O'Loughlin v Prime Electrics Pty Ltd
[2013] VCC 598
•30 May, 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03194
| ANTHONY CHARLES O'LOUGHLIN | Plaintiff |
| v | |
| PRIME ELECTRICS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 13 and 29 May, 2013 | |
DATE OF JUDGMENT: | 30 May, 2013 | |
CASE MAY BE CITED AS: | O’Loughlin v Prime Electrics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 598 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck/cervical spine
Legislation Cited: Accident Compensation Act 1985; Limitation of Actions Act 1958
Cases Cited: ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; AEP Industries Pty Ltd v Mahmoud (2007) 17 VR 144; Humphries v Poljak [1992] 2 VR 129; Papercorp Pty Ltd v Nicolaou [2006] VSCA 143; State of Victoria v Collins [1999] 1 VR 215; Paget V JLT Workers Compensation Services Pty Ltd & Glenelg Shire Council [2005] VSCA 144; Smith v Canberra Press Pty Ltd [2009] VSCA 200; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267.
Judgment: Leave to the plaintiff pursuant to s135AC(b) and 135A(4)(b) of the Act to commence common law proceedings for damages against the defendant in respect of his injury arising out of, or in the course of or due to the nature of his employment on 28 November 1995.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms N Wolski | Adviceline Injury Lawyers |
| For the Defendant | Mr N B Chamings | Thomsons Lawyers |
HER HONOUR:
1 On 28 November 1995, the plaintiff, Anthony Charles O’Loughlin, was injured while at work for the defendant, Prime Electrics Pty Ltd, when his head and neck became jammed in a false ceiling cavity. He had been standing on a ladder, which had commenced to topple. Using his feet, he managed to manoeuvre the ladder back to an upright position. The consequent impairment or loss of body function concerns the plaintiff’s neck/cervical spine.
2 The plaintiff seeks leave under s135AC(b) of the Accident Compensation Act 1985 (“the Act”) to commence common law proceedings against the defendant in respect of these injuries arising out of his employment with the defendant.
3 It is common ground that these injuries and their consequences for the plaintiff constitute a “serious injury” as defined in s135A(19)(a) of the Act.
4 The sole question for determination is whether the plaintiff has established on the balance of probabilities that his application is not statute barred under s135AC(b) of the Act.
5 The hearing commenced before me on 10 May, 2013 and continued on 13 May and yesterday morning (29 May 2013). Mr McGarvie SC appeared with Ms Wolski on behalf of the plaintiff. Mr Chamings appeared on behalf of the defendant. Helpfully, the parties provided written submissions, and I have adopted many parts of those documents in these reasons[1].
[1]Plaintiff’s written submissions - Exhibit B; Defendant’s written submissions - Exhibit 14
6 The statutory prerequisites are well summarised in the plaintiff’s written submissions:
“[C] BACKGROUND
4The Plaintiff served his serious injury application on the Victorian WorkCover Authority on 15 February 2011.
5Accordingly S.135AC has the effect of rendering the Plaintiff’s proceeding statute barred unless he satisfies the Court that he made his application within 3 years after the date the incapacity became known to him.
6On 9 June 2011 the Victorian WorkCover Authority determined that the Plaintiff had suffered a serious injury within the meaning of S.135A(19) of the Accident Compensation Act 1985 (‘the Act’).
7However it further determined that the Plaintiff did not satisfy the provision of S.135AC, as it contended that the serious consequences of the injury were known to the Plaintiff more than 3 years prior to the submission of his serious injury application and therefore a serious injury certificate was denied.”
7 The defendant agrees that the effect of s135AC(b) together with the timing of his serious injury application to the WorkCover Authority on 15 February 2011, is that “if the plaintiff had knowledge of his injury [meaning serious injury incapacity] on or before 15 February 2008 he is barred from bringing proceedings.”[2]
[2]Defendant’s submissions at paragraph 3
8 The critical issue concerns the date upon which the plaintiff’s serious injury incapacity became known. In this regard, it is relevant knowledge of facts which, when viewed objectively, constitute serious injury incapacity, that is important. As the plaintiff bears the onus of proof, and the standard of proof is the balance of probabilities, the issue may be posed as this question - Has the plaintiff established that it is more likely than not that he did not know of his serious injury incapacity or before 15 February 2008?
9 The plaintiff claims that his injury and its consequences was initially not of such severity that it could be fairly described as a “serious long-term impairment or loss of a body function”.[3] He claims that at first his injury was diagnosed as mere muscle strain or tissue damage. Although he would suffer flare-ups of pain and have periods of restriction, with exercise, physiotherapy and treatment, he could overcome those problems and get on with all aspects of his life, albeit with some slight modifications when needed. He therefore did not consider any such incapacity to be either “serious” or “permanent”/“long-term.” He claims that his injury was of such a type that accelerated degenerative changes, with consequent increased impairment, pain and physical deterioration of his neck/cervical spine. He claims that he did not appreciate the severity of his injury and its consequences until after the cut off date when the flare-ups became more frequent and were more grave in terms of their effect (increased levels of pain, greater impingement on daily activities such as work, social activities, domestic life, sleep, etc). I will therefore need to determine when (before or after the “cut off date”) his injury first met the statutory definition of “serious injury” set out in s135A(19) and whether the plaintiff did not know of his serious injury incapacity on or before the limitation period cut off date – 15 February 2008.
[3]“serious injury” definition contained in s135A(19) of the Act
10 Simply put, the plaintiff’s case is that he did not know of his serious injury incapacity before 15 February 2008. The defendant’s case is that the plaintiff did have such knowledge on or before that date. Alternatively the defendant submits that the plaintiff has failed to discharge his burden of proof.
Statutory framework and applicable legal principles
11 Section 135AC(b) provides:
“Despite anything to the contrary in the Limitation of Actions Act 1958 proceedings in accordance with s.135 or s.135A must not be commenced –
(a) …
(b)if the cause of action arose before 12 November, 1997 and the incapacity arising from the injury was not known until after 12 November, 1997, unless an application for a determination from the worker under s.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.”
12 Both parties have accurately referred to the applicable legal principles in their written submissions.
13 In ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at [72]-[75], Kyrou AJA set out the following principles relating to s135AC(b) of the Act:
“[72]Under S.135AC(b) of the Act, the onus lies upon the worker to establish that his or her application was made under S.135A(2B) within the three-year period after the date the incapacity became known.
[73]For the purposes of S.135AC(b), it is sufficient to bar a worker’s claim if, prior to the relevant date, he or she knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that the worker does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.
[74]Section 135AC(b) of the Act involves a two-step process. First, the trial judge must identify what the worker in fact knew in relation to his or her injury at the relevant time. Secondly, the judge must determine whether, in the judge's opinion, and this is a matter of fact, degree and value judgment for the judge, those known facts constitute knowledge of serious injury incapacity.
[75]The words “the incapacity arising from the injury” in s.135AC(b) mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain and suffering, or pecuniary disadvantage, or both, which would found a successful serious injury application.”
14 The parties also referred to a number of other authorities:
15 AEP Industries Pty Ltd v Mahmoud (2007) 17 VR 144 at [11]:
“It was accepted on the appeal that s.135AC(b) involves 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. Secondly, the judge must determine whether in the judge’s opinion – and this is a matter of fact and degree and value judgment for the judge – those known facts constitute knowledge of serious injury incapacity as explained in Humphries v. Poljak. As Ashley JA, with whom Maxwell ACJ and Nettle JA agreed, stated in Papercorp Pty Ltd v. Nicolaou [2006] VSCA 143 at [50]:
‘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’.”
16 The principles to be applied when determining a “serious injury” application were explained in Humphries v Poljak [1992] 2 VR 129:
· To be compensable under the Act, the injury sustained must fall within the definition of “serious injury” as defined in the Act;
· “Serious injury” means “very considerable”;
· A “serious injury” must be an injury that has serious consequences for the plaintiff judged on an objective basis, and, when judged by a comparison with other cases in the range of possible impairments, it must be capable of being fairly described as at least “very considerable” and certainly more than “significant” or “marked”;
· The term “serious” requires that the impairment and its consequences be viewed objectively and also judged on an external comparative basis against possible impairments, not necessarily in the same category;
· For a body function, it is the “impairment” which must be serious. The evaluative task is concerned with the impairment, not to the injury which causes the impairment;
· The degree of seriousness of the impairment is to be judged by its “consequences” to the plaintiff and by “comparison with other cases” in the range of possible impairments or losses;
· Assessment of consequences requires a comparison of the plaintiff’s before and after position;
· It is not permissible to “aggregate” different injuries, none of which are “serious”.
17 These additional principles emerged in cases post Humphries v Poljak:
· Aggravation of a pre-existing injury may be a serious injury. A comparison must be made of the condition of the applicant immediately before the incident with his condition thereafter, and an assessment made of the extent of the additional impairment. If that additional impairment is not “serious”, then leave must be refused[4];
· Any impairment or loss of body function must be long-term, i.e., “at least extending beyond a few years”[5];
[4]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraphs [9]-[11].
[5]Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 at 361 and 367
18 Mr Chamings also correctly noted that Papercorp is authority the following principles:
“(a)the Plaintiff bears the onus of showing that he did not before the relevant date know that he suffered serious injury capacity (paragraph 19);
(b)the incapacity of which the Plaintiff must show he is ignorant is serious injury incapacity – citing State of Victoria v. Collins [1999]1 VR 215, (see paragraphs 13 to 15 of Papercorp Pty Ltd v Nicolaou);
(c)the concept of ‘serious’ characterizing the consequences of the injury does not depend upon the value judgment of the particular worker (paragraph 37);
(d)both pain and suffering consequences and economic consequences are relevant matters of enquiry as to the Plaintiff’s knowledge of his incapacity (paragraphs 33 and 34);
(e)doctors’ histories can answer the question of what was the knowledge of the worker (paragraph 43);
(f)what is contained in doctors’ histories does not automatically equate to the knowledge of the worker (paragraph 46);
(g)the worker must prove an absence of knowledge, not an absence of mere suspicion (paragraph 36);
(h)whether a worker had relevant knowledge at a particular time requires assessment of the worker’s actual knowledge (paragraph 47);
(i)only rarely will a focusing event lead to the worker believing that he has pain and disability of a serious magnitude (paragraphs 48-49);
(j)want of awareness may bear on the question of knowledge but caution is needed (paragraph 49);
(k)knowledge of the extent of ‘any incapacity of either kind’ (pain and suffering or economic consequences) governs the question of knowledge (paragraph 91);
(l)regard must be had to the facts from which knowledge is objectively capable of ascertainment (paragraph 4).
19 In State of Victoria v Collins [1999] 1 VR 215 Winneke P said:
“I agree with the judge’s conclusion that the incapacity arising from the injury is not the temporary incapacity for work produced by the initial insult, but rather is “serious injury” incapacity which “becomes known” when events demonstrate that the victim of the injury is, relevantly for the purposes of this case, suffering from a serious long-term impairment or loss of a body function In other words the “incapacity” of which S.135A(2)(b) speaks is the incapacity which becomes known when the injury is demonstrated to be a serious one within the meaning of subs (19).”
20 In Paget V JLT Workers Compensation Services Pty Ltd & Glenelg Shire Council [2005] VSCA 144 at [29], Justice Callaway expanded upon the issue of knowledge and stated that “the test is knowledge, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the worker.”
21 Mr Chamings also referred to the observations of Beach AJA in Smith v Canberra Press Pty Ltd [2009] VSCA 200 at paragraphs 8[6] and 11:
“[8]The applicant's application will be barred by the operation of s 135AC(b) if he had knowledge of the serious injury incapacity, arising from his pre-12 November 1997 injury, more than three years before 3 March 2006. The fact that an applicant/ worker does not subjectively appreciate that the injury is serious until after the relevant date does not matter. It is sufficient to bar the claim if the worker knew of facts that viewed objectively constituted the serious injury incapacity.[7]
…
[11]… Neither s 135A nor s 135AC require a worker to have knowledge that they had a cause of action arising from the injuries the subject of the application before the court. Had Parliament wished to make such knowledge relevant, then it could have so provided.[8] Further, as 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. “
[6]See also AEP Industries Pty Ltd v Mahmoud (2007) 17 VR 144 at paragraph 28
[7]See AEP Industries Aust Pty Ltd v Mahmoud (2007) 17 VR 144 at [28] per Redlich JA
[8]See, eg, s27L(1)(f) of the Limitation of Actions Act 1958
The evidence
The Plaintiff’s case
22 The plaintiff gave sworn evidence. In addition, a number of exhibits were tendered:
A Plaintiff’s chronology
B Plaintiff’s final written submissions
C Affidavit of Plaintiff dated 10/2/11 (Plaintiff’s court book (PCB[9]) 18-25)
D Second affidavit of Plaintiff dated 19/7/12 (PCB 26-29)
E Further supplementary affidavit of the Plaintiff dated 2/5/13 (PCB 30-32)
F1 Report of Dr John Kondopoulos dated 10/7/06 (PCB 33-34)
F2 Report of Dr John Kondopoulos dated 11/7/10 (PCB 35-36) F3 Report of Dr John Kondopoulos dated 13/8/12 (PCB 37)
F4 Report of Dr John Kondopoulos dated 6/6/13 (PCB 38)
G1 Report of Mr Adrian Schwarz dated 5/11/98 (PCB 46-47)
G2 Report of Mr Adrian Schwarz dated 16/12/98 (PCB 48)
G3 Report of Mr Adrian Schwarz dated 3/3/03 (PCB 49-50)
H Report of Mr David Ronan dated 18/7/12 (PCB 51-52)
J Report of Mr Craig Timms dated 18/3/10 (PCB 53)
K1 Report of Mr Michael Hedger dated 25/2/10 (PCB 54)
K2 Report of Mr Michael Hedger dated 2/6/10 (PCB 55-56)
L1 Report of Dr Robert Gassin dated 18/2/11 (PCB 57)
L2 Report of Dr Robert Gassin dated 20/2/13 (PCB 58-61)
M MRI report of cervical spine dated 25/1/10 (PCB 69-70)
N MRI report of cervical spine dated 5/12/12 (PCB 71-72)
O CT scan report of lumbosacral spine dated 5/10/06 (PCB 68)
P Report of Mr B. G. Reid dated 13/3/06 (PCB 73-76)
Q1 Report of Mr Clive Jones dated 26/8/09 (PCB 77-80)
Q2 Report of Mr Clive Jones dated 20/12/09 (PCB 81)
R Report of Mr Rodney Simm dated 24/3/04 (PCB 82-85)
[9]“PCB” = Plaintiff Court Book; “DCB” = Defendant Court Book
Undisputed facts
23 The plaintiff was born in March, 1968. He left school at age 15 and commenced an apprenticeship as an electrician initially with Deans Electrics and then with Diamond Valley Electrics. Whilst undergoing his apprenticeship he completed year 11 at night school. He remained in employment with Diamond Valley Electrics until 1989. Thereafter he and a friend in partnership conducted a mowing and maintenance business for approximately 2 years. He later ran a service station, did some subcontracting work as an electrician and worked as a Parks Officer for the Department of Conservation and Environment.
24 Prior to his employment with the defendant, on 30 August 1986, the plaintiff sustained an injury to his lower back whilst he was employed by Diamond Valley Electrics. The injury produced symptoms radiating down his left leg which have persisted ever since[10]. The plaintiff applied for compensation in respect of this injury.
[10]paragraph 6 Exhibit C
25 In 1993, when he was aged approximately 25 years, the plaintiff commenced employment as an electrician with the defendant. He was still restricted in many of his activities as a consequence of his earlier work injury. As he said in exhibit C:
“My lower back injury meant that from that time on I was restricted in many activities which I had previously enjoyed. I could not ride a horse without suffering from an increase in pain. I ceased playing senior football. I avoided running where possible. I did not involve myself as much in social sporting activities including tennis, basketball and golf and I was generally very careful to avoid sustaining further injury to my lower back. For example, the last time when I tried to ride about 3 years ago when I was on a camp and I found that that caused me to suffer a significant increase in my level of lower back pain.”[11]
[11]paragraph 7
26 In March 1994, the plaintiff’s general practitioner, Dr Blatt referred the plaintiff for a CT scan which showed broad based disc bulging at L3-4 and L5-S1 levels as well as broad based disc bulge abutting the left L5 nerve root at L4‑5.
27 On 28 November 1995, the plaintiff sustained the work injury the subject of these proceedings. He described the circumstances of his injury as follows:
“I was working at the Coles Myer site in Tooronga. It was necessary for me to stand on a ladder and put my head into a false ceiling space in order to inspect the location of services including air conditioning ducts and the like. The ladder upon which I was standing was a six-foot ladder and I was assessing the feasibility of the work which I had to do, essentially involving the positioning of electrical cabling in the false ceiling. …. It was necessary for my neck and shoulder to be wedged between an air-conditioning duct and the concrete slab immediately above the false ceiling and as I did so the ladder overbalanced and I was left dangling with my neck and shoulder caught in that position for a short period although I was able to use my feet to get the ladder back into position. It was this activity which caused me to suffer a very significant neck strain which I believe was the beginning of a serious injury condition which has taken many years to evolve to the point where I need spinal fusion surgery in my neck.”[12]
[12]paragraph 8
28 The plaintiff first saw Dr Kondopoulos, general practitioner, on 14 December 1995. Dr Kondopoulos diagnosed a C5-6 facet joint injury and soft tissue injury to the trapezius muscle[13].
[13]Exhibit F1
29 Five days later, the plaintiff first saw Mr Schwarz, physiotherapist who diagnosed a local facet joint strain[14].
[14]Exhibit G1
30 In 1996, the plaintiff ceased employment with the defendant. He commenced employment with The Entire Group as a service manager for a short period until the company went into receivership.
31 Between 1996 and 1999 the plaintiff worked for Melent Mire as an Electrical service manager.
32 Between 1999 and 2005, the plaintiff undertook studies in psychology and theology through Tabor College, completing a Bachelor of Arts in counselling. Both during the course of his studies and thereafter, the plaintiff worked as a youth coordinator through a variety of charitable organisations. During the same period he also performed electrical work as a subcontractor to supplement his earnings.
33 On 15 May 1996, the plaintiff lodged a Worker’s Claim for Compensation[15]. In that claim he described his injury as “strained muscles, strained upper disks.” He stated that he wrenched his neck whilst working on a ladder trying to manoeuvre between a duct and a pipe.
[15]Exhibit 2
34 On 23 May 1996, the plaintiff’s employer lodged Employer Claim Report[16]. The employer confirmed the injury as strained muscles in neck and shoulder and observed that the plaintiff “never took any time off work in respect of that injury”.
[16]Exhibit 5
35 On 5 November 1998 the plaintiff’s physiotherapist, Adrian Schwarz, wrote to the defendant insurers[17]. Mr Schwarz assessed the plaintiff’s presentation “of the pain pattern was indicative of a local facet joint strain.” Mr Schwarz reported:
“As to Mr O’Loughlin’s capacity for pre-injury employment, as far as I am aware, Mr O’Loughlin has not had any time off work and indeed is continuing to perform similar work that he was performing prior to the injury. I see no reason why Mr O’Loughlin should not be able to continue in such employment in the future.
As to the matter of the existence of any permanent impairment, I again do not believe that this is likely, however, as can be noted by Mr O’Loughlin’s attendance for physiotherapy over the past 3 years, he has had recurrent episodes of left cervical facet joint pain, which can be brought about by increased physical tasks performed at work, by sleeping heavily in an incorrect position at night, or with increased emotional stress. …. I am … unable to estimate as to how long this problem may persist.
I would like to mention, however, that Mr O’Loughlin is self managing well with regular exercise and only attends for physiotherapy when he is in a state of exacerbation and is unable to manage the problem by himself.”
[17]Exhibit G1
36 On 28 January 1999, a medico-legal report was prepared by Dr Wallin for the insurers in respect of the plaintiff’s workers compensation claim.[18] In that report, Dr Wallin stated that the plaintiff “was told that he had squashed his C6-7 disc. He claimed to have been able to sleep only on his back or right side for the first twelve months after the injury, and since the injury to have been subject to episodes of acute wry neck … . He confirmed having lost no work time although he has now changed employers, and he further confirmed that his current job is compatible with his condition due to the fact that he is performing mainly job assessments, quotations and the like, this requiring a lot of driving but little tool work.” Dr Wallin accepted “the presence of a mild to moderate degree of chronic neck ligament strain with or without facet joint involvement.”
[18]Exhibit 9
37 On 11 February 2003, the plaintiff swore an affidavit in support of an application made pursuant to sections 98 and 98A of the Act.[19] In this affidavit the plaintiff described the circumstances of injury and its consequences. He swore:
“[5]I suffer from constant pain in the neck. The severity of the pain varies. I also suffer from periodic pain in the left arm. I have trouble sleeping and can not sleep in certain positions. I am limited in what I can do. I am an electrician by trade but do not work as an electrician currently. I am also a landscape gardener. I find however that if I do heavy work for more than a short time I pay a price in terms of increased pain in the neck area.
[6]When I do suffer from worsening of pain in the neck area my left arm is affected. I used to enjoy sports such as football, basketball, tennis and golf but I have learnt from experience… that if I play any of these sports for more than a short period I am liable to suffer increased pain.”
[19]Exhibit 7
38 On 19 March 2003, Mr Peter Mangos, surgeon, wrote a report in support of the plaintiff’s application for compensation for permanent disability[20]. Under “History of Injury”, Mr Mangos reported:
“He complains of chronic pain in the neck with stiffness and this often is aggravated depending on how he sleeps at night. If he sleeps on his abdomen the pain in the neck is worse. Sometimes he gets acute exacerbation of the pain with headaches which are frontal and occipital. He does not vomit or have any visual disturbance. He currently takes Vioxx tablets. He stated that the neck problem is a constant nuisance to him. He continues to work with difficulty and he is concerned about the future.”
[20]Exhibit 8
39 Under heading “Summary and Conclusion”, Mr Mangos opined:
“I formed the opinion that this man is a young, solidly built, strong man who worked as an electrician and suffered an injury to his neck on 18 November 1995. I think the symptoms this man complains of are consistent with that injury. I think he has suffered a sudden musculo-ligamentous strain of the neck and almost certainly has suffered partial damage to the cervical discs, particular C6/7. I think he has evidence of a mild radiculitis of the left arm. I think his injuries have stabilised. His future involving work as an electrician should be guarded as he should be careful about returning to any work which involves constant moving of his neck, and particularly working in awkward areas in a fixed awkward situation.
In answer to your specific questions:
…
(b)your client suffers from a chronic painful neck due to muscular ligamentous injury, and also left-sided radiculitis.
(c)there is little doubt that in accepting the history of injury to this man, the injury has contributed significantly to causing, aggravating, accelerating and exacerbating his injuries.
(d)in my opinion this man has a partial permanent disability …[of] the left arm of 15 percent.”
40 On 27 June 2003, the plaintiff lodged a claim for compensation for permanent disability for pain and suffering as a result of this injury. He claimed permanent disability in respect of his “neck, left arm/shoulder”[21].
[21]Exhibit 1
41 On March 24, 2004, Mr R Simm, orthopaedic surgeon, reported on the plaintiff’s condition:[22]
[22]Exhibit R
“His symptoms have been reasonably well controlled in recent times. He attributes the improvement to the purchase of a new bed. Prior to purchasing this bed he could not sleep for long periods on his left side. The new bed is softer and he sleeps much more comfortably.
He is always aware of some pain. The pain occurs at the base of the neck, across the top of the left shoulder and into the left scapular. He has some stiffness in the neck. He does stretching exercises twice per day. He suffers increased pain with sudden movements of the neck, jolting his neck or bending forwards supporting a weight.
He is able to do gardening and other physically demanding activities. Digging or similar physical work causes increased stiffness and soreness.
… Arm symptoms have not troubled him recently….
His injury has confined him to occasional tennis and golf. He is reluctant to play these sports as he fears aggravation of the neck and shoulder symptoms.”
42 On 13 March 2006, Mr B Reid, surgeon, reported to the defendant insurer.[23] The plaintiff denies or does not recall some of the representations attributed to him by way of history. However, Mr Reid opined:
[23]Exhibit P
“8.The worker has had adequate treatment to progress to self-management. In fact he has already established his self management program including stretching exercises, self massage and massage with the aid of instruments with the help of his son.
9.He is currently working as a self-employed electrician. I believe he would be able to continue working if treatment is ceased.
10. He is able to perform the activities of daily living without assistance.
11.If current treatment is ceased he would still be able to undertake the activities of daily living.
12.There is no treatment currently not been received that is essential in enabling him to undertake the activities of daily living.”
43 Liability had been accepted for the plaintiff’s Worker’s Compensation Claim. He was granted funding for some physiotherapy and massage treatment. At some point, this treatment was terminated by the insurer. The plaintiff pressed his entitlement to that treatment on the grounds that without it his incapacity would increase.
44 On or about 6 July 2006, the plaintiff sent a message by fax to Dr Kondopoulos. In it he said:
“As it is right now it is fast becoming just that, ‘incapacitating’! I can (again) no longer sleep on my left side due to pain caused. … I’m not, as you know ‘after’ anything other than just treatment to maintain the injury so that I can continue to work to my fullest possible capacity and at present that is being compromised.”
45 On 10 July 2006, Dr Kondopoulos reported to the defendant insurer:[24]
[24]Exhibit F1
·“Mr O’Loughlin presented on December 14, 1995 with left sided neck and trapezius pain following a strain injury while working as an electrician… At the time, he was investigated with a CT scan which did not demonstrate a disc prolapse. The diagnosis was that of a C5 – 6 facet joint injury and soft tissue injury to the trapezius muscle. ….
·Mr O’Loughlin currently has a normal capacity for his pre-injury duties. However, since his injury, his pain has been fluctuating in nature. He ranges from being virtually pain-free to being incapacitated at times. At its worst, he is unable to turn to his left side and unable to lift with his left arm. The pain prevents him from sleeping on his left side and has a significant impact on his ability to work as an electrician. During these exacerbations, he has specific tenderness over his left trapezius and restricted range of movement of his neck.
·Mr O’Loughlin is currently able to work as an electrician with the assistance of a maintenance program to prevent and manage the exacerbations of his condition.
·Since his injury, he has remained highly motivated to keep working. In order to do this, he has required sessions of physiotherapy and/or remedial massage at 2 to 6 week intervals. He has combined this with a daily self-exercise regimen. Without this treatment, he consistently notes that his neck muscles tighten and spasm significantly incapacitating him and affecting his ability to continue working as well as impacting on his quality of life.
·Over the past 10 years, it has become obvious to me that these physical treatment modalities have been effective in controlling his chronic neck condition and allowing him to work in his pre-injury capacity.”
46 On or about 7 August 2006, the plaintiff wrote a message, which he sent by fax,[25] in which he said:
“Stopping treatment is and will continue to adversely impact my capacity to work freely and unhindered. The injury is making it increasingly difficult to function normally without pain and discomfort … My condition’s stability is directly related to the ongoing treatment of the injury. Where the injury goes on untreated it soon becomes difficult to live with. Since the cessation of treatment the injury has become increasing[ly] unbearable and I am now engaged in more radical treatment than the deep tissue massage, resorting to physio and Bowen treatments.”
[25]Exhibit 3
47 On 5 October 2006, a CT scan was performed of the plaintiff’s lumbosacral spine[26]. It does not appear that there was any investigation of his cervical spine at that time.
[26]Exhibit O
48 In 2006, the plaintiff returned to the electrical trade on a full-time basis and was subcontracting for a period until he and a friend started their own business, Shock Therapy Pty Ltd. This company undertook domestic, commercial and industrial electrical contracting work. Initially the plaintiff’s role was largely of an administrative nature.
49 The “cut off date” (15 February 2008) for the purposes of sec 135AC(b) falls at this point in the chronology.
50 I am satisfied on the balance of probabilities that the plaintiff was aware of each of the facts, matters and circumstances referred as “undisputed facts” to this point.
51 As a result of the global financial crisis in late 2008, the plaintiff took on more physical duties in Shock Therapy, which he described as “work on the tools”[27]. The plaintiff found that this additional manual labour produced “very significant change in the status of my neck condition[28]”.
[27]Exhibit C paragraph 13
[28]Exhibit C paragraph 13
52 In late 2009, the plaintiff experienced increased neck pain and new left and right upper limb symptoms[29].
[29]Exhibit D
53 On 26 August 2009, Mr Jones, orthopaedic surgeon reported[30]:
“Mr O’Loughlin presented as a genuine individual with a minor but nonetheless, significant on-going problem of degenerate pain in his neck.”
[30]Exhibit Q1
54 In his later report,[31] Mr Jones opined:
“I do not believe further investigation of his cervical spine can be justified. MRI is usually recommended when surgical treatment is being contemplated and this is certainly not the case here.”
[31]Exhibit Q2
55 On 25 January 2010, an MRI was conducted of the plaintiff’s cervical spine. It showed:
“There is a left paracentral disc/osteophyte complex at the C4/5 level which exerts significant mass effect upon the anterolateral aspect of the thecal sac and would account for a left C5 radiculopathy. There is significant to foraminal stenosis on the left-hand side. No right C5 nerve root impingement is seen. The C5/6 disc is extruded right paracentrally which is seen to exert mass effect upon the thecal sac and would account for a right C6 radiculopathy. No left C6 nerve root impingement is seen.”[32]
[32]Exhibit M
56 On 18 March 2010, Mr Timms, neurosurgeon, reported[33]:
“Of late, around the last Christmas period he developed more pain in the right arm as opposed to the left arm and developed weakness particularly when lifting from the elbow…..From my point of view, if the flare-ups become more frequent and take longer to heal, then this is preventing him from living his life. At that stage he would need surgical decompression in the form of an anterior cervical discectomy and fusion at C4-5 and C5-6.”
[33]Exhibit J
57 In mid 2010, the plaintiff commenced training in audio engineering.
58 On 11 July 2010, Dr Kondopoulos reported[34]:
“Mr O’Loughlin’s capacity for his pre-injury duties has greatly deteriorated. He currently does not have normal capacity for his pre-injury duties … .
Over the last few years, his condition has deteriorated and Mr O’Loughlin now needs to employ others to complete his duties as an electrician…
Mr O’Loughlin is unable to fulfill all his duties as an electrician due to the deterioration of his medical condition. He currently continues to work despite pain. It is unlikely that he will be able to continue working as an electrician due to the deteriorating nature of his condition…
Unfortunately it has become evident that Mr O’Loughlin’s current type of work is not sustainable in the future.”
[34]Exhibit F2
59 On 18 February 2011, the plaintiff first saw Dr Gassin, pain management specialist, who recommended “bilateral C4 to C6 medial branch blocks … to be performed on up to 4 occasions”.[35]
[35]Exhibit L1
60 On 25 May 2011, Mr Williams, orthopaedic surgeon, reported:
“[The plaintiff’s] manner was calm, but the complexity of his symptom pattern as his character suggested to me that there was a largely non-organic component to his sense of illness. Examination of the head and neck was normal … although he complained of some difference in the sensibility of the skin of his left palm, it did not appear to me that there was a loss of sensation or that his symptoms suggested that he had significant radiculopathy.”
61 In June 2011, Shock Therapy Pty Ltd ceased trading. The plaintiff claims this was prompted by his general practitioner’s advice that the physical demands of the work involved were too great because of his neck injury[36].
[36]Exhibit D paragraph 11
62 On 13 August 2012, Dr Kondopoulos further reported[37]:
“His present condition appears to have worsened over the last two years, with the exacerbation of pain lasting longer, and being triggered by more trivial movements. They have had a big impact on his non work life, and the chronic pain is impacting on his mood and mental health.
I fear his long-term prognosis is unfavourable. He may possibly benefit from neurosurgical decompression of his cervical nerve roots, although this procedure is not without risk.
I strongly feel that working as an electrician is injurious to his health and not a realistic option for his ongoing employment. Indeed I feel manual work in general will have a significant negative impact of his injury since any lifting, stretching, prolonged standing or crouching cause him pain.”
[37]Exhibit F3
63 On 6 December 2012, a further MRI was conducted of the plaintiff’s cervical spine. The report concluded:[38]
“Disc degenerative changes throughout the cervical spine. At C4/5, large left disc/uncovertebral osteophyte which is slightly larger. It causes high-grade left foraminal stenosis with compression of the left C5 nerve. At C5/6, there is large right disc/osteophyte complex which indents the anterior cervical cord with compression of the right C6 nerve. At C6/7, new moderate left paracentral disc protrusion slightly effaces the anterior cervical cord and compresses the left C7 nerve.
[38]Exhibit N
The Plaintiff’s evidence
64 The plaintiff’s evidence consisted of his four affidavits (Exhibits 7, C, D and E).
65 I have already referred to Exhibit 7, the affidavit sworn by the plaintiff on 11 February 2003 in support of his application made pursuant to sections 98 and 98A of the Act. As was conceded by Mr McGarvie, in that document the plaintiff “put his best foot forward”, honestly setting out the facts as he believed them to be.
66 In Exhibit C, the plaintiff attempted to explain the development of his symptoms post the incident and that he did not know of his injury incapacity on or before 15 February 2008, despite the facts asserted in Exhibit 7.
67 After detailing the circumstances of the incident (including dangling from the ceiling with his neck and shoulder caught for a short period), the plaintiff described the consequences of his injury immediately after the incident in this way:
“It was this activity which caused me to suffer a very significant neck strain which I believe was the beginning of a serious injury condition which has taken many years to evolve to the point where I need spinal fusion surgery in my neck.
Initially I was aware that I had sustained an injury to my neck and I consulted my then GP, Dr Kondopoulos who in turn referred me for physiotherapy treatment with Adrian Schwarz at the North Balwyn physiotherapy clinic. I was aware at the time of pain extending from my neck into my head and through my left shoulder and scapular region. I understand Mr Schwartz diagnosed me at the time as suffering a local facet joint strain and that physiotherapy treatments were successful in relieving the neck and left shoulder and upper limbs symptoms resulting from that strain. I also received advice as to exercise, massage and self-care and in the years since I have always worked to maintain the strength and integrity of my cervical spine as a means of limiting any symptoms from that initial injury.
I do not believe that the injuries which I sustained were sufficiently severe to warrant my taking any time off work and I continued in my employment with the Defendant until approximately 1996. I then moved on to employment with the Entire Group as a service manager and I remained with them until that company went into receivership shortly thereafter. I then moved on to work with Melent Mire as an electrical service manager and I remained with that company until 1999. Throughout these years I carried out a full range of duties as required by my employers although I suffered from ongoing intermittent neck pain. I did take care when I was at work not to unduly strain my neck. I had already given away many of the more vigorous sporting activities in which I had engaged in my earlier years as a result of my lower back condition and my neck injury did not impinge upon the social, recreational and domestic activities which I wished to pursue.[39]”
[39]Paragraphs 8, 9 and 10
68 The plaintiff then detailed the further studies and career pursuits he subsequently undertook. In 2006 he returned to working full-time in the electrical trade, establishing Shock Therapy Pty Ltd. He swore:
“In that business my role was largely administrative until the global financial crisis set in and in late 2008 I had to start working more and more on the tools because of the finances of the business meant that we were forced to lay off the tradesmen we employed as well as our apprentices. I found that the more I was undertaking work on the tools the greater the degree of strain on my neck and that was productive of a very significant change in the status of my neck condition which I believed constitutes serious injury, the consequences of which I have only become aware within the past three years.
I found that I was suffering not only from significantly increased neck pain but also significant problems extending from my neck into my left upper limb. I found that my left arm was becoming numb and that there was a loss of strength in my left hand. In the mornings when I woke up and through the night I was suffering pins and needles in my left arm and hand. These were not sensations which I had previously encountered. Another aspect of the increasing symptoms which I have encountered in the past couple of years has been the onset of pain extending down into my right shoulder and upper limb also which with time has become as severe as the left sided symptoms which I suffer.[40]”
[40]Paragraphs 13 and 14
69 Although the plaintiff conceded an awareness of his neck condition well before 15 February 2008, it has only been after that date that he became aware of his serious injury incapacity. He stated:
“I believe that although my neck condition is long standing, it is only within the past 2 to 2 ½ years and particularly in the last 14 months that the serious injury consequences to me of that condition has become apparent. Prior to that time Dr Kondopoulos was supportive of me remaining in my usual occupation as an electrician and supported me on a number of occasions when attempts were made to reduce the conservative treatment such as physiotherapy which was of assistance to me. Now he has advised me that I shouldn’t continue to work as an electrician.
The further additional factor is that it is only now that I am facing the prospect of a major cervical fusion at both C4-5 and C5-6 levels to try and remedy the referred symptoms which extend not only down through my left arm but also equally down through my right.[41]”
[41]Paragraphs 20 and 21
70 In his Affidavit 19 July 2012 (Exhibit D), the plaintiff confirmed that since swearing Exhibit C his symptoms have persisted and increased. His need for pain alleviating medication has also increased. He identified a particular occasion in late 2009 when he stretched and felt severe pain and then numbness in his neck, shoulders, arms and hands. He swore:
“I have suffered from these types of very severe exacerbations ever since but not before this occasion.”[42]
[42]Paragraph 3
71 The plaintiff went on to explain the extent to which his symptoms have increased. These include regular numbness in either or both of his arms, including at night when he is attempting to sleep. This affects his sleep and he wakes up about 2 or 3 times per night. He has reduced strength in his arms and suffers constant headaches. He has modified the nature of his work to compensate for his physical incapacity.
72 In Exhibit E, sworn 2 May 2013, the plaintiff detailed an even further deterioration in his condition and symptoms since swearing exhibit C. He swore:
“In the latter half of 2012 the symptoms in my neck and arms and hands worsened. I consulted my doctor about this and he increased the dosage of Endep to 50mg daily and he was considering increasing that again. The increased dosage of Endep made me feel zoned out and I found it difficult to function. My doctor then took me off Endep and prescribed Lyrica 150-300mg daily. I also take Voltaren 100mg-150mg daily, with rest periods as it upsets my stomach, Nexium 20mg a day, when I take Voltaren, Panadol Osteo 2 x 665mg up to 3 times a day, Mersyndol caplets x 2 night strength as required and Stilnox, 10mg every evening as required.[43]”
[43]Paragraph 2
73 In cross-examination, the plaintiff was questioned about the claim he made for Worker’s Compensation on 15 May 1996 (Exhibit 2). I have already referred to that document.
74 The plaintiff also agreed that he made claim for compensation for permanent disability as a consequence of this work injury dated 27 June 2003 (Exhibit 1). He claimed permanent disability of his “neck, left arm/shoulder”. He adopted his affidavit in support of that claim (tendered as Exhibit 7).
75 The plaintiff was then taken to a number of representations that he made to various practitioners and in various documents over the years in an effort to demonstrate that in support of his 2003 claim he described symptoms and consequences of such severity that he knew of his serious injury incapacity well before February 2008. I have referred to these representations earlier in this judgment. In summary, these representations were said to evince the plaintiff’s knowledge of his serious injury incapacity - that every aspect of the plaintiff’s life was adversely impacted, particularly in respect of his work (modified to suit his physical limitations), his ability for uninterrupted sleep, his social and domestic life, his sporting pursuits and hobbies and he knew it. The topics and representations are well summarised by Mr Chamings:
“6.On 19 March, 2003 Mr.= Peter Mangos reporting to the Plaintiff’s then solicitors diagnosed, after viewing a CT scan, “a sudden musculo-ligamentous strain of the neck and almost certainly .. partial damage to the cervical disc, particular (sic) C6/7” with mild radiculitis of the left arm (PCB p.43 - EXHIBIT 8). On 24 March, 2004 Mr Rodney Simm assessing the Plaintiff’s injury for an impairment claim diagnosed cervical disc disruption and disc protrusion which has caused a pattern of referred symptoms (PCB p.84 – EXHIBIT R).
7.In support of his claim for permanent disability the Plaintiff swore an affidavit dated 11 February, 03 (EXHIBIT 7 - DCB pp.21-22). In that affidavit the Plaintiff said at paragraph 5 that he suffered from constant pain in the neck and periodic pain in the left arm (Transcript 26 lines 17.22). The Plaintiff also said he was limited in what he could do (Transcript p.26 lines 23-24). The Plaintiff further said he was a landscape gardener and if he did heavy work for more than a short period of time he paid the price in terms of increased pain in the neck area (Transcript p.27 lines 9-13). The Plaintiff agreed that he was indicating if he did too much he would get adverse symptoms (Transcript p.27 lines 14-15) and also said when he suffered worsening pain in the neck the left arm was affected (Transcript p.27 lines 16-18). The Plaintiff also said in his affidavit that because of the injury about which he was swearing the affidavit he could no longer play football, basketball, tennis and golf for more than a short period of time without increased symptoms (Transcript p.27 lines 19-23).
8.The Plaintiff gave evidence that he said in his affidavit that if he did heavy work for more than a short time he paid the price to demonstrate he had an impairment (Transcript p.29 lines 18-22). He further said in evidence that it is a fact that he can only play sport for a short period before suffering increased pain (Transcript p.29 lines 23-27).
9.The Plaintiff gave evidence that when examined by doctors he gave honest answers to the questions they asked (Transcript p.31 lines 29-31).
10.The Plaintiff was examined by Dr Maurice Wallin on 28 January, 1999 (DCB pp.9-12) and he told Dr Wallin that he changed employers and that his current job was compatible with his condition (DCB 11, confirmed in evidence Transcript p.32 lines 11-15).
11.When asked if he knew he could not go back into unrestricted work as an electrician the Plaintiff answered ‘No, my preference was not to go into that sort of work. I knew that I couldn’t’ (Transcript p.36 lines 2-6) and that his preference was not to return to pre injury duties was at least partially because of his injury and continuing symptoms (Transcript p.36 lines 7-8).
12.Ever since the injury of 28 November, 1995 the Plaintiff has always worked to maintain the strength and integrity of his spine because it was an ongoing problem (Transcript p.36 line 30 and p. 37 line 4).
13.The Plaintiff agreed he was the author of the facsimile of 7 August, 2006 (EXHIBIT 3 - DCB p.23) wherein he describes the serious pain and suffering and incapacity consequences he suffers if his treatment is not maintained (Transcript p.41). He also adopted the facsimile dated 6 July 06 (EXHIBIT 4) as his wherein the Plaintiff requested Dr Kondopoulos to take a hard line with the Medical Panel as his capacity for work was being compromised without ongoing due treatment. He requested Dr Kondopoulos to “focus primarily on the ‘incapacitating’ nature of the injury”. The Plaintiff further advises in the facsimile of 6 July 06 that he can no “longer sleep on is left side due to pain caused”.
14.In his evidence the Plaintiff confirmed he had been experiencing symptoms for 11 years (Transcript p.41 line 22) and he was well aware of that (Transcript p.41 line 24) and that at August 06 he worked with restriction and pain (Transcript p.43 lines 12-14).
15.When examined by Mr Peter Mangos on 19.3.03 (EXHIBIT 8 – PCB pp41-45) the Plaintiff told the doctor a year or so after the injury he stopped hands on work as an electrician and was involved mainly in organization of the work and subsequently he worked as a counsellor. The Plaintiff further said at (PCB p.42) that he continues to work with difficulty and he is concerned about the future (T62 lines 1 – 2).
16.Treating physiotherapist Mr Adrian Schwarz reported 5 November, 1998 (PCB pp46-7, EXHIBIT G1) that Mr. O’Loughlin attended over the last 3 years with recurrent cervical pain which can be brought about by increased physical tasks at work or sleeping in an incorrect position. On 18 July, 2012 Mr David Ronan of North Balwyn Physiotherapy reports that the Plaintiff has been a patient at NBPC since 1995 when he sustained an injury at work (PCB pp51-52 - EXHIBIT H).
17.The Plaintiff was also treated by Mr Aaron Cassidy, masseuse, whom he attended from 10 June 2000 to 6 September, 2011 (Transcript p.63 lines 4-8). Massage and self controlled treatment has been regular therapy for the Plaintiff (Transcript p.63 lines 16-17). Between 2000 to 2011 the treatment with Mr. Cassidy was for neck associated symptoms (Transcript p.63 lines 29-31).
18.From the subpoenaed records it can be seen there were approximately 148 visits to Mr Cassidy with sometimes left and sometimes right sided symptoms, stiffness, ‘wry’ neck, radicular pain referring down the left arm (26 April, 02 – Transcript page 65 lines 3 to 8), the Plaintiff expressing frustration on 9 August, 02 that the problem is not resolving (Transcript p.69 lines 24-29). The notes of 2 June, 03 again record a complaint of left sided sub acute symptoms and radicular pain occasionally down arm to fingers. The Plaintiff acknowledged he was having these symptoms a long time ago (Transcript p.73 lines 27-30).
19.On 4 July, 2006 Mr Aaron Cassidy wrote a ‘To whom it may concern’ letter describing the Plaintiff’s attendance to ‘Scentimental Massage Therapy’ over the last 6 years as being consistent (Transcript p.75 lines 20-27) and the Plaintiff adopted this as accurate. From the subpoenaed notes of Mr Cassidy it can be seen that the Plaintiff continued with regular visits to Mr. Cassidy. Specifically in the period from 2 February, 07 to 15 February, 08 the Plaintiff had 19 visits for massage. This is indicative of ongoing pain of which the Plaintiff was aware which required ongoing attention at 15 February, 2008. The attendances by the Plaintiff on Mr Cassidy are contradictory of the Plaintiff’s evidence – ‘I’ve had considerable periods where it hasn’t given me any trouble’ (Transcript p.77 lines 4-5).
20.On 24 May 06 at Fairfield Physiotherapy Clinic the Plaintiff ‘Complained of C6 injury 1995’ and ‘neck for 10 years’ on 29 June, 06 (Transcript p.77 lines 17-22 and subpoenaed records). This is indicative of the Plaintiff’s knowledge of his ongoing incapacity arising from his injury.
21.The Plaintiff was also treated at North Balwyn Physiotherapy Clinic and he accepts that between 14 December, 1995 and 20 March 03 he attended on 90 occasions for treatment (Transcript p.85 lines 3-7). Mr Michael Hedger from that clinic on 25 February, 2010 opined ‘The nature and distribution of (the Plaintiff’s) symptoms would appear to be consistent with the previously sustained injury …’. (EXHIBIT K1 – PCB P.54). The Plaintiff agreed in evidence when he had ongoing problems throughout the years they were related back to the original problem that occurred in 1995 (Transcript p.85 lines 23-25).
22.Mr Bruce Reid in his report of 13 June 06 (PCB p.73) has recorded ‘In 1997 he stopped working for Prime Electrics because the hands on work as an electrician was too heavy for his neck’. Although the Plaintiff could not recall seeing him (Transcript p.86 lines 1 to 2) the Plaintiff’s earlier evidence was that he gave honest answers to the questions put by doctors (Transcript p.31 lines 29-31).
23.Mr Rodney Simm (PCB p.82 at 83 – EXHIBIT R) on 24 March 04 recorded the Plaintiff said over the years he has never recovered from symptoms in the region of the neck and left shoulder. This is 9 years after the injury. Mr. Simm has recorded the Plaintiff’s symptoms were sometimes severe but as he was performing administration work he was able to cope. There had been symptoms of pain radiating down the left arm to the left thumb and his injuries confined him to occasional tennis and golf.” (PCB p.83) and see T 88 line 21 – T89 line 19.
76 Despite all of this, the plaintiff adhered to his claim that he was unaware of his serious injury incapacity. In essence, he claimed his representations must be seen in context of flare-ups that he experienced from time to time. He regarded these flare-ups to be temporary, not permanent, and not indicative or any serious injury incapacity. He was always motivated to work, in fact he continued to work, and he did everything that he possibly could do to enhance his prospects of always doing so. Similarly he took every precaution he could to manage his symptoms. He maintained that it was not until late 2008 when the Global Financial Crisis hit that he took on work that was more physically taxing. This increase in physical activity resulted in a severe increase in his symptoms and increased reliance on pain alleviating medication, a resort to medical intervention and a diagnosis confirming organic disc injury with prognosis of potential surgery. It was only then that he realised he had a serious, long term impairment of his cervical spine.
The Defendant’s case
77 No viva voce evidence was called. However, a number of exhibits were tendered:
One Worker’s claim for compensation for permanent disability dated 27/6/03 (Defendant’s court book (DCB) 7-8) 2 Worker’s claim for compensation dated 15/5/96 (Defendant’s court book (DCB 1-2) 3 Facsimile from Plaintiff dated 7/8/06 (DCB 23) 4 Facsimile dated 6/7/06 on Shock Therapy Pty Ltd letterhead 5 Employer claim report dated 23/5/96 (DCB 5-6) 6 Report of Mr Robin Williams dated 25/5/11 (DCB 13-20) 7 Affidavit of Plaintiff dated 11/2/03 (DCB 21-22) 8 Report of Dr Peter Mangos dated 19/3/03 (PCB 41-45) 9 Report of Dr Maurice Wallin dated 28/1/99 (DCB 9-12) 10 Extract of relevant clinical notes from subpoenaed records from Mr Aaron Cassidy 11 Extract of relevant clinical notes from subpoenaed records from North Balwyn Physiotherapy Clinic 12 Extract of relevant clinical notes from subpoenaed records from Kilby Heights Medical Centre 13 Extract of relevant clinical notes from subpoenaed records from Fairfield Physiotherapy & Sports Injury Centre
78 I have already referred to most of these exhibits.
Serious injury incapacity
79 I have already referred to Humphries v Poljak and the applicable principles in “serious injury” cases. The principles for establishing serious injury incapacity are further explained in Snibson, paragraphs 65 - 71:
“[65]Paragraph (a) of the definition of ‘serious injury’ in s 135A(19) of the Act is set out … above. It was common ground before this Court that a determination of whether a worker has sustained a serious injury within the meaning of that paragraph must be determined in accordance with Humphries vPoljak[44] and the cases that have applied Humphries. I will refer to such a serious injury as ‘serious injury incapacity’. What follows is a brief summary of the principles for determining a serious injury incapacity.
[66]Paragraph (a) of the definition of ‘serious injury’ focuses upon impairment or loss of body function, rather than on the injury resulting from employment. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition requires that the impairment or loss of body function be both ‘serious’ and ‘long-term’.[45]
[67]The test for determining whether an applicant for leave under s 135A(4)(b) of the Act has suffered serious long-term impairment or loss of a body function is subjective, in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss – not that of the applicant or his or her medical practitioners – that is decisive.[46]
[68]In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.[47]
[69]The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage and/or pain and suffering, or both. Moreover, it must be established that the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[48]
[70A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[49]
[71]The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[50]
[44][1992] 2 VR 129 (‘Humphries’).
[45]Humphries v Poljak [1992] 2 VR 129, 134. This was the submission of the defendants, the correctness of which Crockett and Southwell JJ accepted.
[46]Humphries [1992] 2 VR 129, 137.
[47]Humphries [1992] 2 VR 129, 138.
[48]Humphries [1992] 2 VR 129, 140.
[49]Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260 (17 December 2008) [3].
[50]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199].
When did the Plaintiff know of his “serious injury incapacity”?
The Defendant’s submissions
80 Mr Chamings did not pin-point the date upon which the plaintiff’s consequences qualified as “serious injury incapacity”. He submitted that as early as 2003, in exhibit 7 the plaintiff evinced knowledge of the impact of the consequences of his injury on every aspect of his life. He suffered pain, required treatment, his sleep was affected, his work was moderated, his sporting activities were severely curtailed and he was aware of the medical opinions expressed in support of and in opposition to his claim for permanent disability compensation.
81 In any event, Mr Chamings submitted that the plaintiff knew of his serious injury incapacity well before the cut-off date 15 February 2008 and of which the plaintiff was aware:
The plaintiff’s submissions
82 Mr McGarvie conceded that before 2008 the consequences of the injury impacted upon the plaintiff’s life. However those consequences could not be regarded as “very considerable” or more than “significant” or “marked”. He conveniently identified the medical evidence and the consequences for the plaintiff before the cut-off date and compared it with the medical evidence and consequences for the plaintiff after the cut-off date. I have already summarised that evidence earlier in the chronology. But by way of summary, this is the documentary medical evidence that came into existence before 15 February 2008:
· Mr Schwarz’s report, Exhibit G1
· Dr Wallin’s report, Exhibit 9
· Mr Schwarz’s third report, Exhibit G3
· Mr Mangos’ report, Exhibit 8
· Mr Simms’ report, Exhibit R
· Mr Reid’s report, Exhibit P
· Dr Kondopoulos’s report, Exhibit F1
83 Mr McGarvie submits that these reports do not demonstrate any serious organic injury giving rise to serious long-term incapacity or significant consequences for the plaintiff.
84 On the other hand, after 15 February 2008, the medical reports evidence a marked deterioration in the plaintiff’s condition. I have already referred to these reports, but by way of summary this is the documentary medical evidence that came into existence after the cut-off date:
· Mr Jones report, Exhibit Q1
· Mr Jones 2nd report, Exhibit Q2
· MRI scan report, Exhibit M
· Mr Timms report, Exhibit J
· Dr Kondopoulos’ report, Exhibit F2
· Mr Williams report, Exhibit 6
· Dr Kondopoulos’ further report, Exhibits F3 and F4
· MRI scan report, Exhibit N.
85 Mr McGarvie also compared the plaintiff’s before and after cut-off date pain and suffering and pecuniary disadvantage consequences:
“28.Before 15 February 2008:
(i)The Plaintiff was working full-time.
(ii)The Plaintiff took very little medication.
(iii)The Plaintiff was having minimal treatment and was managing well with regular exercise only attending his physiotherapist when he suffered an exacerbation.
(iv)The Plaintiff had not been referred to any specialists for treatment.
(v)The Plaintiff had not undergone any MRIs.
(vi)The Plaintiff underwent a CT Scan prior to July 2006 which ‘did not demonstrate a disc prolapse’. (Exhibit F2/PCB 33).
(vii)The Plaintiff was diagnosed as suffering from a C5/6 facet joint injury with a soft tissue injury to his trapezius muscle.
(viii)Surgery was not mooted as an option.
(ix)The Plaintiff’s general practitioner was of the opinion that he was fit for his pre-injury duties. In fact when he started up his company “Shock Therapy: he was working 14 hours a day, 7 hours on the tools and 7 hours doing admin. (T43 L4-6).
29.After 15 February 2008:
(i)After late 2008/Early 2009, the Plaintiff experienced a deterioration in his condition and symptoms after the Global Financial Crisis when he had to work more on the tools (PCB 22). He further experienced a particularly severe exacerbation in late 2009 set out at T21 L3-115.
(ii)As a consequence of the above the Plaintiff experienced symptoms and pain that he had never experienced before ‘I’d never had anything like that before. I’d had some minor twinges and tingles at different times when I did certain things, but up until that point I’d never experienced anything like that. Basically that took some three months to settle down and in that time is when I went to the doctors and first saw specialists and had MRIs and that sort of thing and that’s when I really became aware that there was something nasty happening.’ T21 L16-25
(iii)Since 2010 the Plaintiff has been taking significant doses of medication on a daily basis. ‘Up until then, I might have used some gels or just Panadol or the odd Voltaren once or twice”. T21 L31 & T22 L1-3 ‘Since 2009, December, ever since 2010 I’ve been on medication, well, now, full-time’ T22 L4-6.
(iv)The Plaintiff has had to considerably diminish his work as an electrician in terms of hours and duties. He also has had to alter the manner in which he performs some of his work duties. T22 L26-31 and T23 L2-30.
(v)The Plaintiff’s treatment regimen has increased significantly.
(vi)The Plaintiff was referred to Mr Timms, treating neurosurgeon. Mr Timms was of the opinion that if the Plaintiff’s flare-ups became more frequent and he took longer to heal and they prevented the Plaintiff from living his life, then at that stage he would need surgical decompression in the form of an anterior cervical discectomy and fusion at C4/5 and C5/6. Exhibit J/PCB 53.
(vii)The Plaintiff’s general practitioner considered continuing to work as an electrician injurious to the Plaintiff’s health and not a realistic option for his ongoing employment. Exhibit F4/PCB 37 & Exhibit F5/PCB 38.
The Plaintiff’s company ‘Shock Therapy’ was forced to cease trading at the end of 2011. This was principally as a result of the advice of Dr Kondopoulos. Exhibit D/PCB 28
(viii)The Plaintiff was referred to Dr Gassin, Pain management specialist who has recommended bilateral C4 to C6 medial nerve blocks to be performed on up to four occasions. If the blocks were positive, the Plaintiff would be a candidate for radiofrequency neurotomy of the facet joints.” Exhibit L1/PCB 57.
86 Mr McGarvie finally submitted:
“CONCLUSIONS
30.The central issue in this case is when the serious injury incapacity “became known” by the Plaintiff. This only occurs when events demonstrate that the Plaintiff is suffering from a serious long-term impairment or loss of body function and that the Plaintiff had the requisite knowledge of incapacity arising from the injury.
31.It is submitted on behalf of the Plaintiff that he only acquired the requisite knowledge sometime after 15 February 2008 and more likely as late as 2010 when he “all hope was lost” T.98 L-21-27. It was only after the exacerbation he suffered in late 2009 that the nature and severity of his symptoms changed to such a degree that his general practitioner referred him to specialists for treatment where surgery and nerve blocks were suggested, that he underwent radiological investigations, that he was placed on regular and large amounts of medication, that his general practitioner considered work as an electrician to be contra-indicated and that he has had to reduce the amount of hours he worked and alter the manner in which he worked. It was at this point in time that the serious injury incapacity became known both objectively and subjectively.”
87 On the other hand, Mr Chamings submitted:
“SUBMISSIONS:
1.That the Plaintiff focuses on an aggravation of his condition in late 2009 (See paragraph 3 above) and says what he is now, is no comparison to what he was prior to December, 2009 (Transcript p.102 lines 25-27) is not to the point. What is relevant under Section 135AC(b) is Mr O’Loughlin’s knowledge of serious injury incapacity before 15 February, 2008.
2.Mr O’Loughlin knew of facts that, when viewed objectively, constituted serious injury incapacity by that date.
3.The Plaintiff had constant neck and periodic left arm pain at the time he swore his Affidavit on 11 February, 2003 and that if he did heavy work he experienced increased pain in the neck area. He could not play sport for more than a short period (paragraphs 7 and 8 under ‘THE EVIDENCE’ above). He described sometimes severe symptoms and that he has never recovered in March 2004 to Mr. Simm (paragraph 23 above).
4.The matters referred to in paragraphs 10, 11, 15, 22 and 23 above support the contention the Plaintiff moved away from pre-injury duties because of the effects of his neck injury.
5.Since 28 November, 1995 the Plaintiff has always worked to maintain the strength and integrity of his spine and has had much physiotherapy and massage. These facts when viewed objectively constitute knowledge of serious injury incapacity as the Plaintiff has a permanent, non resolving neck injury which has required past and ongoing treatment.
6.The Plaintiff is unable to sleep on his left side and has had to purchase a bed appropriate to his condition.
7.The Plaintiff has acknowledged the incapacitating nature of his injury in his facsimile transmissions of 6 July and 7 August 06 (EXHIBITS 3 and 4).
8.The Plaintiff as at 15 February, 2008 knew of facts that, when viewed objectively, had caused him painful symptoms from 28 November, 1995 (over 12 years) which limited his sporting activities, interfered with his sleep, caused increased symptoms if he did not take care with his physical activities, on balance caused him to change his duties and has required ongoing treatment.
9.That the Plaintiff’s condition according to his evidence has deteriorated since 2009 does not change the nature of the facts known to him up to 15 February, 2008. The fact that the Plaintiff now focuses on the deterioration of his condition in 2009 is not pertinent. The evidence contained in the report of Mr. Clive Jones of 26 August, 2009 (EXHIBIT Q1 – PCB p.77 at 78) that the Plaintiff’s condition is slowly progressive is not contradicted. That is what has occurred and the Plaintiff has been trying to prevent that with his various treatments over time.
10.The Plaintiff has given evidence and the Court could find that the Plaintiff was:
(a)intelligent;
(b)articulate;
(c)tertiary educated;
(d)worldly;
(e)able to converse with his medical treaters and comprehend medical advice.
These matters can be taken into account in assessing if there was knowledge of matters which when viewed objectively, constitute serious injury incapacity in terms of pain and suffering or economic loss or both.
11.In giving his evidence the Plaintiff said it was his preference to advance from tools into management and this was a natural progression. He may have had this aspiration but his evidence was his ‘preference was to avoid pain’ (Transcript p.36 lines 14-17). The Plaintiff however made the point to Dr Wallin (EXHIBIT 9 – DCB pp.9-12) in January, 1999 that he was quoting rather than doing hands on work. In 2004 he told Mr Simm that although symptoms were severe he was performing administration work and was able to cope (EXHIBIT R – PCB p.83) and he told Mr Reid in 2006 the hands on work as an electrician was too heavy for him (EXHIBIT P – PCB p.74). All of these reports were compiled for reasons not associated with the present application and they contain comments by the Plaintiff consistent with his belief that it was not appropriate for him to be doing his normal hands on work as an electrician. His injury was such that it prevented him from pursuing his trade in a normal unrestricted sense. If this be correct this is a serious consequence of which he knew prior to 15 February, 2008 and this should be considered in deciding if he had knowledge of his serious injury capacity for the purposes of Section 135AC. It will be remembered that the Plaintiff said if throughout the years he had ongoing problems they were related back to the original problem that occurred in 1995 (Transcript p.85 lines 23-25).
12.The nature of the Plaintiff’s injury was known as early as 19 March, 2003 as involving discal damage and referred symptoms (paragraph 6 under ‘THE EVIDENCE’).
13.There is overwhelming evidence that the Plaintiff had from the date of injury on 28 November, 1995 up to 15 February, 2008 ongoing knowledge of the effects of his injury which were permanent, required regular treatment (self administered or otherwise) and which interfered with his enjoyment of life by interfering with his capacity to participate in sport and to sleep normally and to perform unrestricted work without increasing his pain. The Plaintiff’s claim on the information available to him could have been made and sustained prior to 15 February, 2008. A worsening of symptoms after that date should not prevent Section 135AC from operating as it was intended to operate when enacted by Parliament. The Plaintiff has not discharged his onus and his application should be dismissed.”
Findings
88 Applying the legal principles to which I have already referred, I am satisfied on the balance of probabilities that the impairment or loss of body function of the plaintiff’s cervical spine is a “serious injury” as defined. I have already made findings of fact about the plaintiff’s state of knowledge as at the cut off date. I must now make a value judgment about whether those facts constitute knowledge of serious injury incapacity. I am satisfied on the balance of probabilities that the plaintiff did not know of his serious injury incapacity arising from his workplace injury until after the cut-off date. In this regard, I agree with the submissions made by Mr McGarvie and adopt them as part of my reasons. Further, I found the plaintiff to be a truthful and accurate witness. I accept his sworn evidence that although from time to time he suffered flare-ups of his symptoms, he regarded them as episodic and not of long-term duration. He might be regarded as a stoic man so far as his commitment to maintaining physical health and continuing with his work are concerned. He believed that with minimal modification to his work and with diligent self-management and exercise together with regular physiotherapy or massage therapy his symptoms could be managed or mitigated to such an extent that they did not significantly interfere with his working, domestic or social life. His sworn evidence is consistent with the contemporaneous medical records and reports that came into existence prior to 15 February 2008 to which I have already referred. I agree that immediately following the workplace accident there was limited impact on the plaintiff’s life. He had no time off work, he took little pain alleviating medication and generally his enjoyment of life was not seriously adversely affected. The early diagnosis was of soft tissue injury, with no hint that in future his condition would likely deteriorate to the point where surgery could be required. The treatment of his condition was both conservative was minimal. However, by 2010 it could be said that the plaintiff’s condition had deteriorated to such an extent that almost every aspect of his life was severely negatively impacted. I agree that the plaintiff did not know of this transition from non-serious soft tissue/ligamentous injury to serious injury incapacity until after February 2008.
89 I therefore propose to grant leave to the plaintiff pursuant to s135AC(b) and 135A(4)(b) of the Act to commence common law proceedings for damages against the defendant in respect of his injury arising out of, or in the course of or due to the nature of his employment on 28 November 1995.
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