,
IN THE COUNTY COURT OF VICTORIAAT WARRNAMBOOLCOMMON LAW DIVISIONSERIOUS INJURY LIST
NEIL FRANCIS BROWN
V
KIMPTON BUILDERS PTY LTD
JUDGE
WHERE HELD
DATE OF HEARING
DATE OF JUDGMENT
CASE MAY BE CITED As
MEDIUM NEUTRAL CITATION
SubjectCatchwords
RevisedNot Restricted
Suitable for Publication
HIS HONOUR JUDGE LACAVA
Warmambool
28 November 2016
22 December 2016
Brown v Kiinpton
120161 VCC 2005
Legislation CitedJudgment
Case No. C1-, 6-01340
ACCIDENT COMPENSATIONSerious injury application - permanent impairment of the lumbar s ine -aggravation of pre-existing lumbar disc degeneration - ain andsuffering onlyAccident Compensation Act 1985, SI34ABApplication dismissed
APPEARANCES
REASONS FOR JUDGMENT
For the Plaintiff
Plaintiff
For the Defendant
Defendant
Counsel
Mr I R Fehring withMr G Pierorazio
Mr W R Middleton QC withMs D Manova
COUNTY COURT OF VICTORIA250 William Street, Melbourne
Solicitors
Stringer Clark
Thornson Geer
HIS HONOUR:
I This proceeding was commenced by the plaintiff by Originating o ion.plaintiff seeks leave pursuant to SI34AB(, 6)(b) of the Accident Compensation
law proceeding against theAct I 985 ("the Act") to commence a common
defendant, his former employer, claiming damages for pain and su ering on y.
2 The plaintiffs case is that he suffered an Injury arising out of or during ecourse of his employment in May 2009. The plaintiff alleges that over a perioof about three days whilst working breaking concrete, and loading it into a rai er,
he aggravated pre-existing lumbar disc degeneration in his back ("the incident").The application is thus based upon a permanent impairment of t e urn ar spinwithin the meaning of SI34AB(37)(a) of the Act. .
For the reasons that follow, this application must be dismissed.
counsel for theMr R Middleton QC, who appeared with Ms D Manova, as
defendant, told me that the issue in the case for me to decide is whether or nothat he hasthe plaintiff can succeed in proving on the balance of probabilities
suffered an injury in the nature of an aggravation to his pre-existing lumbar isc
degeneration that meets the definition of "serious injury".
Mr Middleton submitted that the evidence shows that the plaintiffIn summary,
cannot establish that his claimed serious injury meets the threshold o a "seriousThe defence case in summary form is that if thereinjury" as set out in the Act,
the form of an aggravation of pre-existing lumbar discWas an Injury In
He submits thedegeneration, any consequences to the plaintiff were transient.evidence shows that the claimed aggravation did not produce a u er
impairment of the lumbar spine, with consequences that were marke or morethan considerable. The defence submits the evidence shows the plaintiff has
continued to experience the same consequences in terms of impairmen Torn
pre-existing lumbar disc degeneration that he had previously experienced priorto the incident. I accept the submissions made on behalf of the defendant.
JUDGMENTBrown v Kiinpton
3
4
,I
*
,
5
VCC:PUAS
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6 The plaintiff bears the on us of proof that the pain and suffering consequences
of his injury, being the aggravation of pre-existing lumbar disc degeneration,
are "serious" within the meaning of SI 34AB(38)(c). This issue is to be
determined having regard to all of the evidence.
To make out a "serious injury" within the meaning of SI 34AB(37)(a), the plaintiff
must establish, on the balance of probabilities, that he suffered a "permanent
serious impairment or loss of a body function". The determination of whether
an injury is "serious" is assessed solely by reference to the consequences to
the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances
of this case, an impairment is not "serious" unless the pain and suffering
consequence of the injury, being the claimed aggravation of pre-existing lumber
disc degeneration is, when judged by a comparison with other cases in the
range of possible impairments, "fairly described as being more than significant
or marked and as being at least very considerable" within SI34AB(38)(c).
It is necessary, as in every application of this kind, to examine the evidence in
order to decide what injury the plaintiff suffered during the course of his
employment and, what consequences (if any) of any impairment were suffered
and continue to be suffered by him.
The plaintiff swore two affidavits in support of his application. The first affidavit
was sworn on 8 December 2015 ("the first affidavit") and the second was sworn
on 26 October 2016 ("the second affidavit"). The plaintiff submitted a court book
which included the first and second affidavit and various medical reports. I
admitted pages I to 32 inclusive as the Plaintiff's Court Book ("PCB").
The defendant tended some still photographs of surveillance of the plaintiff
taken on 21 September 2016 and 22 September 2016 which I admitted as
exhibit I. The defendant also tendered a DVD containing video surveillance of
the plaintiff on 21 March 2046 which I admitted into evidence as exhibit 2. The
defendant also filed a Court book containing various medical reports. I admitted
7
8
9
10
VCC:PUAS2 JUDGMENT
Brown v Kiinpton
pages I to 49 inclusive and pages 24 to 27 inclusive as exhibit 3, the
Defendant's Court Book ("DCB"). The defendant also tended the plaintiff's
medical records from the Warmambool Medical Clinic between 3 August 1998
and 6 October 2016 which I marked as exhibit 4.
11 In his first affidavit, the plaintiff set out his work history after leaving school.
Relevantly, he said that whilst employed by Owens Roof Trusses in about 2005
and whilst engaged in heavy work, he "had some problems with my back and I
had treatment including physiotherapy for some periods of time. I had some
time off work, I believe only a few weeks, and then went back to my normal
duties. "I
42 The plaintiff said he commenced work with the defendant in 2009, and he gave
a description in his first affidavit of the incident which involved him breaking up
pieces of concrete, carrying them some distance and depositing them for
removal. He said he went to the Warmambool Medical Clinic where he had x-
rays and, he was put off work "for a few weeks and then went back on light
duties". 2 He said he could not do the light duties and he resigned in 2010. The
plaintiff deposed that he was off work for a couple of months before obtaining
work at Dahlsens as a yardman. He was retrenched in June 2012 but later
obtained work part time, working on average 21 hours per week in the
gardening section of Bunnings. The plaintiff is still employed doing this work.
Regarding his work at Bunnings, the plaintiff deposed that he could not work
more than 21 hours per week "because by the time I finished a shift the back is
painful. I have to be careful doing lifting and carrying but I am able to carry out
the duties required of me". 3
The plaintiff has long suffered from a thyroid condition and he is also treated for
matters related to his heart. For this treatment he has been attending for a long
.
,
13
14
2
3
PCB 2, paragraph t11PCB 3, paragraph 131PCB 3, paragraph 131
VCC:PUAS3 JUDGMENT
Brown v Kimpton
J
period of time at the Warmambool Medical Clinic. He also consults a
chiropractor, Kate Davis, whom he deposed to seeing every two weeks. He
said he finds treatment he receives from her gives him relief and improves the
mobility of his back.
15 The plaintiff deposed that his back is painful "all the time and lifting is restricted".
The plaintiff went on to say: "Given the work I do now I have to be very careful
lifting any sort of weight. "4
16 The plaintiff deposed in his first affidavit that driving for more than 30 to 40
minutes increases his back pain. Also bending and squatting increases his
back pain, as does gardening and cleaning activities, which he said are now
restricted. In his first affidavit, the plaintiff said that before his injury he used to
play golf socially but now he could not do that "because the swing would be too
much". 5 He said that he also used to go snow skiing during the season and
could not do that anymore. He said in the past he played indoor cricket but he
cannot do that anymore. In cross-examination, it transpired the plaintiff had
ceased playing golf around 2000, and he had also ceased the other sports well
before the incident as a consequence of suffering a fracture of his wrist. 6 In
other words, the fact he cannot enjoy these sports is a consequence of a prior
injury to his wrist and not a consequence of an aggravation to his pre-existing
lumbar disc degeneration from the incident.
17 In his second affidavit, the plaintiff said that he continues to have chiropractic
treatment every two weeks and he was taking Ibuprofen two to three times a
week "when I have a particularly bad day". 7
18 The plaintiff says he continues to work at Bunnings, where he works for seven
hours on Thursday, eight hours on Friday, and six hours on Saturday. He said
he has to be careful with his work, He said he avoids heavy lifting or bending.
4
5
6
7
PCB 4, paragraph 151PCB 4, paragraph 171Transcript ("T") 24-25PCB 6, paragraph 121
VCC:PUAS4 JUDGMENT
Brown v Kiinpton
He went on to say that when he gets home from work he has to rest because
he has a painful back. '
49 The plaintiff was cross examined by Mr Middleton about his work history and
his history of back complaints. The plaintiff was asked about the incident in
May 2009, and themjury to his back which had occurred in 2005. He was asked
if there had been any other events involving his back. He said: "No, not that I
can remember. "9
20 The plaintiff was also asked about why he left his employment with the
defendant. When challenged, he agreed that anger management issues that
he was having at the time played "a big role" in the termination of his
employment with the defendant. When pressed further, this eXchange
occurred:
Q: "How big a role did that issue, that's anger and the like, play in yourresignation or termination of employment?---
I would say a big role.
Your back itself didn't play a big role at all?---
No. that had nothing to do with it.
When you say you couldn't cope, that meant you couldn't copebecause of these ongoing issues between you and youremployer?---
It's got nothing to do with my back injury. "10
A:
,
,
Q:
A:
Q:
21
A:
This evidence is contrary to the evidence given by the plaintiff in his first affidavit
where he says that he left work because the light duties that he was undertaking
were too heavy (because of his back), and he resigned in 2010. ''
22 The plaintiff was asked about the injury to his back in 2002 which had resulted
in him making a claim on his the employer. He said "I could not answer that". 12
8
9
10
11
12
PCB 7, paragraph 141T, ,
T, 4, L16-23PCB 3, paragraph 131T, 4, L29
VCC:PUAS5 JUDGMENT
Brown v Kimpton
,
When pressed, he could riot recall having told Mr Thomas Kossmann,
orthopaedic surgeon, about this incident. The medical records show the plaintiff
had attended at the Cainbourne Clinic on 28 March 2002 complaining of back
pain after having moved furniture. " He subsequently completed a Worker's
Injury Claim Form where he claimed to have pinched a nerve on the lower left
side of his back on 27 March 2002. " By 5 April2002, the plaintiff had told his
general practitioner that he was back at work and coping but his left leg was still
numb to approximately the knee on the outer lateral thigh. 15
23 When confronted with these facts, the plaintiff recalled attending upon his
general practitioner in 2002 and he agreed that his lower back was involved.
He said it was the complete lower back on both the left-hand and the right-hand
sides. 16
24 The plaintiff was then asked about another episode where he complained of
back pain in March 2007. Mr Kossmann had asked the plaintiff about this but
nothing appears in his affidavit material. The records from the plaintiffs general
practitioner show that he had consulted at the clinic on 5 March 2007
complaining of a stiff lumbar spine which was thought to be sciatica and he was
referred for a CT scan. On I O September 2007, he again attended at the
general practitioner complaining of a lumbar back strain, more right sided than
left "from pushing on a trolley on 4/9 when wheels jammed"." He told the
general practitioner that he attended the accident and emergency department
at Southwest Health (Warmambool Hospital), and subsequently underwent
physiotherapy at the same establishment. " When examined, the plaintiff was
still stiff and tender. A report from the physiotherapist records on I7 September
2007, the plaintiff told the physiotherapist "his back is a bit worse than he first
thought as he has been putting up with it for some time. .,. I think he needs a
13
14
15
16
17
18
Exhibit 4
DCB 15
Exhibit 4
Tt6
Exhibit 4
Tt8
VCC:PUAS6 JUDGMENT
Brown v Kiinpton
bit more time off at this stage. "" A week later, on 25 September 2007, the
general practitioner recorded progress but there was still right lumbar
paravertebral spasm and tendemess. By I October 2007, the general
practitioner reported the plaintiff's back to be good. 20
25 The plaintiff said that he had forgotten what had occurred in 2002 and 2007 in
relation to his back. " He was then asked about a history of back pain that he
had given to his chiropractor whom he first attended upon on 3 January 2013
for right sacroiliac joint pain. In her first report, chiropractor, Katie O'Keefe,
reported, inter alla :
"It was aching in nature and had been present for 6-7 years, The onset forthis particular symptom was spontaneous. Mr Brown mentioned in hishistory that he had a previous back injury relating to work years prior. Hepresented with numbness down his left side, which he had had prior totreatment from a GP. The GP finding no abnormalities associated withpain. "22
26 The plaintiff agreed that he had seen the chiropractor in 2013. When asked
about the note that the onset of symptoms was spontaneous, he said : "Maybe
I lifted something that I shouldn't have in that time and I went there". 23 There
was no reference to the incident as having been the cause of the symptoms. 24
He said that the chiropractic treatment continued and in fact he had been to see
the chiropractor on the morning of the hearing. 25
27 The plaintiff agreed with the note of Ms O'Keefe that he is maintaining his back
very well. 26
28 The clinical notes from the plaintiff's general practitioner reveal that he attended
again complaining of chronic intermittent back pain on I November 2013. The
notes include "last 3 weeks - back pain and stiffness flare up[.] ID]oing lawn
19
20
21
DCB 26
Exhibit 4; PCB 13; DCB 26T, 7
PCB I4
T, 9, L30 - T20, L,T19
T20
T20
22
23
24
25
26
VCC:PUAS7 JUDGMENT
Brown v Kiinpton
mowing - that is a big effort, cant'lt do it". 27
29 A CT scan carried out on 4 November 2003 reported, amongst other things:
"Mild degenerative changes at the lumbosacral spine .,. .
No definite traversing or exit nerve root impingement identified. ""
30 The plaintiff said he could not remember this 2013 incident.
34 The plaintiff has been medically examined by Mr Timothy Gale, general and
trauma surgeon, at the request of the defendant on 27 February 2015. " Mr
Gale took a history from the plaintiff, and noted in his report
"The worker has had episodic back pain for almost fifteen years since alifting incident at work in a business manufacturing timber trusses andhouse frames. ', 30
32 When first asked about this, the plaintiff denied having made this statement to
Mr Gale. 31
33 The plaintiff was shown the DVD of surveillance footage taken of him
performing his work at Bunnings on 21 March 2016. The plaintiff agreed that
he was depicted in the surveillance moving a pallet containing bags of potting
mix. The surveillance shows that there were approximately , 30,25-litre bags
of potting mix on a pallet being moved about by the plaintiff using a manual
pallet mover. At one stage of the video, the plaintiff is depicted moving the
pallet, which must have weighed more than a tonne, under considerable strain
from a stationary position, The plaintiff was able to carry out this task without
any obvious sign of distress or pain. He was later depicted helping a customer
to her car and loading product she had purchased into the boot of the car and
into the back seat of the car again, all without much difficulty. The video does
not add a lot to the case. The plaintiff has agreed that he can carry out his work
at Bunnings but says he is generally sore after a long day at work. The video
27
28
29
30
31
Exhibit 4
PCB 28
DCB I
DCB I
T21
VCC:PUAS8 JUDGMENT
Brown v Kiinpton
depicts that some aspects of the plaintiffs work at Bunnings might be regarded
as heavy work but shows that despite his long-term degenerative change in the
lumbar spine, he is able to carry out this work.
I found the plaintiff to be an unsatisfactory witness. He made concessions but
only when presented with the facts. In my view, unless the true facts were put
before the witness from other evidence, such as clinical notes, the plaintiff was
content to have the Court believe that all of the consequences for the plaintiff
as claimed by him in his affidavits were atIn butable only to what occurred in
May 2009 and not otherwise. In his affidavits, he had created the clear
impression that his sporting interests such as golf had ceased because of the
incident and the injury claimed to have been sustained, The cross-examination
showed this was not the case, Further, the plaintiff, in his affidavit, had said
there were only ever two previous episodes of back pain, one in 2005 and the
other in the incident in 2009. That clearly was not the case. There were
episodes in 2002,2005,2007,2009 and 2013, each with its own brief history.
None of this was put before the Court in the plaintiffs case.
The other matter concerns the reasons why the plaintiff ceased work in 2010.
In his first affidavit, the plaintiff made it clear it was because of the incident and
the injury he claimed to have suffered in it. When tested in cross-examination,
this was demonstrated to be wrong. The real reason was trouble the plaintiff
was having with his employer because of his anger management issues.
Allowing for the plaintiff having a poor memory, at the very least he is an
unreliable witness and I am not prepared to act on his evidence.
The records from the plaintiff's general practitioner show that he is being treated
for a number of differing ailments and he has been treated periodically for
complaints of back pain going back to 2002. Apart from seeing his general
practitioner on about five occasions between May 2009 and August 2009
arising from the complaint of back pain in May 2009, the plaintiff has received
34
35
,
,
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36
37
VCC:PUAS9 JUDGMENT
Brown v Kimpton
.
no further treatment. He does continue to see his chiropractor. It is unclear
whether this is for treatment specifically related to back pain suffered from any
one of the incidents of 2002,2005,2007,2009 or 2013. He has continued to
see his general practitioner on a number of occasions since 2009 for his other
ailments and for the complaint of back pain in 2013.
38 There is no other specialist treatment and there is no mention of the likelihood
of specialist treatment for the 2009 incident and injury. The plaintiff does not
take prescription medication for his low-back pain.
39 There is evidence of the plaintiff having suffered lumbar disc degeneration for
a long period of time. There is no evidence that the incident in 2009 caused
any aggravation of his lumbar disc degeneration or, if it did, to what extent.
40 Mr Kossmann gave, inter alla, this opinion under various subject headings:
"DIAGNOSIS
Degenerative changes lumbar spine with diffuse disc bulge at L1/2indenting the anterior the cal sac, diffuse disc bulge at the L2/3 levelcausing mild bilateral neural foraminal compromise, slightly more markedon the right side; diffuse disc bulge at the L3/41evel causing mild bilateralneural foraminal compromise and diffuse disc bulge at the L4/51evel.
ANALYSIS AND DISCUSSION
Mr Brown has worked all his life in physically demanding work and overthe years from 2002 onwards has had four episodes of severe onset oflumbar back pain. He was investigated with CT scans of his lumbar spine,which showed that he was suffering from degenerative changesthroughout the lumbar spine. Mr Brown has always been able to returnto work and is currently working 21 hours in a part-time position withBunnings on modified/light duties, however, he struggles due to his backpain,
PROGNOSIS
Mr Brown's prognosis regarding his lumbar spine condition is poor. Iremain with my opinion that Mr Brown will continue to suffer from pain, forwhich he will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.The chances of him requiring surgery in future are in my opinion mild tomoderate. He may have to undergo surgery if he suffers from acatastrophic disc prolapse with neurology. The type of surgery will bedirected by his symptoms and the pathology at that time. I cannot
VCC:PUAS10 JUDGMENT
Brown v Kiinpton
41
anticipate an exact timeframe of if and when this may occur. "'2
Earlier I referred to the report of Mr Gale. His diagnosis was as follows:
"As a result of an incident at work in May 2009 the worker is likely to havesuffered symptomatic aggravation of pre-existing symptomaticdegenerative changes in the lumbar spine, the first became symptomaticin 2002 after a work-related injury. Since that initial injury the worker hashad episodic back pain and a number of episodes of symptom flare-uprequiring treatment,
Currently the worker does continue to suffer from low back symptoms, butI do not believe they are solely and specifically a sequel of the injury inMay 2009, ,, 33
42 Dr Graham, an occupational physician, who also saw the plaintiff on behalf of
the defendant, was of a similar opinion. 34
43 In my judgment, the evidence clearly shows that the plaintiff has suffered from
long-term lumbar disc degeneration. I accept the opinion of Mr Gale and the
opinion of Dr Graham. I note these opinions do not differ from the plaintiff's
expert, Mr Kossmann.
44 The plaintiff may have suffered, at best, a flare"up of pre-existing lumbar disc
degeneration as a result of what occurred in May 2009, but this settled fairly
quickly. The plaintiff has not proved that he suffered an aggravation of pre-
existing lumbar disc degeneration in the May 2009 incident. It is impossible to
say from the evidence produced, the extent of any aggravation of pre-existing
injury to the lumbar spine. It is equally impossible to describe from the
evidence, the extent to which the 2009 incident produced an impairment to the
plaintiff or, whether such impairment was permanent. The consequences
claimed by the plaintiff arising from his long-term lumbar disc degeneration
cannot, in my view, alone be attributed to the 2009 incident.
. "
45 The plaintiff has failed to discharge the on us that he bears. For these reasons,
the application is dismissed.
32
33
34
PCB 23-24
DCB 3
DCB 8
VCC:PUAS14 JUDGMENT
Brown v Kiinpton
. I
46 I will hear the parties on costs.
VCC:PUAS
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12 JUDGMENT
Brown v Kiinpton