Hickey v Sassanack Pty Ltd
[2011] VCC 1516
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05574
| PAUL HICKEY | Plaintiff |
| v | |
| SASSANACK PTY LTD | First-named Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second-named Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 and 29 November 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Hickey v Sassanack Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1516 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.135A(19)(4)(b) – serious injury application – application brought within time – serious injury to the low back – application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC with | Maurice Blackburn |
| Mr S J Carson | ||
| For the Defendant | Ms R N Annesley | 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 him in the course of his employment with the defendant on 13 May 1995.
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 3 August 2010. The relevant date three years prior to 3 August 2010 for the purposes of s.135AC(b) is 3 August 2007. The defendant submitted that the plaintiff’s injury satisfied the definition of “serious injury” and the plaintiff knew it prior to 3 August 2007. Accordingly, he 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 low back.
6 It was accepted that the consequences from which the plaintiff now suffered are a serious injury within the meaning of the Act.
The Evidence
7 The plaintiff relied upon two affidavits, sworn 24 May 2010 and 23 November 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 3 August 2010 and is therefore, prima facie, out of time, and he 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 his application provided he 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 him, that prior to 3 August 2007, he 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 his incapacity arising from his back injury as of 3 August 2007. What is relevant is his 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 judgment 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 his “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 his affidavits sworn on 24 May 2010 and 23 November 2011, the plaintiff deposes that:
•
He was employed by the defendant as a dealer principle in the sale of new and used vehicles. On 12 May 1995, he injured his back when he was assisting in moving a hoist.
•
The next morning he was in pain and his back seized up. He went to his general practitioner, Dr Monash, and had about one week off work before returning to his normal duties. His back was still sore and it never got better. He continued to take days off work intermittently because of back problems. He continued to have physiotherapy and take medication.
•
He received chiropractic treatment and acupuncture, which he paid for. He has taken medication including Voltaren, Mobic, Tegretol and Valium. He received anti depressants for a brief period in the mid to late 1990s.
•
In 1996, he ceased working for the defendant, but continued to work full time with other employers. He continued to receive treatment for his back injury, particularly physiotherapy. He was referred to Mr Pease, orthopaedic surgeon. He received epidural injections.
•
He continued to engage in activities including squash, clay target shooting and boating. He stopped playing squash because of his back. He sold his boat in the late 1990s because it was too much for his back.
•
On or about 4 October 2007, he woke with excruciating back pain and was unable to get out of bed. The pain made it difficult to move and he felt a burning sensation in the low back and left leg. He attended the Sale Hospital for treatment.
•
On or about 13 October 2007, he attended Mr Damian Darby, chiropractor, but could not tolerate him touching his back because of the pain. He attended a doctor at the Maffra Medical Clinic and was prescribed pain killers.
•
On 13 October 2007 and 22 October 2007, he attended Sale Hospital and received injections.
•
On or about 18 December 2007, he consulted Dr Sharma, who administered an injection, believed to be morphine, and referred him to Mr Johnson.
•
In early 2008, he consulted Mr Johnson and in April 2008, Mr Johnson performed an operation on his back. Initially the operation relieved some of the back pain, but did not affect the left leg pain. About three months after the operation the back pain returned to the same level that it was before the operation.
•
He attempted to return to work, but struggled to cope. He attendance was irregular because of back and leg symptoms. He was also experiencing nausea and vomiting causing him to miss work. As a result, in September 2009 his employment was terminated. He has not worked since.
Investigations
21 On 25 February 2002, a CT scan of the lumbosacral spine showed:
“Angled gantry imaging was done through the discs from L1-S1. In addition, stacked imaging was performed from L3 to the sacrum. There is fairly severe disc herniation and prolapse at the L5-S1 level. There is compromise of the intervertebral foramina. There is bulging of the annulus fibrosis at the L4-5 level but no significant prolapse is seen. No definite nerve root attenuation is confirmed however. There is also no significant evidence of interfacetal arthropathy.
CONCLUSION
There is a posterior disc prolapse at the L5-S1 level.”
22 On 6 May 2002, an MRI scan of the lumbar spine recorded:
“Desiccation of the L4-5 disc associated with a central disc bulge and annular disruption producing thecal and proximal L5 nerve root sheath compression, greater on the left than the right. Central disc protrusion at L5/S1 causing minor anterior thecal encroachment as well as bilateral foraminal narrowing.”
23 On 15 May 2003, an MRI scan of the lumbar spine showed:
“Disc desiccation at L4-5 and L5-S1 associated with annular T2 brightening indicative of annular disruption. Central and left sided disc bulge at L4-5 extending out into the exit foramen compressing the distal left L4 nerve root sheath. Central disc protrusion at L5-S1 with extension out into the exit foramina causing definite distal L5 nerve root sheath encroachment bilaterally.”
24 On 12 July 2004, an MRI scan of the lumbar spine reported:
“I think there has been very little interval change when compared with the previous report. Desiccation of the L4/5 and L5/S1 discs associated with annular disruption. Left sided disc bulge at L4/5 producing thecal and proximal left L5 nerve root sheath compression. Central disc bulge at L5/S1 causing thecal and proximal S1 nerve root sheath encroachment. Extension out into both exit foramina.”
25 On 15 April 2008, an MRI scan of the lumbar spine revealed:
“Two level, (L4-5 and L5-S1) disc degeneration with broad based left paracentral disc protrusion at L5-S1 with posterior displacement of the left S1 nerve. No free disc fragment is seen. There is mild bilateral bony foraminal stenosis at this level, worse on the right than the left.”
26 On 25 September 2008, an MRI scan of the lumbar spine recorded:
“There is enhancing soft tissue thickening at L5-S1, which is encasing and displacing the descending left S1 nerve root. There is also minor compression of the exiting left L5 at the lateral recess.”
The Plaintiff’s Medical Reports
27 On 19 June 1996, the plaintiff was examined by Dr Iain Nicholson at the request of his solicitors. The plaintiff reported that, on 12 May 1995, he attempted to lift a hoist post in the workshop of the garage at which he was the dealer principal. He felt his back go. He was in pain. He sought treatment from a chiropractor and consulted his general practitioner in Sale. The plaintiff complained of pain in his low back when he sits, pain in the upper part of the spine and pain when in bed. He was able to ride a bicycle. He was not on medication when seen but had taken Valium, Voltaren and Panadeine Forte. It was Mr Nicholson’s view that the plaintiff had a permanent and stabilised injury to his back and his employment was a significant contributing factor. He said he could work as a teacher of motor mechanics and he was unlikely to benefit from any treatment other than keeping fit by riding his bicycle or swimming. The prognosis was he will always have a sore back with exacerbations from time to time, depending upon activities.
28 In November 2011, Dr David Monash, general practitioner, said the plaintiff consulted him in February 2002 with a five-week history of severe and worsening low back pain. He diagnosed a ruptured lumbar spine disc at L5- S1. The plaintiff was treated by epidural injections on several occasions with temporary relief.
29 In June 2002, Dr Monash reported to CGU that the plaintiff was being treated by epidural injection which, if unsuccessful, may require the plaintiff to progress to laminectomy and fusion. He said the plaintiff was currently incapacitated and unable to undertake his normal duties.
30 In April 2002, the plaintiff was referred to Mr Richard Pease, spinal surgeon, by his general practitioner. Mr Pease said the plaintiff had complained of bilateral sciatica, worse on the left side than the right, with associated pins and needles and numbness in his feet. When his pain is bad, his legs are weak. On examination, there were significant neuromeningeal signs on the left side with sensory depression laterally in the thigh but no neurological abnormalities otherwise. He said the CT scan was consistent with his symptoms and signs. He said he discussed surgical options should conservative treatment, including CT-guided epidural, not appear appropriate. In May 2002, Mr Pease reviewed the MRI and reported there were two abnormal discs at L4-5 and L5-S1. Both were internally deranged and bulging posteriorly. He discussed with the plaintiff the possibility of surgical options. In July 2002, Mr Pease organised a bilateral epidural.
31 In May 2003, Mr Pease said the plaintiff reported a good response to the epidural in July 2002. Mr Pease said the plaintiff reported a deterioration over the past three months. Whereas previously he had managed without significant medication, he was now taking Valium and Vioxx. The plaintiff complained of back pain with bilateral sciatica of significance with altered sensation in his feet, particularly the soles.
32 The plaintiff said he had kept as active as he could until a few months ago he was able to use a ride-on mower which caused back pain. Now his wife performed that task. Mr Pease said that the plaintiff had not recovered from his injury at work, his symptoms had become more troublesome and, over the past three months, had become a serious problem. Physical examination revealed significant abnormalities.
33 Mr Pease referred the plaintiff to a physiotherapist for advice on a spine stabilising program. The plaintiff was treated in June and September 2003 by Mr Luke Sukitt, physiotherapist, on referral from Mr Pease. There were difficulties in respect to payment for medical and like expenses by the insurer and the plaintiff was proceeding through the WorkCover procedures.
34 In July 2004, the plaintiff consulted Mr Pease as a result of an episode of severe grabbing pain in his back with radiation down his right leg to the posterior calf. He had had some tingling and weakness in his right leg. His symptoms were aggravated by walking, when he experienced a tight pinching sensation. Mr Pease said physical examination was unremarkable; there were no significant neurological abnormalities.
35 In September 2004, Mr Pease said that the MRI scan of July 2004 demonstrated a deteriorating situation at L5-S1 where the right-sided prolapse and tear appeared to be somewhat larger than it was eighteen months ago. Mr Pease said the plaintiff was troubled by virtually constant right-sided sciatica which, on occasions, is so severe to either drop him or prevent all movement. He recommended a CT guided foraminal injection and, if that was unsuccessful, he said he would try medial branch blocks in the hope that radio frequency would help him. He said any decision on surgery would be complex since the L4-5 disc was not normal.
36 In February 2008, Dr Umesh Sharma, general practitioner, reported that he had been treating the plaintiff since December 2007 in relation to his ongoing low back pain. Mr Sharma reported that the plaintiff’s back injury had become worse. He believed it was an aggravation of the plaintiff’s old injury. The plaintiff had told him he had attended at the Sale Hospital and was discharged after pain management.
37 In 2009, Dr Sharma said the plaintiff was referred to Mr Michael Johnson, orthopaedic surgeon, who performed spinal surgery in 2008. He said that the back pain subsided after surgery for some time but, unfortunately, his symptoms recurred after a few months. He was referred to a pain management specialist and to a physiotherapist for back muscle exercise to relieve the pain. He was currently being treated with narcotic analgesics which were controlling the pain to an acceptable level. Dr Sharma said the plaintiff was not suitable for any physical work which involved lifting, weight bearing on the back, pulling and pushing heavy objects. He said his future work capacity was uncertain, as was his medical prognosis. He thought he would be on the current medication for long periods of time into the future.
38 Mr Michael Johnson, orthopaedic surgeon, treated the plaintiff for his back injury since early 2008. He performed a left L4-5 decompression and a left L5-S1 discectomy in April 2008. Mr Johnson said the plaintiff obtained an incomplete improvement in his left sciatica as a result of the surgery. He was able to return to work part-time, but never resumed full-time. He ceased work in September 2010. Mr Johnson said when he first saw the plaintiff prior to his epidural injection, the plaintiff described a moderate level of disability which he said made it impossible for him to work at a level consistent with the wishes of his employer.
The Defendant’s Medical Evidence
39 In November 1995, Mr Malcolm Menelaus, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. X-rays showed slight narrowing of the L5-S1 discs. A CT scan was within normal limits with a slight bulge at an L5-S1 level which he said was not significant. On examination, the plaintiff pointed to the lumbosacral region to the right of the midline and to the left buttock as pain sites. Straight leg raising of the left leg was at 30 degrees and the right leg to 20 degrees, and he experienced back pain and pain in the hamstring muscles of the leg when raised. It was Mr Menelaus’ view that a CT myelogram or MRI scan would be required to elucidate the problem but they were not justified in the current context, but would be justified if the plaintiff’s condition did not improve over the next few months.
40 Mr Menelaus said the plaintiff was not fit for pre-injury employment but he was fit for suitable employment which consisted of any duties of a managerial nature. He accepted employment contributed to his incapacity and that there would be an incapacity for at least a further period of six months.
41 In January 1996, Mr Menelaus said, after reviewing a videotape, that the physical activities of the plaintiff in the surveillance were consistent with the symptoms and signs presenting at the time of his examination in November 1995 but the plaintiff was not as disabled as he (Mr Menelaus) had envisaged. The videotape showed the plaintiff standing, bending, walking briskly without a limp and carrying objects and pulling a wheeled object. He was also seen twisting his back.
42 Mr Menelaus revised his view in respect to work expressed in his report of November 1995. He said the plaintiff could run the business, move about freely and carry weights up to 10 kilograms, provided there was no repetitive lifting of weights from floor level to bench level and no prolonged bending.
43 In February 1996, Mr Menelaus reviewed the plaintiff and reported to the insurer. The plaintiff complained that he could not mow the lawn, sweep and avoided squatting or bending. He can stand indefinitely. If he performed physical activity he was worse the next day. He complained of backache most of the time, worse on prolonged sitting. He has occasional pain in the back of the right leg to the back of the knee. Mr Menelaus said that the plaintiff had a low-back pain of uncertain cause. There was no evidence of a serious back injury. He saw no impediment to his return to the type of work that he was doing before the injury even though that work is sometimes physical. He said the plaintiff’s incapacity has lessened considerably since his previous review and he was unlikely to have an incapacity for more than six months. He said he was fit for pre-injury employment and said that the plaintiff was not really having treatment. He did not believe a rehabilitation program was warranted.
44 In June 2003, the plaintiff was medically examined by Mr Peter Kudelka, orthopaedic surgeon, at the request of the defendant’s insurer. Mr Kudelka said the plaintiff complained of episodic back pain and stiffness and aching in his legs. He had tried medications, including Voltaren, Vioxx and Valium. He could not bend, stoop or lift or do any heavy work such as gardening. He could drive his car for about two hours, with resultant back pain for hours afterwards. He had ceased playing squash and shooting but goes fishing. He also occasionally rode a motorbike for exercise. He had a pilot’s licence.
45 Mr Kudelka said the plaintiff suffered leg and back pain due to lumbar disc injuries at L4-5 and L5-S1. He had a reduced capacity for employment, which was permanent. He was in full-time employment as a teacher and manager. He could not work as a motor mechanic as bending, stooping, lifting and physical strains on his back would be inevitable. He said the medical treatment provided by his general practitioner was palliative and appropriate. He said he would not recommend further spinal injections nor spinal surgery. He said the plaintiff will require prolonged palliative treatment, which would involve three or four visits a year to his general practitioner and a small amount of analgesics and anti-inflammatory medication.
The Plaintiff’s Submission
46 It was submitted by Counsel for the plaintiff that the consequences referred to as constituting “serious” were not known to the plaintiff prior to October 2007. The knowledge that the plaintiff had prior to October 2007 was of an injury which represented some incapacity. He limited some activities he did; his employment was more managerial and hands-on to cope with the fact that he had a back injury. He was working full time. The facts known to him at that stage were not facts that were likely to have given rise to a serious injury. In October 2007, there was a sudden worsening of his condition requiring greater treatment, ultimately culminating in an operation in April 2008. It was the surgery in 2008 and what followed that constituted a serious injury.
The Defendant’s Submission
47 It was submitted by Counsel for the defendant that from at least September 2004, the plaintiff had knowledge of facts which, when viewed objectively, constituted a serious injury incapacity. It was submitted that by 2004, the plaintiff was having significant treatment. He was being told by doctors of the possible need for surgery, his capacity for work had been affected and that his activities of life had been affected. A further submission was that I cannot be satisfied that October 2007 is the date of the flare-up which the plaintiff relies upon as being when he then became aware of his incapacity. There are no medical reports to confirm that date. In the plaintiff’s first affidavit, he describes it as “one morning in 2007”.
Analysis
48 I must consider the plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his back injury as of 3 August 2007. The burden of proof is on him to satisfy the Court that, as a matter of fact, he did not know prior to 3 August 2007 that the consequences of his condition were of a serious long-term impairment.
49 In determining the state of the plaintiff’s knowledge in this case, I have considered his affidavits, the histories he has provided to various medical practitioners and the opinions of various doctors, including doctors whom he saw at the request of the defendant.
50 The plaintiff was not cross-examined.
51 I accept that the plaintiff knew that he had suffered a back injury in 1995, which all witnesses accepted was work related. Prior to 1995, he had trained and worked as a motor mechanic and as a casual trainer at East Gippsland TAFE. In 1993 he accepted an offer to work as a dealer principal with Maffra Holden, which involved dealing in the sale of new and used vehicles. He told one of the doctors whom he saw that his job at Maffra Holden also involved some mechanical work in the workshop. He left that job due to a disagreement with the owner and returned to work for the TAFE College as an automotive teacher on a casual basis. The evidence was he had ceased working as a motor mechanic prior to his injury.
52 In 1998, he returned to Melbourne University and retrained as a TAFE teacher. He worked for six to seven years when he was appointed a team leader, which involved being responsible for all trade-related courses at the TAFE College. In January 2006, he became a full time trainee consultant with Quatadar, a labour hire company based in Sale.
53 The plaintiff’s evidence was that between February 2002 and July 2002, his back pain worsened and he received treatment of epidural injections.
54 The plaintiff was diagnosed with a ruptured lumbar spine disc at L5-S1, and he was complaining of bilateral sciatica, worse on the left side than the right, with associated “pins and needles” and numbness in his feet.
55 In May 2002, Mr Pease, orthopaedic surgeon, reported there were two abnormal discs at L4-5 and L5-S1. A bilateral epidural was performed, for which he received a good response.
56 In May 2003, the plaintiff reported a deterioration (over the past three months) and complained of back pain with bilateral sciatica with altered sensation in his feet, particularly the soles. He was taking Valium and Vioxx. He was referred to a physiotherapist for treatment. He was working and said, until a few months ago, he had been using a ride-on mower.
57 In June 2003, the plaintiff told Mr Kudelka he had episodic back pain and stiffness and aching in the legs. Mr Kudelka said he will require prolonged palliative treatment, which would be limited to small amounts of analgesic and anti inflammatory medication. The plaintiff told Mr Kudelka he could not do any heavy work such as gardening. He could drive two hours, but suffered back pain afterwards. He no longer played squash, but went fishing and had a pilot’s licence. He was working full time.
58 In July 2004, the plaintiff consulted Mr Pease due to an episode of severe grabbing pain in his back, with radiation down his right leg to the posterior calf. He complained of tingling and weakness in his right leg. Mr Pease said the physical examination was unremarkable and there were no significant neurological abnormalities.
59 An MRI scan was performed, which demonstrated a deteriorating situation at L5-S1 where the right sided prolapse and tear appeared to be larger than it was eighteen months ago. The plaintiff was treated with a CT-guided foraminal injection.
60 In September 2004, Mr Pease said any decision on surgery would be complex since the L4-5 disc was not normal. There was no further treatment in terms of intervention between 2003 and late 2007. The plaintiff was working full time.
61 The plaintiff was informed that the July 2004 MRI scan showed a deterioration in his back injury.
62 The plaintiff said that in 2007 he woke up to find he could not get out of bed because of excruciating pain. He felt a burning sensation in the lower back and was unable to go to work because of the pain. He saw a chiropractor, a doctor at the Maffra Medical Clinic and visited the Sale Hospital. Ultimately, he consulted Dr Sharma, a general practitioner.
63 In his second affidavit, the plaintiff said his first attendance at the Sale Hospital was on or about 4 October 2007. He first visited the chiropractor on 13 October 2007 and he consulted Dr Sharma on 18 December 2007. Dr Sharma referred him to Mr Johnson, orthopaedic surgeon, who operated in 2008.
64 I do not accept the submission of the defendant that I cannot be satisfied that October 2007 is the date that resulted in the flare-up in 2007. I note that the defendant chose not to cross-examine the plaintiff. In his second affidavit, the plaintiff clarified with dates what occurred in October 2007. Further, the medical report of Dr Monash confirmed that the plaintiff was treated in 27 October 2007.
Conclusion
65 At the time of his original injury, he was told that he would always have back pain with flare-ups.
66 By September 2004, the plaintiff knew that he had a back injury, that he had exacerbations of back pain from time to time, and that treatment by epidural injection had invariably been efficacious in that symptoms had not resolved but they ameliorated to an extent where he could return to full-time work and could go about his normal daily business. His complaint of restrictions in his daily life to doctors was limited. He was working full time. Medical witnesses had discussed the possibility of surgery, but there was no recommendation. Doctors had informed him that the radiological investigations showed a deterioration in his back.
67 There was no evidence that he was actively seeking medical treatment on a regular basis. The evidence was that in terms of pain and suffering he had a back condition with which he was able to cope. It was long term. He had exacerbations from time to time for which he sought treatment and received treatment that was effective and enabled him to work full-time. I accept that he limited some of the activities he performed but I do not accept that the facts known to him in September 2004 would have been facts that would give rise to a serious injury incapacity as explained in Humphries v Poljak.[11] To reach the serious injury level the consequences have to be more than significant or marked. I accept that the requisite knowledge of the facts relating to his injury were not such as to give rise to the view that he had the requisite serious injury knowledge prior to the exacerbation in later 2007.
[11] [1992] 2 VR 129 (30 August 1991)
68 The plaintiff said that he was not aware of the incapacity arising from his back and left leg condition until well after the back operation in April 2008. I accept that the plaintiff was not aware of the serious injury consequences of the injury arising from his pre-November 1997 employment prior to October 2007. It was accepted that those facts constitute a serious injury incapacity as explained in Humphries v Poljak.[12]
[12] ibid.
69 Accordingly, I grant the plaintiff’s application.
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