McKoy v Allan Cassells Plumbing Pty Ltd
[2010] VCC 1461
•30 September 2010 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-05850
| PETER McKOY | Plaintiff |
| v | |
| ALLAN CASSELLS PLUMBING PTY LTD & ORS | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| ALLIANZ WORKERS’ COMPENSATION (VIC) LIMITED | Third Defendant |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 1, 2, 5-7 July 2010 |
| DATE OF JUDGMENT: | 30 September 2010 (Revised) |
| CASE MAY BE CITED AS: | McKoy v Allan Cassells Plumbing Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1461 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – application of sections 135A and 135AC(b) – whether plaintiff had knowledge of serious injury within three years of making application for leave to commence a proceeding – application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Petersons Lawyers |
| Mr A MacNab | ||
| For the Defendants | Mr J Tebbutt with | Wisewould Mahony Lawyers |
| Ms A M Magee |
DRAFT
HIS HONOUR:
1 This proceeding was commenced by Originating Motion in the County Court at Geelong on 9 December 2009.
2 The claim by the plaintiff seeks leave from the Court pursuant to subsection (4)(b) of section 135A of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
3 It is common ground that the plaintiff was injured during the course of his employment with the first defendant between 29 May 1995 and 2 June 1995.
4 It is also common ground, for the purposes of this application only, that the plaintiff presently suffers from pain and suffering consequences and impairment consequences, being an inability to work, and consequent loss of income and income earning capacity.
5 The plaintiff’s injuries having occurred during the course of his employment with the first defendant before 12 November 1997, before the plaintiff can succeed with his application he must first satisfy the provisions of section 135AC of the Act which imposes a limitation period for the bringing of the application.
6 Relevantly, section 135AC of the Act provides as follows:
“135AC. Limitation of Actions Act 1958
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
DRAFT
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.”
7 The plaintiff made application to the relevant insurer of the first defendant for a determination of serious injury under section 135A(4) on 11 August 2009. That is after 1 September 2000. In those circumstances, the plaintiff must satisfy the Court within section 135AC(b) that his application made on 11 August 2009 was made before the expiration of three (3) years after his incapacity became known. Put another way, the plaintiff bears the onus of proving on the balance of probabilities that prior to 11 August 2006 (three years before he made his application), he was not aware of facts that showed his 1995 injury to his lower back gave rise to serious injury consequences. That is, permanent serious impairment or loss of function of the lumbar spine and/or pain and suffering consequences that may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
8 The term “incapacity” where used in the section is not to be read as a temporary incapacity for work arising from the injury but means “serious injury” incapacity which becomes known when events demonstrate that the plaintiff is suffering from a serious long-term impairment or loss of a body function.[1]
[1] State of Victoria v Collins [1999] 1 VR 215 at 222; Paget v JLT Workers Compensation Services Pty Ltd & Anor [2005] VSCA 144 at [30] per Callaway JA; Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 at [13] per Ashley JA; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144 at 146 per Redlich JA
9 Knowledge of the relevant “incapacity” is the knowledge of the worker. It is not enough that the events demonstrate to others the fact of serious long-term impairment or loss of a body function. The worker must make application under section 135A(4) within three (3) years after the incapacity became known to him or her.[2] The fact that a worker does not subjectively appreciate that the injury is serious until after the relevant date will not matter if the worker knew of facts that, viewed objectively, constituted serious injury
DRAFT
[2] Paget v JLT Workers Compensation Services Pty Ltd & Anor (supra)
incapacity. And the fact that the worker acquired the necessary knowledge of one consequence after the relevant date will not bring the worker within s 135AC(b) if the worker had knowledge of another consequence prior to the relevant date that, viewed objectively, constituted serious injury incapacity.[3]
[3] AEP Industries Australia Pty Ltd v Mahmoud (supra) at 150 [28] per Redlich JA; Smith v Canberra Press Pty Ltd [2009] VSCA 200 at [8]
10 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.[4]
[4] Papercorp Pty Ltd v Nicolaou (supra) [2006] VSCA 143 at [50] per Ashley JA; AEP Industries Australia Pty Ltd v Mahmoud (supra) at 146 per Redlich JA
11 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 31 July 2009.[5] The plaintiff’s second affidavit was sworn on 5 July 2010.[6]
• The plaintiff tendered the following evidence: [5] PCB 9
[6] PCB 18E
ƒ The plaintiff’s Court Book (“PCB”), pages 1–74 (inclusive). I marked
this as Exhibit A.
• The defendant tendered the following evidence:
ƒ The defendant’s Court Book (“DCB”), pages 1–160 (inclusive) which I marked as Exhibit 2.[7][7] T100
12 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
DRAFT
13 In this application, Mr Harrison SC, who appeared with Mr MacNab on behalf of the plaintiff, submitted that in order to properly understand the plaintiff’s state of knowledge of the consequences of his injuries, I must properly analyse the entire factual history relating to the plaintiff’s injury and treatment from 1995 onwards. It is only in this way, Mr Harrison submitted, I could ascertain what was the state of the plaintiff’s knowledge and if he at any time had subjective knowledge of serious injury consequences.[8]
[8] T137
14 I accept the invitation of Mr Harrison to analyse the evidence in chronological order.
15 The plaintiff is aged forty. He completed HSC certificate at St Patrick’s College, Ballarat.[9]
[9] PCB 9
16 In 1988, the plaintiff commenced employment with the first defendant as an apprentice plumber. He remained employed with first defendant after completing apprenticeship.[10]
[10] PCB 9
17 In May/June 1995, the plaintiff experienced the onset of low-back pain as a consequence of the heavy and awkward manual duties he was required to perform whilst employed by the first defendant.[11]
[11] PCB 9/14
18 The plaintiff ceased his work on 9 June 1995. He attended Dr Brommeyer on 9 June 1995. A report from Dr Brommeyer is dated 23 August 1995[12] but confirms the plaintiff presented on 9 June 1995 with severe low-back pain relating to L4-5. The plaintiff had been having physiotherapy treatment after commencement of the back pain whilst working as a plumber over the preceding few weeks from 5 June 1995. Dr Brommeyer prescribed continuing physiotherapy, non-steroid anti-inflammatory drugs and analgesia.
DRAFT
[12] PCB 26
19 The report from Dr Brommeyer shows the plaintiff suffered a severe relapse when he was carrying a ladder at work. A CT scan suggested a disc prolapse at L4-5.[13] After combined physiotherapy, non-steroid anti-inflammatory drugs and analgesia had failed, the plaintiff was referred to an orthopaedic surgeon in late June. He was seen by Mr Grant. Dr Brommeyer reported in August 1995:
“He is currently unfit for any work but his prognosis once he has his
laminectomy will be excellent.”[14]
[13] DCB 126
[14] PCB 26
20 Mr Harrison submitted that was a confident prediction of what the result of the laminectomy was going to be.[15] I agree.
[15] T140
21 On 4 July 1995, the plaintiff first attended Mr Grant, orthopaedic surgeon, who diagnosed the plaintiff suffered a lumbar disc prolapsed at L4-5. He prescribed treatment in the form of a back brace and cortisone. The plaintiff was then referred to Mr Shannon, orthopaedic surgeon.[16]
“Mr McKoy told me his occupation involved laying sewers and while doing
this he developed back pain. Pain is worse in bed.”
“Clinically he is suffering from an axillary disc prolapse which is suggested in his CAT scan at L4-5. I have ordered a back support. He is currently unfit for work. An axillary disc prolapse is one that tends to come to early operation mainly because of sleep interference. Hopefully this attack will subside over the next four to six weeks.”[17]
[16] PCB 25
[17] PCB 25 per report of John M Grant
22 Mr Harrison submitted that as at 4 July 1995, the plaintiff’s knowledge was that with proper treatment his symptoms will subside over the next four to six weeks.[18]
[18] T141
23 On 20 July 1995, the plaintiff completed a claim form for WorkCover. On the right-hand side of the form in the bottom quadrant in the section “Injury duties”, under the question “What is your injury/condition?”, the plaintiff
DRAFT
inserted “Prolapsed disc in low back”. When asked “What part of body is affected?” the plaintiff replied “Back and legs.” “Heavy lifting and bending required at work”.[19]
[19] PCB 16
24 The plaintiff first attended upon Mr Shannon on 26 July 1995. On about 29 August 1995, Mr Shannon performed surgery on the plaintiff’s back in the form of laminectomy and discectomy at L4-5 level. Mr Shannon’s report dated 31 January 1996 to the plaintiff’s then solicitors, inter alia, says:
“Mr McKoy was a 24-year-old plumber who was first seen on 26 July 1995. He described a gradual onset of aching over a two-month period, April and May 1995, and the development of right sciatica. Although there was no specific incident of injury, his work as a plumber was physical and included bending, lifting and roofing work. On 5 June he had pain extending down the right leg to the ankle associated with pins and needles in the foot and was scarcely able to walk and ceased work. An epidural injection had given little relief.
On examination: I was of the opinion that he had sustained a significant L4-5 disc prolapse which was work related and with the approval of the Workcare agent I performed a discectomy on 23 August. This has given significant relief to his symptoms.
When last seen on 15 December 1995 he had some persistent backache with an improved range of spinal movement and straight leg raising. I considered him fit for light duties. He decided not to go back to plumbing and was seeking rehabilitation. In my opinion this was a sensible decision in view of his relative youth, the severity of his injury and the heavy nature of the work involved in the plumbing industry. He will have a significant permanent disability.”[20]
[20] DCB 86
25 By July 1995, the plaintiff had consulted solicitors, Byrne Jones & Torney, in Ballarat for legal advice. Mr Graham Hills of that firm acted for the plaintiff and advised him as to his rights. On 28 July 1995, before the surgery carried out by Mr Shannon, Mr Hills wrote to the plaintiff.[21] The letter gave general advice to the plaintiff as to his legal rights to compensation, including damages in negligence.
[21] DCB 130-134
26 At the time of writing the letter all that Mr Hills and the plaintiff had available to them in terms of medical opinion was the report of Dr Brommeyer earlier
DRAFT
referred to in which he opined:
“He is currently unfit for any work but his prognosis once he has his
laminectomy will be excellent.”[22]
[22] PCB 26
27 At DCB 133, the letter of advice from Mr Hills said, inter alia:
“A worker may recover damages for negligence where an injury has arisen after the 1st December 1992, if you can show that you have suffered a ‘serious injury’. Serious injury means:
ƒ Serious long term impairment or loss of a body function;
ƒ Permanent serious disfigurement;
ƒ Severe long term mental or severe long term behavioural
disturbance or disorder; or
ƒ Loss of a foetus.
If you believe you have an injury that would entitle you to pursue a negligence claim, then you should contact our office immediately. It is essential that any negligence action be pursued within six years of the date of the injury.”
28 The plaintiff was reviewed following surgery by Dr Brommeyer on 25 October 1995. Dr Brommeyer noted the plaintiff to have a little residual leg pain but he was –
“… moving well, having physio to strengthen and had commenced
swimming. …disappointed about prospect of changing his career.”“Seen by myself. Noted to have a little residual leg pain but moving well, sitting well. Having physio to strengthen and had commenced swimming. Although he is much better he was disappointed about the prospect of changing his career.”[23]
[23] PCB 19
29 Mr Tebbutt, who appeared with Ms Magee on behalf of the defendants, asked the plaintiff about this note by Dr Brommeyer. In particular, the consequence for him of having to change his career as a plumber. The defendants contend that because the plaintiff had knowledge by October 1995 that his injury resulted in impairment in the form of loss of earning capacity as a plumber he therefore had knowledge of serious injury incapacity.
DRAFT
“Q: You were seen by Dr Bromire (sic) on 25 October and he notes
this:‘Had little residual leg pain but moving well, sitting well. Having
physio to strengthen’
and you commence swimming.
‘Although he was much better he was disappointed about the
prospect of changing his career.’
This was something that immediately after the surgery you were
being advised, were you, against returning to plumbing?---
A: Yes. Q: So you were aware as at October 1995 that your career as a
plumber was likely to be over?---A: After the surgery, yes, they told me, yes.”[24] [24] T70-71
30 I find that as early as October 1995, the plaintiff knew that because of his back injury he could no longer work as a plumber.
31 On 20 November 1995, Mr Shannon reported to Dr Brommeyer following the laminectomy and discectomy carried out by him on 29 August 1995.[25] The report refers to the plaintiff in the first paragraph as having a work-related L4-5 disc prolapse, with significant right sciatica:
“With the approval of the WorkCover agent I performed a laminectomy and discectomy on 29 August 1995. This has produced significant relief of his sciatica, and when reviewed on 15 November 1995 he still had a bit of aching in his back and buttock, and a reasonable range of spinal movement. However Peter is not yet fit to resume employment as a plumber and there are no light duties available.”
[25] PCB 27/DCB86
32 The plaintiff was again reviewed post surgery by Mr Shannon on 15 December 1995, whereupon it was noted the plaintiff had gained significant relief.[26] In a report to the plaintiff’s solicitors dated 31 January 1996, Mr Shannon reported, inter alia:
“I consider him fit for light duties. He had decided not to go back to plumbing and was seeking rehabilitation. In my opinion this is a sensible decision in view of his relative youth, the severity of his injury and the heavy nature of the work involved in the plumbing industry. He will have
DRAFT
[26] DCB 86
a significant permanent disability”.[27]
[27] DCB 86
33 On 4 January 1996, Dr Brommeyer reported to Mr Hills at Byrne Jones & Torney. The report detailed the treatment the plaintiff had received to that time, and concluded:
“Unfortunately he has I believe been advised that he will need to think about a change in career, as continuing heavy work will not be good for his low back.”[28]
[28] PCB 28
34 On 16 January 1996, the plaintiff attended upon a colleague of Dr Brommeyer. Notes of the attendance record, inter alia:
“Not using any medication was improving, had backache only if he sat for
long periods and had variable moderate right leg pain.”
“Seen by colleague at this practice who noted that Peter was not using any medication. Was improving, had backache only if sat for long periods, and had variable moderate right leg pain.”[29]
[29] PCB 20
35 Mr Harrison submitted the plaintiff was not finding it necessary to use any medication which militates against a description of even marked or very considerable consequences.[30]
[30] T154
36 On 23 January 1996, the plaintiff was the subject of a workplace assessment to determine what work the plaintiff was suited to. The assessment was carried out by Combook Pty Ltd and was copied to the plaintiff. It concluded, inter alia, as follows:
“Peter McKoy is a 25 year old man who sustained a work-related back injury last year requiring surgery to stabilise the disc segment. Although he has recovered satisfactorily, he is unable to return to his pre-injury trade, plumbing, due to the heavy physical demands and repetitive awkward postures involved. Peter presents as extremely motivated to resume his working life and is conscientious about pursuing a career path in the hydraulics industry.”
37 Mr Harrison submitted that this report showed that the plaintiff was anxious to be retrained for another career in the hydraulics industry but it does not show that the plaintiff has knowledge that he will suffer impairment in the serious
DRAFT
injury sense in terms of loss of income earning capacity.
38 On 16 February 1996, the plaintiff again consulted his general practitioner Dr Brommeyer. He was advised he needs to do work “with his brain” and not “with his body” in future.[31] Mr Tebbutt submitted that the plaintiff made no attempt to challenge the advice given by Dr Brommeyer of using the brain and not the body. The defendant submitted that advice in February 1996 is inconsistent with the plaintiff’s assertions of an excellent recovery. Mr Tebbutt submitted the forced change of career, the loss of his capacity and trade all paints a picture of consequences that have been very considerable to the plaintiff. Mr Tebbutt submitted the plaintiff accepted Mr Shannon’s opinion and he certainly had knowledge of how the condition impacted upon him well prior to 2006.[32]
[31] PCB 20
[32] T219
39 Counsel for the plaintiff submitted the advice by Dr Brommeyer of using the brain, not the body, was fairly unremarkable and the plaintiff changed careers in effect, without any problem.
40 In about March 1996, the plaintiff began employment with a company Hydrotech doing sales and light work as a hydraulic technician. He also was able to play some sport.
“I did not go back to plumbing and got a job at Hydrotech where I did sales and light normal work as a hydraulic technician. I did that work for three years. During this period I was having no real back problems. I had returned to sport such as basketball and a bit of footy.”[33]
[33] Plaintiff’s first affidavit PCB 10 [9]
41 On 24 June 1996, Mr Shannon reported in writing to Byrne Jones and Torney. Inter alia, he said:
“Mr McKoy has made a good recovery from laminectomy and discectomy for work related L4-5 disc prolapse. He nevertheless has lumbar disc degeneration which will continue to give him backache and intermittent mild sciatic symptoms depending on his level of activity. His back is vulnerable to further injury and he will never be fit to resume the normal range of duties as a plumber. He has obtained alternative employment
DRAFT
within his area of expertise and seems to be coping well. He may well be able to continue this type of work indefinitely. He has been left with a permanent disability which is equivalent to 20 per cent loss of use of his back for industrial purposes.”[34]
[34] DCB 88
42 On 28 June 1996, Byrne Jones and Torney issued a generally endorsed writ naming the defendant as the defendant.[35] I find the writ was never served and I very much doubt that the plaintiff even knew of its existence. He did not instruct it be issued. The plaintiff was asked about the writ in cross examination:
[35] DCB 135
“Q: Do you recall seeing this document ever before?--- A: I can’t recall it. Q: Do you recall having any discussions with Mr Hills about it?--- A: The only discussions I had with Mr Hills was receiving that lump
sum payment.Q: There has obviously been advice delivered to you about other avenues to claim damages and that is contained in the letters of advice to you. You agreed with me about that, did you not?--- A: Yes. Q: So have you ever seen this document before today?--- A: I can’t recall, no.”[36] [36] T59
43 The late Mr James Pryor, a consulting surgeon from Ballarat, saw the plaintiff on 27 February 1996 and on 22 August 1996. He provided a medical report to Byrne Jones & Torney dated 24 August 1996.[37] The report reveals the plaintiff having told him a number of things. The plaintiff is reported as having told Mr Pryor about his new job and that he could manage the work satisfactorily. If he was in one position for too long his back became stiff as it did if he sat in a chair all day. This was also associated with some aching and discomfort. In his work he travelled up to two hours to a work site. He had not lost any time off work. He had resumed running on a limited basis, but
DRAFT
[37] DCB 99A
only on grass. He had two games of netball and he found that afterwards he
was stiff and sore in the back. He still had some persisting problems.44 Under the heading “current concerns” Mr Pryor recorded, inter alia:
“He had discomfort in the lower back which was present most of the time. The degree of pain was worse with prolonged standing or sitting. If he was on his feet a lot his back was sore and he would develop some radiation of pain down the right leg to the foot. There was tingling associated with this. He avoided medication and was usually able to cope with whatever pain or discomfort he experienced. Apart from exacerbations the pain in the back was bearable. He noticed that at times there could be some increase in back and leg pain which came on for no apparent reason. When he had episodes of increased back pain he would ‘worry a lot about my future’. He did spend a quite a lot of time worrying whether he would be able to remain in his work.”[38]
[38] DCB 99B
45 The plaintiff agreed in cross-examination that Mr Pryor had accurately recorded what he had told him.[39] Mr Pryor opined, inter alia, as follows:
“Mr McKoy continues to make satisfactory process following his discal surgery. Although he experiences an occasional twinge of pain and tingling in the right leg it is not of the same severity as that which was present prior to his surgery. He continues to have some aching in the back which is virtually present all the time but is bearable. Periodically, and often with specific activities there is exacerbation of the back and leg pain. In brief his progress is as good as it could possibly be. He, thus, has some mild to moderate impairment of back usage and this is particularly relevant to the avoidance of lifting heavy weight. He has intermittent mild nerve pain of the right leg.”[40]
[39] T78
[40] DCB 99C
46 Mr Harrison submitted it emerges from the medical reports the various medical practitioners are told from time to time by the plaintiff that he is back engaging in sport. Mr Harrison submitted the only caution he ever gets from any medical practitioner in any report is not to engage in heavy continuous manual work. Mr Harrison submitted that accepting the plaintiff did resume some sporting activities those activities are the activities of a fit, confident and healthy young man. He submitted such activities reflect what it is that the plaintiff knew about his injury and the consequences of it for him.[41]
DRAFT
[41] T164
47 On 4 September 1996, Mr Hills recorded a file note of his attendance upon the plaintiff. The note included the following:
“I explained to him that quite separate to this, there was now a new claims regime which would mean that he would have to make a separate serious injury application if we were to proceed with any common law claim. We would leave that in abeyance pending developments on the section 98.”[42]
[42] DCB 139
48 It seems there was clearly discussion between the plaintiff and his solicitor about a serious injury application and a decision made to let the matter await other developments.
49 On 24 September 1996, MMI Workers Compensation (Victoria) Limited made an offer to the plaintiff direct by letter addressed to him to settle his claim to compensation under section 98 of the relevant legislation for a total sum of $20,000.00.[43] This offer included a component under section 98A for pain and suffering. On 8 October 1996 Byrne Jones and Torney wrote to the plaintiff advising him to accept in part the MMI offer but to reject the offer under section 98A.[44]
[43] DCB 140
[44] DCB 141
50 The plaintiff apparently accepted the advice of Byrne Jones & Torney to reject the offer of $9,461 made by MMI under section 98A for pain and suffering component. On 14 October Byrne Jones and Torney again wrote to MMI after obtaining the plaintiff’s instructions to do so. The letter paints a very pessimistic outlook for the plaintiff and the consequences for him of his back injury and, inter alia, said as follows:
“We refer to our letter of 8 October 1996. We advise we have gained our
client’s specific instructions.This injury and the effects thereof have basically meant that Mr McKoy has had to change his employment and alter his entire lifestyle to work around the residual disability he has in respect to his back.
Generally speaking you will appreciate that the effect of this injury upon Mr McKoy has been profound. He has moved from being an active and fit young man to a person who is now very cautious in the activities that
DRAFT
he undertakes and goes through life trying to protect what is obviously a very severe back injury. Mr McKoy is extremely concerned as to his future and this impacts upon his pain and suffering as well. Given such a severe injury to a person so young, it is reasonable to allow, in our opinion, an element of damage for the anxiety that Mr McKoy now has.”[45]
[45] DCB 143
51 MMI acted on the letter of 14 October 1996 received from Byrne Jones and Torney and lifted its offer under section 98A to $15,000 which was accepted.[46] The plaintiff was cross examined about the content of the letter from Byrne Jones and Torney to MMI dated 14 October 1996. He agreed it reflected his instructions:
[46] DCB 146
“Q:
That was a document which I suggest to you was written on your instructions by Mr Hills to MMI setting out the basis for seeking additional payment of compensation for pain and suffering. Do you agree with that?---
A: Yes. Q:
On the basis of your instructions I suggest to you that you told him in effect that, ‘The medical reports will confirm that the client has had a significant operation involving a laminectomy and discectomy to the low back’?---
A: Yes. Q:
And he goes on to say this. ‘The injury and its effects have basically meant Mr McKoy has had to change his employment’. You agree with that, don’t you?---
A: Yes. Q: ‘And alter his entire lifestyle to work around the residual disability
he has in respect of his back.’ You told him that?---A: Yes. Q:
He goes on to say this. ‘You are aware that prior to the injury Mr McKoy worked as a general plumber. He gained great enjoyment from this activity’’ You told him that, didn’t you?---
A: Yes. Q:
‘It involved extensive outdoor work and Mr McKoy while working as an employee had extensive freedom in the manner and ways in which he undertook his duties’. You told him that?---
A: Yes. Q: ‘This activity is now entirely precluded by reason of his back
DRAFT
injury’. You told him that?---
A: Yes. Q: ‘As the result of this back injury Mr McKoy has limited mobility’.
You told him that?---A: Yes. Q:
‘Significant difficulty with any bending activity, especially lifting activities involving anything other than very light weights’. Again you told him that, correct?---
A: Yes. Q: ‘In an attempt to cater for the restrictions of the back injury as
caused he has retrained as a hydraulic technician’. Correct?---A: Yes. Q: ‘He has been able to find employment in the area of effecting
hydraulic repairs to machinery’. Do you agree with that?---A: Yes. Q:
‘Being careful of the types of duties he undertakes’. Do you agree with that? You had to be careful in the types of duties you undertook at the time?---
A: Yes. Q: And you told Mr Hills that?--- A: Yes. Q: ‘And also obviously does not undertake heavy manual work’?--- A: Yes. Q:
‘This is frustrating to him as he can no longer undertake the type of activities which were once very easy for him to complete.’ You told him that?---
A: Yes. Q:
‘He finds that if he attempts any heavier type of work he suffers a degree of pain in the area of the low back and is forced to rest until the pain subsides’. Did you tell him that?---
A: Yes. Q: ‘He has painkilling medication prescribed at times’. You told him
that?---A: Yes. Q: ‘But he prefers to try and work around the pain and to limit
activities which produce pain’?---
DRAFT
A: Yes. Q: You told him that?--- A: Yes. Q:
‘Mr McKoy finds that if he is forced to sit in any one fixed position for long periods of time he suffers considerable pain in the area of his back’. Did you tell him that?---
A: Yes. Q: ‘This causes problems with driving motor vehicles’. You told him
that?---A: Yes. Q: ‘And he finds he has to break the journey into short trips in order
to get out of the car and move around to gain relief’?---A: Yes. Q: He goes on to say this. ‘Mr McKoy’s sporting and hobby pursuits
have been severely curtailed’. Did you tell him that?---A: Yes. Q:
‘Prior to his injury Mr McKoy gained great enjoyment from participating in Australian Rules Football competition. He played for Dunstown Football Club in the Central Highlands Football League. He is now totally precluded from engaging in his football pursuit’. Did you tell him that?---
A: Yes. Q: Did you also tell him that additionally you gained great enjoyment
playing basketball?---A: Yes. Q:
‘Prior to the injury you had played in veteran’s basketball club in the Ballarat A Grade Pennant competition’. Did you tell him that?---
A: Yes. Q:
‘This involved playing a match per week and two nights per week training and you enjoyed this immensely as it kept you physically fit’. You told him that?---
A: Yes. Q:
‘He has attempted to participate in basketball subsequent to the injury but has found that he cannot sustain a game without causing significant pain in the area of his low back’. Did you tell him that?---
A: Yes.
DRAFT
Q: Did you also tell him that you were precluded from participating in
this activity?---A: Yes. Q: ‘Additionally Mr McKoy participated extensively in water skiing
during the summer months’. Did you tell him that?---A: Yes. Q:
‘His family have a ski boat and he gained great enjoyment skiing virtually every weekend in the appropriate season’. Did you tell him that?---
A: Yes. Q:
‘You can imagine the strain that this type of activity places on his lower back and as a consequence Mr McKoy has not attempted to water ski following the subject accident.’ Did you tell him that?---
A: Yes. Q: Did you also tell him that ‘Mr McKoy’s sleeping pattern has been
disturbed by reason of the injuries’?---A: Yes. Q: ‘He finds he can go to bed and sleep for a few hours and then
wake up with a very stiff and sore back’. You told him that?---A: Yes. Q: ‘At times when he manages to sleep through the night he wakes
up in intense pain’?---A: Yes. Q: ‘He claims he needs to apply heat by getting under a hot shower
in order to get him going in the morning’. You told him that?---A: Yes. Q:
‘Generally speaking’ – this is obviously a comment by him – ‘the injury has been profound’. Do you agree with this comment by Mr Hills, that ‘He moved from being an active and fit young man to a person who is now very cautious in the activities that he undertakes and goes through life trying to protect what is obviously a very severe back injury’?---
A: Yes. Q: Do you agree with those comments?--- A: Yes. Q: Also it goes on at p.3: ‘Mr McKoy is extremely concerned as to his
future’?---A: Yes.
DRAFT
Q: ‘And impacts upon his pain and suffering as well’?--- A: Yes. Q: ‘Given such a severe injury to a person so young’, he is saying that he suggests ‘An element of damage for the anxiety that Mr McKoy now has’. Was it your instructions to Mr Hills as at October 1996 that you were extremely concerned for your future. Do you agree with that?--- A: Yes.”[47] [47] T53-7
52 In my view, the cross-examination was telling against the plaintiff’s case. It reveals that as early as October 1996 the plaintiff had knowledge that his injury was serious.
53 On 20 December 1996, Byrne Jones and Torney wrote to the plaintiff and advised him against making a serious injury application. The letter pointed out that the legislation provided that the plaintiff had to demonstrate a level of disability of 30 per cent or greater. This compared with Mr Shannon’s level of whole person impairment of “only 11 per cent” and Mr Pryor’s level of whole person impairment of “only 11 per cent” in January of 1996 and of 10 per cent as at 24 August 1996.[48] The letter refers to the costs of bringing an application and points out the risks of a costs order in the event an application failed. It also pointed out that even if leave were granted by a court to bring a proceeding, ultimately for the plaintiff to succeed in a claim for damages he would have to prove negligence by his employer.
[48] DCB 147
54 Mr Harrison submits that at the time that the letter of advice was written on 20 December 1996 the plaintiff was still employed at Hydrotech. He further submits that there is nothing in the letter to show that the plaintiff ought to have any concerns that his injury would have serious injury consequences. In his first affidavit the plaintiff says “I was advised inter alia at the time I did not have a serious injury”.[49] That statement is not reflected by the letter which I interpret as a letter proffering cautious advice taking into account a number
DRAFT
[49] PCB 12 at [34]
of matters.
55 In 1998, and through to about 2000, the plaintiff resumed playing football. He was centre half back for Lexton Football Club reserves grade and he also played some basketball.[50]
[50] T92 and see P20 where the plaintiff attended upon his medical practitioner for treatment for an ankle injury from playing basketball on 13 February 1998
56 On or about 16 March 2000, the plaintiff commenced employment with Findlay Plumbing as a plumber on what was described as the Central Highlands Project. He carried out this work until around April/May 2001.[51] The plaintiff deposed that this work was not as heavy as his work with the defendant.[52] The plaintiff was cross examined about his work in 2000 and in 2001. He agreed that he told Mr Hills he left Findlay because of the amount of the work which he said was giving him trouble at L5/S1.
[51] T80/23
[52] Plaintiff’s first affidavit PCB10 at [10]
57 He goes on to say this:
“Q:
‘He then started working at Findlay Engineering which is a light engineering company. He was doing some plumbing work’. Do you agree with that?---
A: Yes. Q: ‘There was some heavy work involved associated with normal
building constructions’. Agreed?---A: No, it was light plumbing work that I was doing. Q: You told him you were there for about a year, is that correct?--- A: Yes. Q: ‘That he left the employment on sick leave because of the amount
of work that was required’. Did you tell him that?---A: Yes. Q: Is it that the amount of work that was required was impacting upon
your low back?---A: My back was giving me trouble at the L5-S1 level. Q: You didn’t know at that stage in 2000. All you knew was that you
had low back pain, did you not?---
DRAFT
A: Yes. Q: You hadn’t had any investigations done till 2001 to identify a further
lesion in 2001?---A: Yes. Q: He said this. ‘He resigned from Findlays because of problems he
was having in about April 2000’. Do you recall telling him that?---A: Yes I think so. Q: He then goes on to say this. ‘He tried to do some plumbing work on
a self-employed basis’. Did you try and do that?---A: Yes, just tried to do light – yes just some light plumbing work. Q: So that you knew, did you not, that post 1996 that you couldn’t go
back to full-time unrestricted plumbing activities, could you?---A: Yes, more the digging and the – you know, the heavy lifting. Q: Certain aspects of the job were beyond you, were they not?--- A: Yes. Q: And you knew from back in 1996 that that was the situation. You
had been advised about it medically, had you not?---A: Yes. Q:
You knew that you were, by reason of what had happened and the injury and the surgery, that you were unable to go back to do general plumbing work?---
A: Well, heavy – and – yes, heavy manual labour. Q: Heavy manual labour?--- A: Yes.[53] Q:
So that the sort of work that you would have to pursue post 1996 was going to be restricted in your mind to avoid activities that would cause your back to flare up – in the nature of the work that you pursued. Do you agree with that?---
A: Yes. Q:
You tried some plumbing work on a self-employed basis in 2001. You went back to see Michael Shannon and you had an epidural done into your back, correct?---
A: Yes. Q: It gave you some initial relief but it was no good again. Did you tell
him that?---
[53] T42-3
DRAFT
A: Yes. Q: ‘He wanted to do some more injections but the client
declined’.”[54]
[54] T42-43
58 Soon after the plaintiff commenced employment on the Central Highlands Project as a plumber he attended upon the Lydiard Medical Practice of Dr Brommeyer where he was seen by a colleague of Dr Brommeyer. The medical notes are as follows:
“Seen by colleague at practice who noticed he was working as a plumber again and his back had substantially settled, but he suffered ‘occupational’ (sic) flare-ups which settled with physio. Peter presented on this occasion four weeks of left lower back pain radiating left hip area, he commenced physio which was helping him, using analgesia. It was noted that Peter had some reduction in lumbar flexion but was normal neurologically and had SLR on right and left to 90 degrees. There was no localised tenderness. He was given a certificate and advised to continue analgesia and physio and to get reviewed if his discomfort was not settling”.[55]
[55] PCB 20
59 Dr Brommeyer again referred the plaintiff to Mr Shannon for a second opinion.[56] Mr Shannon saw the plaintiff on 13 August 2001:
[56] PCB 20
“He states that since that time he’s done some retraining in hydraulics and pneumatics, and has been able to avoid heavy physical work until the last six or seven months when he resumed plumbing, and recently he’d been developing left sciatica.
An epidural injection has been suggested.
He is not working at present and has not put in a WorkCare claim.
He last worked full time about three or four months ago.
He still has a lot of low back pain radiating to the left buttock and upper thigh and he also has some mild right sciatic symptoms.
He can walk two or three kilometres and he swims regularly.
On examination: He has a reasonable range of spinal movement without significant spasm. Straight leg raising is to 80 degrees on the right and 70 degrees on the left. There is no muscle wasting but reflexes are inactive. He has slight residual weakness of extensor hallucis longus on the right side.
Radiology: An MRI scan demonstrates disc degeneration at L4-5 and L5-S1. At the L4-5 level he has a residual central to right sided disc
DRAFT
bulge. At the lumbosacral level he has a central to left-sided more focal
disc prolapse with displacement of the S1 nerve root.Opinion: Peter appears to have a new injury in the form of a lumbosacral disc prolapse superimposed on his pre-existing L4-5 disc prolapse.
As such he would probably have some difficulty in relating it to his original WorkCare claim.
He could certainly relate it to his recent self employment.
Although there is some evidence of nerve root impingement, this is not a major disc prolapse and I think it’s appropriate to treat it conservatively.
I’d entirely agree with Dr Lewinsky’s recommendation for an epidural injection. I suggest that he go back to Dr Lewinsky and confirm the arrangements.”[57]
[57] PCB 33-34
60 The plaintiff’s affidavit material at first was in error as to the date of this consultation with Mr Shannon. However, it is clear the plaintiff was told by Mr Shannon he had developed a new injury unrelated to that which he suffered in 1995.[58] Mr Harrison submits that the plaintiff knew after this consultation only that he had developed a new back injury which was to be treated conservatively. Mr Harrison submits that the plaintiff did not at this point have knowledge that his injury in 1995 had consequences that were severe or considerable. He submits this is demonstrated by the fact the plaintiff had continued in employment, even resuming plumbing and had continued to participate in sporting activities including basketball, surfing and swimming.[59]
[58] Plaintiff’s first affidavit [13] PCB 10 and second affidavit [2] PCB 18B
[59] T177
61 On or about 4 September 2001 the plaintiff received a lumbar epidural injection from Dr H Pearce at Melbourne Anaesthetic Group. This is recorded in a letter from Dr Lewinsky to Dr Brommeyer of that date.[60]
“Many thanks for undertaking lumbar epidural injection for this gentleman. He has low back and left buttock pain and paraesthesia in the right lower limb related to L5/S1 protrusion and L4/5 annular tear with right central bulge/residual protrusion. He had L4/5 laminectomy in 1995 (sic) for right sciatica.
DRAFT
[60] DCB 100
There was clear but temporary benefit with caudal epidural but he was very anxious and sweaty (but no tachycardia or hypertension). I would (sic) this be repeated for more sustained benefit but I feel that it best be undertaken via lumbar route and under your supervision.”[61]
[61] DCB 100
62 Mr Tebbutt submits Dr Lewinsky’s report demonstrates that at best the plaintiff had a good result, not an excellent result, from his laminectomy in 1996, but there have been problems for the plaintiff with his lower back ever since.[62] I accept this to be a reasonable view of the situation.
[62] T218-219
63 Around November/December of 2001, the plaintiff commenced employment with Big W in Geelong supervising light manual work in the set up of a shop.[63] He did that for 6 months and then got a job at Timbertruss in Geelong where he had a desk job doing plans for building sites. He did that work for about one year and then commenced at J.G. Kings in Ballarat as a detailer draughtsman. He remains in that employment.[64]
[63] DCB 154
[64] Plaintiff’s first affidavit PCB 10 [11 & 12]
64 On 6 March 2002, the plaintiff consulted Dr Brommeyer, who records: “At this appointment Peter and I discussed amongst other issues his recurrent lower back pain without neurological loss. Coping strategies analgesics, physiotherapy, and expectations.”[65]
[65] PCB 20
65 On 14 March 2002 the plaintiff phoned Dr Brommeyer’s rooms. The notes record:
“Phone call. Peter phoned me to let me know he’d ceased all analgesia except Panadol, but that he was sleeping poorly. He was prescribed a short course of Temazepam and counselled on its use.”[66]
[66] PCB 20
66 Mr Harrison submits that the evidence shows that at this stage the plaintiff has no knowledge that the problems with his lower back are other than a new injury which is to be treated conservatively. He has no knowledge that the cause of his symptoms is the original injury or an aggravation of it. Further,
DRAFT
he submits the phone call shows that in March 2002 the plaintiff was not
taking prescribed analgesics but only Panadol.[67][67] T180
67 On the same day the plaintiff consulted Dr Brommeyer, on 6 March 2002, he in fact phoned Mr Hills. A diary note prepared for Mr Hills at Byrne Jones and Torney says:
“He said he is having further problems and that another disc had gone in his back. He was having further treatment and felt that he was now in the same situation as before when the accident first occurred. He wanted to know if he had any further claim to make. If there was no further claim then he could not understand why the claim had been settled when it did. He had been speaking to another solicitor (Slater & Gordon). He was not sure whether to make an
appointment to see you to discuss his options, or whether he
should collect a copy of his file.”[68]
[my emphasis]
[68] DCB 151
68 An appointment was then made for the plaintiff to confer with Mr Hills on 12 March 2002.[69] That appointment did not take place.[70]
[69] DCB 151
[70] DCB 152
69 The plaintiff was cross-examined about these matters by Mr Tebbutt:
“A: No I rang a solicitor but I didn’t go and see anyone. Q: Who was the solicitor?--- A: I rang Slater & Gordon and just asked about advice and – but
didn’t proceed with anything.[71][71] T60
MR TEBBUTT:
Q:
Mr McKoy, just continuing with the Byrne Jones & Torney file, reading from p.151, Your Honour. This is a file memo dated 6 March 2002 in which I suggest you’ve told Mr Hills at that stage or someone at his office that you were having further problems and that another disc had gone. Do you recall doing that?---
A: Yes. Q:
And that you were having further treatment and you’re now in the same situation as you were when the accident first occurred. Did you tell them that?---
DRAFT
A: Yes. Q: You wanted to know if you had any further claim to make. Did you
ask them that, whether you could make any further claim?---A: Just other options I had or – yes, just – yes. Q: Did you also tell them or ask them if there was no further claim that you couldn’t understand why the claim had been settled when it did. Do you remember saying that to them?--- A: Yes. Q: You informed them at that stage you had been speaking to
another solicitor?---A: I just spoke to someone on the phone, yes.”[72] [72] T66
70 On 12 March 2002 Mr Hills wrote to the plaintiff.[73] He enclosed a copy of his file “relevant to the Workcover injuries sustained in the course of your employment with Allan Cassells Plumbing Pty Ltd”.[74] The letter goes on to advise the plaintiff he can still claim ongoing weekly payments and for medical and like expenses. It also advises that if the plaintiff thinks that his claims were in any way settled inappropriately he would need to take some action prior to the sixth anniversary of the settlement.
[73] DCB 152
[74] DCB 152
71 On 5 November 2002 Mr Hills again wrote to the plaintiff.[75] The letter advised the plaintiff that he had no further entitlements against the defendant arising out of the 1995 injury.
“We refer to our earlier correspondence and your conversations with the writer earlier this year. We have fully reviewed the settlement of the claim against Allan Cassells Pty Ltd and in so far as the current disabilities relate to any incident that occurred in the course of your then employment with Alan Cassells Pty Ltd you are not able to take further action against that employer.
In order for you to have any further entitlements, it would be necessary to show that your subsequent employment worsened the level of your back injury. On 27 February 1996 the late Mr James Pryor assessed the degree of your whole person impairment under the AMA guide (Second Edition) at 11 per cent of the whole person ... In order for you to gain any further entitlements, it would be necessary to show that the level of further impairment, when assessed in accordance with relevant
DRAFT
[75] DCB 155
regulations, was higher than that which existed by reference to the
injuries sustained in the employment with Allan Cassells Pty Ltd.”[76][76] DCB 155
72 The plaintiff was cross-examined about this letter by Mr Tebbutt. He said that he had received the letter. He agreed that since 1996 he could only seek light work and his career opportunities had been significantly limited.
“Q:
Did you then receive a letter dated 5 November 2002? Perhaps if you can have a look at this document please, Mr McKoy. Having read that, do you recall receiving that letter?---
A: Yes. Q:
Again in general terms it’s saying in effect your previous settlement has precluded from claiming any additional compensation?---
A: Yes, that’s what it says. Q: And unless you can show a new injury or further injury, you really
don’t have any further rights?---A: Yes, that’s what it says. Q:
That is November 2002 and at that stage your back had continued, had it not, to preclude you from returning to general plumbing?---
A: Yes. Q: You had lost since 1996 the full, free and unrestricted use of your
low back?---A: To do any work, you mean? A: Yes?---I could – after I recovered from the first operation, of
course I could do work.Q:
Yes, but you did not have the full free and unrestricted use of your spine to perform any form of work, did you? You were restricted in the sort of work that you could do?---
A: Yes, yes. Q: In fact the employments that you were seeking were lighter
duties?---A: Yes. Q: Duties that didn’t involve any heavy lifting or repetitive stress on
your lumbar spine?---A: Yes.
DRAFT
[77] T68-69
Q: As at 2002 it was obvious, was it not, to you that your career
opportunities had been significantly limited?---A: Yes.”[77] 73 The material shows that on or about 23 July 2003, the plaintiff injured his right ankle playing basketball. That was an injury for which he was referred to an orthopaedic surgeon Andrew Byrne in February 2004.[78]
[78] PCB 38
74 On 22 September 2003, the plaintiff attended Lydiard Medical Practice of Dr Brommeyer who noted, inter alia, – “back OK – working in drafting capacity for local builder”.[79]
[79] PCB 20
75 On 15 March 2004, the plaintiff phoned Dr Brommeyer – complaining of sudden low back pain after lifting at work on 8 February 2004. He asked for referral to an orthopaedic surgeon and was referred to Mr de la Harpe.[80]
[80] PCB 21
76 The plaintiff attended Mr de la Harpe on 14 April 2004 with recurrent low back pain and left sciatica. An MRI scan demonstrated a significant predominantly left sided L5-S1, disc prolapse. The MRI result taken on 14 April 2004 reads, inter alia:
“At L5-S1 there was a large peripherally enhancing central left paracentral disc protrusion that essentially obliterates the theca and has a significant mass effect on both S1 nerves, more on the left than on the right. No high grade foraminal stenosis seen. The facet joints, conus and abdominal aorta are within normal limits. The is no MR evidence of infection or arachnoiditis.
Conclusion: Status post surgery at least at L4/5 and perhaps at L5/S1. Generalised disc bulge without focal disc protrusion is seen at L4/5. There is a large central/left paracentral disc protrusion at L5/S1 that essentially obliterates the theca and has significant mass effect on both S1 nerves, more marked on the left than the right.”[81]
[81] PCB 52
77 Mr De La Harpe recommended revision decompression surgery.[82] Mr de la Harpe reported, inter alia:
DRAFT
[82] PCB 50
“Peter had had an L4-5 discectomy performed by Mick Shannon approximately nine years ago which I thought was for right leg pain. He seemed to have recovered from that quite well despite having some on going symptoms for a few years. At the time of this review he had had left sided leg pain and paresthesia in clearly the S1 distribution for six months. He had an absent knee jerk and altered sensation on the left hand side and his MRI (copy report enclosed) showed a very significant predominantly left sided L5-S1 disc prolapse. He had tried a lot of conservative management. He was working as a draughtsman and was finding sitting extremely difficult.
I thought he required what would essentially be almost revision decompressive surgery and as such I would have to do it through a slightly larger incision but I thought I could still do it all through the left hand side.”[83]
[83] PCB 50
78 On 24 April 2004, Mr de la Harpe carried out revision surgery to the plaintiff’s lower back.[84]
[84] PCB 50
79 In his first affidavit, the plaintiff refers to the fact of this revision surgery:
“I started to develop back problems again since 2003 but at the lower level being the L5-S1. I understood that it became symptomatic as a result of weakness at the L4-5 level. I had surgery by Mr De La Harpe on referral from Mr Shannon. I was off work for nine weeks following a micro discectomy at the L5-S1 level. I paid for the surgery myself and used statutory entitlements for my time off work.
I didn’t think I was entitled under my 1995 claim. I again had a good result and had no serious back problems until 2008.”[85]
[85] PCB 11
80 Then, in the second affidavit, the plaintiff makes it clear that it was not until 2008 that he became aware that the further surgery carried out by Mr de la Harpe in 2004 was related to the 1995 injury.[86] The 2004 surgery was carried out at a level below that of 1995. The plaintiff points out that he paid for the surgery himself consistent with his belief that because he thought the surgery unrelated to his original 1995 injury he thought he was not entitled to compensation for the cost of the surgery.
“I refer to paragraph 13. I started to develop problems in 2001 in my back. I went to see Mr Shannon. He told me I had suffered a new injury at L5-S1. He recommended conservative treatment. My symptoms got worse in 2003 and in 2004 I was referred by Mr Shannon to Mr De La Harpe. Mr De La Harpe subsequently performed surgery at L5-S1.
DRAFT
[86] PCB 18B [2]
At no stage was I advised prior to the 2004 L5-S1 surgery that this injury was related to the 1995 L4-5 disc prolapse. This is the reason why the surgery was paid for by my private health insurance. I didn’t become aware of the L5-S1 disc injury. It was operated on by Mr De La Harpe. It had become symptomatic because of a weakness in the L4-5 level until I was advised of this by Mr De La Harpe in 2008 when discussing the need for further surgery due to a recurrent L4-5 disc prolapse.”[87]
[87] PCB 18B [2]
81 The plaintiff was reviewed by Mr de la Harpe on 4 June 2004. He thought the plaintiff had done extremely well following his microdiscectomy. Mr de la Harpe said he gave the plaintiff instructions regarding exercises and long term sporting aspirations.[88]
[88] PCB 50
82 Between 2005 and 2008 the plaintiff maintained as far as possible his participation in sport including surfing.[89]
[89] T94/L16
83 According to the notes of Dr Brommeyer, the plaintiff was seen at his practice between 2005 and 2008 for other matters not related to his back problems. These included stress, cardiology tests and some “persisting pain in his right ankle after a basketball injury”.[90] The plaintiff had twisted his right ankle playing basketball on 4 March 2007.
[90] PCB 21
84 In May 2008, the plaintiff again noticed deterioration in his back. He was getting severe sciatica down the right leg. He went to see an osteopath but the pain did not settle.[91] Mr de la Harpe reviewed the plaintiff on 7 May 2008.
“I next reviewed him in my Epworth Consulting Rooms on 7 May ’08. He’d been doing very well over the last few years since his revision micro-discectomy on the left hand side. He’d been playing basketball for the past three years. Just recently he’d started to develop some right leg pain. I was not sure whether he’d prolapsed something else. I arranged an MRI scan.”[92]
[91] Plaintiff’s first affidavit [17] PCB 11
[92] PCB 50
85 Mr de la Harpe again saw the plaintiff on 30 June 2008. He reported as follows:
“I next reviewed in my Epworth Consulting Rooms on 30 June ’08. He’d
DRAFT
had his MRI scan, copy report enclosed, he’d developed a new disc prolapse at L4-5 on the right side which was the level that Michael Shannon had previously operated on approximately 10 years ago. The pain in his right leg was intermittent and I thought we should give it a bit of time to settle in order to try and avoid revision surgery. If the pain remained despite conservative treatment I’d organise a plain X-ray of his lumbar spine. He could then book in for revision right sided L4-5 laminectomy. He underwent revision surgery on 25 July ’08.”[93]
[93] PCB 51
86 The plaintiff underwent a third bout of surgery for his back problem on 25 July 2008. In his first affidavit the plaintiff says it was at this time that he first appreciated the extent of his 1995 back injury.
“I did not appreciate the extent of my back problems until July 2008. I knew it was vulnerable and I was always careful but I had a pretty good result up until July 2008.”[94]
[94] Plaintiff’s first affidavit [33] PCB 12
87 Mr de la Harpe reviewed the plaintiff on 12 August 2008. In his report he says, inter alia:
“I next reviewed him in my Epworth Consulting Rooms on 8 August ’08, his revision operation had been without complication. Post operatively he had made some improvement but there was some residual tingling and pain in his foot. We rescanned his back and there was the possibility of a small recurrent disc prolapse. It was certainly not as large as the original problem that we had to operate for. He would give the matter some thought as to whether he wanted me to take a second look to see if there any more disc that could be removed. Surgery was performed on 12 August ’08.”[95]
[95] PCB 51
88 The surgery on 12 August 2008 was the fourth bout of surgery for the plaintiff. Following this further surgery Mr de la Harpe again reviewed the plaintiff on 3 September 2008.
“I next reviewed him in my Epworth Consulting Rooms on 3 September ’08. He was doing very well following the decompressive surgery. We knew his back was quite degenerate and I didn’t want him ever going back to any manual labour. I hoped that we never needed to consider any further surgery. He was doing some gentle physiotherapy and I was happy with the program that had been outlined.”[96]
[96] PCB 51
89 Following surgery on 12 August 2008, the plaintiff deposed in his first affidavit to having returned to work on 15 September 2008 and he worked up until
DRAFT
Christmas. He felt off colour and in a lot of pain.[97] He was taking Endone to control the pain.
[97] Plaintiff’s first affidavit [20] PCB 11
90 An MRI carried out on 21 January 2009 showed “changes consistent with L4/5 osteomyelitis and discitis”.[98]
[98] PCB 55
91 On 23 January 2009, the plaintiff was admitted to Epworth Hospital where he remained until 4 March 2009. He was treated for disc infection.[99] He remained off work on WorkCover payments.
[99] Plaintiff’s first affidavit [21] PCB 11
92 Mr de la Harpe’s report shows how serious the plaintiff’s position had become by January 2009. In his report to the plaintiff’s lawyers dated 21 June 2009 he made it clear that he regarded the plaintiff’s lower back problems as being related to his original 1995 injury. In the part of Mr de la Harpe’s report I have set out below, I have added emphasis:
“I next reviewed him in my Epworth Consulting Rooms on 21 January ’09, he had some ongoing back pain and leg pain. I repeated his MRI scan and there was no further evidence of neural compression however the L4-5 disc was continuing to deteriorate. There was a grave fear that he had a low grade infection now. We did some inflammatory blood markers and he would call me in a week’s time for the results. This L4-5 disc was the same one that related to his initial WorkCover complaint and as such I believed his condition is now a direct result of his original WorkCover injury.
In answer to your specific questions it would seem the surgeries performed on the L4-5 level related to his original compensable injury in which Mr Shannon performed a laminectomy in ’95 when Mr McKoy was working as a plumber. The surgery performed on the L5-S1 level however may not be directly related to the original L4-5 injury. However, in this setting one could consider the deterioration of the lower disc as that of adjacent segment disease due to the extra strain on L5-S1 disc because of the degenerate L4-5 above.”[100]
[100] PCB 51
93 Between 4 March 2009 and 20 March 2009, the plaintiff was admitted to the McKellar Centre for Rehabilitation. He had a series of Ketamine infusions. This was repeated in May and June of 2009.[101]
DRAFT
[101] PCB 47
94 The plaintiff was seen by Mr Gerald Moran, orthopaedic surgeon, at the request of the defendant’s insurer on 16 June 2009. He was of the opinion the plaintiff’s employment with the defendant “was a significant contributing factor to the recurrence of L4-5 disc prolapse which occurred last year”.[102] He was referring to the surgery in 2008. Mr Moran was specifically asked to answer the question:
[102] PCB 63
[103] PCB 62
Q: “Does the worker’s current medical condition arise out of or in the
course of employment with Alan Cassell’s Plumbing in ’95?---A: Mr McKoy’s current medical condition in my opinion arises out of his employment with Alan Cassell’s Plumbing Pty Ltd in 1995. Mr McKoy had an L4-5 disc prolapse with low back pain and right leg pain in ’95 whilst working with Alan Cassell’s Plumbing. Mr McKoy developed an l5-S1 disc prolapse in 2003 and a recurrent L4-5 disc prolapse with right leg pain in 2008. Mr McKoy did not have a back injury in either 2003 or 2008. Because Mr McKoy had the L4-5 disc prolapse in 1995, with a subsequent L4-5 discectomy. He was more likely to have further trouble at the L4-5 level. Also because of the 1995 injury to the L4-5 disc, Mr McKoy put more strain on the L5 disc and as a result of this, in my opinion, sustained the L5-S1 disc problem in 2003. The recurrent L4-5 disc prolapse in 2008 was, in my opinion, a result of the initial L4-5 disc prolapse in 1995. Mr McKoy’s current L4-5 discitis is directly related to his L4-5 surgery which occurred in July and August last year.”[103]
95 Between July 2009 until the date of hearing, the plaintiff continued to be plagued by back related pain and he has continued to receive extensive treatment including numerous Ketamine/lignocaine infusions, Ketamine/OxyContin infusions, Ketamine/Methadone infusions and the insertion of a Permanent Spinal Cord Stimulator.[104]
[104] See plaintiff’s second affidavit [4] PCB 18C
96 Mr Harrison submits it is not until the plaintiff is advised by Mr De La Harpe in June ’08 that his second, third and fourth bouts of back related surgery can be referred back to his original low back pain in 1995. Mr Harrison submits it is at that point that the plaintiff first has subjective knowledge of serious injury
DRAFT
consequences from his 1995 back injury.[105] I do not accept this submission.
[105] T193 to T196
97 Mr Tebbutt on the other hand submits that the evidence shows that whilst the plaintiff gained some relief following surgery in 1996 at no stage did he get total relief and the plaintiff from 1995 onwards had to live his life conscious of the back related consequences from too much activity with his back. Mr Tebbutt points to the evidence that shows that the plaintiff was advised to, and did, change his occupation from being a plumber to a light work job. Mr Tebbutt points to the evidence that shows both Mr Shannon and Mr Pryor assessed the plaintiff back in 1996 as having a permanent loss for industrial purposes of 20 per cent, and the plaintiff understood that he was permanently unfit to return to full time heavy manual labour, including plumbing. Mr Tebbutt submits the plaintiff was deprived by the consequences of the 1995 injury of pursuing his career of choice where he had hoped to open his own business as a plumber. This submits Mr Tebbutt was brought about not by choice but out of necessity. I accept these submissions.
98 Mr Tebbutt submits that the injury the plaintiff suffered back in 1995, was not some musculo-ligamentous strain or simply a strain to the disc from which the disc recovered, rather it was a discal lesion which required surgical intervention. That he submits had the consequences of imposing permanent restrictions on the use of the plaintiff’s lumbar spine. At the age of 25, the plaintiff was regarded as permanently unfit to perform heavy manual labour, or work as a general plumber. Mr Tebbutt submits that by reason of those events, the plaintiff had lost the opportunity to go into the workforce to make choices about careers that entailed either general plumbing or heavy manual labour, or both. Mr Tebbutt submits that in those circumstances the plaintiff cannot contend as he does that despite having lost those opportunities and that physical capacity, that it is not a long term or serious consequence as required. I accept these submissions.
DRAFT
99 The parties agreed upon the plaintiff’s taxable income in each of the financial years from 1995 until 2009 which are set out in the plaintiff’s court book.[106] These showed in summary form the plaintiff’s income increased slowly from $28,911 in 1995 to jump to $44,148 in 2000. It then declined to $16,629 in 2002 to then begin to rise steadily reaching $38,970 in 2005, followed by $50,419 in 2007 then $61,958 in 2008. Understandably it dipped to $57,934 in 2009 the plaintiff having been hospitalised for much of the time between January and March 2009.
[106] PCB 74
100 Mr Tebbutt conceded there is no direct evidence as to what a plumber might earn in business on his own account. But he submitted the plaintiff has lost the opportunity to earn moneys by way of working as a plumber either in employment, by pursuing his own employment, by pursuing avenues that he is qualified to pursue additionally, by pursuing opportunities to work additional hours or for other employers in addition to whoever he might be working with. I accept these submissions.
101 Mr Tebbutt submitted that the opportunities lost to the plaintiff from his employment coupled with additionally the loss of the full, free and unrestricted use of his spine, would constitute serious injury incapacity for the purposes of section 135AC of the Act. I accept these submissions.
102 My assessment of the plaintiff as a witness was that he was honest and forthright. I formed the view that he was a hard working individual who had done his best since being injured in 1995 whilst working as a plumber to continue in work notwithstanding his injury and the pain and suffering consequences of it. He also did his best to make the most of his enjoyment of life outside of work particularly in his participation in sport notwithstanding his injury and the pain and suffering and impairment consequences from it.
103 However, I find there were a number of facts and circumstances which the
DRAFTplaintiff was aware of prior to 11 August 2006 which facts viewed objectively and together demonstrate the plaintiff had knowledge of his incapacity in the sense of him having suffered a serious injury with permanent serious impairment or loss of function of the lumbar spine and/or pain and suffering consequences that are may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”. Those facts and circumstances are in summary form as follows:
•
The plaintiff had been advised by his doctors in August 1995 that he had sustained a significant L4-5 disc prolapse which was work related. After surgery he was advised he was fit for light duties and the plaintiff himself at that point decided to seek rehabilitation and not to return to his pre- accident employment of plumbing. I find the plaintiff was aware of these facts in 1995 and 1996.
•
By 25 October 1995, the plaintiff himself expressed to his GP Dr Brommeyer disappointment at not being able to return to plumbing. I find the plaintiff was aware of this fact in 1995.
•
By January 1996, following surgery in August 1995, the plaintiff was experiencing on-going back pain. I find the plaintiff was aware of this fact in 1996.
•
In February 1996, the plaintiff was being advised he needed to do work “with his brain” and not “with his body” in future. I find the plaintiff was aware of this fact in 1996.
•
In June 1996, the plaintiff’s former solicitors were being advised by Mr Shannon that the plaintiff would not be able to resume normal duties as a plumber and that as a result of the injury to his low back and consequent surgery the plaintiff had been left with a permanent disability equivalent to a 20% loss of use of his back. I find the plaintiff was aware of this fact in 1996.
DRAFT
•
In February and August 1996, the plaintiff had told the late Mr Pryor he was managing his new job but having trouble sitting for long periods, and that he was sore and stiff after sport and that he had ongoing discomfort in his lower back. I find the plaintiff was aware of this fact in 1996.
•
In September 1996, there was discussion between the plaintiff and his solicitor Mr Hills about whether to issue a serious injury application at that time with a decision being made to wait and see. I find the plaintiff was aware of this fact in 1996.
•
The letter from the plaintiff’s solicitors to MMI insurance was written on the plaintiff’s instructions. Those instructions reflect the fact the plaintiff had knowledge of facts at that time that showed he had serious injury incapacity. I find the plaintiff was aware of this fact in 1996.
•
The plaintiff had difficulty performing lighter plumbing work at Findlay Plumbing between approximately 2000 and 2001. In consequence he left that work because of back pain at L5-S1 level. I find the plaintiff was aware of this fact in 2000 and 2001.
•
In 2001, the plaintiff was referred back to Mr Shannon by Dr Brommeyer because he was having difficulty at that time doing even the lighter work that he was then performing. I find the plaintiff was aware of this fact in 2001.
•
By September 2001, the plaintiff’s back pain was on-going requiring a lumbar epidural injection which gave him only temporary relief. I find the plaintiff was aware of this fact in 2001.
•
By March 2002, the plaintiff continued to consult Dr Brommeyer for recurrent low back pain. At that time he was so concerned about his condition he phoned his previous solicitor Mr Hills and questioned why his compensation claim had been settled in 1996. That reflects the fact
DRAFT
the plaintiff had knowledge of facts at that time that showed he had serious injury incapacity. I find the plaintiff was aware of these facts in 2002.
• By March 2004, the plaintiff suffered further sudden low back pain for which he was referred to Mr de la Harpe. Thereafter in April 2004 the plaintiff required further surgery to his lower back. I find the plaintiff was aware of this fact in 2004. • The plaintiff had further revision surgery in July and August 2008. I accept that the plaintiff may have only had this related back to the 1995 injury by Mr de la Harpe in 2008. However, in my view the plaintiff had before 11 August 2006 knowledge of the above facts which viewed objectively and together demonstrate he had knowledge of his incapacity in the sense of him having suffered a serious injury with permanent serious impairment or loss of function of the lumbar spine and/or pain and suffering consequences that are may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”. 104 Unfortunately, for the plaintiff, I find he has not discharged the considerable burden imposed upon him and others injured prior to 12 November 1997 by section 135AC(b) of the Act.
105 For these reasons, the plaintiff’s application must be refused. I will hear the parties on the question of costs.
- - -
0
4
0