Assimakis v VWA
[2024] VCC 1796
•13 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04625
| Sotirios Assimakis | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
---
JUDGE: | CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2024 | |
DATE OF JUDGMENT: | 13 November 2024 | |
CASE MAY BE CITED AS: | Assimakis v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1796 | |
EX TEMPORE
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right knee injury – pain and suffering - pecuniary loss – credibility of plaintiff – surveillance footage - whether work injury caused or materially contributed to underlying osteoarthritis - work capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Meadows v Lichmore [2013] VSCA 20; Haden Engineering v McKinnon [2010] VSCA 69
Judgment: The plaintiff is granted to leave to commence proceedings for pain and suffering and pecuniary loss.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner with Mr A Theodore | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | Russel Kennedy |
HER HONOUR:
1Mr Assimakis seeks leave to bring common law proceedings pursuant to s.335 of Workplace Injury, Rehabilitation and Compensation Act 2013 (Vic) for damages for pain and suffering and pecuniary loss arising out of a right knee injury he sustained on 26 March 2021.
2The law is not in dispute. Mr Assimakis must prove that he has a permanent impairment, or loss of a body function, the consequences of which, when judged by comparison with other cases in the range of possible impairments, or losses of body functions, may fairly be described as more than significant or marked, and at least very considerable.
3The issues in this case are:
(a) Mr Assimakis's credit, and the reliability of his evidence;
(b) Whether his right injury was caused, or continues to be caused by the work incident;
(c) Whether the consequences for Mr Assimakis meet the test of at least very considerable; and
(d) whether Mr Assimakis meets the test in relation to loss of earning capacity.
Background
4The background is that Mr Assimakis was born in Australia, but left at the age of 2 and grew up in Greece. He completed Year 9 schooling in Greece, and then worked installing, as I understand it, telecommunications or telephone systems, and also for a period working in a milk bar.
5He returned to Australia in 2014. For a period of time he undertook English language classes. However, he says his English skills are minimal. He cannot read or write English, or communicate very well.
6In about 2015 he began working in the construction industry as a steel fixer, which involves, as I understand it, cutting rebar, and is heavy work. He worked casually for the employer for about three years prior to becoming a fulltime employee in February 2021.
7In March 2021 he says his foot was caught in steel mesh which caused his right knee and upper body to twist, and he says he immediately felt very sharp and intense pain in his right knee and right hip. He has not returned to the workplace or to any work since then.
8He says that he was asked by one of the companies engaged by WorkCover to get his truck driver's licence, but did not pursue this. And he has not attempted to return to work in any capacity. He says he would like to work but is unable to because of his injury.
Medical Treatment
9He says he attended his doctor's clinic on the day of the injury but could not see a doctor, and so he went to the Austin Hospital the following day.
10Examination at the hospital noted a normal looking right knee, no significant diffusion or tenderness in the joint line. He was noted to have normal flexion and extension, and an X-ray showed no evidence of fracture. No osteoarthritis was seen on the X-ray, other than a possible mild subchondral sclerosis. And there was a query about the possibility of a lateral meniscal injury.
11He continued to feel pain, and in August 2021 was referred by his general practitioner to an orthopaedic surgeon, Mr Grant Pang, for an MRI. The MRI showed osteoarthritis with a few full thickness fissures involving patellofemoral and lateral tibiofemoral compartments, and a complex medial meniscus tear. A subsequent MRI on 28 March 2024 showed a complex tear of the posterior horn and body of medial meniscus appearing very similar to the previous study. There was a slight increase in myxoid signal change of the meniscal body, and a minor increase in subchondral oedema in relation to the cartilage fissuring in the femoral trochlea groove.
12He has not had any surgical repair of the torn meniscus. Aside from physiotherapy he has had no active treatment. In November 2022 his physiotherapist said he could return to work as a delivery driver for short distances, forklift operator, a security operator with a seat, or a truck driver, and she noted ‘shorter distances preferred’.
13He does not take prescription medication for his knee, and confines his use of analgesia to intermittent Panadol up to three a week, and he says this is because he has only one kidney and he is concerned lest the side effect of stronger medication cause damage to that kidney.
14In terms of his medical history, he has type 2 diabetes, high cholesterol and gout, and takes medication for those conditions.
Consequences
15Turning now to consequences, Mr Assimakis claims the following consequences: Constant pain in the whole of his right knee, which is generally at a severity of about four out of ten, with flare-ups to ten out of ten; he says the pain is not consistent throughout the day.
16His knee is stiff, and on occasion it causes him to limp. He says he cannot sit in one position for extended periods, I think in his affidavit material he describes that as about 15 minutes without stretching his leg. He avoids walking for more than 30 minutes because he says this aggravates his pain. He avoids bending, kneeling, squatting, twisting.
17He says he has difficulty climbing stairs and needs to use a handrail.
18He says his right knee feels weak, he worries about aggravating the pain or making his condition worse. He says he wakes at night with pain, and there is various evidence about what that involves, which I will deal with a little bit later when I get to the credit issue aspect of the case.
19He has difficulty dressing and showering and bending down to put on his socks and shoes. He says he avoids driving for more than 30 minutes because it makes the pain worse. He avoids doing most jobs around the house. He says he used to play soccer and tennis, and that he would jog, run and walk most days, and he no longer does those activities because of knee pain.
20He says he used to be very socially active, but this has deteriorated as a result of his knee pain, and an inability to engage in sporting activities.
21He says he has gained more than 20 kilograms since the work injury.
Credit Issues
22The defendant squarely attacked Mr Assimakis on his credit, and put it plainly that Mr Assimakis was exaggerating his symptoms both in this court and to doctors he attended, in order to bolster his claim.
23In particular the defendant pointed to the following matters: In relation to weight gain he gave instructions to Dr Awad in February 2024 that he had gained ten kilograms since the injury; and in October 2024 that he had gained 20 kilograms; instructions in March 2022 to Dr Slesenger that he had gained 45 kilograms; evidence in court that he had gained at least 20, and that he now weighed 120 or even 130 kilograms, and he said that when he was working he had weighed 110 or 105 kilograms; a report of Jane Banting where she recorded his instructions that he weighed 110 kilograms in February 2023, and the evidence of Dr Sheard in his report in October 2024, that Mr Assimakis weighed 120 kilograms; and the medical record of Dr Vaiopoulos, his general practitioner, that in November 2021 he weighed 118 kilograms.
24The defendant submits that in fact his weight has varied very little since the injury, perhaps by a couple of kilograms, and that his evidence that he gained a significant amount of weight was an attempt to bolster his case. I accept that his evidence about his weight gain is inconsistent. There is objective evidence that in November 2021, which was eight months after the injury, he weighed 118 kilograms; and that in October 2024, he weighed 120 kilograms.
25
So while he may have put on some weight since ceasing work, I think it is unlikely that it is in the vicinity of 20 kilograms, because that would mean that nearly all the weight was gained within the first eight months after the injury, and there has been no weight gain, or barely any weight gain in the three years
since.
26On the evidence I am not able to determine what his weight gain, if any, has been, but I am not persuaded that it is 20 kilograms or more. And I accept that he exaggerated his weight gain to bolster his case.
27In terms of his English skills, the defendant submits that it is implausible that his English is as bad as he says, and that he displayed in court an apparent understanding of some of what was said prior to it being interpreted. In response, the plaintiff has said that he has difficulty even writing his name in English, and that he has "zero knowledge of English".
28I accept that it is implausible that he has zero knowledge of English after living in Australia for ten years, attending English language classes upon arrival, and subsequently, and managing to work in construction for five to six years prior to the injury. I note that he has a café that he regularly attends and presumably, he can at least order coffee and exchange normal pleasantries, and I note also that it appears that he could at least ask for basic directions as shown in the video.
29However, I do accept that his English is very limited; I note that Dr Pang could not properly communicate with him without an interpreter and I accept that his reading and writing skills in English are minimal, and I note also the discharge summary from Austin Hospital notes very minimal English, and Dr Vaiopoulos also notes that he speaks limited English.
30In relation to sport activities, it was put to him that he had bolstered his pre-injury account of his sporting activities, and I have to say that the evidence about this was somewhat confusing. However, the picture that ultimately emerged was that on occasion - and perhaps this was about once a month - he might have a kick of soccer with friends in the park, and this was really dependent on whether people were around. It seems like it was something of a spontaneous event; there was no regular occasion, or any league, or anything of that sort.
31And similarly, to the extent that he played tennis prior to his injury, it appears that tennis played in a court in a sort of more formal setting might have occurred in Greece, but that if he ever did play in Australia it was in the park if there was a friend around - and I take it from that evidence that this was something that was informal, it was social and it was sporadic.
32In his affidavit he said he jogged or ran almost every day; however, it was clear in his evidence that jogging or going for a run as opposed to running whilst having a kick of the soccer ball was not a regular activity. If he did run, it might be a combination of running and walking and stopping for a rest, and I do not accept that he regularly went out for jogs. I think his evidence was that if he did go for a jog it might be for about a kilometre. I consider that he has exaggerated his evidence about his former sporting activities to bolster his case, but accept that his ability to engage in a social kick of soccer or a social game of tennis is likely to be impacted by his knee injury.
33In terms of the video footage the defendant showed video footage of Mr Assimakis on a number of different dates walking around, sitting at a café, and on one of the recorded occasions he was seen walking to and leaving a medico-legal appointment with Dr David Love. On that occasion, at the attendance with Dr Love, there is no visible limp on the video footage and the defendant submits that there was no obvious limp or gait impairment in any of the video footage, but Dr Love recorded an antalgic gait on his clinical findings.
34Mr Assimakis rejected the proposition he was putting on a limp in order to bolster his case, but said that he did on occasion have a limp but did not always limp. The defendant submitted that the footage showed that he had no limitation on his ability to sit, no limitation on his ability to walk, and he has capacity to bend and take weight on his right leg and in that regard particularly pointed to the evidence in the café where Mr Assimakis momentarily stands on his right leg while he is lifting a bench. The defendant submits this shows that he would have no problems with things like person care, and activities of daily living.
35To my observation, however, there were occasions in the footage where it did appear to me that Mr Assimakis had a slight limp or an antalgic gait if you want to use that term to describe a stride abnormality, or some sort of walking abnormality; particularly to my observation when he first started walking after sitting.
36I note that Dr Sheard reviewed the footage as well and also identified occasions of antalgic gait. Certainly, any limp was not pronounced and there were occasions on the footage where there was no discernible antalgic gait.
37I am satisfied that he can sit for more than 15 minutes without observable difficulty but I accept that after about 30 minutes in the period shown on the footage, he did get up to stretch, and I accept that this was likely prompted at least in part by knee pain. The video footage, however, I think does support the defendant's submission that Mr Assimakis has exaggerated his symptoms to bolster his case.
Evidence about sleep
38Mr Assimakis said in one affidavit that he was woken by pain about one to two times a week. He gave a history to Dr Sheard that he was waking two to three times a week. In a subsequent affidavit and in his oral evidence he said he was waking about two to three times a night with pain. He then said he might be woken by other things such as needing to go to the toilet, but then has difficulty getting back to sleep because of pain.
39It is difficult to know exactly what to make of this evidence but in light of my other findings I accept that he is on occasion woken by pain, but think it is likely that he has exaggerated the number of those awakenings to bolster his case.
40The defendant also asks me to draw an adverse inference from the lack of supportive evidence from Mr Assimakis's brother, with whom he lives.
41In relation to other evidence that the defendant says ought cause me to doubt Mr Assimakis's reliability - in relation to the use of a bandage on his knee, and ice packs, he was challenged about rubbing his knee in the witness box. He said that he was adjusting a bandage that he always wore.
42The defendant says that there is no other reference in any of his affidavit material, or in any of the medical material, to the use of a bandage, or to the use of icepacks. And when he is seen in the video footage wearing shorts, there is no evidence of a bandage. And the defendant submits that his volunteering information about using a bandage and an icepack in the witness box is another example of Mr Assimakis's propensity to exaggerate.
43I accept that there is a lack of support for the assertion that he always wears a bandage, or uses icepacks, and find that he likely gave that evidence in an attempt to bolster his case.
44In terms of the lack of medication, the defendant says the plaintiff's failure to take stronger medication for his knee is not supported by the medical evidence. There is no medical material to say that analgesic medication would impact his kidney condition. And he takes other medications.
45I am not persuaded that the medication is a credit issue, or that I can conclude that the real reason he does not take stronger medication is because he is not in pain. Having one kidney would, in my view, reasonably cause Mr Assimakis to have a concern, even if that is an irrational concern, about the health of his remaining kidney. And it is understandable that he would be unwilling to expose that kidney to any risk. I think that the analgesic medication is in a different category from other medication that he takes, which has a clear health benefit, as opposed to analgesia which is for pain.
46In terms of his failure to return to Mr Pang, the defendant says that the fact that he did not go back was, or I can infer was because Mr Pang did not support Mr Assimakis’ case. I do not accept that proposition, and I think that it is more likely that there really has been no reason to return to Mr Pang, given that Mr Assimakis has said he does not intend to pursue surgery.
47When confronted by inconsistencies, or a competing narrative in the cross-examination, Mr Assimakis either refuted the inaccuracy or asserted that his evidence was correct, or pushed back by asserting that he would have no reason to lie. He did, however, make some concessions. For example, agreeing in relation to his work capacity that he could undertake certain tasks for short periods, or on days when he was not in severe pain.
48Overall, I formed the impression that Mr Assimakis had, in his affidavit evidence, and to doctors, exaggerated his symptoms and the consequences he experiences as a result. The defendant has successfully attacked his credibility in this regard. And I am satisfied that the exaggeration was in order to bolster his case.
49In particular, I consider that Mr Assimakis's evidence about the restrictions on his activities of daily living, and his capacity to socialise and do housework, is exaggerated. And this means that his evidence is somewhat unreliable, and I accept it less readily where it is not supported by other evidence. It does not mean, though, that I discard his evidence.
Medical Evidence
50Grant Pang is the treating orthopaedic surgeon. He prepared three reports. In his first report in 2022, he opines that Mr Assimakis's pain is related to his patellofemoral joint arthritis rather than the medial meniscus tear, and says that he has recommended that it be managed non-operatively with analgesia. He then noted some activities that should be avoided; kneeling, squatting, stairs, which would put a lot of pressure on the joint. And he says that he has discussed with Mr Assimakis the duties he can perform, and given him clearance to drive a truck or a forklift, and that he could work in a seated position without too much difficulty.
51In his 2023 opinion Mr Pang said that Mr Assimakis had sustained a tear of his medial meniscus with exacerbation of osteoarthritis, and that it was consistent with the mechanism of injury and his clinical presentation. He says “hence his injury can be fully attributable to his workplace injury”. But he says the osteoarthritis is pre-existing and unrelated to his work, and he then says that modification of activities and the management with physiotherapy resulted in a complete resolution of his pain, and it is not expected that this would cause any long term disability or functional impairment, and that the risk of exacerbation is minimal.
52It is not clear to me why he says there has been a complete resolution of pain. There is no evidence of that, and it is particularly inexplicable in circumstances where the physiotherapist does not report that the pain has completely resolved, and also notes that he had only attended one physiotherapy appointment after November 2022.
53Then in April 2024 Mr Pang says that Mr Assimakis' pain appears to be a combination of the osteoarthritis and the meniscal tear, and says that the arthritis can be managed non operatively and the meniscal tear can be managed arthroscopically, if this was a predominant cause of his pain. Which on my reading of it seems to acknowledge that the meniscal tear may be a cause or may even be the predominant cause of ongoing pain.
54Dr Eman Awad provided reports in February 2024 and October 2024, and considered that Mr Assimakis did not have capacity for various roles identified by the defendant as suitable employment. And she goes through those and her reasons for deciding that they are not appropriate. Commercial cleaner, she says that Mr Assimakis is medically restricted from this because it requires prolonged periods of bending, squatting, crouching and standing, and cleaning in awkward or low areas.
55Delivery driver, she says this would require Mr Assimakis to squat, crouch, kneel when loading and unloading the vehicle. He would also have to constantly get in and out of the vehicle, which in her opinion would stress his knees and aggravate his symptoms, and he does not have capacity for that role.
56Forklift operator, she says this is a medium demand role which is most likely beyond his weight restrictions and physical capacity. And notes that forklift drivers tend to get in and out of their vehicles repetitively and hold their knees bent, with repetitive knocking of knees against dashboard, which makes an unsuitable role for him.
57Security officer, she thought that that was a highly unsuitable role, he would have no capacity to restrain an individual, which would require a security officer to bring and individual down and kneel on their knees for long periods of time until further reinforcement arrived, and he did not have any capacity for that.
58As a truck driver she said he had no capacity for that because it would exceed the medical restrictions in terms of lifting, carrying, bending and so on. And that it would frequently require the ability to squat, kneel, crouch to check the vehicle loads.
59A car park attendant, she did not consider that he had the capacity to walk the length of the car park back and forth to check the area, which she understands to be a requirement of the job, but also notes that he would not have the language skills because this is a customer serving role.
60
Control room operator, the ability to monitor security alarms and surveillance equipment, she did not consider that he had the language skills for that
role.
61Gatehouse security officer, again the role requires an individual to maintain site logs report incidents and so on, and he would not have the language skills.
62Product assembler similarly – would require excellent written and spoken English skills, which is not within his skill set.
63Road traffic controller, she says from the physical standpoint would not be suitable because it would require him to stand for long periods of time, move heavy bollards, bend, twist and so on, beyond his physical capacity.
64A packer is required to stand for the entirety of a shift and whilst it says that they can be seated, she notes that it is not often a viable option as workers need to often repetitively lift boxes off a conveyor belt onto pallets. There is constant bending, and it would be a poor choice of role.
65Given my findings in relation to Mr Assimakis' exaggeration of his symptoms, I do not accept that his capacity for walking is as limited as he says. He probably, in my view, could manage the physical aspects of for example being a car park attendant, but I accept what Dr Awad says about the English language skills required for that customer facing role.
66Dr Phillip Sheard, an orthopaedic surgeon, has prepared a number of reports, and also reviewed the video footage from May, 2nd of June and 14th of June 2023. He considered that the work was the cause of Mr Assimakis' injury. He did not consider that any of the footage that he had seen was inconsistent with his clinical observations of Mr Assimakis. He says the meniscus tear has progressed, but the predominant problem is probably the osteoarthritis and says that both the aggravation and the tear were a cause of the current pain, and both are materially contributed to by the workplace incident.
67He says "I believe that his diagnosis is an exacerbation/aggravation of pre-existing asymptomatic knee osteoarthritis. It is noted that any person with medial joint osteoarthritis will have a medial meniscus tear and it is not necessarily that the medial meniscus tear is the cause of the problem." He considered that Mr Assimakis does not have capacity for pre-injury duties, did not have any work capacity due to his physical injury, his age, qualifications and English skills, and does not have capacity for any work that would require him to knee, squat, stand, walk, drive for any extended period of time.
68Looking at specific jobs, he considered that the cleaning job was unsuitable because of steps and ladders and bending, squatting and crouching; a delivery driver would be unsuitable, given the length of time that he assessed Mr Assimakis could drive for and that it would require frequent leg movements; security officer - he agreed with Dr Awad that it would require somebody to be able to physically restrain an individual, but if it involved sitting in vehicles it was likely to aggravate the condition; truck driver - he identified that climbing stairs presented a difficulty, as did sitting in vehicles for long periods, which would be unsuitable and it would likely involve squatting, crouching and kneeling; car parking attending - he considered that he might physically be able to perform this job; control room - he considered on a physical basis he might be able to perform this job; product assembly and repair - again, physically he might be able to perform the job; road traffic he thought was unsuitable due to the requirement to stand for long periods; and a packer was unsuitable due to the same issue.
69In terms of Dr Slesenger, he says that the impairment that Mr Assimakis sustained that was caused by the incident has resolved, and he also had reservations about Mr Assimakis' stated level of impairment and noted that there was no wasting of the right lower limb and that Mr Assimakis had delayed physiotherapy and did not use medication which caused him to have significant questions about the reliability of Mr Assimakis' presentation. I note that Dr Slesenger's report was from 2022.
70The defendant also relies on opinions of Jane Banting, a physiotherapist who said that there was no clinical signs of significant injury, noted that there were signs of muscle weakness in the right quadricep muscle and moderate tenderness of the right medial joint line with mild restriction active knee flexion, considered that Mr Assimakis displayed abnormal pain behaviours and strong signs of exaggeration, and considered that the workplace incident no longer contributed to the condition.
71Mary Wyatt, an occupational physician, noted that Mr Assimakis walked without a limp. He sat with his leg outstretched at times but at other times sat with his right knee flexed beyond 90 degrees. She said that there was no wasting and no crepitus, although this had previously been found by his orthopaedic surgeon, and that there was no swelling or effusion over the joint. She formed the view that Mr Assimakis had a mild organic problem substantially compounded by non-physical factors; alternatively, she considered that his work-related injury had resolved.
72She could not tell on objective findings and was reliant on subjective complaints of pain for her finding that there was some level of pain, and she assessed him as fit to do a range of jobs - she considered commercial cleaning at a construction site was not appropriate but that he could do domestic or office cleaning; he was fit to do delivery work, particularly if it involved getting in or out of a van or ute, but not heavy deliveries. She thought he was fit to work as a forklift driver. She considered a security job was unrealistic, given his English language skills.
73In a supplementary report she said that he was physically able to do work as a control room operator, gate house security, product assembler, car park attendant, road traffic control and a packer, and on a full-time basis he had capacity to stand as required for the road traffic job. However, she did not think he had the English skills for the control room operator or gatehouse security role.
74Dr David Love, orthopaedic surgeon, said that the incident caused an aggravation of osteoarthritis in the knee, which has persisted. But given that osteoarthritis is degenerative in nature, he is not certain that the work incident is still materially contributing to the problem.
75Dr Love said that the pain Mr Assimakis experiences does have an organic basis. The clinical examination is consistent with the radiology and the medical condition described. And on examination there was tenderness on the medial side consistent with strain on the medial collateral ligament as a result of lateral stress on the knee joint, although the MRI indicated that the osteoarthritis was in the lateral compartment.
76He said ceasing work, and therefore stress on the knee, would mean that the ongoing pain is now caused by the natural history of the condition, and the employment is no longer a materially contributing factor. He says it is likely that Mr Assimakis would have experienced pain at some point if the incident had not occurred.
77He considered that Mr Assimakis may be able to return to suitable employment that was sedentary. He considered that work as a commercial cleaner, delivery driver, forklift operator, security officer and a truck driver would be difficult. And noted pain and restrictions on walking of about 30 minutes, and driving about 30 minutes, may preclude him from positions for which he would otherwise have capacity on a fulltime basis. But even, in his view, limited hours might present a problem. And he noted that Mr Assimakis may benefit from a total knee replacement in the future. He noted that MRI findings are less helpful than a clinical examination.
78Finally, Dr Anthony Kam, the radiologist, said that it is difficult using the two MRI scans available, that is, from 2021 and 2024, to definitively determine the time of onset of the osteoarthritis, and if the worker's meniscal tear was caused by the osteoarthritis knee joint degeneration, or if the meniscal tear occurred at the time of the March 2021 incident.
79He said being an isolated meniscal tear without other associated ligamentous or bony injury, and in the presence of osteoarthritis, he believes it is more likely than not that the meniscal tear is the result of knee joint degeneration, and the osteoarthritis rather than the incident.
80In any case, he says that he noted that the orthopaedic specialist's opinion was that the pain was likely due to the osteoarthritis rather than the meniscal tear. And he said that it was likely that Mr Assimakis had longstanding osteoarthritis with cartilage loss and tearing of the medial meniscus. And he noted that the August 2021 MRI showed cartilage thinning and fissuring. And that the 2024 MRI showed a mild progression.
Submissions
Defendant
81The defendant says that ongoing causation is a live issue, and relies on the opinion of Mr Pang in this regard. The defendant submits that it is frequently the case that the treating practitioner is considered the person best placed to provide an opinion. And also the treating physiotherapist in this case who agrees with the findings of the defendant's physiotherapist, Ms Banting, that the workplace incident no longer materially contributes to the condition. The defendant submits this is a fairly unusual position for treating practitioners to take, and that ought to assume some considerable weight in my analysis of the case.
82The defendant notes that the plaintiff has the obligation to prove that there is a substantial organic basis for the injury and notes that the doctors have had difficulty in expressing an opinion that the work incident materially contributes to his ongoing issues. And the defendant highlights the opinions of Dr Kam and Dr Sheard in relation to the link between the meniscal tears and the osteoarthritis, and says on the basis of all of this I cannot be satisfied that causation has been established.
83The defendant says that if I am satisfied that causation is established, a number of medical practitioners have identified a non-organic basis for the presentation, including Dr Slesenger in 2022, Ms Banting in 2023, and who found abnormal pain behaviours, and Dr Wyatt who says that the presentation was substantially compounded by non-organic factors. The defendant submits that I ought to consider that non-organic factors loom very large in this case.
84Pursuant to the principles outlined in Meadows v Lichmore,[1] the plaintiff has to identify the substantial organic basis. And in a case where there are issues about non organic factors that are indicated in terms of the presentation and also issues about ongoing causation, credit is particularly significant.
[1] [2013] VSCA 20
85
I have dealt already generally with my findings in relation to credit, but I note here that the defendant in particular highlights the lack of supporting lay evidence from anybody, including the brother, the plaintiff's evidence about his weight, the English capacity, the sporting activity, the video footage, the sleep, and then further makes submissions about the manner in which
Mr Assimakis gave evidence. For example, in relation to the suggestion that he would have capacity for a forklift driver, the defendant submits that Mr Assimakis pretended not to know what a forklift was.
86I say here that I do not accept that submission in relation to the forklift. It may well be that Mr Assimakis was unsure or unfamiliar with the name of that piece of equipment. It was clear, as the cross-examination went on, that he knew what the actual vehicle of a forklift was.
87The defendant submits that Mr Assimakis falls well short of reaching the requisite level of pain and suffering to be granted leave. He has had only modest treatment comprising physiotherapy. He has not returned to his orthopaedic surgeon, and he takes minimal medication; The defendant submits that I cannot accept his evidence about the social impact on him or the impact on his activities of daily living.
88The defendant says that the unreliability of the plaintiff impacts the medical opinion, particularly where, for example, Dr Love has reported an antalgic gait, but before and after that examination there was no sign of a limp on the footage.
89In relation to pecuniary loss, the defendant says that I cannot be satisfied he has no work capacity. His own treating orthopaedic surgeon recommends that he could return to work as a truck or delivery or forklift driver, and each of these occupations would attract a salary that exceeds the 60 per cent of without injury earnings threshold, which I think is agreed as $992.36 a week.
90Ms O'Sullivan, his treating physiotherapist, also endorses an even wider range of occupations, each of which attracts a salary of greater than 60 per cent, even if Mr Assimakis was to work less than full time. With the exception, I note, of product assembler, where Mr Assimakis would have to work 38 hours a week to reach the threshold. His treating general practitioner, Dr Vaiopoulos, also says that he could work as a truck or forklift driver.
91The defendant says that I should consider the plaintiff's failure to attempt any return to work as significant, and submits that I should take account of the prospect that the plaintiff has made no attempt to return to work, not because of limitations caused by his pain and restriction, but because he has had no incentive while he was on WorkCover payments, and then subsequently while this application is on foot.
92The defendant says the plaintiff gave inconsistent answers and has not demonstrated any attempt to go back to work and cannot come before this court and say he has tried but failed. He has not tried, despite the view of his treating practitioners that he has capacity. And the defendant relies on its own medico-legal opinions about his capacity for various jobs, and the jobs outlined in the CoWork and Konekt reports, and says Mr Assimakis has not established that he is unable to work.
93The defendant says that the history that Dr Awad has is not accurate about Mr Assimakis' level of pain and his restrictions, for example 15 minutes limit on standing, and therefore her opinion about his capacity for the various jobs proposed cannot be accepted.
Plaintiff
94The plaintiff submits that Dr Wyatt does not help the defendant's case because she does not find that there is anything wrong with Mr Assimakis, and notes the danger of drawing too readily adverse credit findings based on reports in doctors' notes, and as an example of this, points to the reported height in a report of Dr Love of 192 centimetres, which is not correct, or is not consistent with the reported height in other medical reports and records. I ought not assume that errors in medical reports demonstrate an attempt by Mr Assimakis to mislead the court.
95The plaintiff relies on Dr Love, who accepts that there is an organic basis for Mr Assimakis' injury, and his opinion that Mr Assimakis is not able to do the jobs set out in the vocational assessment and his opinion that even a part time role is likely to be difficult. The plaintiff submits that Dr Love is not simply basing his opinion on what the plaintiff has told him but on his own assessment of the plaintiff.
96The plaintiff points to the contradictory opinions of Dr Pang, which I have already outlined, and says that Dr Pang does not provide me with any real assistance in determining the source of pain and is not particularly reliable. The plaintiff relies on the general practitioner notes of April this year which notes some quadricep wasting on the right, and also submits that I can be satisfied that there are significant findings in relation to right knee when a proper examination is performed, and points to Dr Sheard's examination in this regard which found a significant degree of valgus - 80 degrees of valgus on the right compared with the left of only two degrees, and mild medial collateral and anterior cruciate ligament laxity, a mild swelling and a small effusion. The plaintiff says that these are objective clinical findings that the right knee is impaired.
97The plaintiff also relies on the opinions of Dr Kam and Dr Sheard that the underlying condition is osteoarthritis, and Dr Sheard and Dr Love who both agree that clinical examination is more useful than an MRI in terms of assessing a patient. The plaintiff says that there is clear evidence of an organic problem in the right knee, and a clear causal connection between that physical problem and the incident in question in March 2021, and that as a result of that there is no need to do any disentangling.
98The plaintiff also notes that he was under surveillance for 45 hours, and that only 77 minutes of footage was obtained, which is mostly unremarkable. The suggestion that in that footage he was walking freely is exaggerated. Dr Sheard, for example, noted as I did that there are signs of some antalgic gait at least on occasion, and Dr Sheard considered that his presentation in the footage was consistent with the activity that he claims. And the plaintiff says that I ought to accept that the footage shows that he is not striding out in an uninhibited manner.
99The plaintiff also says that what that footage supports is his affidavit material that he goes to a café for coffee, but does not socialise like he used to, and that what we saw in the footage was the plaintiff either watching - looking at his phone watching shows, or staring into space, although there was - I note a period of time where he appeared to be engaging in some sort of conversation with somebody.
100The plaintiff says he has had a markedly restricted life since his injury and in relation to sports, the intent of his evidence about his pre-injury engagement of sports was not so much that he was involved in any kind of formal sporting activity but rather that he had the ability to do what he wanted, when he wanted to; and that that included soccer, tennis, jogging and running, and that that is something that he has now lost. The plaintiff relies on the fact that there is no evidence of any knee problem prior to this incident, and says that I can accept that if there had been any problem he would not have been able to hold down a job as a steel fixer.
101In relation to the language issue, the plaintiff points me to the medical records that I have already dealt with. In relation to the pain medication, the plaintiff says it does not go against him or go against his credit that he does not take stronger medication - he does not say that he has been told not to because of problems with his kidney, but that that is his own concern. And` the plaintiff relies on Haden Engineering v McKinnon,[2] where the court held that the stoic plaintiff ought not be at a disadvantage. And says if he was in fact minded to exaggerate it is more likely that he would have obtained prescriptions of stronger pain medications to try and bolster his case. There is a degree of force in that argument.
[2] [2010] VSCA 69
102In terms of suitable employment, the plaintiff says he is now 51. He has a Year 9 level of education in Greece. He has minimal English. He has got qualifications from Greece as a telephone installer, but that it is not always possible to retrain. And that he has given evidence that he has tried to improve his English, but was unsuccessful. And I think he said something like "it just doesn't stick", or "it just doesn't go in."
103The plaintiff relies on Dr Sheard and Dr Awad's assessment of the tasks involved in the jobs, and his physical capacity to do those jobs, and says that there really is no suitable employment for Mr Assimakis, and I ought to be satisfied that he meets the relevant test.
Findings
104I have set out above my reservations about the reliability of Mr Assimakis's evidence, that is, that he tended to exaggerate the severity of his symptoms and the severity of his pain.
105I accept that some of the attacks the defendant made on his credibility, and the reliability of evidence are well made. This does not mean I consider he has no symptoms and no pain.
106Fortunately for Mr Assimakis there is other evidence to support his claim, and that is, there is, in my view, clear medical evidence of an injury to the knee. Although there is a hot debate within the medical material, and between the parties, as to the origin of the osteoarthritis, and an equally hot debate about whether the cause of Mr Assimakis's pain is his osteoarthritis or his meniscal tear, the fact is that a meniscal tear is not uncommon in the presence of osteoarthritis, such that it is not really possible to treat the two injuries separately.
107This raises a question as to whether the twisting injury caused the osteoarthritis, or aggravated an underlying condition. I do not understand any of the medical opinion to provide a clear timetable for the onset of the osteoarthritis, nor to clearly articulate whether the tear in the meniscus accelerates the osteoarthritis, or the osteoarthritis causes the tear, or just that these are things that commonly co-exist, but one cannot determine which comes first.
108Mr Kam and Mr Sheard both say that the existence of osteoarthritis with a tear is almost ubiquitous, but I do not extract from either of those opinions a clear identification of which comes first.
109All that can be said, is that by August 2021 Mr Assimakis had osteoarthritis and a meniscal tear, and that by 2024 the meniscal tear remained and the osteoarthritis had progressed somewhat.
110The relevant issue for this application, however, is that prior to March 2021, Mr Assimakis was able to work as a steel fixer, whether or not he had underlying arthritic changes in the knee. I am therefore satisfied that even if the osteoarthritis pre-dates the injury, which on the balance of the medical opinion seems likely, the injury, that is, the twisting injury in March 2021, caused or materially contributed to the osteoarthritis becoming symptomatic.
111Once the underlying condition became symptomatic, I do not think it can be said that the ongoing consequences of those symptoms are no longer related to the work injury.
112It may be that, as has been expressed by some of the doctors, the osteoarthritis would eventually have become symptomatic at some point. This seems to me an argument for trial that will go to the assessment of damages.
113I do not think that even if it could be established that the osteoarthritis would have become symptomatic at some point, this means that the work injury has somehow resolved. None of the various experts who have opined in this matter consider that Mr Assimakis is able to continue in the construction industry generally, or as a steel fixer, in particular.
114There is other material that I rely on, in forming my view, that Mr Assimakis can no longer work in his former occupation. He has a good work history noted by Dr Awad, and not challenged in cross-examination, prior to his injury. He took no sickness absences and had no prior WorkCover or TAC claims, and no second concurrent employment. He apparently had a road traffic accident in 2007 that involved head and chest injuries, but made a full recovery and returned to work after that.
115This contributes to my view that while he may have exaggerated, or in fact in my view has exaggerated his symptoms, he is experiencing pain and restrictions that impact his ability to stand, sit or drive for long periods, and preclude him from working in his pre-injury occupation.
116In particular I note the opinions of Dr Love, Dr Sheard and Dr Pang, the orthopaedic surgeons, who are all of one voice in considering that Mr Assimakis has osteoarthritis that is productive of pain and symptoms, although they disagree as to whether the workplace injury continues to contribute to those pain and symptoms, or whether the underlying degenerative condition has now overtaken things. I note that this is a gateway provision only, and none of the doctors have been cross-examined.
117Given the timing of onset of pain being directly consequent upon the twisting injury, on the evidence before me, I am satisfied that the workplace injury materially contributed to the aggravation which persists today. It is not apparent to me from Mr Pang's report how he can say that the persistent pain is caused by the underlying degenerative disease, given that the disease was not symptomatic until after the injury.
118Given this, I am satisfied, largely for the reasons outlined in Dr Awad's report, that Mr Assimakis is not fit for any of the occupations identified, either by reason of his physical limitations or because of his education and limited English skills.
119I note Mr Pang, the treating surgeon, gave clearance to work as a truck driver or a forklift operator, or work in a seated position. Mr Pang is not an occupational physician, and while he can clearly express opinions about Mr Assimakis' physical capacity, it is not apparent to me that he necessarily understands the requirements of these roles in the way that an occupational physician does. I note that he acknowledged the difficulty Mr Assimakis would have getting in and out of a truck.
120Accordingly I prefer the opinion of Dr Awad who has a comprehensive understanding of the tasks involved in these occupations. Similarly I consider that Emily O'Sullivan, the physiotherapist, is not really qualified to give an opinion about his work restrictions and capacity, and she has not demonstrated a path of reasoning as to what is involved in the jobs that she says he is able to perform.
121Accordingly I am satisfied that Mr Assimakis has no work capacity and that this is likely to persist in the foreseeable future. As a result, Mr Assimakis meets the test of serious injury, as this is a consequence that is at least very considerable. He is granted leave to commence proceedings for pain and suffering and pecuniary loss.
0
2
0