Victorian WorkCover Authority v Hartley
[2010] VSCA 74
•14 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3712 of 2009
| VICTORIAN WORKCOVER AUTHORITY | |
| 1st Appellant | |
| and | |
| CGU WORKERS COMPENSATION (VIC) LTD | 2nd Appellant |
| v | |
| RAYMOND HARTLEY | Respondent |
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JUDGES: | MANDIE and HARPER JJA and EMERTON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 March 2010 | |
DATE OF JUDGMENT: | 14 April 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 74 | |
JUDGMENT APPEALED FROM: | Hartley v Victorian WorkCover Authority [2008] VCC 1521 (Judge Bowman) | |
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ACCIDENT COMPENSATION – Claim for lump sum compensation for non-economic loss pursuant to s 98C of the Accident Compensation Act 1985 (Vic) – Complications arising from surgery undertaken for injuries that had already been compensated – Whether further injuries arose out of the ‘same event or circumstance’ as the original injury – No medical negligence – No novus actus interveniens – Accident Compensation Act 1985 (Vic) s 82(1), s 83(1)(d), s 104B(5A), (5AA) and (5AB).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr J J Noonan SC with Mr M F Fleming | Hall & Wilcox |
| For the Respondent | Mr P H Solomon | Winn Legal |
MANDIE JA:
I agree with Emerton AJA.
HARPER JA:
I also agree with Emerton AJA.
EMERTON AJA:
By Notice of Appeal dated 26 February 2009, the appellants appeal pursuant to s 52 of the Accident Compensation Act 1985 (Vic) (‘the Act’) from the decision of Judge Bowman in the County Court of Victoria delivered on 15 December 2008.
The proceedings before the judge below arose out of a claim by the respondent for lump sum compensation for non-economic loss pursuant to s 98C of the Act. The respondent sought declarations that the appellants accept his claim for lump sum compensation pursuant to s 98C of the Act and that he was entitled to benefits in relation to specified injuries, and an order that his claim for compensation under s 98C be accepted.
The judge below gave judgment in favour of the respondent and made the declarations and the order sought. The appellants now appeal against the entirety of the judgment given by the judge below.
Facts
On 6 July 1999, the respondent injured his right knee whilst planting trees in muddy ground for Merindoc Pastoral Company, where he had been employed as a gardener and farmhand since 1980. He had periods off work following the injury and its subsequent treatment. For a time, he returned to work on light duties, but ceased work in January 2001. Claims for weekly benefits and medical and similar expenses were admitted and paid.
On 3 November 2001, the respondent made a claim for lump sum benefits under ss 98C and 98E of the Act in respect of a ‘right knee medial strain and cartilage damage’, identified as the ‘primary injury’, and ‘left knee strain due to overcompensation’, identified as the ‘secondary injury’. In May 2004, a further psychological condition was added to this claim.
Several months later, on 26 July 2004, the second appellant, the claims agent managing the respondent’s claim, informed the respondent’s solicitors by letter that it was unable to process the claim until it knew whether or not an operation on his knee was in prospect. In response, the second appellant was on 18 August furnished with a copy letter from the respondent’s general practitioner, Dr Peter MacCallum. In that letter, Dr MacCallum referred to his ‘understanding’ based upon surgical advice, that ‘a total right knee replacement will be needed in the future’, but that the surgeon wanted ‘to delay the operation for as long as possible’.
It was in these circumstances that the respondent’s claim under ss 98C and 98E for both knees and the psychiatric injury was accepted by the second appellant. A revised Notice of Assessment was issued on 2 September 2004 for 13 per cent physical and 4 per cent psychiatric impairment, resulting in an offer to the respondent of compensation of $11,100.00.
In fact, the respondent’s right knee deteriorated quickly post-settlement. The respondent underwent a total knee replacement on 29 July 2005. There were acute post‑operative complications.
The second appellant accepted liability to pay medical and other expenses pursuant to s 99 of the Act for the following consequences of the knee replacement surgery: septicaemia, renal failure, neurocognitive dysfunction, minor strokes, deep vein thrombosis in the right calf, and depression and anxiety.
On 28 February 2008, the respondent made a further claim for non‑economic loss under s 98C in respect of the injuries arising from the surgery. On 18 April 2008, the second appellant rejected liability for that claim, denying, in substance, that the scheme of entitlement under ss 98C and 104B of the Act permitted a further claim for lump sum compensation for the consequences of surgery undertaken for injuries that had already been compensated.
On 27 August 2008, the respondent issued proceedings in the County Court seeking the declarations and order referred to in respect of ‘further injuries’ specified as:
(a)life threatening sepsis resulting in renal failure and minor strokes;
(b)residual neurocognitive dysfunction;
(c)deep vein thrombosis-right calf;
(d)depression and anxiety.
On 15 December 2008, the judge below gave judgment and made the declarations and the order to give effect to the judgment. In substance, the judge held that the respondent was not precluded by reason of ss 104B(5A) and (5AA) of the Act from making a claim for compensation under s 98C in respect of the further injuries.
Relevant statutory context
Section 82 of the Act confers an entitlement to compensation for injuries caused to a worker arising out of or in the course of employment. Section 82(1) provides:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
Section 83 deems an injury to a worker to arise out of or in the course of employment for the purposes of s 82(1) in certain circumstances. Section 83(1)(d) provides that an injury to a worker is deemed to arise out of or in the course of employment if the injury occurs, relevantly, while the worker is in attendance at any place for the purpose of receiving medical, surgical or hospital attention or treatment in connection with any injury for which the worker is entitled to receive compensation.
Section 98C provides for compensation for non‑economic loss. Section 98C(1) provides:
A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with s 91, entitled to compensation for non‑economic loss calculated in accordance with this section.
Compensation for non‑economic loss is available only in respect of an injury resulting in ‘permanent impairment’ as assessed in accordance with s 91. Section 91 provides that a reference to the assessment of a degree of impairment in accordance with that section is a reference to an assessment made in accordance with, relevantly, ‘the AMA Guides as applicable’. These are the Guides to the Evaluation of Permanent Impairment (4th edition), prepared by the American Medical Association. A key tenet of the AMA Guides is that they apply only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change. The AMA Guides define ‘permanent impairment’ as an impairment that has become static or stabilised during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy.[1]
[1]American Medical Association, Guides to the Evaluation of Permanent Impairment, (4th ed), Ch 1, Section 1.1 ‘Impairment, Disability, Handicap’.
Section 103 of the Act generally sets out the requirements for a claim for compensation. Section 104B imposes additional requirements in relation to a claim for compensation for non-economic loss under s 98C.
Section 104B is a complex provision containing no less than 23 subsections. The following subsections are presently relevant:
(1)In addition to the requirements under s 103, this section applies to a claim for compensation under s 98C.
(1A)Subject to subsection (1D), a claim for compensation under s 98C or 98E, not being a claim for compensation for industrial deafness, cannot be made before the expiry of the period of 12 months after the date of the relevant injury.
(1B)Despite subsection (1A), the Authority or a self‑insurer may receive a claim for compensation under s 98C or 98E before the expiry of the period of 12 months after the date of the relevant injury if the relevant injury has stabilised.
…
(2)The Authority or self‑insurer must within 120 days of receiving a claim made by the worker or in the case of a claim initiated by the Authority or self‑insurer, within 120 days of the relevant date –
(a)if the claim is a claim made by the worker, accept or reject liability for each injury included in the claim;
(b)obtain an assessment or assessments in accordance with s 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;
…
(f)advise the worker as to –
(i)if the claim is made by the worker, the decision to accept or reject liability for each injury included in the claim;
(ii)each of the determinations as to the degree of impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) resulting from the injury or injuries in respect of which liability is accepted;
(iii)the calculation of any entitlement to compensation under section 98C or 98E.
Subsections (5A) and (5AA) are central to this appeal:
(5A)A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s 98C.
(5AA)A worker can only make one claim for compensation under s 98C in respect of injuries arising out of the same event or circumstance.
For the sake of completeness, it is necessary also to mention ss 104B(1C) and (1CA), which make provision for the Authority or self insurer to initiate a claim on behalf of a worker after the expiry of 18 months if the worker has not done so. This ‘insurer-initiated’ regime contains a similar limitation on further claims being made by the worker. Subsection (5AB) provides:
Subject to subsection (5D)(a), if a claim for compensation under s 98C or 98E has been initiated in respect of a worker by the Authority or self‑insurer, the worker cannot make a claim for compensation under s 98C or 98E in respect of injuries arising out of the same event or circumstance.
If an independent examination has been requested by the Authority or self‑insurer under sub-s (1C), sub-s (5C) requires the Authority or self‑insurer to give the worker a written statement of the injury or injuries to be included in the assessment. Subsection (5D) then provides that a worker must within 60 days of receiving a written statement under sub-s (5C) –
(a)make a claim for compensation under s 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance; or
(b)advise the Authority or self‑insurer that he or she disputes the statement; or
(c)advise the Authority or self‑insurer that he or she accepts the written statement of the injury or injuries.
In other words, any claim the worker may have in respect of injuries that have not already been identified by the Authority or self-insurer must be made by the worker when the worker receives the written statement of injuries prepared by the Authority or self-insurer. Section 104B(5DA) provides that the claim by the worker and the claim initiated by the Authority or self-insurer are then to be considered as one consolidated claim and dealt with in accordance with sub-s (2). The worker has no entitlement to make a later claim or claims.
The question in this case is whether the further injuries arose out of the ‘same event or circumstance’ as the 1999 knee injury so as to prevent the respondent making a further claim for compensation under s 98C.
Decision below
The judge below held that s 104B(5AA) did not prevent the respondent from making a claim for compensation under s 98C in respect of the further injuries.
His Honour’s reasoning was guided by the decision of Judge G. D. Lewis in Bray v Ministry of Education and MMI Workers Compensation (Vic) Ltd.[2] The decision in Bray was handed down prior to the introduction of s 104B(5AA) and did not deal directly with that subsection. However, the judge below considered that it contained marked parallels to the situation before him.
[2]Bray [2000] VCC 46.
In Bray, the plaintiff suffered a back injury in the course of her employment. She issued common law proceedings in respect of that injury, which were settled. A release was executed. Some years later she attended hospital for treatment on her back. She was given a Caudal injection and, as a result, lost sight in both eyes. There was a provision in the Act protecting the Commission from liability for any further compensation for non-pecuniary loss for the injury. However, Judge Lewis held that by reason of the operation of s 83 of the Act, the injury that caused the blindness became a separate incident of injury rather than a sequel to or part of the original injury. The first (back) injury formed part of the history of the matter and attracted the operation of s 83(1)(d) of the Act. Otherwise the first injury was irrelevant. It had been the subject of a concluded settlement between the parties and could not be the subject of any subsequent claim. However, by virtue of the existence of the first injury, the injury resulting in blindness was deemed to be an injury suffered in the course of the plaintiff’s employment. It was open to the plaintiff to seek compensation in respect of that second separate injury.
Having considered this and another similar case decided by Judge Lewis[3] and referring to the principal of comity, the judge below concluded:
The wording of s. 83(1)(d) of the Act seems to me to underline the proposition that an injury received by a worker whilst receiving (or resulting from) medical, surgical or hospital treatment is a new and discrete injury. It may well be that it could also be treated as an injury within the meaning of s. 82(1) being an injury arising out of or in the course of employment. Many such workers may be able to establish an entitlement to benefits under either or both provisions. It may be that s. 83(1)(d) is a safeguard provision. That does not detract from the fact that what is created pursuant to s. 83(1)(d) is a new and discrete injury. In the present case, there is no doubt but that what has occurred is injury (or injuries) as a result of receiving medical or hospital treatment, and thus s. 83(1)(d) comes into play. The injury (to use the collective for a number of injuries and conditions) is deemed to arise out of or in the course of employment. It is as if it occurred at the workplace.[4]
[3]The judge below also referred to another decision by Judge Lewis, Lazarovska v Taurus Fashions Pty Ltd and HIH Winterthur Workers’ Compensation (Vic) Ltd [2001] VCC 26 in which his Honour again held that an injury caused by treatment for a compensable injury was in itself a compensable injury by reason of the operation of s 83(1)(d).
[4]Hartley v VWA & anor [2008] VCC 1521, [61].
His Honour continued:
… By reason of the fiction contained in s. 83(1)(d), the injury sustained at or following surgery is equivalent to one occurring in the workplace. However, what has occurred is not an aggravation of a pre-existing injury (which, in itself, would constitute a new or further injury) but is a totally different and discrete injury, as was the blindness in Bray. In those circumstances, and bearing in mind the authorities referred to above, it seems to me that a new or further right to claim impairment benefits arises.[5]
[5]Ibid [63].
His Honour concluded that the further injuries, that is, the injuries sustained by the plaintiff during and following surgery in 2005, were new and discrete injuries that did not arise out of the same event or circumstance as the 1999 knee injury. They arose out of the surgical treatment, which created an entitlement to compensation pursuant to s 83(1)(d), and probably also pursuant to s 82(1). A further and discrete injury had occurred and a further and discrete entitlement flowed from it. Accordingly, his Honour held that the respondent was not prevented by ss 104B(5A) and (5AA) of the Act from making a claim for impairment benefits pursuant to s 98C in respect of the further injuries.
Grounds of appeal
The grounds of appeal can be summarised as follows:
1 Having found that the respondent had already made a claim for compensation pursuant to s 98C of the Act for the 1999 knee injury, it was not open, on a proper construction of s 104B, particularly sub-s 104B(5AA), to hold that the respondent was entitled to make a further claim under s 98C for compensation for the further injuries;
2 Having found that the respondent had already made a claim for compensation pursuant to s 98C of the Act for the 1999 knee injury, it was not open, on a proper construction of s 104B, particularly sub-s 104B(5AA), to hold that the respondent was entitled to additional compensation pursuant to s 98C for the further injuries;
3 The judge below erred in law by misconstruing, and/or by misapplying or failing to apply s 104B, particularly sub-s 104B(5AA), to the further claim for compensation under s 98C and to the further injuries;
4 Having found that the further injuries resulted from surgery undertaken to treat the 1999 knee injury, it was not open to the judge below to hold that the further injuries did not ‘arise out of the same event or circumstance’ as the 1999 knee injury;
5 Having found that the further injuries resulted from surgery undertaken to treat the 1999 knee injury, the judge below erred in holding the further injuries to be compensable by operation of s 83(1)(d) of the Act.
Consideration of Grounds 1 - 5
It is convenient to consider these grounds of appeal together, as they are closely related. The question in this appeal is whether the respondent, having already made a claim for and received lump sum compensation pursuant to s 98C in respect of the 1999 knee injury, is precluded by s 104B(5AA) from making a further claim under s 98C in respect of the further injuries, being injuries resulting from subsequent surgical treatment of the 1999 knee injury.
The basis for the appellants’ argument that the respondent is precluded from making a claim for the further injuries is that, although a worker whose medical condition is worsened by surgical treatment of a compensable injury suffers a further injury by reason of that treatment, the latter injury is properly said to arise out of or in the course of employment and is therefore also compensable under s 82(1), provided that the causal connection between the original compensable injury and the surgery has not been broken by a novus actus interveniens. This causal relationship means that the later surgical injury arises out of the same event or circumstance as the initial injury.
The appellants rely on the decision of the Full Court in Kidman v Sefa,[6] which concerned compensation for injuries suffered during surgery by a worker who had injured her wrist in a storeroom accident and later underwent surgery to improve her wrist condition. In the course of the operation, the median nerve in her wrist was unintentionally severed and the worker was left with a hand that was largely useless. The worker sought (and initially obtained) damages for non‑pecuniary loss against both the insurer and the surgeon. She faced an obstacle, in that s 135(1) of the Act provided that a worker could not recover damages of that kind for an injury arising out of or in the course of employment. However, there were exceptions including, relevantly, in respect of proceedings to which the employer was not a party where, by reason of s 83(2) (the equivalent of s 83(1)(d)), the injury was deemed to have arisen out of or in the course of or due to the nature of employment.
[6][1996] 1 VR 86 (‘Kidman’s Case’).
The question before the Full Court was whether the injury resulting from the surgeon’s negligence was an injury arising out of or in the course of employment so as to fall within the general prohibition in s 135(1). Brooking J (with whom Ormiston J agreed) concluded that it was, relying on High Court authority for the proposition that, for the purposes of the Act, the final condition of the respondent was to be regarded as a condition arising out of or in the course of employment.[7] The reasoning in Howe v Simmons Bedding Co Pty Ltd[8] also supported the conclusion that, assuming there was no break in the chain of causation by a novus actus interveniens, where an injury has been exacerbated by medical treatment, the exacerbation may be viewed not merely as a consequence of the original injury, but itself as an injury arising out of or in the course of employment. The exception upon which the worker sought to rely was only available if the injury was deemed to have arisen out of or in the course of or due to the nature of employment. Because the surgical injury was an injury actually arising out of or in the course of employment, the deeming provision had no work to do, and the exception did not apply.
[7] In Mahony v JKruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, the High Court held that where an injury is exacerbated by medical treatment, the exacerbation may be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given. (At 529)
[8][1980] VR 177.
Applying these principles to the present facts, the appellants submit that:
(a)The surgery undertaken on the respondent’s right knee as treatment for the 1999 knee injury is itself an injury arising out of or in the course of his employment;
(b)There is a direct causal link between the 1999 knee injury and the further injuries;
(c)Since the further injuries are directly related to the 1999 knee injury, they necessarily arose out of the same event or circumstance as the 1999 knee injury, which has already been compensated pursuant to s 98C;
(d)The statutory scheme constituted by s 104B, and in particular the operation of ss 104B(5AA) and (5A), disallow any further compensation to the respondent pursuant to s 98C of the Act.
The appellants submit that it was not open to the judge below to find that the further injuries did not arise out of the same event or circumstance as the 1999 knee injury. There was no break in the causal chain between the circumstance out of which the 1999 knee injury arose and the further injuries resulting from the surgical treatment undertaken to treat the 1999 knee injury. Section 83(1)(d) has no work to do because it is not necessary to deem the further injuries to arise out of or in the course of employment. It is not correct to say that the further injuries could be regarded as compensable under s 82(1) or as a result of the operation of s 83(1)(d). Section 83(1)(d) simply does not apply.
As a result, the appellants contend that the reasoning of the judge below is not sustainable.
This analysis is correct. The effect of Kidman’s Case, and the authorities which are referred to therein, is that in the absence of a novus actus interveniens such as gross negligence, the further injuries and the 1999 knee injury are causally connected. There is no break in the causal chain giving occasion to use the deeming provision in s 83(1)(d). The reasoning of the learned judge below is flawed.
So much was conceded by the respondent in argument before the Court.
For his part, however, the respondent nevertheless contended it was open to the judge below to find as a matter of fact that the injuries did not arise from the same event or circumstance. Any error constituted by reliance on s 83(1)(d) of the Act did not vitiate the decision below, which was correct.
According to the respondent, ss 104B(1) and (2) of the Act form the ‘statutory place’ at which the controversy between the parties crystallises – the respondent has made a claim for compensation and the second appellant has refused to act on the claim by obtaining an assessment in accordance with s 91 as to the degree of permanent impairment resulting from the further injuries.
The respondent contends that the phase ‘event or circumstance’ referred to in sub-s (5AA) captures the circumstances in which the 1999 knee injury occurred. All injuries connected with that incident were required to be included in the earlier claim for compensation. A ‘natural’ reading of s 104B(5AA) points to the further injuries arising out of a different event or circumstance.
The respondent submits that the question as to whether the further injuries arise from the same event or circumstance as the 1999 knee injury is a factual question, not a jurisprudential one. Although he did not say so expressly, the respondent’s argument seems to be that in applying sub-s (5AA), it is necessary to consider only the particular event or circumstance that is most directly associated with the injury or injuries. In this case, the most proximate event is the knee replacement surgery. On this construction, principles of causation, which link the further injuries to the event or circumstance that gave rise to the 1999 knee injury, are not relevant.
The construction advanced by the respondent is supported, so the respondent contends, by the use of the phrase ‘event or circumstance’ in s 134AB(4) of the Act, in relation to actions for damages at common law. Section 134AB(4) provides that a worker may make a serious injury application after the expiry of a period of at least 18 months from the date of the ‘event or circumstance’ giving rise to the injury. Whether 18 months has expired so as to enable an application to be made is a factual question.
The respondent submits that it is improbable that it accords with legislative intent for the further injuries to arise out of the same event or circumstance as the 1999 knee injury. If that were the intent, a worker would necessarily be precluded from receiving compensation under s 98C in relation to injuries which, for all other compensation purposes in the Act, were compensable injuries. In such a case, even a small payment for an injury with minor consequences (albeit involving permanent impairment) would preclude a subsequent claim for impairment benefits when orthodox surgical intervention produced very large consequences.
The respondent also submits that if the appellants’ construction is correct, a prudently advised worker would be told not to make a claim for impairment benefits until it was plain beyond peradventure that there would be no need for surgical intervention. This would preclude delivery of impairment benefits to many workers and is a further reason for the improbability of the construction advanced by the appellants.
In my view, a period of delay before making an application for compensation under s 98C is entirely consistent with the scheme for the grant of lump sum compensation under the Act. Compensation is given for permanent impairment. Permanent impairment is impairment that has become static or stabilised during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy. Hence the requirement that a worker wait at least 12 months before making a claim for compensation under s 98C and the requirement that the Authority or self-insurer wait 18 months before initiating a claim on behalf of the worker.
It is consistent with providing compensation for ‘permanent impairment’ that such impairment be assessed once any necessary surgical or other treatment has taken place. In the normal course, surgical treatment will diminish the level of impairment rather than make it worse. It is only in an unusual case such as the present that surgery results in greater impairment to the injured person. For injuries requiring surgery, the level of permanent impairment (if any) would best be assessed following the surgery. That is presumably why the second appellant asked the respondent whether he was contemplating surgery before making the compensation payment in 2004. Correspondingly, the level of impairment suffered by the worker would usually be more significant before surgery than after. The situation described by the respondent, whereby any payment of compensation for an injury with minor consequences precluded a subsequent claim for impairment benefits when surgical intervention produced very large consequences, would be the exception rather than the rule.[9]
[9]The respondent referred to Transport Accident Commission v Dafopoulos [1997] 2 VR 232, in which this Court was concerned with claims made under the Transport Accident Act 1986. Tadgell J (with whom Ormiston J agreed) observed that there was nothing to preclude the making of more than one claim for compensation by a person who has suffered more than one injury as a result of a single transport accident. His Honour gave as an example a person who suffered a blow to the leg which apparently produced no more than bruising, but then lost the lower leg from supervening osteomyelitis attributable to the blow. If the loss of the lower leg from osteomyelitis were a discrete injury (which is a question of fact) there would be no reason why a valid claim for compensation could not be made. Dafopoulos was concerned with a different statutory regime and is of little assistance.
The appellants point out that, under the Workers’ Compensation Act 1958 (Vic), an injury arising from medical treatment was also regarded as arising on the ‘same occasion’ as the original injury. In this context, in Howe v Simmons Bedding Co Pty Ltd,[10] the Full Court referred specifically to the question of delay in obtaining compensation and said:
The mere fact that the appearance or definition of the disability flowing from the injury may be delayed for some time, whether it be because doctors try to save a limb or the faculty in question, or because the sequelae of an accident are uncertain or slow in appearance, does not alter the fact that, either on stabilization or when treatment is at an end it can then be seen that the worker has suffered ‘on the same occasion’ namely, at the time he suffered personal injury, ‘more than one of the injuries mentioned in this Table’. Any other construction leads to absurdities.[11]
[10][1980] VR 177.
[11]Ibid 180.
In my view, the submissions of the appellants correctly state the law and correctly apply the law to the facts of this case. The surgery carried out on the respondent’s right knee as treatment for the 1999 knee injury is itself an injury arising out of or in the course of his employment. The 1999 knee injury and the further injuries have the same genesis. Since the further injuries are directly related to the 1999 knee injury in this way, they arose out of the same ‘event or circumstance’ as the 1999 knee injury, which has already been compensated pursuant to s 98C.
As a result, the respondent is prevented by s 104B(5AA) from making a claim for compensation under s 98C for the further injuries.
The appeal should be allowed. The judgment and orders of Judge Bowman made on 18 December 2008 should be set aside and Proceeding No l‑08‑03536 in the County Court of Victoria should be dismissed.
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In Lindeman Ltd v Colvan (1946) 74 CLR 313 the High Court also held that where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. (At 317, (Latham CJ), and 321, (Dixon J)).
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