Falla v Victorian WorkCover Authority
[2022] VCC 466
•13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03859
| MATTHEW FALLA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2022 | |
DATE OF JUDGMENT: | 13 April 2022 | |
CASE MAY BE CITED AS: | Falla v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 466 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – acquired brain injury – adenocarcinoma of the ethmoid sinus – application pursuant to s135A of the Accident Compensation Act 1985 – determination pursuant to s135AC of the Accident Compensation Act 1985 as to whether the application for determination had been made before the expiration of three years after the date the worker’s incapacity had become known
Legislation Cited: Accident Compensation Act 1985, s135A, s135AC
Cases Cited:Papercorp Pty Ltd v Nicolaou [2006] VSCA 143; M & J Rawlings Builders and Contractors v Rawlings [2010] 30 VR 444; Humphries and Anor v Poljak [1992] 2 VR 129; Howden v Ansett Australia [2006] VSCA 143; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Smith v Canberra Press Pty Ltd [2009] VSCA 200; Pattison v Herald and Weekly Times [2013] VSCA 121; State of Victoria v Collins (1999) 1 VR 215
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Britbart QC with Ms A Tate | Brave Legal |
| For the Defendant | Mr A J McG Moulds QC with Mr L Howe | IDP Lawyers Pty Ltd |
HER HONOUR:
1The plaintiff alleges that during the course of his employment with Alexander J Cook (“the employer”) between 7 April 1986 and 2 November 1990 (“the said period”) he suffered injury – an adenocarcinoma/Acquired Brain Injury (“ABI”) – due to wood dust exposure (“the exposure”).
2There is no dispute that the ABI is a resulting condition from treating of the original carcinoma.[1]
[1]Transcript (“T”) 8
3In this application, the plaintiff seeks leave to issue a proceeding to recover damages in respect of the injury suffered by him. His right to do so is governed by the provisions of s135A and s135AC of the Accident Compensation Act 1985 (“the Act”).
4Section 135A of the Act, in effect, provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment if the injury is a “serious injury”.
5The term “serious injury” is defined in the Act, insofar as is relevant to this application, as:
“serious long-term impairment or loss of a body function.”[2]
[2] Section 135A(19) of the Act
6Insofar as it is relevant, s135AC of the Act provides:
“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a) subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b) 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, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
(My emphasis)
7On 3 April 2020, the plaintiff made an application to the Victorian WorkCover Authority (“the Authority”) pursuant to s135AC of the Act, alleging that he had suffered a serious injury as a result of the exposure during the said period. By letter dated 20 August 2020, he was advised that his s135A application against the employer was rejected.
8It follows that, by reason of the provisions of s135AC(b) of the Act, the plaintiff is barred from commencing a damages claim relating to those injuries unless the incapacity arising from those injuries suffered due to the exposure was not known until three years before the application was issued – 3 April 2017.
9In Papercorp Pty Ltd v Nicolaou,[3] the Court of Appeal held that the words “the incapacity arising from the injury” in s135AC(b) of the Act should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering consequences, or pecuniary disadvantage, or both, which would found a successful serious injury application.[4]
[3] [2006] VSCA 143
[4] (ibid) at paragraph [33]
10The onus is on the plaintiff to establish that he was not aware of his incapacity arising from injury suffered as a result of the exposure prior to 3 April 2017.[5] He must establish that his application was made within three years of the date that the serious injury incapacity became known to him.
[5] M & J Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 (“Rawlings”) at paragraphs [9]-[31]
11In determining whether the plaintiff has satisfied the criteria in s135AC, a two-step process is required to be followed by the Court:
(a) First, identify what the worker knew in relation to his injury at the relevant date (here, 3 April 2017); and
(b) Second, having determined what the worker knew, the Court must determine whether, as a matter of fact and degree and value judgment for the judge, these known facts constitute knowledge of “serious injury incapacity” as explained in Humphries and Anor v Poljak.[6]
[6][1992] 2 VR 129 (“Humphries”); AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144 at paragraph [11]; Papercorp Pty Ltd v Nicolaou (supra); Howden v Ansett Australia [2006] VSCA 143 at paragraph [50]
12In Humphries, the Court of Appeal stated that:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.”[7]
[7] Humphries (ibid) at paragraph [8] per Crockett and Southwell JJ
13The Court is to look at the worker’s actual subjective knowledge of his incapacity.
14The Court must decide what the worker knew about the extent of, and probable duration of, his incapacity arising from the compensable injury at a particular time.
15However, the fact that the worker may know of the fact and nature of his incapacity but not subjectively know that such incapacity amounts to a “serious injury” (as defined in the Act) until after the relevant date, does not matter. It is sufficient to bar the claim if the worker knew, by the relevant date, of facts which, viewed objectively, constituted a serious injury incapacity.[8]
[8]AEP Industries Aust Pty Ltd v Mahmoud (supra) at paragraph [28]; Smith v Canberra Press Pty Ltd [2009] VSCA 200 at paragraph [8]
16Nor is it relevant that the worker may not have appreciated that he had a cause of action arising from the injuries.[9]
“The test is knowledge, not suspicion or awareness of facts that it conveys information to another but actual subjective knowledge on the part of the worker” and “all the worker had to prove was absence of knowledge not an absence of suspicion or of facts from which persons of less fortitude might have drawn a more pessimistic conclusion.”[10]
[9] Smith v Canberra Press Pty Ltd (ibid) at paragraphs [10] to [12]
[10] Papercorp Pty Ltd v Nicolaou (supra) at paragraph [18]
17Therefore, the issue before the Court is whether the plaintiff knew of the relevant incapacity on or before 3 April 2017 (that date being three years before the date of his application).
18The defendant’s case was that the Court should be satisfied the plaintiff already had serious injury consequences before the medically consequential ABI came along at all. His career as a carpenter was known to be over. He had had multiple operations and was in significant discomfort, and would have satisfied any test of serious injury on a pain and suffering basis, which was all that was required on the authorities.[11]
[11]T19
19The plaintiff’s main position was that it was only in 2019, following the receipt of Dr Leigh’s expert report detailing the latency period of his cancerous condition of twenty to thirty years, that the plaintiff had knowledge of serious injury incapacity arising from the period of employment.[12]
[12]T3
20In the alternative, it was not until November 2017 that the plaintiff took the consequences of the ABI to be permanent. He then realised that fatigue and other symptoms had an organic basis, rather than being a hangover from years of treatment for carcinoma.[13]
[13]T9
21The defendant does not dispute that the plaintiff suffered serious injury as a result of the exposure during the period of employment. In these circumstances, I intend to deal with evidence of the plaintiff’s treating medical practitioners in a limited way in terms of the plaintiff’s knowledge of his condition and incapacity.
The Plaintiff’s evidence
22The evidence of the plaintiff’s subjective knowledge of his incapacity must inevitably come from his own accounts as appear in his affidavits in support of his application, his viva voce evidence, and from histories given to doctors at various times and from any advice he received.
23The plaintiff’s first affidavit, unsworn, was prepared in about April 2020 and accompanied his Form A application. This affidavit set out his work history and details of exposure with various employers.
24The plaintiff was employed full time by the employer as an apprentice cabinetmaker during the period of employment.
25For about 95 per cent of the time working in the employer’s factory, cabinetmaking took place. The furniture was primarily made from solid timber. The manufacturing of furniture was very labour intensive, and the factory had a variety of machines for cutting and machining wood.
26The employer’s factory had a dust extraction system, with the hoses going to some, but not all, of the machines. That system was not effective, and even with it in operation, there was always wood dust in the air in the factory, the extent of dust depending on what type of job was being done. Also in the factory, surfaces were coated with wood dust. About once or twice a week, the dusty area was cleaned, not the whole factory.[14]
[14]T23
27Working as an apprentice, emptying the hopper was a very dusty job and the plaintiff would be covered in wood dust. Every day he worked at the factory, his clothes were covered in dust. Thin paper masks were available to wear, but he was never told to wear them, and some of the older workers actively discouraged the wearing of safety gear. Those masks did not seal properly and were uncomfortable to wear.
28The plaintiff had extensive exposure to, and inhalation of, wood dust in his work with the employer on a daily basis during the period of employment.
29After he finished with the employer, he had a period on the dole, but also worked as a self-employed self contractor for a variety of jobs.
30Between April 1990 and June 1995, he did maintenance and renovation work, working as a sole trader up until 1991, when he went into partnership with Graham McIntyre. At some stage, he was subcontracting to a company to install cabinetry.
31By the time of that work, he was wearing a mask. He had some exposure to wood dust, but it was much less frequent and intense than what he had experienced working for the employer.
32In June 1995, the plaintiff and his wife travelled to Northern Australia, where he worked for AAT Kings as a coach driver and tour guide, finishing in about July 1997.
33From October 1997 to March 1999, the plaintiff was a self-employed contractor under the name KrystalWood Construction, doing house renovations and extensions. He wore disposable face masks, which were much better than the ones the employer had available. In this job, he had some exposure to wood dust, but it was much less compared to working with the employer, and he was generally working in the open air and was often wearing a mask.
34From 1999 to 2004, the plaintiff set up a company trading as James & Matthew Building Services and later, Natural Directions. The work involved renovation and building of, particularly work that was considered at the time sustainable and energy efficient. He worked from 1999 to 2001 on the tools, for the next two years as a supervisor and manager, with mainly office work, and from 2003 to 2004, again on the tools. Also, he did some handling and work with wood. He did not have much exposure to wood dust there. If he was on the tools he wore a disposable or silicon mask, depending on the duration of the job.
35From May 2005 to February 2009, he worked as a subcontracting carpenter, with a high-end custom builder, Gary Dyson. He had some exposure to wood dust in that job, but it was much less than when working with the employer, and he was often in the open air.
36The plaintiff was living in Kinglake when the Black Saturday fires happened. The fire affected their property and burnt it badly. After the fire, he decided he could not return to normal work when the community was suffering so badly in the area and felt he had the skills to contribute to electrical work. He oversaw the reconnection of electricity on a number of sites.
37Initially, he started working effectively, self-funded, doing volunteer work helping people on their properties and providing building advice. Over time, he received grants from funds like the BaptCare Bushfire Appeal to do repair work at people’s places. He cofounded a project called Community on Ground Assistance and as project manager, and did jobs like finishing owner/builder homes.
38In about 2010, he became involved with Centacare, Catholic Family Services, now known as Catholic Care. His role was largely office based, managing projects and staff. He had some exposure to wood dust in this work, spending about one or two days a month on sites. There, he did some work with wood, in particular, chain sawing and splitting. He was doing this work when he was found to have sinus cancer.
39While he was not mindful of it, the plaintiff knew by 2013, 2015, and also in April 2020 when his first affidavit was prepared, that by far the most exposure he had had to wood dust was when he was an apprentice with the employer.[15]
[15]T32
Onset of the condition and treatment
40In early 2013, the plaintiff developed what he thought was a sinus infection. He was given antibiotics and had Chinese medicine for about six months. He developed pain in the left sinus and was having regular blood noses, and also pain behind his left eyeball.
41In August 2013, a different general practitioner referred him for a CT scan and told him he needed to see an ear, nose and throat (“ENT”) surgeon, Dr Caroline Ryan, who performed a biopsy on his sinuses and advised him soon after that he had cancer.
42He was referred to Dr Avdo Zahirovic, ENT surgeon, who operated on 18 September 2013, performing an endoscopic craniofacial procedure to remove the cancer in the sinuses and the floor of his brain. He was told the surgery had gone well, but there was some concern whether they could preserve his left eye, and they had been able to do so. After the surgery, he developed a CSF leak.
43On 30 September 2013, he had an open craniotomy, following which he developed meningitis, encephalitis and pneumocephalus. He had to have another two endoscopic surgeries, as well as a tracheostomy to repair the CSF leak, but it did not succeed. He was in very poor health, and at some stage, there was concern he would not be able to pull through. He spent some time in intensive care.
44He has poor recall of his time in hospital, but understood that between 18 September and 18 November 2013, he had about five operations, and by 2016, had had eight operations.
45When discharged in November 2013, he was told he was in a good position as they thought they had got all the cancer, but he needed radiation. They told him the cancer was quite rare and it generally did not metastasise, and if it was to recur, that would probably be within the first three years. The only talk then was about recovery from the cancer.
46When he was discharged, he had facial scarring from the surgery and from the graft. He lost his sense of smell, and his sense of taste was reduced. He was in very poor shape, suffering from fatigue and pain. He then believed he would be able to get back to work, but it would take some time.
47In early December 2013, he had a further hospital admission of about a week because he had developed some facial swelling.
48In late 2014, he was again admitted to hospital with facial swelling. It was then found he had an infected frontal bone flap, which was surgically removed. He was hospitalised for a couple of weeks and sent home with a rugby helmet to protect him as he did not have the normal bone structure. He required daily IV antibiotics for about six weeks and was on oral antibiotics for about nine months.
49In late 2015, he had further revision surgery to insert a titanium plate in place of the missing bone flap. He was hospitalised for a week thereafter and discharged to outpatients indefinitely.
50In 2016, he did not work.[16] He was doing rehabilitation with a view to enabling him to get back to work. He recalled people telling him that he should get back to work, including Dr Zahirovic, who told him in very blunt terms he should do so.
[16] The plaintiff last worked on 31 May 2015 – T5
51During 2016, the plaintiff was suffering from fatigue and pain and seeing an holistic practitioner, who told him his antibiotics had caused gut problems. He was also undertaking a range of therapies, including yoga, osteopathy and physiotherapy. He had modified his diet, had acupuncture and was taking supplements. He was also seeing a psychologist and psychiatrist.
52He was having regular checks from ENT surgeons, neurosurgeons and infectious diseases doctors, and there was no sign the cancer had recurred, and he was being told he was going to be well. But he did not feel well. The main problem was the fatigue and pain, but at some stage, his wife was also saying his personality had changed and he had become impulsive, thinking about buying a motorbike, when it was not appropriate.[17]
[17]T23
53At that stage, his income protection insurance was due to run until the end of 2017. His goal was to get better and get back to work before that policy ran out. His wife, a medical receptionist, was concerned about his mood and mental state, with his previous history of depression, and she organised for him to see Dr Stephen de Graaff, rehabilitation specialist, whom he saw in about February 2017.
54The plaintiff wrote to Dr de Graaff in November 2016 seeking an examination, advising of his understanding of his condition at that time.
“Dear Dr [de] Graaff,
[M]y name is Matt Falla I am 49 years old and am adding this cover letter to my referral to you to ask that you triage my case. Margaret at reception made me aware that you have a wait list but that a new pain management specialist doctor will be starting soon. I would like to be seen by the most appropriate doctor having been recommended to see you specifically.
I am in constant pain, which on a good day can be mild when I perform domestic duties to acute pain that affects me to the point where I am unable to function.
In brief I was diagnosed in Aug ’13 with a malignant sinus tumo[u]r that had grown up into my brain cavity, to date I have undergone 8 operations including 4 craniotomies. I have had meningitis, a brain infection, pneumocephalus and antibiotic induced tendonitis. I currently also suffer from chronic fatigue and a degenerative cervical spine condition C2-C6 which requires me to take Lyrica 150mg daily. I have tendonopathy [sic] throughout my body, I see a doctor of Integrative Medicine, Exercise Physiologist, Physiotherapist and Massage Therapist. I do prescribed daily yoga, cardio exercise and resistance exercises but am still in significant pain.
The pain I experienced from the pneumocephalus was horrific, well beyond that I experienced from a Tibia/Fibula spiral fracture when I was 17 years old. My 10/10 pain score is pretty high, my daily pain is often at a level that makes thinking and performing daily tasks painful or just beyond me.
I’m hoping your Centre can help.”
[sic]
55The plaintiff was then having chronic fatigue, and still does.[18] He had a degenerate cervical spine condition which required Lyrica, and still does.[19] His understanding was there is a degenerative element to his neck pain, but there was also time he had spent with a headframe over the surgeries and a possible contribution from radiation therapy.[20] He understood he was seeing Dr de Graaff for pain.[21]
[18]T33
[19]T34
[20]T34
[21]T35
56In a letter dated 21 February 2017 to Dr Saka, Dr de Graaff stated:
“Thank you for referring this delightful young gentleman. It was with pleasure I caught up with Matthew in my rooms at Epworth-Richmond on 21 February 2017.
He is 49 years of age and formally [scil formerly] worked as a carpenter/builder. He is married with a wife who works as a senior medical receptionist and a daughter who is 17-1/2 years of age undertaking VCE this year.
The reason for presentation is quite complex. Although the initial discussion was on his chronic neck and right upper limb pain as a result of severe degenerative change at C4-5, C5-6, and C6-7 in his neck (confirmed on MRI), he really has a much more complex picture of relating back to the development of ethmoid adenocarcinoma which was resected in September 2013.
There is a past history of depression dating back to a number of years ago and the whole picture has compounded this.
On discussion with Matthew, he really does present with features consistent with an acquired brain injury and I understand he is currently on income protection for this and income protection is covering some of his therapy bills.
In essence, after his surgery, he developed severe meningitis and encephalitis and marked intracranial pressure increase and was in ICU for any [sic] extended period of time being hospitalised for around 2 months.
At that time, I understand he had a neuropsychological assessment that revealed some slowing of cognition and issues with word finding, but there were some preservation of basic cognitive function.
However since that time, Matthew feels he has never been right. The most prominent is his ongoing fatigue which is a common feature post acquired brain injury. He did not have any rehabilitation following his extended hospitalisation in 2013 and subsequent three surgeries since that time.
On delving into his situation further, his first comment is that he is best first thing in the morning and as the day proceeds, he really starts to struggle. He has at least one nap a day of at least 30 minutes to 2 hours and does wake up more refreshed after this. However, his persistence beyond that is probably less than 2-3 hours at best. He describes lowered frustration tolerance with anger outbursts and this impacts upon his quality of relationship with his wife and daughter.
He has lowered noise tolerance and now tends to be socially isolated because he cannot tolerate activities in the community.
He has a disrupted sleep pattern with poor sleep hygiene.
He describes decrease short-term memory and immediate recall, poor concentration attention, word-finding buses) and decrease planning and organisation (these were his strong points when ran his own business).
His driving tolerance is around an hour and then he takes two days to recover. Walking tolerance is around 45 minutes, standing and sitting tolerance is around 30 minutes.
Currently, he is utilizing Lyrica 125 milligram mane and 150 milligram nocte. When he increases the dosage, his fatigue deteriorates and his mood often is lowered. This takes 3-4 weeks to improve. He is also currently on Lexapro 30 milligram daily.
With respect to his neck and right upper limb pain, his pain is generally of a moderate-to-severe level, worse after activity and interferes with his sleep pattern as well. He is quite stiff and sore first thing in the morning and needs a hot shower or like to actually loosen up. Once again, he has not had any formal rehabilitation for this.
Matthew really presents with two significant problems. The first and most challenging will be the features consistent with an acquired brain injury following ethmoid sinus surgery with removal of tumour and complications that he has had. His picture is really consistent with an acquired brain injury and I believe that unless this is addressed in the near future, he will continue to struggle and this will have ramification both psychologically and physically.
The second issue of course is his neck pain and arm pain and this can be addressed a little more efficiently with some musculoskeletal rehabilitation.
I have suggested to Matthew that he discuss his situation with his insurer. Given that they have supported him with respect to his acquired brain injury, it would be more appropriate for him to have a more structured and multidisciplinary approach to allow him to put in place strategies for the future. His neck issues can be addressed within this programme. The multidisciplinary programme would include neuropsychology and psychology assessments and management, physiotherapy input and occupational therapy input.
I am reluctant to increase his analgesic dosage beyond the Lyrica being increased to 150 milligrams twice daily for simplicity sake. I believe introducing stronger analgesics will have a negative effect on his mood and also his cognition.
As mentioned above, | have asked Matthew to follow up with his insurance company with respect to this and I am more than happy for them to have a copy of this letter. Matthew is CC’ed into this letter.
I have asked Matthew to come and see me again in around 2 to 3 months’ time, but hopefully we can get things on the way for him.
Thank you for your referral of Matthew.”
[sic]
57The plaintiff remembered that Dr de Graaff took a history about everything that was going on and told him he had an ABI. No one had told him that before and it really shocked him.
58It was not correct, as Dr De Graaf noted, that the plaintiff was getting funding for treatment for an ABI at that time.[22]
[22]T36
59Dr de Graaff accurately described the plaintiff’s situation on a daily activities’ basis in the first page of that letter.[23] This is still the case now, but it has improved a little bit in some areas. With the support of strategies like Pilates and physiotherapy, his neck pain, core strength and muscle tone which he had lost has improved to some extent.[24]
[23]T36
[24] T37
60He continues to have issues with lowered noise tolerance and is socially isolated. Problems with sleep continue. He still has problems with short-term memory and immediate recall, as described in the letter. Walking, sitting and standing tolerances have improved.[25] Occasionally, he now gets referred pain, like dead leg syndrome (pins and needles), in his legs.[26]
[25]T37
[26]T38
61He no longer has hot showers but does yoga. He tends to adopt yoga most days in terms of stiffness.[27] His sense of smell was non-existent then, and is still. His sense of taste was limited then as it is now.[28]
[27]T39
[28] T44
62He now takes 150 milligrams of Lyrica in the morning and afternoon. He has become a bit more tolerant to it. He was, and still is, taking the antidepressant medication, Lexapro, on the same dosage.[29]
[29]T39
63The plaintiff remembered he was told these matters when he saw Dr de Graaff, and remembered reading the letter later on.[30]
[30]T40
64The plaintiff agreed that at the time the letter was written he had significant spinal and limb pain, both upper and lower limbs. He had had eight procedures. He was suffering from depression, requiring medication. He was told that he may have cognitive problems that were going to cause real problems in the future. He agreed that at that stage, there was no question that his days as a carpenter were over,[31] and that he had significant pain and his daily activities were very significantly affected. The letter was a fair summary.[32]
[31]T41
[32]T42
65The plaintiff had undergone a neuropsychological assessment in May 2014 and had not been told he had an ABI. He was very concerned by Dr de Graaff’s opinion, because no one had told him he had an ABI before, even though he had seen so many doctors.
66He returned to the Austin Neurological Clinic in late April 2017, where he saw Professor Gavin Fabinyi, neurosurgeon, and had an MRI scan. After the scan, he was told there were changes in his brain and he needed rehabilitation. At that stage, he believed that he had an ABI, but still planned to get back to work, though he appreciated the type of work he could do may be affected.
67He had rehabilitation at Royal Talbot Hospital up until about January 2018.
68In late 2017, the plaintiff appreciated the extent of his condition, that it was not likely to get better, and he had lost his ability to work.
69In late 2017, Dr de Graaff gave him a letter dated 15 November 2017, which he read, setting out he was totally and permanently unable to work because of his ABI. Up until then, he had appreciated his working life might be different than it had been before, but he had seen ways of getting back to work. Up until that time, he had been to rehabilitation and return to work specialists, with the view to returning to work; however, once he read Dr de Graaff’s letter, he appreciated he had in fact lost his ability to work.
70In his letter to United Healthcare Group dated 15 November 2017, Dr de Graaff stated:
“Thank you for your request for a medical report concerning Mr Falla.
I am currently Senior Rehabilitation Physician and Director of Pain Services at Epworth Healthcare.
I completed my MBBS at Monash University in 1982 and my postgraduate studies in Rehabilitation Medicine in 1992.
Assessment and Progress:
Mr Falla was referred to me by Dr Muneer Saka, general practitioner, on 31 October 2016.
He was initially seen in my rooms at Epworth-Richmond on 21 February 2017.
At the time of assessment, he is 49 years of age and had formerly worked as a carpenter/builder. He was married with a wife who works as a senior medical receptionist and a daughter who at the time was 17-1/2 years of age undertaking VCE this year.
His recent presentation were [sic] quite complex, although the initial discussion was on his chronic neck and right upper limb pain as a result of severe degenerative change at the C4-5, C5-6 and C6-7 levels in his neck (confirmed on MRI). It was really much more complex picture relating back to the development of an ethmoid adenocarcinoma, which was resected in September 2013.
Prior to his surgery, he had ceased work on 21 August 2013.
There was a past history of depression dating back to a number [of] years prior to his presentation and this compounded the picture.
Mr Falla on 21 February 2017 presented with features consistent with an acquired brain injury and he advised me he was on income protection for this and the income protection was covering some of his therapy bills.
In essence following surgery, he developed severe meningitis and encephalitis with marked intracranial pressure increase and was admitted to the intensive care unit for an extended period of time being hospitalised for around two months. He advised me that his neuropsychological assessment at [the] time revealed some slowing of cognition and issues with word finding, but there were [sic] some preservation of basic cognitive function.
Since his ICU admission, Mr Falla has felt that he has never been quite the same (confirmed by wife). The most prominent feature was his ongoing fatigue, which is a common feature post acquired brain injury. He did not have any rehabilitation for this following extended hospitalisation 2013 and I note he had subsequent to that, three further intracranial surgeries.
When reviewing his activity levels, he functioned best first thing in the morning and as the day proceeded, he started to struggle. He was taking at least one nap a day of at least 30 minutes to two hours and did wake up more refreshed afterwards. However, the feeling better lasted no more than 2 to 3 hours following the nap.
Mr Falla described lowered frustration tolerance with anger outbursts and this impacted upon his quality of relationship with his wife and daughter.
He also exhibited lowered noise tolerance and had tended to become socially isolated because he could not tolerate activities in the community.
He also described a disrupted sleep pattern.
On further discussion, Mr Falla described decrease short-term memory and immediate recall, poor concentration, attention, word-finding difficulties and decreased planning and organisation (these were strong points when he ran his own business).
His driving tolerance was around an hour and subsequent to this, he would take up to two hours to recover.
His walking tolerance was around 45 minutes with standing and sitting tolerances around 30 minutes.
In February 2017, he was utilizing pregabalin 125 mg mane and 150 mg nocte to assist with pain control and headache control. He noted, however, if he increased the dosage his fatigue would worsen and his mood would lower. This would then take three to four weeks to improves subsequent to decreasing the medication again.
He was also been treated with Lexapro 30 mg daily for mood disorder.
In terms of his neck and right upper limb pain, the pain was generally moderate-to-severe in intensity worse after activity and interferes with his sleep pattern as well. He was quite stiff and sore first thing in the morning and he needed a hot shower to actually loosen up to any level. There has been no formal rehabilitation for his neck issues.
I felt that Mr Falla presented with two significant problems. The first most challenging where the features [are] consistent [with an] acquired brain injury following [h]is ethmoid sinus surgery and removal of tumour and a complications [sic] he had subsequent to that. His picture was really consistent with acquired brain injury and I believe I felt that unless this was addressed in the near future, he would struggle to improve and this was having significant ramification both psychologically and physically.
The second issue was his neck and arm pain and I felt that this could be addressed little more with musculoskeletal rehabilitation.
Given that Mr Falla was not privately insured, I suggested he discuss with his disability insurers whether they would be funded through his disability insurance for acquired brain injury and musculoskeletal rehabilitation.
I slightly altered his pregabalin dosage to 150 mg twice daily and advised against stronger analgesics due to the negative impact on mood.
Mr Falla was reviewed on 16 May 2017. I was pleased to note that he has been referred to the Acquired Brain Injury Unit at Royal Talbot Hospital and the rehabilitation physician in charge unit, Dr Wendy Castle, had contacted me about his situation.
On 6 May 2017, he continued to complain of his ongoing pain and fatigue. He remains on Lyrica 150 mg twice daily and he was advised to continue with his liaison with Royal Talbot Hospital.
On 24 April 2017, he had been seen by Prof Gavin Fabinyi, Neurosurgeon at the Neurosurgery Clinic at the Austin Hospital. Essentially, Prof Fabinyi’s advice was to continue with his rehabilitation and conservative management and review in 2018. Mr Falla was reviewed in my rooms at Epworth-Richmond on 29 August 2017. He started seeing [a] physiotherapist with strengthening exercise of his neck and back along with a home exercise programme.
He was due for a neuropsychological assessment under the guidance of Dr Wendy Castle.
His medications at the time include pregabalin 150 mg twice daily, Lexapro 30 mg daily and Panadol Osteo two to three times a day. There were also a number of natural medications he was trying to assist with his pain and these had helped a little and he felt a little more energic.
He noted his sleep had slightly improved, was only having one nap per day and was in a better routine. His tolerances were all around 30 minutes. However, his pain remains at a moderate-to-severe level i.e., 5 to 7/10 and was principally cervical in origin with occasional cervicogenic headache.
The plan was to review Mr Falla on 28 November 2015.
Response To Questions:
1. Treatment plan implemented for Mr Falla: please see above. He is no longer under my care with respect to the multidisciplinary rehabilitation as he is under the auspices of the Royal Talbot Hospital.
2. Response to treatment to date and prognosis: He remains significantly disabled due to his quite brain injury in the features and it is unlikely to change greatly. There has been a slight improvement in his fatigue and I am pleased to note he is having some involvement from the Royal Talbot Hospital with respect to physiotherapy, neuropsychology and occupational therapy. Prognosis remains guarded and it is unlikely that he will improve to any great extent beyond community level.
3. Whether it is considered that Mr Falla would likely or unlikely to return to any occupation: due to his quite brain injury with its cognitive impact and behavioural changes, emotional lability, lowered frustration tolerance along with his pain profile, his ability to interact appropriately in the community will be markedly limited. To run his own business would be not achievable given that he would not be able to perform appropriate interactions with clients. This experience is certainly noted by his wife and daughter and it is unlikely to change greatly. In terms of any manual activities, his neck pain and degenerative changes along with this cervicogenic headache limit his ability to manual tasks.
As such, the suggestions you have in terms of insurance, home assist, facilities manager, first-aid officer or first-aid trainer are not achievable for this gentleman due to his altered personality, lower tolerances and fatigued and cognitive changes due to his acquired brain injury as well as the pain features associated with neck degeneration with headache and shoulder and upper limb pain.
4. Any long-term vocational expectations or prognosis: Mr Falla’s prognosis for return to vocational options is poor. Retraining is unlikely to alter his outcome to any great deal. He has not worked now for over four years and even given his age, the expected improvement in his overall functioning is low.
I have no doubt he would be regarded as totally and permanently disabled with no work capacity to any extent.
I trust this assists you with your determinations.”
71In his first affidavit,[33] the plaintiff described the effects of the sinus cancer:
[33] Sworn in 2020
· No sense of smell.
· A loss of about 70 per cent of taste.
· Facial scarring, about which he was self-conscious, and there was a loss of sensation on his scalp and sensitivity near the scar.
· A titanium plate in place of the frontal bone flap in his forehead, causing pain and discomfort.
· Severe neck pain, which he understood was a combination of a degenerative neck condition, but that may have been exacerbated due to surgery. This was a result of his head having to be screwed into a frame to keep it straight for long periods during the eight surgeries.
· His eyesight had deteriorated and part of his left eye socket had to be removed as a result of the tumour.
· The shape of his face had changed slightly.
· Having no sinuses, he got crusting on the inside of his nose which had to be removed by his specialist.
· He had a tracheotomy scar on this throat and had different swallowing than previously. He was sensitive to dry food.
· He had a scar on his leg from the donor site.
72His main problem was that he had an ABI, which was permanent, and would not get better with rehabilitation. He understood this had caused a decline in his cognitive abilities, like decision-making, memory, concentration, and it caused him to have the worst mood swings, personality changes and inappropriate behaviour. He also understood that the ABI was the source of his persistent fatigue.
73He did have pre-existing depression, but he believed it had been exacerbated by the surgery and his condition. He planned, up to late 2017, to return to work, and was devastated to find out his condition would be permanent, and he had no real work capacity.
74He had become very emotional at times, and that had become much worse since the injury, and he found himself becoming frustrated with family and they had to try and calm him down.
75He was also suffering from irritable bowel syndrome, small intestinal bacterial overgrowth, leaky gut and other bowel problems. He needed a special diet.
76He was on Lexapro for depression and Lyrica for pain, and also a lot of other medications, including supplements.
77In his second affidavit sworn in August 2021, the plaintiff gave further details of his referral to Dr Zahirovic to undertake an endoscopic craniofacial procedure, which took place on 18 September 2013.
78At that meeting, pre surgery, Dr Zahirovic explained how the surgery would be performed and who would be involved. He also advised the plaintiff his cancer was relatively rare, mostly experienced by woodworkers and leather workers, and that he could investigate a connection in the future. The plaintiff did not think of investigating a connection applicable to him because he was self-employed. Also, then, the focus was on the surgery and recovery.
79When he first saw the plaintiff prior to surgery, Dr Zahirovic explained there was a connection between adenocarcinoma, which was relatively rare, and woodwork and leatherwork. The plaintiff knew by 2015 that his exposure to wood dust over the years as a carpenter had caused his cancer.[34]
[34]T25
80As far as the plaintiff knew, when he saw psychologist, Marianne Chua, in 2015, he would have told her that although he was a qualified carpenter, he had no intention of returning to cabinetmaking or carpentry as he advised his cancer was caused by exposure to sawdust. He had knowledge as at that time that his cancer was caused by exposure to sawdust. Dr Zahirovic made that clear, when he first met him, that there was a connection.[35]
[35]T27
Legal advice
81The plaintiff was represented by Maurice Blackburn as part of the class action relating to the Black Saturday bushfires. Following settlement of that claim in February 2015, he asked for a referral to a lawyer to assist with his TPD application that he completed and lodged himself. He was referred to Kate Falzon in that regard. She referred him to the dust diseases department at Maurice Blackburn for advice about his eligibility for a WorkCover claim.
82He had a meeting with Maurice Blackburn on 29 August 2017. He understood, following that meeting, Leah O’Keefe and Jane Garnett of that firm reviewed a copy of his medical material held by the superannuation TBD Department and wrote to Dr Zahirovic, seeking an opinion on the relationship, if any, between exposure to wood dust and cancer. At that meeting, he was provided with general WorkCover advice if the doctor’s opinion on causation was supportive of a link between work and the cancer.
83He completed a Claim Form during his appointment with Leah O’Keefe and it was agreed they would await the doctor’s opinion and he would be then advised if the claim could be lodged.
84At that time, he was dependant on the medical and legal advice that was to be provided as to whether he had an injury, which meant he could lodge a WorkCover claim.
85He had not received any WorkCover advice prior to that August 2017 appointment. He was not aware he could seek WorkCover benefits and that was one of the reasons that he pursued both income protection payments and a TPD claim previously.
86On 25 September 2017, Dr Zahirovic wrote to Maurice Blackburn, stating:
“In my opinion his work as a carpenter was a risk factor for the development of this condition. This is a well-known association and this opinion regarding the development of adenocarcinoma can be found in any standard textbook of Head and Neck Surgery. It is my opinion that work as a Carpenter did contribute to his risk of developing this condition.”
87The plaintiff believed, on the strength of this report, he was advised he could lodge a claim and on 24 October 2017, a claim was lodged against Catholic Care, which he believed was accepted on or around 16 November 2017, by Gallagher Bassett.
88Thereafter, there was an ongoing dispute about calculation of weekly earnings and wages and the dispute was referred to conciliation, where it settled.
89On 26 June 2018, Maurice Blackburn lodged an impairment benefit claim against Catholic Care, which the plaintiff understood was possible, because it was the last employer in time when he was exposed to wood dust.[36]
[36]T43
90After the resolution of that claim, in about June 2019, Maurice Blackburn recommended he obtain an opinion from an epidemiologist on the connection between work and the adenocarcinoma of the ethmoid sinus.
91He understood Maurice Blackburn wrote to Dr James Leigh, consultant occupational physician, seeking an opinion on whether his exposure to wood dust was a cause of cancer, and which exposures to wood dust; that is, what employer, contributed to the development of his condition.
92In about October/November 2019, he learnt of Dr Leigh’s report from Maurice Blackburn and understood that his condition was one that took twenty or more years to develop and that all the dust exposure he had had up to about 1993 would have contributed to the causation of the condition. He had only recently seen the report.
93At the time of being informed of the opinion, he understood his exposure with the employer was the likely cause of the condition, given the period of time between that work and the diagnosis. He was advised that now gave him the basis to commence a common law claim against the employer.
94On 3 April 2020, Maurice Blackburn lodged a s135A and a s134AB application seeking serious injury certificates. By letter dated 20 August 2020, the plaintiff was advised that the s134AB application against Catholic Care was granted and the s135A application against the employer was rejected.
95As at early February 2017, he agreed he knew he never was going back to work as a carpenter. He had had eight or more operations and was fatigued, depressed, and in pain. He had no sense of smell and a limited sense of taste, and he knew that he may well have an ABI, and that if he did have that ABI, it was consequential to the surgery that he had had for the cancer. He did not know specifically his condition was caused by work as a carpenter and, in particular, exposure to wood dust – he did not know specifically whether it was his work as a carpenter or as a chainsaw operator or a cabinetmaker. He knew it was due to his exposure to wood dust, and he knew that his work with the employer was as he deposed (the dustiest place he had worked). He brought the claim against Catholic Care because he was told by Maurice Blackburn to bring the claim against the last employer in time.[37]
[37]T44
96He had gone to see Dr de Graaff because of his pain and did not want to keep taking painkillers. He wanted to see if he could improve the level of pain so he could get back to work. He believed Dr de Graaff told him there were programs available for treatment of pain. He went to Dr de Graaff because he thought the fatigue was because of the radiation therapy and post-cancer treatment. That had been what he had been told. He had friends at the brain tumour support group who were experiencing it, and he was told by the support coordinator it was normal, and that how long it took to resolve depended on the person.[38]
[38]T45
Views regarding work future
97During 2017, and knowing his income protection cover was to finish at the end of that year, he worked towards trying to regain a capacity for work and returning to the workforce.
98Throughout 2017, he experienced a worsening of his fatigue. He was going to the gym, trying to rebuild his physical strength, but was then suffering extreme fatigue and could not get on top of it.
99He did a rehabilitation program between September 2016 and January 2017, which he hoped would assist in regaining the strength he needed to feel he could return to work, but it did not.
100On 8 January 2018, the plaintiff attended Wendy Castle at Royal Talbot Rehabilitation Hospital, who told him he needed to reconsider his lifestyle in Kinglake, given the fatigue, the opportunity for rehabilitation had passed, his fatigue was neurologically related to the ABI and not going to go away or improve, he needed ongoing support from a private sector case manager to manage his treatment and support, and he needed ongoing support for medical treatment for the remainder of his life.
101He remembered feeling shocked after this meeting that the consequences of his ABI meant he should leave his home in Kinglake and his symptoms would not improve.
102Although Dr de Graaff first mentioned an ABI to him in February 2017, the plaintiff was confused by his diagnosis, as previous neuropsychological testing had not resulted in this outcome. He thought, at that time, he would still be able to return to work.
103Dr de Graaff’s November 2017 letter was the first time the plaintiff appreciated the full impact of his ABI. He then understood he had a separate injury, which was a result of the cancer treatment, and it was that injury that was producing the symptoms he was experiencing and which he would not overcome. He realised, as the brain injury was permanent, so, too, were the symptoms, and that without improvement of symptoms, he could not return to the workforce.
104The plaintiff took out income-protection insurance as a self-employed person around the time of the birth of his daughter in 1999. His claim was accepted, and he was paid about 50 per cent of his earnings until about 2017. He agreed the reason he made that claim was because he was self-employed and the policy was there. He did not have legal advice at that time. He was entitled to payments for five years.[39]
[39]T42
105While he agreed his future as a carpenter was over, as at February 2017, he did have a view about doing other work.[40]
[40] T46
106In early 2015, he undertook a two-week Certificate IV in Training and Assessment at Kangan with the intention, knowing his insurance ran out at the end of 2017, of training up to be a trainer, so first aid or some sort of training work in building and the like.
107He wanted to teach first aid, or he had always been passionate about environmental building, so he liked the idea of perhaps teaching at a TAFE college sustainable building – something he no longer needed to be in a manual role. Something that he could do perhaps a few days a week, so that he could manage what he was experiencing but still be a participant in society:
“I didn’t dream that I would, at 46, not work again and I was doing everything I could to return to the workforce which I understood my role to be, as a father, as a man and as a member of the community.”[41]
[41]T46
108In 2015, he did not think about work with the employer as being the most exposure by far at the time because it was so long ago and “we had no idea when I was exposed to the wood that caused the cancer”. He did not remember in early 2017 knowing about there being a time lag between exposure to wood dust and adenocarcinoma.[42]
[42]T47
109He agreed that Dr Zahirovic told him in 2013 there was a connection with woodwork and leatherwork. When asked whether he told him any more, like how close to the time of the cancer, the plaintiff said:
“My recollection is that he said that it wasn’t possible to pick the exact time or the type of timber so it really wasn’t a factor – a matter of scrutiny.”[43]
[43]T47
110Dr Leigh’s report had changed his understanding of what caused his cancer. His understanding now is it has been caused by wood dust, which has a latency period similar to asbestos, and that latency period is twenty to thirty years. He first got that knowledge when he was told by his solicitor of Dr Leigh’s report.[44]
[44]T47
111The first time he thought about the workplace and wrote everything down was in the context of planning for his common-law claim. Before then, he had not thought about the details of his exposure in the way that he had set out in his affidavit:
“... not in those fine details but, yeah, I’d worked there, I’d worked in lots of places. I remember talking casually about ... whether it was chainsaw wood or [from] cutting down trees or what woodwork from building or dust, from building or dust from making furniture.”[45]
[45]T48 – the chainsaw work and cutting down trees was from 2009 to 2013
The Plaintiff’s medical evidence
Dr Pangnadas, neuropsychologist
112Dr Pangnadas prepared a neuropsychology report in May 2014 after undertaking testing.
113He concluded that although non-specific, the plaintiff’s variable inefficiencies with high level attention were not surprising given his recent medical history. Feedback of the results was provided, along with discussion about the best way to approach his return to work in order to optimise the chances of a successful increase in hours and duties.
Dr Zahirovic, ENT surgeon
114In his September 2017 report, Dr Zahirovic advised Maurice Blackburn that the plaintiff had very little in the way of symptoms from an ENT viewpoint. There was no evidence of any local, regional or distance recurrence of disease. The plaintiff’s prognosis was guarded, but if he survived five years without any evidence of disease, then he would consider him cured and expect him to have a normal life expectancy.
115He did not think that the plaintiff had any physical impairment to his activities at that time. Neuropsychological testing would give a better opinion of that.
116Dr Zahirovic thought work as a carpenter was a risk factor for the development of this condition. This is a well-known association and this opinion regarding the development of adenocarcinoma of the ethmoid can be found in any standard textbook of head and neck surgery. Work as a carpenter did contribute to the plaintiff’s risk of developing this condition.
117He noted that the plaintiff does not seem to have any physical incapacity, but from an ENT viewpoint, he had completely lost his sense of smell, which was an expected consequence of any surgery in this region.
Dr James Leigh, consultant occupational physician
118Dr Leigh prepared a report of 15 September 2019 at the plaintiff’s solicitor’s request.
119In the preamble to his report, he noted the periods of exposure occupationally to wood dust, as set out in the plaintiff’s affidavit. He concluded as follows:
“(a)adenocarcinoma of the ethmoid sinuses is a malignant tumour arising in glandular cells lining the ethmoid sinuses, which are one type of the paranasal sinuses;
(b) adenocarcinoma as a cancer, lung cancer, a mesothelioma, is an invisible condition as all casual exposures contribute to causation of the single condition;
(c) the International Agency for Research on Cancer concluded that the biomolecular mechanism of causation of adenocarcinoma of the paranasal sinuses is unknown, but suggested that chronic inflammation due to blockage of clearance mechanisms by wood dust was likely to play a part. Direct and indirect genotoxic mechanisms could also not be excluded.
The risk of paranasal sinus adenocarcinoma with wood dust exposure is dose related;
(d) latency range for adenocarcinoma of the paranasal sinuses from wood dust exposure of 20 to 30 years has been reported;
(e) in his opinion, on the balance of probabilities, all cumulative wood dust exposure up to about 1993 (i.e. allowing for a 20-year latency) would have contributed to causation of the plaintiff’s adenocarcinoma of the ethmoid sinuses. Apportionment of liability could be attempted on the basis of approximate exposure quantification for the relevant employment periods, taking into account wood types, methods of work, dust control and respiratory protection used. Such a qualification is not within his field of expertise.”
The Defendant’s medical evidence
Mr Gonzalvo, Director of Neurosurgery
120Mr Gonzalvo wrote to the plaintiff’s general practitioner following a review of the plaintiff on 8 February 2016.
121He noted that the plaintiff had been under the care of both the ENT and Neurosurgery Department at the Austin Hospital for treatment of a CSF leak and a cranial defect in his frontal area. Six weeks earlier, he had a successful cranioplasty and was progressing well.
122Mr Gonzalvo noted that the plaintiff used to work as a carpenter and a builder, and he did not think that that occupation would be appropriate for him anymore. The plaintiff would have some lifting restrictions.
123The plaintiff also has neck pain and bilateral arm pain that has been studied with a neck MRI scan, which showed multilevel cervical canal stenosis that he had recommended have conservative treatment with physiotherapy.
Claim documentation
124The plaintiff signed a Worker’s Claim Form on 7 August 2017. In terms of injury, he listed “brain, sinus, smell and fatigue”. In terms of how he was injured, he answered “adenocarcinoma of sinus and treatment due to nature of employment as a carpenter, exposure to wood dust”. The date and time of injury was throughout the course of employment. The named employer responsible was Catholic Care. He did not report the condition because “latent onset disease, significant treatment / surgery”.
The Defendant’s submissions
125As this is an industrial exposure case, if the plaintiff had brought a serious injury application he would be required to prove no more than a contributing factor from relevant employment.[46]
[46]T20
126In Smith v Canberra Press,[47] the Court, in refusing leave to appeal, said the question of whether there was a cause of action was irrelevant to knowledge under s135AC. In the present application, it was submitted the plaintiff’s argument was about a cause of action that was “dressed up” as an argument about an injury.[48] Saying he did not know he had a cause of action against the employer is not lack of knowledge which is relevant under s135AC.[49]
[47][2009] VSCA 200
[48]T57
[49]T21,T57
127Further, the plaintiff has to prove he did not know of the pain and suffering or loss of earning capacity consequences as at 3 April 2017. He had that knowledge earlier on, given multiple surgeries, significant pain, and issues with taste and smell – a serious injury.[50] He was aware he was unable to return to his trade as a carpenter.[51] It is not relevant that the ABI was not playing a part at that stage. The plaintiff knew in the requisite sense the consequences were serious as at 3 April 2017.[52]
[50]T50
[51] Dr Gonzalvo’s February 2016 letter and Dr de Graaff’s February 2017 letter
[52]T51
128In an exposure case, expert evidence is always required. There is no way a case can be run without medical evidence. Dr Leigh’s report relied on by the plaintiff is just extra knowledge. As an exposure case, it is not surprising medical evidence will be required and that is just what that report is.[53]
[53] T52
129While he was a bit reserved in his affidavit about his 2013 discussion with Dr Zahirovic, the plaintiff was frank enough to concede in 2015 he was of the view that the work had caused his condition. It was not a situation where he was never saying his work with the employer was irrelevant – it is not a case of late discovery of the employer’s involvement. To the contrary, in his initial affidavit at paragraphs 5 to 21, the plaintiff set out in great detail the exposure during the period of employment.[54]
[54]T54
130Not knowing of the latency period does not mean the plaintiff does not know work with the employer was inculpated.[55] The latency issue is medical evidence. It is not relevant to knowledge. The plaintiff had knowledge already. All his work as a carpenter had caused his condition. He would have obtained a “serious injury” had it not been for the s135AC complications, as all he had to prove was some exposure in that period.[56]
[55]T54
[56] T55
131Knowledge is not to be interpreted as knowledge of a medical diagnosis in all the circumstances. It depends on the facts. In this case, it is a causation issue. It does not help the plaintiff to say the first time he knew there was a medical connection between his work with the employer and his condition was when he saw Dr Leigh’s report. He knew beforehand he had a condition caused by wood dust from one or all of his employers.[57]
[57]T56
132While the plaintiff may say he did not inculpate the employer until Dr de Graaff’s November 2017 letter, a reasonable person looking over his shoulder at the time would know – “wood dust was the cause of his problem, he had cancer because of wood dust, he knew that the work he did way back when, with the first employer, was by far and away the biggest exposure and the most heinous exposure.”[58]
[58]T58
133It takes matters outside the realms of reality to say, given the level of exposure the plaintiff deposed to, it would occur to a carpenter that the work where his major exposure was to wood dust, was irrelevant. He does not have to think it is the dominant or main cause, just that it is relevant – and that was his own evidence.[59]
[59]T58
The Plaintiff’s submissions
134It is not enough that the plaintiff knew he had certain consequences from the carcinoma that could meet the test of seriousness. The Court of Appeal has said it is knowledge of compensable injury: that is, injury referable to a certain period of employment or incident of employment. That connection is very important to his knowledge.[60] In short, the relevant knowledge is knowledge not just of incapacity, but incapacity related to compensable injury.[61]
[60]T8
[61]T13
135In Rawlings,[62] the Court found it was not until years later, when the plaintiff was actually diagnosed with an identifiable psychiatric reaction, that he was able to have knowledge of the serious injury incapacity:
“The respondent’s application was properly to be regarded as barred by s 135AC if ‘the incapacity arising from the injury’ was known on or before 12 November 1997 – in which case s 135AC(b) would have had no application, leaving the application barred because the respondent did not make an application under s 135A(2B) before 1 September 2000. Alternatively, the application was properly to be regarded as barred by the operation of s 135AC(b) if the respondent had knowledge of the incapacity, arising from his pre-12 November 1997 injury, more than three years before 21 December 2007. The incapacity being spoken about is, of course, serious injury incapacity. It is sufficient to bar the claim if the respondent knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that an applicant/worker (in this case the respondent) does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.
...
As has been observed, the starting point is that the test of whether the incapacity was known is whether the respondent subjectively knew of facts at the relevant time which, if viewed objectively at that time, would have been taken to mean that he was then suffering from ‘the incapacity’.”[63]
[62]Supra
[63]Rawlings (supra) at paragraphs [36] and [43]
136In the present application, it was submitted the plaintiff did not know of serious injury incapacity until he knew about the latency period.[64]
[64]T18
137It was submitted the defendant approached the issue the wrong way, taking the route rejected by the Court in Rawlings, putting basically all the bad things happening in the plaintiff’s life at the early stage and equating that with the relevant knowledge.[65]
[65] T59
138However, the Court in Rawlings said this was not enough – knowledge focusses on the medical opinion – the need for a diagnosis to have knowledge – the opinion of an expert that a lay person would lack.[66]
[66]T62; Rawlings (supra) at paragraph [47]
139It was submitted there needs to be knowledge of the compensable injury and its consequences. Compensability only arises when the employer is identified. [67]
[67]T62
140Counsel conceded there was no direct authority for the proposition that identification of a tortfeasor was required for knowledge – but it was submitted the whole scheme is based on having a compensable injury – compensable by whom?[68] That question was not answered until Dr Leigh’s 2019 report.[69]
[68]T64
[69] T8
141Without the knowledge of in whose employment the condition was suffered, the plaintiff cannot know he has serious injury consequences arising out of compensable injury.[70]
[70]T66
142It was submitted a reasonable person would not say work during the period of employment could be relevant to his cancerous condition. The plaintiff did not investigate a connection and chose to make an income protection claim because he was self-employed – “a far narrower and more recent ambit than looking back at the whole of his career going back to this apprenticeship.”[71]
[71]T68
143If this first argument was accepted, the Court did not need to consider the plaintiff’s cancerous condition and its consequences before April 2017 or the ABI diagnosis. The plaintiff must know the specific circumstances giving rise to the compensable injury and this does not happen until 2019.[72]
[72]T69
144It was submitted the present case is different to the situation in Canberra Press v Smith[73] where the Court held knowledge of whether there was a cause of action was irrelevant to knowledge under Section 135AC- “ Not knowing your legal rights is different from not having actual knowledge of a medical situation – medical causation – what exposure caused the condition?Someone cannot have actual knowledge of medical causation without that expert evidence.”[74]
[73]Supra
[74]T71
The second argument
145While Dr de Graaff mentioned an ABI in February 2017, he is a rehabilitation specialist and a director of pain medicine. He described the signs as being “consistent with an ABI”, in circumstances where the plaintiff had neuropsychological testing in 2014 where this diagnosis was not apparent.[75] Only in late November 2017 did Dr De Graaf advise the plaintiff was totally and permanently disabled and later that month neurological testing confirmed an ABI.[76]
[75]T10, T75
[76]T10, T76
146It was submitted the plaintiff was entitled to be hopeful of going back to work until November 2017, as he was engaging in activities that would hopefully get him back to work, like going to the gym and engagement with rehabilitation providers.[77]
[77]T11
147While it was acknowledged the plaintiff’s situation was as described in Dr de Graaff’s February 2017 letter, the plaintiff had very little in the way of ENT symptoms as Dr Zahirovic reported in September 2017. Putting aside any consequences of the tumour which then resulted in the ABI, the cancer itself seemed to have cleared up following the treatment.[78]
[78]T74
148When the plaintiff saw Dr de Graaff in February 2017, his focus was on his pain which he then thought was a complication of surgery and capable of being treated. Dr de Graaff thought the pain could be addressed a little more efficiently with some musculoskeletal rehabilitation. In those circumstances, there was certainly no indication that this pain resulting from the treatment was likely to be permanent.[79]
[79]T75
149Only in November 2017 did the plaintiff know that there was an organic explanation for his fatigue and his condition, diagnosed as an ABI, and that he was no longer just going to get better with time. [80]
[80]T77
Reply
150Counsel for the defendant submitted identification of a tortfeasor is not justified under the legislation. Section 135A gives the right to sue upon having an entitlement to compensation and at no point does that section require the specific identification of a tortfeasor.[81]
[81]T78
151The plaintiff could issue a Form A, naming a range of employers, as he did here, naming four. It is simply a matter of the condition arising out of employment.[82]
[82]T79
152This is not a case of delayed diagnosis such as in Rawlings[83] and Pattison.[84]The plaintiff did not need to be told by a doctor about the employer’s involvement, as the irresistible inference from his affidavit was that he was focusing on the employer.[85]
[83]Supra
[84] Pattison v The Herald and Weekly Times Ltd [2013] VSCA 121
[85]T80
Findings
153I regard the plaintiff as a very credible witness. His credit was not challenged. He gave evidence of his significant illness and numerous procedures in a straightforward manner, clearly and concisely, without any exaggeration or embellishment.
154However, taking into account all of the evidence, I am not satisfied that the plaintiff has discharged the onus of establishing that the serious injury incapacity arising from the period of employment was not known by him until after 3 April 2017.
155As the plaintiff freely conceded, by February 2017 he was suffering a range of consequences of his cancer that were more than significant or marked- consequences which would meet the narrative test of seriousness for pain and suffering- including no sense of taste and a limited sense of smell, poor sleep, significant spinal and limb pain, both upper and lower limbs, requiring Lyrica 150 mg daily. He had undergone eight procedures. He was suffering from depression requiring medication and had cognitive problems. His daily activities were very significantly affected by these issues.[86]
[86]T42
156Further, two years earlier – in 2015 – he knew his working days as a carpenter were over.
157Dr Zahirovic made it clear to the plaintiff when he first saw him in 2013 there was a connection between the plaintiff’s cancer and exposure to saw dust.
158While did not think about it in 2015, the plaintiff then knew by far the most exposure he had to wood dust was when working for the employer in the period of employment. He clearly knew there was a connection between his condition and his exposure during the period of employment before receiving Dr Leigh’s 2019 report.
159Dr Leigh’s report dealt with the latency period. That was medical evidence of the type usually obtained for the purposes of an exposure case. It was not required for the plaintiff to know his work with the employer was inculpated. The plaintiff knew that some years earlier – at least by 2013 on his own evidence.
160In any event, the requisite knowledge of serious injury incapacity does not include the identification of the tortfeasor. There is no legislative provision to this effect, and I do not accept any of the authorities relied upon by the plaintiff support this proposition.
161The plaintiff could have brought a serious injury application against a range of employers at an earlier date - a course he did not take until April 2020 when he named four previous employers including the employer.
162I also reject the plaintiff’s second argument that he did not know of serious injury incapacity until his November 2017 attendance with Dr de Graaff and the doctor’s advice in his letter that he thought the plaintiff was totally and permanently incapacitated.
163As discussed earlier, knowledge of loss of earning capacity consequences is not required. The words “the incapacity arising from the injury” in s135AC(b) of the Act should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering consequences, or pecuniary disadvantage, or both, which would found a successful serious injury application.[87]
[87] Papercorp Pty Ltd v Nicolaou (supra) at paragraph [33]
164However, while the plaintiff may have been hopeful of a return to work, the only training he undertook was a two-week course at Kangan in early 2015 in trade teaching. As he explained, it was just something to fill in the time not a full-time job – a few days a week – which he could cope with as it was not physical work. There was no evidence as to any other rehabilitation in which the plaintiff engaged with a view to alternate employment.
165Although Dr de Graaff advised the plaintiff in his November letter that he then considered the plaintiff was permanently incapacitated, the plaintiff’s level of incapacity was such that he had suffered the requisite loss of 40 per cent on a permanent basis some time earlier, being unable to work as a carpenter by 2015 or undertake any physical work thereafter.
166Accordingly, the plaintiff’s application was not issued within the expiration of three years after the date that he became aware of the serious injury incapacity.
167By reason of the provisions of s135AC of the Act, the plaintiff is not permitted to commence a proceeding to recover damages in respect of injuries suffered by him during the period of employment. His application is dismissed.
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