Biggs v Amerind Pty Ltd
[2011] VCC 969
•21 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02503
| JACQUELINE BIGGS | Plaintiff |
| v | |
| AMERIND PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 April 2011 |
| DATE OF JUDGMENT: | 21 June 2011 |
| CASE MAY BE CITED AS: | Biggs v Amerind Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 969 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB, s.134AC – serious injury application – application brought within time – serious injury to the back – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Titshall QC | Hounslow and Associates |
| with Mr S B Spittle | ||
| For the Defendant | Mr S Smith | Minter Ellison |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.135A(19)(4)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 13 November 1996.
2 The issue for determination was whether the application was brought by the plaintiff within time. Counsel for the defendant submitted that the s.135A application was not made within the relevant time period. The s.135A application was issued on 5 February 2010. The relevant date three years prior to 5 February 2010 for the purposes of s.135AC(b) is 5 February 2007. The defendant argued that the plaintiff’s injury satisfied the definition of “serious injury” and the plaintiff knew it prior to 5 February 2007. Accordingly, she is barred from bringing this application.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.135A(19) of the Act.
4 There, “serious” is defined as meaning:
“(a) serious long term impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the back.
6 It was accepted that the consequences from which the plaintiff now suffered are a serious injury within the meaning of the Act.
7 The plaintiff relied upon three affidavits, sworn 5 February and 29 October 2010 and 25 February 2011. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Knowledge Defence – Section 135AC(b)
8 Under s.135AC(a) of the Act, any application for determination pursuant to s.135A(2)(b) must be issued before 1 September 2000. The plaintiff’s application was not issued until 5 February 2010 and is therefore, prima facie, out of time, and she is precluded from bringing proceedings against the defendant. However, under s.135AC(b) of the Act:
“if the cause of action arose before 12 November 1997 and the incapacity
arising from the injury was not known until after 12 November 1997 …”;
the plaintiff may bring her application provided she does so –
“… before the expiration of three years after the date the incapacity
became known.”
9 Thus, the plaintiff must prove, the onus being upon her, that prior to 5 February 2007, she was not aware of the serious injury consequences of the injury arising from pre-November 1997 employment.
10 In AEP Industries Australia Pty Ltd v Mahmoud,[1] the Court of Appeal accepted on appeal that s.135AC(b) involved a two-step process: first, the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time; and second, whether those facts constituted knowledge of serious injury incapacity as explained in Humphries v Poljak.
[1] (2007) 17 VR 144
11 As Ashley JA, with whom Maxwell ACJ and Nettle JA agreed, stated in Papercorp Pty Ltd v Nicolaou:[2]
“It is for the judge hearing a s 135A(4)(b) application to decide what the worker knew about the extent of and probable duration of his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.”
[2] Howden v Ansett Australia [2006] VSCA 143, at paragraph 50
12 Further, Ashley JA stated, at paragraph 33, that the “knowledge of incapacity arising from the injury may be either constituted by pain and suffering, or pecuniary disadvantage or both.”
13 The issue then is, what was the plaintiff’s knowledge of the extent and probable duration of her incapacity arising from her back injury as of 5 February 2007? What is relevant is her knowledge of facts which, when viewed objectively, constitute serious injury capacity.
14 As Beach AJA said in Smith v Canberra Press Pty Ltd:[3]
“… successive decisions of this court have established, the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC. What is relevant is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. By the same reasoning, a lack of awareness that a worker had a cause of action arising from the injuries the subject of an application under s 135A has no bearing when considering whether the application under s 135A(2B) was brought within time or not.”
[3] [2009] VSCA 200, at paragraph 11
15 See also Redlich JA’s judgement in AEP Industries Australia Pty Ltd v Mahmoud.[4]
[4] (ibid) at paragraph 28
16 Thus, knowledge means the subjective knowledge of the worker, not suspicion or knowledge as objectively assessed.[5]
[5] Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692, at paragraphs 26 and 29
17 The knowledge is not knowledge of serious injury, but rather knowledge of “incapacity arising from injury”.[6]
[6] Edwards v McSaveney & Anor [2005] VSCA 252
18 While the knowledge is the subjective knowledge of the plaintiff, it is not her “subjective value judgment” of incapacity[7] which is to be taken into account. As Nettle JA said in Papercorp:[8]
“There is a long way between Callaway JA’s man of fortitude and a man or woman who beyond fortitude or for some other reason deliberately closes his or her eyes to the obvious; … .”
[7] Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia (ibid)
[8] at paragraph 5
19 I infer from the authorities that, while it is the subjective knowledge of the plaintiff that is to be taken into account, that knowledge must be realistically appraised. Thus, the example is given in Papercorp Pty Ltd v Nicolaou[9] of the worker who loses a limb but claims he or she does not care and the consequences are not serious. Matters such as the worker’s optimism as to prognosis and the ability of the worker to block out pain may be taken into account.[10]
[9] at paragraph 40
[10] at paragraph 47
The Plaintiff’s Evidence
20 In her first affidavit sworn on 5 February 2010, the plaintiff deposes that:
•
She started work for the defendant on 15 April 1986 as a veneer grader, which involved repair work and other duties. She progressed to a supervisory role within the company, which involved overseeing the tasks of others, as well as physical work.
•
On 13 November 1996, the plaintiff was pushing a pack of veneer along a line when it jammed, causing the veneer to bounce back with considerable force. The plaintiff was jolted and pushed back by the impact. She experienced back pain that evening. She returned to work the next day and was sent to the company doctor, Dr J H Taylor at the Westbreen Clinic. Dr Taylor arranged a CT scan and referred the plaintiff to Ms Linda Ruggiero, physiotherapist, at Sunbury Physiotherapy Clinic.
•
On 14 November 1996, the plaintiff lodged a compensation claim in respect of the injury. The claim was accepted.
•
For the next four months the plaintiff continued to see Dr Taylor who issued medical certificates restricting heavy lifting, prolonged standing, bending and working in a “bent-over” position.
• The plaintiff’s back never full recovered from the injury. •
The plaintiff ceased to work for the defendant in about mid 1999 due to unrelated health problems. Her employment history since then is:
− From about December 1999 to April 2000, she worked for Presswell
Holdings Pty Ltd.− From early 2001 until 2003, she worked three days per week for
Realwood Veneers Pty Ltd, undertaking various duties. She was able to manage the work.
− In mid 2003, the plaintiff commenced work at Sunbury Appliance
Service. She worked 20 hours per week, three days per week as a receptionist and organising servicing jobs. From time to time she had flare-ups of back pain, and she occasionally required time off work due to back pain. When this occurred she would see Dr Samararatna at the Goonawarra Medical Centre who provided medical certificates. When the flare-ups were severe, she had up to two weeks off work. She ceased work on 11 September 2009 when she had back surgery.
•
In early 2004, the frequency of her flare-ups increased. She complained of back pain and referred pain in the left leg and had an x-ray and CT scan of her lumbar spine.
•
The flare-ups of back pain continued into 2005. The back pain would be exacerbated by sneezing or getting out of the shower.
•
In late April 2006, she suffered another flare-up of back pain. On 11 May 2006, she attended Dr Jensen complaining of severe and chronic low- back pain. On 19 May 2007, she returned to Dr Jensen because the pain was not better and Dr Jensen administered an epidural injection, which resulted in marked improvement, and by late May 2006 she was coping with most activities.
•
During 2007, the plaintiff continued at work, but had occasional flare-ups of back pain. In May 2007, she had another flare-up and on 7 June 2007, she attended Dr Jensen complaining of back pain with referred pain in the right leg. She was taking Voltaren and Paracetamol. This flare-up settled down and she continued to cope during 2008 until early 2009.
•
In January 2009, the plaintiff suffered an exacerbation of back pain with referred pain in both legs, but worse on the right side. She attended Dr Samararatna, who arranged an x-ray. On 19 March 2009, she attended Dr Jensen and had a further epidural injection, but the injection did not provide any lasting relief so Dr Jensen arranged for her to have an MRI scan.
•
On 7 May 2009, Dr Jensen administered a nerve block injection. On 2 June 2009, the plaintiff attended Mr Patrick Chan, neurosurgeon and spinal surgeon, who raised the option of surgery. On 11 September 2009, Mr Chan performed the surgery at The Alfred Hospital.
•
Prior to Christmas 2009, the plaintiff was reviewed by an orthopaedic surgeon at The Alfred Hospital and advised she could return to work in February 2010, but only for two hours a day, three days a week.
•
She now realises the full extent and impact of the injury she has suffered. She suffers constant pain in the lower back and referred pain in both legs, which is worse in the right leg. She is unable to sit or stand for any length of time. The pain and stiffness are worse first thing in the morning. She suffers sleep disturbance. She has difficulty getting dressed and requires assistance. She avoids driving and has difficulty walking and using stairs. She is restricted in her bending and stooping and can only lift or carry light items.
21 In her second affidavit sworn 29 October 2010, the plaintiff reiterates the content of her first affidavit and adds:
•
She has returned to work with Sunbury Appliance Service working three days per week, with part-time hours on two days. The work is not physical.
•
She has physiotherapy approximately every three weeks and does a routine of exercises at home. She also attends hydrotherapy classes weekly.
• She takes Panadol daily, and on a bad day will take up to eight tablets. •
She has had follow-up appointments at The Alfred Hospital, the latest being on 30 June 2010. She is scheduled for another review prior to Christmas. She understands no further surgery is being contemplated.
22 In her third affidavit sworn 25 February 2011, the plaintiff reiterated the content of her first affidavit and adds:
•
She sees Rebecca Cathie at least weekly, who supervises her hydrotherapy and assists with general physiotherapy. She consults her general practitioner for other health matters and treatment for her back injury is mainly from her physiotherapist.
•
She takes sleeping tablets and four to six Panadol a day, which can increase to eight tablets a day. She uses heat packs.
•
She continues to work at Sunbury Appliance Service working a full day on Monday, three hours on Tuesday and five hours on Wednesday and Thursday. This is as much as she can manage as she has increased soreness following these shifts. Her inability to work more hours is causing problems with her boss.
• She has only had marginal improvement since her first affidavit.
Evidence in Cross-Examination
23 In cross-examination, the plaintiff said:
• Prior to the injury she walked daily for approximately one hour. • Between 1997 and 1999, she had between three and five flare-ups. •
In 2001, she was a single parent so she reduced her hours at work to part-time to accommodate her daughter’s needs. The decision had nothing to do with her back injury.
•
In 2001, she worked for Realwood for a period of three years and had a couple of flare-ups during that time.
•
In 2004, she told her general practitioner she had had her third flare-up in six months.
•
She agreed her flare-ups were more frequent by 2004 and back pain more severe with flare-ups, but the flare-ups were always controlled by Voltaren medication. In April 2004, she was also prescribed Panadeine Forte.
•
She was told by her general practitioner that she was never going to have a completely good back. She was never told that the pain was going to get worse.
•
In 2004, a CT scan was performed because her general practitioner wanted to see her progress. After the CT scan her general practitioner recommended exercise, physiotherapy and pain relief.
•
Her general practitioner told her there was a problem with the disc in her back, but she did not recall being told that a disc was pressing on a nerve or that she would have to be careful about her back.
•
She agreed that by 2004 she had to protect her back and would not do a lot of bending or heavy lifting. She agreed that in 2004, she only took additional steps to protect her back when she had flare-ups, otherwise she went about her normal business.
•
She agreed that in October 2004 the pain was taking longer to settle, but once she took medication she was fine and could continue her daily business.
•
She agreed that by 2004 simple things could bring on the flare-up pain, it lasted longer, was more intense and she required increasingly strong medication.
•
She said once she had the injection in May 2006 she thought she was on the road to recovery. She agreed she gained immense benefit.
•
She explained that the pain she experienced May 2006 was the worst, she completed a questionnaire about the pain at that time, but the pain improved after the injection. She did not return to her general practitioner about back pain until May 2007 and lived a normal life, working and undertaking household duties.
•
She returned to her general practitioner in June 2008 after falling on a treadmill, but she did not hurt her back.
•
She attended her general practitioner in March 2009 complaining of low- back pain.
•
She agreed that flare ups were managed by exercise and medication until 2009.
•
The pain is now managed by daily medication, physiotherapy twice a week and hydrotherapy. She is still in constant pain and is cautious all the time.
• It was not suggested in 2006 that she needed an operation.
Investigations
24 On 15 November 1996, a CT scan of the lumbar spine showed that there was mild degenerative changes in the L5-S1 facet joints. There was a mild diffuse disc bulge at the L4-5 level, while there is no definite radiological evidence of neural involvement, a clinically significant lesion would produce symptoms at or below the L5 level.
25 On 20 March 2003, an x-ray of the cervical spine reported:
“Reversal of the normal cervical lordosis may well be due to spasms. Disc heights are well preserved. There are no features of degenerative or inflammatory spinal disease.
Vertebral body alignment is maintained and the oblique radiographs demonstrate normal exist foramina. There are no cervical ribs.
No focal cervical abnormality is identified.”
26 In May 2004, an x-ray of the lumbar spine showed there are four lumbar mobile segments.
“Significant disc space narrowing is seen at L4-L5 (last mobile segment) and there are secondary changes of spondylosis at this level. Slight retrolisthesis is noted.
Above L4 disc heights are well preserved.
No spondylosis or listhesis can be identified. No other discrete lumbar abnormality is detected.
The sacroiliac joints are normal.”
27 A CT scan of the lumbar spine in May 2004 concluded that the posterolateral disc protrusion on the right at L4-5 was not visible on a previous examination of 15 November 1996.
“Correlation with the clinical symptoms is recommended. At the L4-5 level, the disc contains gas indicating that it is degenerate. There is posterior lateral disc protrusion to the right of mid-line extending slightly inferiorly into the central lateral recess of L5. This is compressing the right L5 nerve. Minor thecal sac compression is seen but there is no significant canal stenosis.”
28 On 4 March 2009, an x-ray of the lumbar sacral spine showed:
“There is moderate degenerative change in the lower lumbar region at L4-5 and L5-S1. The rest of the lumbar spine is fairly unremarkable. There is no spondylosis or spondylolisthesis and no bone destruction is present. The sacroiliac joints are normal.”
29 On 9 April 2009, an MRI scan of the lumbar spine concluded:
“There is transitional anatomy at the lumbosacral junction with
degeneration at the L5-S1 disc.
There is advanced disc degeneration at L4-5 with an associated broad based shallow disc protrusion. There is moderate left L4 foraminal narrowing. No definitive nerve root compression seen.
30 In September 2009, an MRI scan of the lumbar spine concluded:
“ … degenerative changes at L4-5 with modic type one endplate changes, disc space narrowing a minor circumferential disc bulge. Moderate stenosis of the left L4-5 neural exit foramen results predominantly from facet arthrosis, in combination with minor disc bulge, resulting in body encroachment upon the existing left L4 nerve root.”
Medical Reports
31 On 25 November 1996, Ms Linda Ruggiero, physiotherapist, reported to the plaintiff’s general practitioner, Dr Taylor, that she had seen the plaintiff in November 1996 when she complained of a low-back pain with radiation to the right and left buttock and posterior thigh. The pain had started following pushing a box of wood on rollers which had jammed. Ms Ruggiero reported that the plaintiff had attended on four occasions and had been treated with soft-tissue massage and exercises, as well as gentle passive mobilisations. When last seen on 21 November 1996, the plaintiff reported she felt considerably better and was no longer getting the buttock or leg pain, and only occasionally felt lower back pain.
32 In May 2006, the plaintiff’s general practitioner, Dr Anthony M King, referred the plaintiff to Dr Steven Jensen for his opinion regarding her radiculopathy in the lumbar region.
33 In May 2006, Mr Jensen reported that the plaintiff was suffering somatic lumbosacral spine dysfunction which was probably discogenic pain. He said there was no hard evidence of radiculopathy at this stage. He recommended a home exercise program to help the plaintiff through “this exacerbation”. He suggested she resume her walking program and said if she does not settle he would recommend a caudal epidural injection, given the bilateral leg distribution. A week later, on 19 May 2006, Dr Jensen reported that he undertook a caudal epidural injection. Post-injection, her straight leg raise was 90 degrees left and right and pain-free. He noted this was a vast improvement on her pre-injection state.
34 On 31 May 2006, Mr Jensen reported that her pain level had reduced significantly. He recommended an active program of stabilising and strengthening exercises and an active walking program.
35 The plaintiff returned to her general practitioner in May 2007 complaining of acute pain in the lower lumbar region. In June 2007, Mr Jensen reported that the plaintiff had an episode of bad back pain. He noted that although the pain had improved, there was still significant pain in the lower back radiating through the right lower limb. The leg pain was of a sharp and stabbing neurogenic quality. It was his opinion that this was a right leg radicular pain but without any true radiculopathy. The posterior distribution suggested an S1 nerve root compromise. He noted that she was taking Voltaren and paracetamol regularly and he urged her to continue this as required. He said if the pain did not settle he would consider a caudal epidural as undertaken twelve months ago.
36 In March 2009, Mr Jensen reported to the general practitioner that the plaintiff had returned as she had suffered an exacerbation of her previous back pain with referred pain down both legs, more prominent on the right side. He noted that prior to this exacerbation, the plaintiff was doing well. He pointed out to the plaintiff that the natural history of back problems is for recurrent episodes. This was the first time that the plaintiff was informed about the likely long-term effects of her injury. He noted that the exercise programs and other health measures have shown to minimise the frequency, severity and duration of such recurrences. As he noted, she had gained benefit from a caudal epidural injection and due to her level of discomfort, he administered a caudal epidural injection. He noted that post-injection she was much improved.
37 In April 2009, Mr Jensen noted that the plaintiff did not get much satisfaction from the injection and was struggling with the right radicular quality leg pain. He said there was no evidence of nerve root encroachment clinically. He ordered an MRI scan of her lumbar spine and prescribed Tramadol.
38 On 29 April 2009, he reported that the MRI scan revealed significant modic changes at L4-5 with associated foraminal narrowing. He recommended trialling a specific transforaminal epidural injection.
39 In June 2009, Mr Patrick Chan, neurosurgeon and spinal surgeon, saw the plaintiff at the request of her general practitioner. Mr Chan recommended surgery involving an L4-5, L5-S1 decompression and instrumented fusion which was accepted by the plaintiff. Mr Chan formed the view that the plaintiff had suffered from progressive L4-5 lumbar disc degeneration which reached the point where there was resorption of the L4-5 lumbar intervertebral disc prior to the spinal fusion operation in September 2009. He said a review of the original CT scan showed that there was some early L4-5 disc degeneration and that the degenerative process pre-existed the work injury on 13 November 1996. He said the condition was entirely asymptomatic and there were no restrictions on her activity as a result of these early degenerative disc changes. He accepted that the work injury in November 1996 was probably associated with a lumbar disc injury, the most likely injury being disruption of the annulus of the degenerative L4-5 lumbar intervertebral disc. He said the annular tear compromised the structure of the intervertebral disc and from that time onwards she was prone to recurrent tearing with associated symptoms of back pain and restricted movement. Over the years, these recurrent episodes were associated with gradual destruction of the integrity of the L4-5 lumbar intervertebral disc and secondary disc resorption.
40 On 15 December 2009 and 12 October 2010, the plaintiff was examined by Mr Rodney J Simm, orthopaedic surgeon, at the request of the plaintiff’s lawyers. Mr Simm noted that the plaintiff had worked in the timber veneer trade and that since about 2002 to 2003 she has done reception work. He noted that she had avoided work which involved bending, lifting or undue stress on her back and she had worked twenty hours per week until the time of her back operation in September of 2009. He noted her medical history, including that she had an exacerbation of symptoms in 2004 and was treated conservatively; that a further exacerbation of pain occurred in 2006 and she was treated with an epidural injection and medication; and that she had a severe increase in low-back pain which was associated with significant pain radiating into the right buttock and right thigh in 2009.
41 On 4 February 2011, The Alfred Hospital reported that the plaintiff had described years of back pain which was controlled with physiotherapy. In January 2009, whilst reaching for a glass of water, she exacerbated the low- back pain. She received two epidural injections without significant improvement. The MRI scan performed on 9 April 2009 showed partial sacralisation of the L5 vertebra with significant degenerative disc disease at L5-S1 level. At L4-5 there was advanced disc degeneration with broadbased disc bulge. Mr Chan concluded that the plaintiff had mechanical axial back pain and bilateral L5 pain, which had been medically refractory and persistent.
42 On 30 March 2011, Dr Pearly Cooray, general practitioner from the Goonawarra Medical Centre, reported that there was no record on file regarding the plaintiff’s initial injury in 1996. However, records held by the Medical Centre disclosed a history of recurrent back pain dating back to June 2003. The plaintiff was initially referred to Dr Steven Jensen in 2006. In June 2009, she was referred to Mr Patrick Chan, neurosurgeon and spinal surgeon. The Goonawarra Medical Centre records between 2003 and 2009 show that in July 2003, the plaintiff complained of back pain, chronic symptoms and no radiation. Voltaren and Valium were prescribed. In April and May 2004, the plaintiff attended her general practitioner on three occasions and scripts for Panadeine Forte, Voltaren and Tramadol were prescribed. X-rays and a CT scan were performed. There was no attendance between May 2004 and May 2006.
Legal Analysis
43 I must consider the plaintiff’s knowledge of the extent and probable duration of her incapacity arising from her back injury as of February 2007. The burden of proof is on her to satisfy the Court that, as a matter of fact, she did not know prior to February 2007 that the consequences of her condition were of a serious long-term impairment. It was submitted by counsel for the defendant, that by 2006 the plaintiff was having a significant form of treatment by way of caudal epidural injections performed by Mr Jensen. She completed a musculoskeletal questionnaire in May 2006, which painted a picture of one who was substantially impaired. She was having recurrent episodes of back pain which were worsening, and when she saw Dr Jensen in May 2006, she had a medical condition flowing from a workplace accident that was permanent. The plaintiff’s problem was becoming increasingly troublesome, increasingly difficult and impairing, and to a much more significant degree, her occupational, social and recreational functioning. It was counsel for the defendant’s submission that by February 2007 the plaintiff could have sought, and would have obtained, a serious injury certificate.
44 In determining the state of the plaintiff’s knowledge in this case, I have considered her affidavits, her viva voce evidence, the histories she has provided to various medical practitioners and the opinions of various doctors, particularly treating doctors, over the relevant time.
45 It was submitted by counsel for the plaintiff that the consequences referred to as constituting serious injury evolved over many years but continued to worsen after May 2007. Between May 2006 and May 2007, she did not consult a medical practitioner in relation to her back. In May 2007, she continued to have flare-ups, returned to her general practitioner who referred her to Dr Jensen. She was taking more medication than before and Dr Jensen administered a further injection. The leg pain was increasing in severity. She said the problems she had with her back settled in mid-2007 and she continued to cope reasonably well during 2008 up until early 2009 when she suffered an exacerbation of pain with referred pain into both legs when reaching for a glass of water. She attended her general practitioner and Dr Jensen, who administered a further epidural injection, which did not give her any lasting relief.
46 I accept that the plaintiff knew that she had suffered a back injury in 1996, that she recovered and led a normal life but suffered flare-ups. Her evidence was that between 1997 and 1999, she suffered three to five flare-ups. In the period 2001 to 2003, she suffered a couple of flare-ups. By 2004 the flare-ups were more frequent and more severe, but were controlled by Voltaren and Panadeine Forte. She was treated by her general practitioner who told her she was never going to have a completely good back. Her general practitioner recommended exercise, physiotherapy and pain relief. She was told she had a problem with a disc but had no recollection of being told the disc was pressing on a nerve or that she had to be careful about her back. She said that at the time of flare-ups she protected her back by not bending or lifting, but otherwise went about her normal activities. In October 2004, she was aware that small things could bring on the pain, for example sneezing, the pain took longer to settle, was more intense and she required stronger medication.
47 She did not consult her general practitioner about her back pain between May 2004 and May 2006. In May 2006, she was referred to Dr Jensen, who administered a caudal epidural injection. She said her pain and movement was vastly improved as a result of the treatment.
48 In May 2007, she had acute onset of back pain, and Dr Jensen urged her to continue Voltaren and paracetamol and suggested if the pain did not settle he would administer a caudal epidural injection. She did not return. Her evidence was she lived a normal life working, performing her household duties and caring for her daughter.
49 She next complained of back pain in March 2009. Her evidence was that until 2009 the flare-ups were managed by exercise and medication. In March 2009 Dr Jensen administered a further epidural injection. In April 2009, he noted the plaintiff did not obtain much relief from the injection, he ordered an MRI scan of the lumbar spine and administered a nerve block injection. In May 2009, the plaintiff was referred to a neurosurgeon, Dr Chan.
Conclusion
50 Although the question I must determine is what the plaintiff herself knew of the long-term future of her condition at the relevant time, I consider that the contemporaneous opinions of doctors are relevant as important indicators of what the plaintiff was likely to have been advised at the time, and of assistance in assessing what she was likely to be thinking about her condition. Her general practitioner was treating her conservatively with medication and exercise. He did not see her for two years in relation to her back. He referred her to a musculoskeletal physician in May 2006 who said there was no hard evidence of radiculopathy. The caudal epidural injection in May 2006 gave her relief. She returned to her general practitioner in May 2007 complaining of pain in the lower lumbar region. At this time Dr Jensen suggested she continue medication as required and return for a further injection if the pain did not settle. She returned almost two years later. By that time a further injection did not relieve the pain. There was no evidence by the plaintiff or medical witnesses that she was being told anything about the long-term effects of her injury. In fact, her general practitioner’s records in the main describe her injury as a “soft-tissue injury”. Mr Jensen was not sure that she was suffering radiculopathy. The plaintiff was an impressive witness. She answered questions in a forthright manner. She was keen for the Court to understand that apart from the flare-ups, she led a normal existence. I accept that what she told the Court was an accurate account of the way she lived.
51 I accept that it was not until early 2009 that the plaintiff knew she had pain which was constant. Accordingly, I take the view that she was not aware of the serious injury consequences of the injury arising from her pre-November 1997 employment prior to February 2007. It was accepted that those facts constitute a serious injury incapacity as explained in Humphries v Poljak.
52 Accordingly, I grant the plaintiff’s application.
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