White v Department of Human Services
[2018] VCC 126
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02801
| LYNETTE WHITE | Plaintiff |
| v | |
| THE DEPARTMENT OF HUMAN SERVICES | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20-22 February 2018 | |
DATE OF JUDGMENT: | 23 February 2018 | |
CASE MAY BE CITED AS: | White v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 126 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury-left knee-three year time limit
Legislation Cited: Accident Compensation Act 1985, s135AC(b)
Cases Cited: Paget v JLT Workers Compensation Services Pty Ltd [2005] VSCA 144;
AEP Industries Australia Pty Ltd v Mahmoud [2007] VSCA 203; Smith v
Canberra Press Pty Ltd [2009] VSCA 200; Morris & Joan Rawlings
Builders and Contractors v Rawlings [2010]VSCA 306
Judgment: Leave granted to bring proceedings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr R Ajzensztat | Slater & Gordon |
| For the Defendant | Mr J Batten | Russell Kennedy |
HIS HONOUR:
1 The plaintiff injured her left knee at work on 15 September 1995. She had a total knee replacement operation on 29 October 2015. It is an admitted compensable injury so the WorkCover insurer paid for the treatment. She applied for “serious injury” on 24 February 2017.
2 The defendant conceded the left knee impairment meets the test of “serious injury”. What is at issue is the effect of section 135AC(b) of the Accident Compensation Act 1985. It is not necessary to repeat that provision in detail but the task for the court is really to determine what the injured worker knew as at 24 February 2014, that is three years before her application for serious injury was made on 24 February 2017, as a three-year limitation period applies.
3 Authority has laid down a two-step process. The issue in this case is did Mrs White have knowledge of the serious injury incapacity more than three years before her application on 24 February 2017. Knowledge is “actual subjective knowledge” or in other words facts she actually knew.[1] What she “in fact knew” is another way it is described. I reject the defendant’s submission it goes beyond this. In particular I reject the submission that simply because in a s98,98A affidavit in 2001 she swore as to the knee injury “the details of which are covered in the medical reports of my treating doctors” that this somehow imputes all the facts contained in those reports as facts she “knew”. The language of “actual” and “subjective” when applied to knowledge is plain enough.
[1]Paget v JLT Workers Compensation Services Pty Ltd [2005]VSCA 144, AEP Industries Australia Pty Ltd v Mahmoud [2007] VSCA 203, Smith v Canberra Press Pty Ltd [2009] VSCA 200, Morris & Joan Rawlings Builders and Contractors v Rawlings [2010]VSCA 306
4 The fact that she did not subjectively appreciate that the injury was serious until after the relevant date does not matter. It is sufficient to bar the claim if she knew of facts that viewed objectively constitute the “serious injury” incapacity. What is relevant then is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. This is common sense on the part of the law as a lay person is unlikely to have any idea when the narrative test of “serious injury” is met or indeed what it even means.
5 It is always a great advantage to not only hear but also observe the plaintiff giving evidence in this jurisdiction. But in this application it is even more so as the particular task here involves assessing her knowledge of facts at relevant times rather than assessing her evidence as well as copious medical opinions about injury, consequences and other issues in “the run of the mill” serious injury application.
6 I found the plaintiff was reliable. She was a very nervous witness and one who often had a great deal of difficulty understanding even straightforward questions. At times she did not follow documents very well when court books were put in front of her. Often she had the wrong court book. Her memory was at times tested but this did not impact on her credit as mostly the times she was asked about were events, doctors and suggested histories up to twenty or so years ago. In the end I found she was a quite simple and unsophisticated witness who was very compliant but who was trying to tell the truth at all times. Her credit was unimpeached.
7 Basically the plaintiff said she did not know of the facts that indicated the extent of her left knee incapacity until about April 2015. Her surgeon, Mr Joseph Robin, then told her she would need a total knee replacement. He had taken over her care from a Mr Khan who apparently had retired from active surgery.[2] Mr Khan had performed an arthroscope in February 1996. Her recovery from that was such that she returned to work by 29 March 1996 and by May 1996 was working full-time with shifts up to twelve hours on unrestricted duties.[3]
[2]Plaintiff’s Court Book (PCB) 12
[3]PCB 14
8 She worked on then for years before going off after a shoulder injury requiring surgery in the second half of 2000. The evidence is that her knee impacted in a minor way on some of the duties she faced but it did not prevent her working.I am satisfied she had ongoing minor knee symptoms over the years between 2000 and 2014 although towards the end of 2013 her knee was becoming somewhat more troublesome. She got a referral back to Mr Khan on 14 January 2014 from her local doctor but it was for her back as well as her knee.[4]
[4]PCB 80B
9 Her evidence was not always consistent regarding what the level of symptoms were at a particular time in the past. This is no surprise when the past now encompasses a period approaching twenty three years since hurting her knee in September 1995. The standard is only one of assessing probabilities when considering just what she knew years ago. Prior to about March 2015 I am satisfied she only had pain that was at times intermittent and minimal. It had been manageable up to then and she successfully managed it. The likelihood is there would have been times when it was worse than others but that was part of symptomology that could vary.
10 Looking overall at the years from 1995 to 2015 I accept her evidence was accurate when she said “The pain did not interfere with my work all my active home and domestic life.”[5]. However later on she corrected this somewhat when it was pointed out that she had said in 2001 she was “greatly restricted” in a number of activities back in the years immediately following 1995.[6] Nevertheless I accept she was able to return to some of these activities but in a somewhat reduced form.[7] She got back to work and only went off years later in 2000 with unrelated shoulder problems.
[5]PCB 15
[6]PCB 25B
[7]PCB 25B
11 I accept her evidence that she only had a lower level of left knee pain but towards the end of 2013 something about her knee was beginning to worsen. Until 2014 “it would usually go away and at worst was manageable.”[8] Another description she gave about the years prior to 2014 was “I have never been without pain in my left knee in one degree or another since the incident…”[9] I accept there was always some pain but at a moderate level.
[8]PCB 16
[9]PCB 21
12 Mr Khan confirmed that after the 1996 arthroscope knee symptoms were minor. In 2003 he said “The condition of the knees has settled down. She has been left with some residual disability as an aftereffect of this injury.”[10] Then in 2007 after a number of visits he stated “She was left with minimal disability in relation to her knees.”[11] In December 2008 he reported only very minor clinical signs. [12] There were then several years from late 2011 to 2014 in which there was a complete absence of knee treatment from Mr Khan until her going back to him on 23 January 2014 with some knee trouble starting to concern her.
[10]PCB 32
[11]PCB 46
[12]PCB 49
13 Her evidence was probably best summed up by her candid concession that she was never without pain after the 1995 incident in other words it was ongoing.[13] The evidence establishes though that it was pain that varied and she suffered different levels of pain. [14] “Intermittent” was another way she described it.[15] I accept this evidence as describing a left knee level of pain over the many years up to 2015 that at times could be significant but not so at other times. At no time did it reach a factual stage of “serious injury” long term impairment.
[13]Transcript (T) 63,65
[14]T 65
[15]T 65
14 By January 2014 I accept something troublesome was starting to happen with her knee. She said it was pain that had become “more than normal”.[16] On 21 January 2014 she was referred for an X-ray. She saw her surgeon Mr Khan two days later. I accept her statement that the pain was a bit worse in March 2014 so again she went back to see Mr Khan. It was worse again in July 2014. After an MRI was conducted on 7 August 2014, he told her that she “might” need a total knee replacement when she saw him on 23 October 2014.[17]
[16]T 71
[17]PCB 16
15 I do not need evidence to tell me that a lot of people in our community , especially as they get older, suffer knee pain over the course of active lives. Many just put up with it with some restriction and modification of activities. I accept on the evidence that this was a fair reflection of Mrs White’s situation until the time she was faced with firm advice that her whole knee joint needed to undergo total replacement. It is hard to imagine a knee condition that could be more serious than one requiring a knee joint to be taken out and replaced with an artificial one.
16 I accept her evidence that what had started out in 2014 as a condition that she understood in October from Mr Khan “might” require this major procedure, had worsened to a stage where she understood by about April 2015 it certainly required that procedure. But even in October 2014 Mr Khan’s language was somewhat equivocal about the need for this major surgery as he “advised her to wait and see at that stage.”.[18] There was no equivocation in the specialist advice in April 2015. If not in March 2015 then certainly in April 2015, after Mr Robin’s words, she knew the requisite facts.
[18]PCB 58
17 She was taken to an affidavit sworn some seventeen years ago for an impairment assessment of her left knee under s98 and 98A of the Accident Compensation Act 1985.[19] It was clear she could not recall now what was set out in that affidavit particularly a reference she had made then to anticipated “further treatment”.[20] She was asked about symptoms and restrictions the left knee caused her as set out in that 2001 affidavit. She did not recoil from them. Certainly those restrictions were there but facts needed to found “serious injury” include the concept of “long term”. It is not enough to look simply at the early years and various isolated descriptions and occasions in those years as the only facts on which to properly assess an impairment.
[19]PCB 25F
[20]PCB 25G
18 It is worth noting that she had a number of years prior to January 2014 when she had not needed knee treatment. There was no need to go back and see her specialist, Mr Khan, about her left knee for about three years. I accept her evidence that “I was feeling good”.[21] As stated unfortunately some worsening was occurring which led to the October 2014 consultation when he told her, and for the first time she knew, she “might” need a total knee replacement.[22] She had a number of other health problems she readily conceded were troubling her in 2015 and earlier, but her left knee was starting to look more serious than she had known previously.
[21]T 71
[22]PCB 16
19 Her evidence about knee symptoms at this time is worth quoting. I accept her statement that “By March 2015 the pain in my knee was constant and at times unbearable. My knee would throb continually and I needed to sleep with a pillow between my knees. I think it was around this time I thought there might be something seriously wrong with my knee. The pain would not go away as it had always done in the past.”[23]
[23]PCB 17
20 By April 2015 she was told by her new specialist Mr Robin the knee had to come out and it did, later that year. I find on the probabilities that she first knew facts that amounted to “serious injury” in April 2015 after seeing Mr Robin. If I am wrong on that then at the earliest it was March 2015 when the pain had reached an “almost unbearable” stage.
21 In cross examination she was also taken to a 2004 report from Mr Khan to her then solicitors. I accept her evidence that she did not recall Mr Khan saying anything fourteen years ago about her being “a candidate for total knee replacement surgery …in some years to come” which is in that report.[24] While her memory of these early reported histories to doctors and to a Medical Panel was such that she could not really add anything about their accuracy, this statement fits into a different category. It is likely if her surgeon had expressed such a pessimistic prognosis to her she would have remembered it.
[24]PCB 37,T44-47
22 There could hardly be more compelling pessimism from the surgeon treating a patient for a knee injury than saying it would have to be replaced. On the probabilities I am satisfied he did not say that to her back then although it is no surprise he reported in gloomy terms to her solicitors acting for her regarding WorkCover rights. His report to lawyers does not mean he told the patient about that pessimistic opinion.
23 She was taken to a number of histories recorded in doctors’ reports and Medical Panel documents years ago but she really had little or no recollection of these people let alone what she had told them. Time and again her body language included often shrugging her shoulders and other demeanour indicating that she was clearly puzzled as well as her verbal answers illustrated this. time and again. One example of this was when asked about seeing the orthopaedic surgeon, Jonathan Rush, in Fitzroy in 2003. She had no idea. In fact she thought he was a psychiatrist. [25] Her credit was not impacted by this line of questioning.
[25]T 51-52
24 These numerous old reports are still part of the evidence in spite of her inability to comment on the accuracy or otherwise of what was being put to her. Sitting daily in this jurisdiction it is patently clear doctors do not always record histories accurately. Some facts in them are clearly wrong but given the concession about “serious injury” I will not list them. But given the many years intervening she just could not recall what had been said and thus could not assist the court as to whether reports were accurate. Without hearing from any doctors and doing the best I can, looking at what was recorded in the reports tendered, on the probabilities there were times when symptoms and consequences were much more problematic for her than at other times. But they varied. Even accepting the facts recorded in these reports, they did not constitute a long term impairment amounting to “serious injury” in spite of impeding her more at some times than other times.
25 It is not necessary to go through all the reports tendered given how old a lot of them are and in view of the concession of a serious injury left knee impairment. Also credit was not seriously put in issue in this case so what was said to doctors decades ago is of little assistance now. For example, Mr J O’Brien saw her in 1995 that is even before her 1996 arthroscope. He was not even referred to in cross examination nor in final addresses. Mr P Mangos, seventeen years ago is in a similar position and Mr J Rush saw her in 2003. Even the Medical Panel which the plaintiff barely remembered was back in 2014.
26 The psychiatrist, Dr Entwisle, has some thirteen pages of psychiatric commentary.[26] But it was only a list of fifteen dot points of daily activities the plaintiff was said to have provided him that was briefly traversed in cross examination although it was not really commented on again. The topic neither impacted on credit nor advanced this case in any direction.
[26]DCB 193-205
27 Similarly the extremely brief letter from the psychiatrist, Dr Kochar, does not assist in the task before the court.[27] Nor does the material from a neuropsychologist, Professor Crowe, assist in assessing the issues here.
[27]PCB 77A
28 The surgeon, Mr M Shannon, assessed her no doubt when the issue of whether the left knee was a “serious injury” or not, but given the concession about that, his 2013 report and 2014 letter do not assist much. Interestingly, as to her knee problems in the past, he recorded in 2013 the bare comment that after the 1996 arthroscope “Her knees improved and she resumed work.” [28] She was also asked about his note that she used a walking stick. The transcript shows the difficulty she had following questions and documents. [29] She was very uncertain about him. She agreed she saw him in East Malvern because that is what counsel suggested to her. [30] In fact his rooms are in East Melbourne.[31] I accept her evidence that she did use a stick at some stage probably after surgery but otherwise this evidence bore little relevance as to knowledge. It has to be said though that Mr Shannon’s history is very deficient in a report directed to a number of other health issues such as spinal, shoulder, arm and bilateral knees in a context of residual employment capacity.[32] In any event these issues are not before the court.
[28]DCB 243
[29]T 68
[30]T 67
[31]DCB 242
[32]PCB 243-244
29 I accept she had left knee symptoms over the years but they waxed and waned in severity. At times they were more restrictive in terms of consequences than at other times but overall they varied and were largely manageable. In the years before 2015 I am satisfied she did not know the facts that looked at objectively added up to not only very considerable consequences but ones that were long term.
30 I grant leave to bring proceedings seeking damages for her left knee injury and this is not barred by the section.
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