Palmer v Austform Pty Ltd

[2010] VCC 149

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WANGARATTA
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-04615

JAMES GAVAN PALMER	Plaintiff
v
AUSTFORM PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Wangaratta
DATE OF HEARING:	1 and 2 March 2010
DATE OF JUDGMENT:	18 March 2010
CASE MAY BE CITED AS:	Palmer v Austform Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0149

REASONS FOR JUDGMENT

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Catchwords: Serious injury application – Pre-existing neck injury – Asymptomatic until aggravated by workplace activity – s.134AB Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti with	Garden and Green
Mr G. Pierorazio
For the Defendant	Mr R. Middleton SC with	Wisewould Mahony
Ms J. Forbes
HIS HONOUR:

1           Gavan Palmer worked as a formwork carpenter for the defendant for about one month in September/October 2004. On about 6 October 2004, he “developed

symptoms at work which included imbalance, feeling light-headed and incoherent

and neck pain”. The plaintiff attributed his symptoms to the “hard, heavy, difficult and
awkward work” he performed for the defendant, particularly “very heavy lifting” of
materials including formwork panels weighing about 44 kilograms over steep and
uneven terrain on a cramped site.

2           The plaintiff had a previous workplace injury on 23 January 1996 when he suffered a “jarred neck” when he “walked into [a] scaffold brace”. In a claim form submitted in respect of that injury, the plaintiff described an earlier injury as “injured neck (1989) (jarred)”. The plaintiff claimed that his work for the defendant in September/October 2004 aggravated and rendered symptomatic a pre-existing injury to his neck and that immediately prior to 6 October 2004 he had completely recovered from any earlier injury to his neck.

3 The plaintiff makes application for leave pursuant to s.134AB of the Accident Compensation Act 1985 to bring proceedings limited to damages for pain and suffering in respect of the neck injury he alleges he suffered during his employment

with the defendant in September/October 2004.

4           The issues for determination in the present application are as follows:

a.	What is the nature of the plaintiff’s injury to his neck?
b.	What was the condition of the plaintiff’s neck immediately before his employment with tmonash31

he defendant in September 2004?

c.	Whether the plaintiff injured his neck in the course of his employment with the defendant in September/October 2004.
d.	Whether any additional impairment to the plaintiff’s neck following his employment with the defendant satisfies the narrative test for “serious injury” in relation to the pain and suffering consequences.
e.	Whether the plaintiff’s symptoms giving rise to the impairment result from conditions unrelated to any neck injury or to his employment with the defendant.

Nature of the plaintiff’s neck injury

5	gentle massage to my neck from a co-worker” and then went off work. On 7 October 2004, the plaintiff attended a chiropractor, Mr Andrew Cameron, who noted that the plaintiff presented “fairly light-headed and nauseous following lifting the day prior”. The plaintiff said he “underwent a chiropractic adjustment to my neck”. The plaintiff spent the weekend in bed and on Monday 11 October 2004 attended a physiotherapist at the request of his employer. He returned home but said that,	The plaintiff said that after his symptoms arose on 6 October 2004, he “received was taken to the Swan Hill Hospital. The ambulance officer noted a history of “past
neck injuries – dizziness/nausea occasionally migraine 1996 … Last week patient suffered from dizziness/nausea; relieved by physical manipulation; chiropractor.
Today similar presentation although nil relief with physical manipulation”. The dizziness was associated with light-headiness. The plaintiff was “prescribed Panadeine Forte, Stemil and Valium”.
6	On 14 October 2004, the plaintiff first saw his general practitioner, Dr Stuart Booth “complaining of acute vertigo”. Dr Booth noted that the plaintiff “had ongoing neck pain” and “felt that his vertigo had been associated with his work as a builder”. The
plaintiff told Dr Booth that the work involved lifting heavy sheets of plywood. Dr Booth later reported to the insurer that when the plaintiff first attended “I was uncertain as to
whether his pain and vertigo related to an ENT problem or whether it related to a
cervical spine problem”. By April 2005, Dr Booth considered that the plaintiff’s “cervical spine condition would seem to be consistent with the type of injury Mr Palmer suggests, mainly prolonged heavy lifting of plaster sheeting”.
7	On 4 November 2004, the plaintiff saw a chiropractor, Mr Mark Pearce, complaining of “vertigo”. The plaintiff completed a “confidential personal profile” and gave a history that he had hurt his neck nine years ago and had symptoms of migraine, vomiting and imbalance after “heavy lifting” and associated his symptoms with “heavy work”.
8	2002, he had seen the plaintiff for an episode of acute vertigo “associated with an ear ache”. After the episode in October 2004, Dr Booth arranged a CT scan of the inner ear which was normal. An attempted return to work was unsuccessful with recurrent episodes of vertigo. On 29 October 2004, the plaintiff saw an ENT surgeon, Dr Stephen Smith, who reported to Dr Booth that the plaintiff’s “recent problem could be
Dr Booth had been the plaintiff’s general practitioner since December 1996. In May fistula”.
9	On 11 February 2005, the plaintiff submitted a WorkCover Worker’s Claim Form. He described his “injury/condition” as “vertigo”, the affected body part as his “neck”, and how he was injured as, “to best of knowledge, lifting ply sheeting”. Dr Booth
arranged for further radiological examinations. A CT scan of the cervical spine on 17 convincing significant central canal or neural foraminal stenosis”.
10	An MRI of the cervical spine on 23 March 2005, showed quite “mild cervical spine
mal-alignment from C4 to C7 resulting in a central canal stenosis of moderate
severity at C5/6. No myelomalacia”, and the suggestion of “an erosive anthropathy at
lanto-axial articulation (C1/2) … this appearance is most commonly associated with
rheumatoid arthritis”. An MRI in April 2009 noted that “when compared with the
previous report the degenerative changes at C4/5, C5/6 and C6/7 and the erosive
anthropathy at C1/2 appears stable”.
11	The plaintiff was referred to a neurologist, Dr Mark Paine, in May 2005. Dr Paine noted that the plaintiff had experienced “recurrent episodic vertigo … lasting up to 30
minutes associated with nausea and/or vomiting occurring 3-4 times per week. The episodes were often triggered by physical activity, such as lifting objects or even
walking”. Dr Paine noted that the MRI showed “some canal stenosis on the cervical spine on the C5/6 level”, although he did not think it “relevant to the current symptomology”. He thought the plaintiff was “having a recurrent vestibulopathy and the cause is not entirely clear”.
12	Dr Paine referred the plaintiff for “audiological and vestibular investigations” at the Eye and Ear Hospital in August 2005. The testing revealed “significantly asymmetrical scusorineural hearing loss, worse on the left” and further testing was suggested as well as “vestibular rehabilitation to encourage full compensation of the left weakness”.
13	In June 2005, the plaintiff saw Professor Robert Helme, a consultant neurologist. Professor Helme’s initial view was that much of the plaintiff’s “imbalance has a cervical cause as does his headache rather than being pure vestibulopathy”. Professor Helme arranged for further radiological examination of the plaintiff’s cervical spine and “a vestibular rehabilitation assessment and management course”.
14	In March 2006, the plaintiff saw a neurosurgeon, Mr Michael Murphy, who reported to Dr Booth that, “At the end of the day, I do not believe that all his symptoms are
coming from the cervical spine. I agree with Rob Helme that the next step for him is
vestibular assessment although no “clear picture” emerged. It was noted that the plaintiff “has restricted his activities and can be reluctant to trigger symptoms”.
a vestibular rehabilitation program”. In October 2006, the plaintiff underwent a fistula” or that “his cervical spine may also be contributing to his symptoms”.
15	The plaintiff apparently participated in a pain management program at Bendigo. Since that time, the plaintiff has continued to be treated by Dr Booth and Professor Helme. Apart from an attempt to resume in January 2005, the plaintiff has not worked since October 2004. Dr Booth says that the plaintiff “has consistently
complained over the last five years of severe headaches, balance disturbance and parasthesia affecting both arms … These symptoms are worse when he engages in
any light work of a domestic nature and also when his neck is flexed forward”.
16	Professor Helme noted in 2009 that the plaintiff’s “current medication consists of Panadol, Nurofen, Ducene and Panadeine Forte, 20 per week”. The plaintiff suffers severe constipation when he takes Panadeine Forte and cannot take it consistently. The plaintiff said that he suffers constant neck pain and headaches, although they vary in intensity and are worse with activity, including lifting. He described his episodes of “vertigo” as involving “light headedness rather than dizziness” and usually being associated with headaches. The episodes occurred once or twice a fortnight and might continue for some time.

Diagnoses made by treating and examining doctors

17         The diagnoses made by treating and examining doctors are as follows:

a. Dr Booth, the treating general practitioner, considered that the plaintiff “suffers

from two distinct disabling medical conditions. Firstly, a vestibular
disturbance which affects his hearing and his balance. Secondly, a cervical

spine injury … his cervical spine injury which has been confirmed by MRI

scan and diagnosed as degenerative disease of his cervical spine”. Dr Booth
considered that the plaintiff’s symptoms (as listed above) “are all consistent

with his degenerative spine condition”.

b.	Professor Helme, the treating neurologist, noted that the plaintiff’s “major symptom has been headache”. Professor Helme said that a “diagnosis of cervicogenic headache” was confirmed by the “severe degeneration at C1/2”
degenerative disease of the cervical spine and which would also explain symptoms of “numbness and parasthesia”.

and the “” shown on the radiology possibly be caused by “a peripheral vestibular or vascular abnormality”.

c. Mr David Brownbill, a consultant neurosurgeon, saw the plaintiff at the request of his solicitors on 7 October 2009. Mr Brownbill considered that the “radiological investigations have demonstrated an advanced cervical spine

degenerative change most pronounced at C5-6 with narrowing of the spinal

canal”. Mr Brownbill considered that, “on probability”, the plaintiff’s symptoms of “headaches and light-headedness” were related to the “degenerative changes of the cervical spine”.
d.	Dr P.D. Clarke saw the plaintiff at the request of the insurer on 3 March 2005. He described the plaintiff’s condition as “vertigo of unknown origin” and noted that “the assumption underlying his treatment so far has been that the

condition is a result of a neck injury. Other possibilities are more likely given the lack of response to treatment and it is important that they be investigated

as soon as practicable”.

e. Dr Owen White, a neurologist, saw the plaintiff at the request of the defendant’s previous solicitors on 12 May 2006. Dr White considered that the plaintiff had “significant vestibular dysfunction more suggestive of bilateral peripheral disease than central disease” that was “not associated with his work”. The plaintiff also had “significant cervical dysfunction” and that the plaintiff’s complaints of “nausea, vomiting and imbalance, that is not clearly

vertiginous … may well be associated with high cervical degenerative

disease”.

f.

Mr Keith Elsner, an orthopaedic surgeon, saw the plaintiff at the request of the “the nature of the worker’s spinal condition is aggravation of cervical

degenerative changes without radiculopathy and without traumatic loss of

motion segment integrity”.

g.	Mr Brian Davie, a consultant orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitors on 20 August 2008 and 8 July 2008. Mr Davie recorded the plaintiff’s symptoms as “mainly associated with neck
pain and loss of balance” and that MRI imaging showed “degenerative changes with associated mild chord symptoms”, although Mr Davie said such changes “are not necessarily of any significance”. Mr Davie said that he was “unable to find a cause” for the plaintiff’s “poor balance” and that “the

symptoms of neck pain, vertigo and deafness are not within my province of

expertise”.

h.	Mr Jack Wodak, a neurologist, saw the plaintiff at the request of the defendant’s solicitors on about 1 September 2008 and 5 June 2009. He considered that the plaintiff had “no demonstrable physical disability. He is
disabled as a result of subjective symptoms (dizziness, headache, nausea and by his feeling of depression). He asserts his symptoms prevent him from engaging in any fruitful endeavours. It is impossible to confirm or deny his account through clinical examination, only surveillance could establish

whether or not his activities are as limited as he describes”.

The plaintiff’s credibility

18         The plaintiff’s credibility was attacked by defendant’s counsel on three bases:

a.	A number of doctors reported that during examination the plaintiff consciously limited his neck movement when requested to demonstrate the range of mobility.
b.	Video surveillance material demonstrated that on occasion the plaintiff could move his neck from side to side.
c.	The plaintiff had initiated, although not proceeded with, an earlier serious injury application in relation to the 1996 injury and had claimed in an affidavit sworn on 30 August 2000 that he suffered from similar symptoms as at present and that his activities were limited by those symptoms.

19         Most treating and examining doctors report that the plaintiff was careful not to engage in activity that might trigger his symptoms. This conduct on the part of the plaintiff is differently reported by the doctors:

a.	Professor Helme noted in August 2005 that the plaintiff’s “spontaneous unobserved movement was better than observed movement”.
b.	Dr White said that the “marked limitation of all cervical spine movement” upon examination “was seemingly associated with voluntary guarding to prevent pain”.
c.	Mr Davie referred to there being, upon examination, “voluntary resistance to movement of the cervical spine”.
d.	Dr Wodak noted that “the discrepancy between the range of cervical

movement in response to requests to move his neck (when there was almost
no movement in any direction and even that was accompanied by much
grimacing) and the far greater degree of movement he seems capable of at

other times (such as when gesturing) implies that his rigidly immobile neck is

feigned”.

20         Dr Wodak’s two reports are generally unsympathetic to the plaintiff. I do not consider that I should give Dr Wodak’s views much weight. The conclusions he reaches are not shared by other medical examiners. The analysis by Dr Wodak in his reports is, in my view, unsatisfactory. He does not address the basis of the plaintiff’s claim, that the heavy weights he carried affected his neck and brought on the symptoms of which he complained. Dr Wodak simply stated that it was not clear to him that the plaintiff “sustained any injury at work on or about October 2004 … from the nature of the work he was engaged in”.

21         The plaintiff had supplied a list of his “symptoms” to Dr Wodak. Dr Wodak stated that the list made “no mention of light-headedness, dizziness or imbalance”. Under the heading “Lack of co-ordination” the plaintiff did, in my view, express in his own words the way in which he was affected by his neck injury. Professor Helme noted that the plaintiff’s symptoms are “increased by physical activity, particularly moving his neck”. Other examiners were also told this by the plaintiff. In the circumstances, it is not surprising that the plaintiff’s movements under examination were “guarded”. There seems no basis for suggesting that the plaintiff was seeking to deceive the examiners by “feigning” his condition. Most examiners reacted positively to him, for example, Mr Davie stated that “examination revealed a helpful man”.

22         The surveillance video, shown to the plaintiff during cross-examination, was limited to a few minutes of film taken between 1.11pm and 2.05pm on 29 May 2009. The film shows the plaintiff driving his car and walking, including crossing a road. On two or three occasions the plaintiff moved his head, apparently without restriction in his neck or without any attempt to guard his movement. I would be reluctant, however, on the basis of a few seconds of video to draw conclusions about the plaintiff’s physical capacity since October 2004 or about his credibility as a witness.

23 application. He said that as a result of an accident in January 1996, he “continued to

In August 2000, the plaintiff swore an affidavit in support of a serious injury “although I have remained at work my symptoms have never abated. I continue to

suffer dizzy episodes, to have neck and upper back pain which is constant but
variable in severity … I suffer severe headaches on a regular basis … my social,
domestic and recreational activities have also been affected by reason of the injuries

to which I have referred”.

24         The plaintiff said he did not proceed with the application although he could not remember if the application had been rejected. He said that it was shortly after his son had died and he had not wanted to go to the solicitor. Plaintiff’s counsel sought to dismiss the matter on the basis that the plaintiff had recovered from his previous injury and accordingly did not have any basis to proceed with the serious injury application. On balance, I consider that the plaintiff’s credibility is not affected to any significant degree by these matters.

25         The plaintiff left school in Form 3 at age 16 and trained as a carpenter. In 2004, he was aged 58 and had worked all his life in heavy manual work. At times, he suffered injuries but eventually returned to hard physical labour. In October 2004, the plaintiff’s work involved lifting very heavy plywood sheets. After his injury, the plaintiff tried to return to work. I consider that it is much more likely that the plaintiff has accurately represented his symptoms. The histories he gave to doctors about the mechanism of injury (as he understood it), and the symptoms he experienced, were generally consistent. The plaintiff cooperated in all treatments and programs suggested by his medical practitioners. There was nothing in his demeanour or presentation at the hearing which caused me to draw any adverse conclusions about the plaintiff’s reliability as a witness.

28 usually he stated that the symptoms included not only neck pain but also “intermittent
headaches”, “light-headedness”, “pain between the shoulder blades” and “some The plaintiff had given a similar history to treating and examining doctors, although 12 months.

26         I accept that the views of Dr Booth, Professor Helme and Mr Brownbill accurately reflect the present condition of the plaintiff and that he suffers severe degeneration of the cervical spine which results in symptoms of neck pain, headaches and other symptoms, including light-headedness, which to a significant degree is also a likely consequence of his neck condition.

The plaintiff’s earlier neck injuries

27         The circumstances of the 1996 injury have been recorded and I have referred to the matters stated by the plaintiff in his affidavit sworn 30 August 2000. In the affidavit in support of the present application, the plaintiff stated that “on a previous occasion

(approximately 1995) I had suffered from neck injury when I struck my head at work treated by way physiotherapy and consultations with my general practitioner. I suffered intermittent neck pain for a considerable period, although I do not believe I lost any time from work. Ultimately the neck pain resolved, although I continued to experience intermittent headaches. I was however able to continue unrestricted
and I suffered symptoms which gradually resolved over a considerable period of time.

heavy construction work”.

29         There are a number of contemporaneous medical reports which assist in determining what had been the effect on the plaintiff of the 1996 work place accident:

a. plaintiff on 12 February 1996 and then on other occasions over the following
12 months. She said that the plaintiff had told her that, after the incident on
27 January 1996, he had “experienced headaches and dizziness” and that

Dr Carroll Major, a general practitioner and colleague of Dr Booth, saw the of the C5 and C6 area with spasm of the neck”. On 23 February 1996, the plaintiff “complained of giddiness but no headaches”.

b. In December 1996, the plaintiff saw Dr Booth complaining of “dizziness and mid thoracic pain”. The plaintiff said that since the incident, he “had suffered

from episodic light-headedness, dizziness and pain between the shoulder

blades”. Dr Major saw the plaintiff in January 1997, “where he complained of

still having giddy feelings, particularly when lifting form work. Examination
revealed no particular problem and he then told me he had given up work on

January 10, 1997”. However, in his affidavit sworn 30 August 2000, the plaintiff said he had “about two months off work in or about early 1997 but by

reason of financial pressures I had to go back to work and I have continued to

work up to the present time”.

c.

The plaintiff continued to see Dr Booth in relation to other issues up to August 2000. These included “pain in his left shoulder”, for which Dr Booth gave the plaintiff “two injections of depo-cortisone”. There is no mention of the symptoms arising from the January 1996 incident in the 11 attendances noted by Dr Booth between March 1997 and December 2000, when Dr Booth reported to the plaintiff’s previous solicitors.

d.

The radiological examinations ordered by Dr Major and Dr Booth were as follows:

i.	31 January 1992 – an x-ray of the cervical spine showed “minimal degenerative changes at C5-6 level”.
ii.	12 February 1996 – an x-ray of the cervical spine was similar at C5/6 but noted a “loss of the normal cervical lordosis and a slight kyphosis is present at the C4/5 level on attempted flexion”.
iii.	27 February 1996 – an x-ray of the thoracic spine.
iv.	5 March 1997 – an x-ray of the dorsal spine.
v.	13 March 1997 – a CT scan of the thoracic spine.

e.

On 27 February 1997, the plaintiff saw Mr Brian Davie, orthopaedic surgeon, upon the referral of Dr Major. Mr Davie noted that the plaintiff “complained of

pain between the shoulder blades and he couldn’t lift things as he became

giddy and developed low back pain”. Upon examination, Mr Davie found
there was “restricted movement in the cervical spine but normal movement in
the shoulders, elbows, forearms, wrists and hands”. Mr Davie concluded that
he “couldn’t find any major orthopaedic causes for his problems in the

shoulder area nor in the neck or lower back, but I felt that he needed to be
seen by a neurologist to check out his lack of balance which had been a

problem and his giddiness”.

f.	Mr Cameron, the chiropractor who saw the plaintiff on 7 October 2004, noted that the plaintiff had “first presented on the 15/6/01 with chronic problems of
his neck and back, shoulders, concentration, memory and vision. He also reported severe headaches. He reported a serious accident in 1996 when he was hit by scaffold and his legs were not stable for 18 months and he felt at
that time he had not fully recovered”. When asked about this attendance in cross-examination, the plaintiff said that “my thoracic spine was my main problem” and had been a problem for “probably years” because of the heavy lifting he was required to perform.

30         In his affidavit in support of the present application, the plaintiff said that “prior to

October 2004 I was employed full time as a formwork carpenter and had been for a number of years, travelling long distances and chasing work all over Victoria and New South Wales. The work of formwork carpenter is hard and heavy, but I was able to do it unrestricted and unlimited without symptoms for some years prior to 2004,

despite having suffered the earlier neck pain I have referred to in 1995”. The plaintiff
also said that in 2002 and 2003 he built houses for each of his children. This was
mostly fulltime work with the plaintiff completing the majority of tasks including the
formwork, laying the slab, framework and the plasterwork; basically most tasks
except for the brickwork. The plaintiff may have undertaken a couple of formwork
jobs during this period but did not get back to regular formwork until early in 2004.
He then worked on a number of sites before starting with the defendant on 6
September 2004.

31         The evidence establishes in relation to the 1996 workplace injury that:

a.	The plaintiff suffered a significant injury which affected his neck and his balance and coordination.
b.	These matters were treated by the plaintiff’s general practitioners with appropriate investigations involving radiology and an orthopaedic surgeon before March 1997.
c.	complaint after March 1997 about these matters except for an episode of

Despite regular attendance on his general practitioners, the plaintiff raised no in June 2001 with various “chronic” problems which the plaintiff mainly attributed to his thoracic spine.

d. given up

Although the plaintiff told Dr Major in January 1997 that he had “a formwork carpenter.

e.	Apart from the years 2002 and 2003, when he built two houses for his children, the plaintiff continued in his employment as a formwork carpenter performing work which he described as “hard and heavy”.
f.	Between 1997 and 2004, the plaintiff consulted his general practitioners with a work-related right knee injury (between May 1999 and August 2000) and other matters including, respiratory tract infections in May 1997 (upper), May 1998 (lower) and left shoulder pain between May and August 2000.
g.	There is no evidence that before the episode in early October 2004, and apart from the specific matters noted by his general practitioners and Mr Cameron, the plaintiff had had any difficulty performing his work or had needed to seek medical attention for any other matters. In the circumstances, it is appropriate to conclude that by September 2004 when the plaintiff commenced work with the defendant, his neck was not troubling him unduly and he had largely recovered from the other consequences of the workplace injury he suffered in January 1996.

Issues of causation

32         The plaintiff commenced work with the defendant on 6 September 2004. Earlier that year, the plaintiff had been in regular employment as a formwork carpenter. Notwithstanding his previous neck injury in January 1996, the plaintiff had largely recovered and had pursued heavy physical work for a number of years. The plaintiff said that the work with the defendant was of a different order. The project was a substantial residential development to be constructed on a sloping site. Access was difficult and it was necessary for heavy formwork panels to be carried to where they were required. The plaintiff described carrying the panels either by his side with his head and neck bent over, on his back with his head and neck bent forward or on the top of his head. The plaintiff said that after a month of doing this work, he developed symptoms which included “imbalance, feeling lightheaded and incoherent and neck pain”. I am satisfied that this is the appropriate history necessary for there to be a proper assessment as to whether it is likely that the symptoms the plaintiff complained of, and those from which he has continued to suffer, arose as a result of his employment with the defendant.

33         Some examining medical practitioners took a detailed history, others relied upon a more limited account. It is appropriate to examine the conclusions reached by each of the doctors and the basis upon their conclusions were reached:

a. Professor Helme first saw the plaintiff in about June 2005. The first opinion he expressed about the relationship between the plaintiff’s work and his symptoms was in a report to the plaintiff’s solicitors dated 16 August 2005. His conclusion was that the plaintiff “has headache and dizziness resulting

from a combination of degenerative disease of the cervical spine and mild dysfunction of the vestibular apparatus. The former preceding the onset of his symptomology at work and the latter partially caused by a condition not associated with his work-related injury. Nevertheless, both of these

preconditions would make him somewhat more predisposed to headache and dizziness following on a neck injury. His description of the activity undertaken

in September 2004 would be consistent with this view”.

In a later report dated 22 September 2005, Professor Helme expanded on these views. He said, “The conditions were present, but quiescent, prior to

the events of October 2004. The temporal association between the reported episode of heavy lifting and the recurrence of his symptoms suggest that his pre-existing condition was exacerbated by that event. The severe extent of the degenerative disease on his MRI scan is highly suggestive of

susceptibility to this occurrence”.

The most comprehensive report by Professor Helme is to the plaintiff’s present solicitors dated 1 April 2009. Professor Helme describes the work that the plaintiff was performing for the defendant as follows: “He was partly

supervising and partly a participant in the preparation of the timber framework for a concrete pour in a nursing home construction on top of a car park. This involved heavy lifting of timber and steel scaffolding on an uneven slope and climbing ladders whilst balancing this material. The timbers weighed 20kg

and were approximately six metres long. He also had to carry heavy sheets
weighing 44kg and lighter sheets weighing 36kg which were approximately 8ft

x 4ft x 4ft. These were awkward and often carried on the shoulder or top of

the head”.

Professor Helme said that “the major condition found on examination was

consistent with the diagnosis of cervico-genic headache and this was

consistent with the history given”. Whilst Professor Helme appears to relate his conclusion to what he describes as “the incident of October 2004” when the plaintiff’s symptoms forced him to stop work, nevertheless the opinion

expressed appears to be based upon the history Professor Helme took of
very heavy awkward lifting carried out at that site and his previously
unsymptomatic, although quite severe, degenerative disease of the upper

cervical spine.

b. Mr Brownbill took a history that, “In September and October 2004 on a

working site he had been required to carry many sheets of form-ply ‘several hundred’ over five weeks (‘without problems’). Light duty sheets weighed 36 kilograms and the heavy duty sheets weighed 44 kilograms. They measured 2.4 metres x 1.2 metres ‘awkward’. To direct questioning, he stated that he

often carried a sheet held with his left hand and the arm extended down and
the right arm flexed above his right shoulder and the sheet lying across the
left arm and the side of his head with his neck bent over to the right. He
would also carry sheets behind him, held with both hands and extended arms,
with the sheet lying along his back and the back of his head, with his neck
fully flexed. At times, he would also carry the sheet lying on top of his head,
held by his two outstretched hands. To direct questioning he stated that he

did not suffer any specific accident, injury or pain”. The plaintiff told Mr
Brownbill that the “feeling of light-headedness” came on during “smoko”.
Mr Brownbill stated his conclusion as follows: “It is not possible to state with

certainty what the basis of this man’s ongoing symptoms of headaches and
light-headedness are, but on the information provided and noting the temporal
relationships, the description of his headaches and light-headedness and the
radiological investigation results of his cervical spine, I consider that on
probability, he had degenerative changes of the cervical spine which may
have been contributed to by the incident of 1996 and which on probability
were aggravated by his described lifting and carrying activities of September

and October 2004”.

c.	Dr Wodak took a history in which he noted that the plaintiff “asserts his
current symptoms commenced on 4 October 2004 and relates them to the heavy lifting that was an integral part of his work as formwork carpenter. He regularly had to lift loads, such as sheets of plywood, weighing 30 to 70kg. He was working under undue pressure at the time his symptoms commenced. He recalls that he began to feel off balance and light-headed as he stood up

after taking a morning tea break”.

Dr Wodak concluded, “It is not clear to me that Mr Palmer sustained any

injury at work on or about October 2004 either as a result of any individual
incident, or from the nature of the work he was engaged in. I therefore fail to

see how a claim for a work-related injury can be sustained”.

After further examination in June 2009, after observing that “over the years he appeared to have suffered a number of blows to his head”, Dr Wodak stated, “I could not see how any of those incidents, the cumulative effect of his repeated blows, or the carrying of 70kg weights could explain his condition”.
d.	Mr Davie took a history that, “Mr Palmer described a second injury occurring
on 4 October 2004 when employed by Austform. According to Mr Palmer, there was no injury at the time but that after having a cigarette break he stood

up and did not feel well”. Nevertheless, Mr Davie concluded, “It is possible

that the condition arose due to the type of employment, together with
degenerative changes over a period of years and could have been
aggravated by the original accident in 1996 and again around 4 October

2004. There did not appear to be any injury on 4 October 2004, however”.

e.	Mr Elsner took a history that the plaintiff “resumed heavy construction work on
6 September 2004 with Austform … there was no one specific incident but for the month leading up to that he had been required to lift sheets of form-ply weighing 36 or 44kg and he started to experience right-sided neck pain. Then on 6 October 2004 during smoko, he was sitting down in the shed at work and

reached under a table and felt unwell”. Mr Elsner’s opinion was that “the

nature of the worker’s spinal condition is aggravation of cervical degenerative changes without radiculopathy and without traumatic loss of motion segment

integrity”.

f.

Dr White took a history that “in the month of October 2004 Mr Palmer was

working for Austform Pty Ltd as a formwork carpenter. His work had been heavy but was particularly so in that month as the particular site on which he was working was on a slope, uneven and cramped. No heavy equipment could be used on site and all the large sheets weighing 40kg or more had to be manhandled into position. The work involved a lot of bending and lifting and sometimes carrying stuff on the shoulder. He does not recall any specific episode of injury on 6 October 2004 but after morning tea he stood up and felt

‘off balanced and light-headed’”.

Dr White noted, “There is no history of specific work injury otherwise, although

by description his heavy work may well have caused some cumulative injury
to the cervical spine resulting in the significant degenerative change seen
now. Mr Palmer is a poor historian but would certainly seem to have
significant cervical pain aggravated by activity at this time probably

contributed to by work over a period of many years”.

It appears that Dr White’s reference to aggravation by activity “at this time”
refers to the employment with the defendant in September/October 2004.
Dr White clearly related the “cervical degenerative change” as having been
“substantially contributed to by cumulative injury in the course of his work over
a period of many years, there having been a significant episode in 1996”.
Dr White noted that, “There do not appear to have been specific episodes
otherwise”, but continued, “I suspect that he had some imbalance precipitated

by lifting heavy objects, probably related to pathology between the foramen

magnum and the C2 level”.

Dr White’s conclusion was, “There is no definite evidence that he has suffered

a specific injury at the time he became relatively disabled. It is quite likely,
however, that the cumulative insult to his cervical spine over a period of many

years manifested itself at that time”. I have previously referred to Dr White’s view that the plaintiff’s “complaint of nausea, vomiting and imbalance … will

turn out to be degenerative in origin, thus linking his cervical spinal pathology

with work”.

34         I accept the views of Mr Brownbill and Professor Helme linking the symptoms which developed on 6 October 2004 to the unusual work performed by the plaintiff in the preceding weeks which appeared to have resulted in the symptoms of which he complained. Other doctors took part of the history and generally referred to the heavy work the plaintiff had performed over many years, although some related the incident in which the specific symptoms arose to the work performed over the preceding weeks. I reject the views of Mr Wodak who expressed an inability to understand why the symptoms might arise without appearing to give proper consideration to the information given to him by the plaintiff.

Assessment of any additional impairment

35         I am satisfied that the heavy awkward lifting and carrying of materials at the defendant’s worksite aggravated the pre-existing degenerative condition of the plaintiff’s cervical spine. Although the plaintiff had a previous neck injury, he had been able to perform the work of a formwork carpenter for many years without apparent difficulty. The consequences of the aggravation to his condition, sustained during the course of his employment with the defendant, prevented the plaintiff returning to work and otherwise interfered with his pursuit of normal domestic, social and recreational activities which he had previously been able to perform without any significant restriction.

36         In the circumstances, the consequences to the plaintiff of the aggravation injury to his cervical spine, suffered during the course of his employment with the defendant in September and October 2006, might fairly be described as “very considerable” entitling the plaintiff to a finding of “serious injury” in relation to the pain and suffering consequences of his injury.

37         The plaintiff will have leave to commence a proceeding for pain and suffering damages arising from the injury suffered during the course of his employment with the defendant in September/October 2004.

Certificate

I certify that these 20 pages are a true copy of the reasons for decision of His Honour

Judge Anderson delivered on 18 March 2010.

Dated: 18 March 2010.

Hannah Christensen

Associate to His Honour Judge Anderson