB 19b
52 In his WorkCover Claim Form signed by him on 24 July 2009, the following question and answer was set out:
Q:“Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?---
A:No.”[26]
[26]PCB 20
53 In fact, Mr Lewis had not continued to play competitive baseball or been engaged in water skiing for many years prior to May 2009. In cross-examination, it emerged that he had not played baseball since about 2002 and had not water skied since about that time. Statements in his affidavits that he had continued with those activities up until his workplace injury were plainly misleading and, I consider, deliberately so. He had the opportunity in his second and then in his third affidavit to correct these statements, and failed to do so. His evidence was that he had recently read his affidavits. He demonstrated this by correcting a minor error of no consequence in his first affidavit concerning the date upon which he had commenced employment with his current employer. He made no other corrections. Rather than correct the false statements concerning his continued playing of baseball and participation in water-skiing, he repeated them.
54 Further, I consider the histories provided by Mr Lewis to the various medical practitioners referred to concerning his active sporting involvement up until the workplace injury to be equally misleading and intentionally so.
55 When Mr Lewis was examined by Dr Brasier on 18 May 2009 (the date of the alleged injury), Dr Brasier found there to be significant wasting in the musculature of his left shoulder. I do not consider such wasting was a development that had occurred in the space of a few hours since the workplace injury. I find that it reflected a relative lack of use of his left shoulder for some considerable time prior to May 2009. There was no explanation from Mr Lewis or from any medical practitioner as to the likely reason for that wasting.
56 I am left in a position where there is little if any reliable evidence as to his pre-May 2009 condition. There is no explanation for the significant wasting of the musculature of his shoulder as observed by Dr Brasier. Dr Brasier was not asked to provide a supplementary report concerning it.
57 I find that Mr Lewis’ evidence as to that condition is unreliable. I do so for the following reasons:
(a)His evidence that he continued to play competitive baseball up until the time of his workplace injury is false and misleading;
(b)His evidence that he continued to water ski up until the time of his workplace injury is false and misleading;
(c)There was no evidence from his general practitioner whom he saw between 1995 and at least 2008. The lack of explanation for the lack of such evidence is emphasised by the action taken by Mr Lewis’ solicitors to obtain an explanation for the absence of evidence from his earlier treating physiotherapist;[27]
(d)Notwithstanding the history recorded by Dr Brasier and the physiotherapist at the Sports Injury Clinic regarding there having been five to six previous dislocations of Mr Lewis’ left shoulder, there was no attempt made to obtain any supplementary reports which might have explained the inconsistency between that evidence and Mr Lewis’ evidence;
(e)Mr Lewis is likely to have been aware of Dr Brasier’s comments in his report of April 2011 of there being significant wasting of his left shoulder. He made no reference to this in his affidavits. In his oral evidence, Mr Lewis denied being aware of any such wasting. I consider this to be extremely unlikely. If he had genuinely thought that he had no such wasting, it was likely that he or his solicitors would have taken this up with Dr Brasier or sought clarification from him;
(f)In her affidavit sworn in November 2013, Mr Lewis’ wife swore that she and Mr Lewis both shared a “passion for baseball, cricket and bike riding”.[28] She deposed that he had been unable to follow such pursuits since the workplace incident. Mr Lewis, in none of the three affidavits sworn by him, made any mention of bike riding or cricket before May 2009. In his oral evidence, he did state that he had difficulty leaning on the handle bars of a bike for any length of time. If bike riding was a passion at any time pre or post May 2009, I would have expected it to have been referred to in one or all of his affidavits. His passion for baseball seems to have ended in about 2002 for reasons which were not explained. It is the case that at about that time, he had one young child but I do not accept that that explains completely giving up a sport for which he had a passion. These matters lead to me having little confidence in the reliability of Mrs Lewis’ evidence;
(g)In his second affidavit, sworn in November 2013, Mr Lewis swore that he was, at that time, being prescribed Panadeine Forte, a strong prescription painkiller.[29] In his third affidavit, sworn on 10 April 2014, he swore that he continued with pain medication as previously deposed in his second affidavit. In cross-examination, it was pointed out to him that there was no record in Dr Brasier’s clinical notes of the prescription of any Panadeine Forte after 2008, well before the workplace accident. His explanation for this was that he must have been using Panadeine Forte prescribed to him at some earlier time. I consider such explanation as a most unlikely one. I find that he deliberately exaggerated his use of painkilling medication to advance his case before me.
[27]PCB 115
[28]PCB 17
[29]PCB 9
58 I accept that Mr Lewis has undergone treatment for his left shoulder by way of the surgical procedure referred to, two hydrodilatations and a corticosteroid injection. I consider that this is indicative that he was experiencing problems with his left shoulder at the time of those treatments. I do not consider that he would have undergone such treatment if that were not the case.
59 However, the problem facing Mr Lewis is that I do not accept him as a witness of truth regarding the extent of his pre-May 2009 left shoulder symptoms. It follows that I am unable to make any meaningful comparison between his condition before and after the workplace injury. I am unable to make the comparison required by Petkovski v Galletti.
60 Mr Lewis carries the onus of establishing that the degree of exacerbation of his shoulder condition resulting from the workplace injury amounts to a “serious injury” as defined. I am not satisfied that onus has been discharged.
61 I am unable to be satisfied that the consequence of the exacerbation of his left shoulder in May 2009 could, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as being more than significant or marked, and as being at least very considerable.
62 Accordingly, I am not satisfied that Mr Lewis has suffered a serious injury in the course of his employment with the first defendant.
Conclusion
63 For the reasons provided above, Mr Lewis’ application will be dismissed.
64 Subject to submissions that any party may wish to make regarding consequential orders, it appears appropriate to order that the plaintiff pay the costs of the defendants, to be determined by the Costs Court in default of agreement.
65 If either party is of the view that such orders are inappropriate, or that further orders ought to be made, I direct that they contact my Associate within five days of the date of these Reasons for Judgment and arrange for the matter to be listed in order for the parties to make further submissions. Otherwise, I shall make the orders foreshadowed.
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