,

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

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*

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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:

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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

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PCB 7, paragraph 141T, ,

T, 4, L16-23PCB 3, paragraph 131T, 4, L29

VCC:PUAS5 JUDGMENT

Brown v Kimpton

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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

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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

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DCB 26

Exhibit 4; PCB 13; DCB 26T, 7

PCB I4

T, 9, L30 - T20, L,T19

T20

T20

22

23

24

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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

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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

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VCC:PUAS9 JUDGMENT

Brown v Kimpton

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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.

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33

34

PCB 23-24

DCB 3

DCB 8

VCC:PUAS14 JUDGMENT

Brown v Kiinpton

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46 I will hear the parties on costs.

VCC:PUAS

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12 JUDGMENT

Brown v Kiinpton