Backholer v Frankston City Council
[2018] VCC 909
•8 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI‑17-04214
| SARAH ELIZABETH BACKHOLER | Plaintiff |
| v | |
| FRANKSTON CITY COUNCIL | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2018 | |
DATE OF JUDGMENT: | 8 May 2018 | |
CASE MAY BE CITED AS: | Backholer v Frankston City Council | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 909 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the right knee – pain and suffering – range
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Maurice Blackburn |
| For the Defendant | Mr S Smith | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 13 October 2013 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function
3 The body function relied upon pursuant to clause (a) is the right knee.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments … fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
10 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged thirty-two, having been born in September 1985. She is married with a young son born in August 2015 and is due to give birth to her second child in August this year.
12 Having finished VCE, the plaintiff completed a Bachelor of Science at Monash University, majoring in zoology, before undertaking a Certificate III and IV in Government at Swinburne. She has a Master’s degree in Wildlife Management.
13 Over the summer of 2007-2008, and the following summer, the plaintiff worked for Parks Victoria on a three-month contract as a summer ranger.
14 In March 2009, the plaintiff started work for Parks Victoria as an administrative assistant and, later, worked as a customer service officer. She remained in this job until December 2009, when she took a job as a ranger at Lysterfield.
15 From July 2012, the plaintiff was employed by the defendant as a Natural Reserves Ranger. She worked Monday to Friday, seventy-six hours a fortnight and earned approximately $1,000 a week.
Pre-incident health
16 In about 2002, the plaintiff had a left knee injury playing basketball. She had an arthroscopy, made a good recovery, and returned to playing sport with no ongoing problems. The plaintiff experienced depression, which was diagnosed in 2011. She was prescribed antidepressant medication and has seen a psychologist intermittently since that time.
The incident
17 On the said date, the plaintiff was doing fire break maintenance. As she was feeding a log into the chipper, the teeth slipped and the chipper spat out the log, striking her on her right knee (“the incident”).
18 The plaintiff experienced strong pain in her right knee and it buckled, causing her to fall. She attended the work physiotherapist the next day at Life Care Physiotherapy, and also the work doctor, Dr Yang, at Langwarrin, who organised an MRI scan.
19 The plaintiff saw Dr Aizen at Epic Health in Mornington as her knee was swollen and bruised. She also attended her general practitioner, Dr Taylor, who referred her to Mr Tang, an orthopaedic surgeon.
20 Mr Tang recommended an arthroscopy, as did Mr Carr, another specialist from whom the plaintiff sought a second opinion. However, WorkCover refused to authorise the surgery and the plaintiff ultimately paid for it herself, as she was in significant pain and unable to walk or bend her knee.
21 The plaintiff was concerned about using a lot of codeine and attended Dr Chamberlain for pain management and was prescribed Lyrica.
22 The plaintiff had arthroscopic surgery in June 2014 under Mr Tang, and as part of her recovery, undertook intensive physiotherapy. Ultimately, the Medical Panel determined WorkCover was liable for the cost of the surgery.
23 The plaintiff was frustrated and depressed about her knee injury and attended Linda Craig, a psychologist, who increased her antidepressant medication.
24 After the incident, the plaintiff was confined to office duties, but she continued to work with the support of her supervisor, except for a few weeks after the surgery, until July 2015. In August 2016, the plaintiff failed a functional capacity evaluation and was told to remain on unpaid leave indefinitely, before her employment was terminated in February 2017 as she was advised she was unable to fulfil the inherent requirements of her role.
25 After her employment with the defendant ceased, the plaintiff worked for three months between June and September 2017 at Echo Explorers as an educator. Her role was to educate children, under five, who attended nature and wildlife events at Arthurs Seat. Under her instruction, they did unstructured play, nature craft activities, and worked in a mud kitchen.[3]
[3]Transcript (“T”) 4
26 The plaintiff did not enjoy this education role because she did not like the preparation/homework required.[4] While she had applied to do a Master of Teaching, after her experience at Echo Explorers, the plaintiff decided not to go ahead with that course as she realised education was not for her.[5]
[4]T19
[5]T8
27 After that job finished, the plaintiff worked as a conservation officer two days a week with Mornington Peninsula Shire (“the Shire”). Essentially, it was office work and involved looking after planning permits for natural reserves. Occasionally she did site visits and took photographs of indigenous sites for cultural heritage permits. There was a very marginal outdoor component in this role.[6]
[6]T5
28 The job was for six months. The plaintiff enjoyed it and liked working in the office as part of a team with likeminded people. If that work was available, she could do it full time, putting aside her childcare responsibilities.[7]
[7]T18
29 The plaintiff presently has a job with the Shire as an assistant education officer providing information to older community groups, at local halls or the RSL. She works about three hours a month in that role.[8]
[8]T6
30 At one stage after the incident, the plaintiff was looking for work as a veterinary nurse. She went on a trial for one job but then declined the position for two reasons: when she tried to restrain animals she aggravated her knee pain and, secondly, the job involved exposure to potential chemicals when she was trying to get pregnant.
31 As of April 2017, when the plaintiff swore her first affidavit, she suffered a constant dull ache in her right knee. The pain got stronger if she stood or walked for long, or if she lifted, twisted, or walked on uneven surfaces. She found squatting or kneeling very painful. Lifting her young child increased her knee pain, as did walking on the beach.
32 The plaintiff tried to avoid the use of pain medication but required Panadol from time to time to help dull her knee pain to enable her to sleep. She found the ache in her knee was at its worst at night after a day of activity, and it could often be difficult to get to sleep. It was also uncomfortable lying on her side due to her pain.
33 The plaintiff then managed domestic tasks by taking them slowly. She struggled with gardening and her husband did the bulk of this work.
34 The plaintiff had previously enjoyed playing basketball and played regularly until moving to Rosebud in 2013. If she had not hurt her knee, she would have joined a local team and continued to play.
35 The plaintiff had two dogs, which she previously enjoyed taking on long walks. She then found it very difficult to manage them and push a pram, and she walked the dogs less frequently, and less far, as a result of her knee injury. She sometimes carried her son in a baby backpack, although doing so caused her knee soreness.
36 The plaintiff used to enjoy riding a bike but had felt unable to do so until recently, when she tried again. She could only ride a short distance before she was forced to stop because of increasing pain.
37 The most significant consequence of the plaintiff’s knee injury was its impact on her ability to engage in outdoor work. She is an outdoor person and did not particularly enjoy office work, having done it before she obtained work as a ranger, and since her injury. She had obtained two degrees, and had made a conscious choice to pursue work as a ranger, which was relatively poorly paid, because she loved the work. She was not able to get a medical clearance to work as a ranger, and was subsequently terminated from her position with the defendant, which was devastating for her.
38 In her most recent affidavit sworn in April this year, the plaintiff deposed there has been little change in her treatment regime since her first affidavit. She no longer sees her general practitioner, who told her he was no longer able to offer anything by way of treatment, medication aside, which she is reluctant to take. Likewise, she has not returned to see Mr Tang, who told her when last seen that there was nothing further he could offer.
39 Otherwise, the plaintiff continues to take Panadol as required. Where possible, however, she tries to avoid taking medication and prefers to manage her condition by avoiding activities that she knows aggravate it.
40 Inevitably, however, the plaintiff does overdo it, especially when it comes to her son. Say, weekly, then, she takes something to manage any flare up and especially to help her sleep. She takes Panadol usually only if the pain is about 3 out of 10 and she has to take something to go to sleep. She does her best to get to sleep without it.[9]
[9]T12, T23
41 Otherwise, the plaintiff has started to see a psychologist again, with the upcoming hearing, causing her to revisit what she has lost which, in turn, has made her feel a little anxious. Her depression, however, is a little better, and she is no longer taking any anti-depression medication.
42 The plaintiff is now actively seeking work; however, she is not optimistic she will be offered anything before the birth of her second child.[10] She is looking for part-time work two to three days a week, until she has to go off on maternity leave. She wants to return to work earlier than a couple of years after her second child.[11]
[10]T17
[11]T18
43 The plaintiff anticipated being off work for a year after her first child, had she not injured her knee, and maybe for six months after the second child. She intended to return to work part time, and then full time.[12]
[12]T23
44 The plaintiff continues to suffer constant right knee pain – a dull ache over her patella and the outside of her knee. The pain is variable and in the main, activity dependent. The more she does, the worse her pain.
45 At rest, the plaintiff would describe the pain as annoying, it is not too bad, however, it is always present, but the more active she is, the worse her knee pain gets – especially as the day progresses.
46 Generally speaking, then, the plaintiff is very careful about what she does as her knee is easily aggravated, thus, she is no longer able to walk long distances or over rough ground. Lifting anything heavy – including her son – is also problematic.
47 The plaintiff also finds it difficult to squat (standing up out of a squat causes pain), kneel or crawl. She cannot put weight on the injured knee without pain. In fact, even hitting a bump when riding a bike, being hit by a heavy wave at the beach, or pushing a trolley at the supermarket can cause a flare up.
48 Consequently, the plaintiff avoids such activities where possible, or where not possible to do so, she takes particular care not to put too much strain on her knee.
49 That is, lifting her son aside, the plaintiff does not feel as though she can say no to him. She recently aggravated her knee quite badly when giving him a horsey ride, carrying him on her back, after which it took the best part of two days for her pain to settle.
50 The plaintiff agreed she tries to still live an active life. She no longer carries her son in a backpack as he is too heavy, but when he was lighter, she could walk with him for up to 3 kilometres.[13] She agreed that she now took him to a variety of places without difficulty.[14] He has day care one day a week. She agreed he is an active little fellow.[15] She takes him out for walks and similar activities.[16]
[13]T12
[14]T13
[15]T3
[16]T4
51 When aggravated, the plaintiff’s knee pain becomes a heavy ache that she would rate at 3 out of 10. Her knee then really slows her down. Even being very careful not to aggravate her knee, she still suffers flare ups most weeks. On occasion, the pain can be worse still, like when she gave her son the horsey ride.[17] Then the pain – a sharp, shooting pain – can be as bad as say 5 out of 10, and it forces her to stop what she is doing and rest. Although this only happens irregularly (say monthly), it does put her out of action for up to two days. In addition, her knee swells from time to time.
[17]T10
52 The plaintiff confirmed her affidavit evidence as to her level of pain. It is annoying on a good day.[18] For the vast majority of time, the pain is manageable when she is at rest; however, she is not at rest most of the time.[19] She agreed, when she rated the pain at 1 out of 10, it was minimal.[20]
[18]T8
[19]T9
[20]T10
53 The plaintiff’s sleep continues to be disrupted by knee pain and she has difficulty falling asleep. She has to find a position in which her knee is not under any strain, and if it is knocked during the night she wakes in pain. As a consequence, she often feels tired during the day. That said, at the moment her sleep is disturbed as much by anxiety about the hearing and about her pregnancy, as by the injury.
54 As a consequence of her injury, the plaintiff is no longer able to do a number of things and has difficulty doing a range of others as she described in her first affidavit.
55 First and foremost, the plaintiff has not been able to return to work as a ranger. This was her chosen career and she is very sad the injury has taken that away from her. Physically, it is now beyond her. The work almost invariably involves walking on uneven ground, carrying heavy equipment, such as spray packs, dragging logs and fighting fires. There is no way she could do that sort of work now.
56 The plaintiff misses this role very much. She misses being outdoors, and misses the adrenaline of emergency work. She felt it brought out the best in her and gave her a real sense of achievement and contribution. She got a real sense of satisfaction and fulfilment from the job, a sense of purpose.
57 The plaintiff is now miserable. She cannot return to this work and feels very jealous when she sees others getting into their green uniform.
58 The plaintiff agreed there was a vast range of former work as a park ranger she could still do, but then said there would be quite a few more exceptions than one or as put to her two. She had discussed this issue at length with her doctor and he suggested tasks like digging and lifting and carrying might be a bit of an issue, as would be the carrying of ladders or large hard rubbish, and her ability to run. However, with logistical support and planning, some of these difficulties could possibly be got around.[21]
[21]T14
59 The plaintiff agreed, in her letter to the defendant in early 2017, she listed an extensive number of activities she would be able to do immediately upon her reinstatement and that such activities were central to her work as a park ranger.[22] However, she would also have problems with engaging in duties on a prolonged basis. When work was outdoors, like firefighting, it would be for quite long periods of time, so it would be a full week working outside, doing mulching or chipping, and walking on uneven surfaces.[23] It was not just prolonged standing, it was the movement required to undertake those tasks that would give her problems.[24]
[22]T15
[23]T16
[24]T17
60 In the last page of the letter, most of the duties the plaintiff suggested she could do were office tasks. She nominated them because, for the most part, they were tasks she could do without causing any serious aggravation to her knee. However, she has a preference for field work. She just wants to be outside -“we’ve got a beautiful country” and she just loves the bush, but the state of her knee does not permit her to do that now.[25]
[25]T24
61 Pre-injury, the plaintiff enjoyed firefighting and weed management, mulching, planting, taking walks through the bush, doing wildlife monitoring, putting up nest boxes, setting up cameras and doing pest animal management. These are things she can no longer do.[26]
[26]T25
62 The plaintiff continues to have real difficulty working in the garden and there is now very little that she can do and her husband does the bulk of the work.
63 Before the incident, the garden was the plaintiff’s domain and pride and joy, her “release”. She is an outdoors person and very much enjoyed spending time in the garden. She and her husband used to have a large garden; the front is a full indigenous garden and at the back, there is a very large vegetable patch. The plaintiff would invariably spend two hours a week in the garden, and quite often, spent a full day before the incident.
64 Now, the plaintiff cannot for example weed effectively because of her difficulty kneeling. She sits on her bottom and leans over the garden beds, but no longer does the lawn. She no longer does any spraying, finding the weight of the pack and swinging movement puts too much strain on her knee. Most importantly, she cannot do digging or lifting, which is just too hard on her knee. She cannot do any work requiring a chain saw or dragging branches.[27]
[27]T22
65 The plaintiff has not been able to return to basketball because of her knee injury, having played before the incident. She knows that she is not able to play as it just puts too much strain on her knee.
66 When the plaintiff moved to Rosebud in 2013, she intended to join a local team and play weekly in a social competition, which she had done up until earlier that year – both for exercise, and to make connections socially. She thought it would be a good opportunity to meet people in the local area. However, the knee injury had stopped her playing.
67 The plaintiff continues to have difficulty doing things around the home. Before her injury, she did the bulk of housework chores. She continues to do so – but has to be careful not to aggravate her knee condition, so she takes housework either slowly or does a cursory job.
68 For example the plaintiff finds it very difficult to clean the bath, as it is awkward because she cannot kneel without pain. Likewise, vacuuming is a challenge with moving the furniture, and she now only does cursory vacuuming.
69 The plaintiff struggles to do heavy housework, but pretty much shares things with her husband.[28] She agreed that his contribution was the normal one you would expect someone else in the household to make.[29]
[28]T21
[29]T22
70 The plaintiff has difficulty riding a bike. She now rides occasionally, and then only for a short distance. She finds pushing the pedals increases her knee pain if she rides for too long. So, too, bumps in the road also aggravate her knee.
71 In contrast, before the incident, the plaintiff rode her bike regularly and as a means of transport locally. It was something that she both enjoyed and thought was important to try and do for the sake of the environment.
72 As a result of her injury, the plaintiff continues to have difficulty walking her dogs. She and her husband have a German Shepherd Cross and an American Staffy Cross. Before her injury, she enjoyed taking them on long daily walks; however, they have a tendency to strain on the lead, which can jar her knee. As a consequence, she now walks them less often, and certainly for shorter distances.
73 Finally, the plaintiff has also lost the ability to engage in shared activities with her husband. She is no longer able to come with him on long walks on holidays. Recently, she was unable to accompany him when he hiked up a volcano near Ubud in Bali.
74 Whilst the plaintiff agreed that there had been significant improvement in her knee condition with surgery, she had a bit of a setback in Bali, when walking on an uneven surface.[30] At that time, her knee just gave way and buckled underneath her. That is probably an example of something that happens every month.[31]
[30]T20
[31]T25
The Plaintiff’s medical evidence
Treaters
75 Dr Ledger from South Coast Medical at Rosebud, the plaintiff’s general practitioner, first saw her on 4 December 2013, when she mentioned her recent traumatic right knee injury.
76 Dr Ledger noted that, post surgery, the plaintiff had been steadily improving, with greatly reduced pain levels and, in fact, had not used any analgesia since the procedure.
77 In his July 2017 report, Dr Ledger advised that the plaintiff’s condition had stabilised with minimal pain, so he only saw her intermittently through 2015 and much of 2016.
78 Dr Ledger noted there had been various discussions about the possibility of the plaintiff returning to her previous employment in October 2016, as she has been keen to do so and is considered medically fit to do so, with the only restriction being avoidance of heavy lifting or activities, like the mulching machine, that would potentially risk re injuring her knee. He noted the plaintiff had been considered fit to return to the majority of her pre-injury duties for all of 2017, and certificates had been issued to that effect, but unfortunately an agreement to effect this return to work had not been reached.
79 Dr Ledger thought the plaintiff had regained the vast majority of her pre-injury capacity and was fit to pursue most of her pre-injury duties and/or similar work tasks with minimal restrictions. He noted she had not used antidepressant medication for about two years.
80 The plaintiff saw Dr Chamberlain at Mornington Peninsula Sports Physicians in March 2014. He then thought her dose of Lyrica was inadequate to be covering any neuropathic pain. He advised he would really like to get her neuropathic component under control before there was any consideration of arthroscopy.
81 In January 2014, Mr Tang asked CGU to fund knee surgery. This procedure was eventually carried out on 17 June 2014.
82 Mr Tang advised the plaintiff’s general practitioner in July 2014, two weeks post-surgery, that her pain had settled quite dramatically, and she was walking without pain now for the first time in eight months. He planned to see her again in four months.
83 The plaintiff was referred back to Mr Tang in September 2016 after a minor exacerbation of knee pain while stepping up on holidays.
84 Mr Tang wrote to Dr Ledger in October 2016, having seen the plaintiff post MRI scan, which confirmed there was no internal derangement noticeable. He advised there was some scarring of the Hoffa’s fat pad related to a previous arthroscopy performed. He suggested that the instability issues the plaintiff had been getting were most likely due to muscle weakness. He advised her to obtain a copy of the MRI report, as well as her films, so she could present them to her WorkCover officer at work when they consider her for reinstatement.
Investigations
85 There was an MRI scan of the plaintiff’s right knee carried out on 21 October 2013. It was reported there appeared to have been superficial trauma to the anterior and lateral knee, but the radiologist could not see any evidence of any other significant injury.
86 There was an MRI scan of the plaintiff’s right knee undertaken in September 2016. It was reported there was scarring in the Hoffa’s fat pad. There was no acute inflammation. Menisci and cruciate ligaments were intact, and there was no focal chondral defect identified.
Medico-legal evidence
87 In June 2014, the Medical Panel, consisting of Mr John Bartlett and Mr Neil Cullen, orthopaedic surgeons, found that the plaintiff was suffering residual dysfunction of the right knee joint due to an unresolved soft tissue injury in the setting of a functional patellofemoral instability. In the Panel’s opinion, right knee arthroscopy and chondroplasty was an appropriate medical service for the plaintiff’s current injury and/or condition.
88 Dr David Elder, consultant in occupational and environmental medicine, examined the plaintiff on the defendant’s behalf in June 2015.
89 The plaintiff then had residual pain at 2 to 4 out of 10 and pain with full extension. Pain was worse in the cold weather. She had difficulty walking on uneven surfaces, and could not kneel or squat to greater than 90 degrees.
90 On examination, there was no effusion or tenderness. There was 1.5 centimetres of right thigh wasting, but power was equal.
91 Dr Elder thought there was a permanent impairment of the plaintiff’s right knee.
92 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff in January 2018.
93 The plaintiff then advised she had been left with a residual moderate pain in the knee, particularly over the patella and the lateral aspect of the knee. Her knee continued to give way, last doing so a week earlier. It was prone to swelling, particularly with activity in cold weather, and she advised it felt unstable. She had difficulty walking on uneven ground, squatting, kneeling and crawling.
94 On examination, there was tenderness over the patella ligament, lateral joint line and the collateral ligament. There was no crepitus and the joint was stable. Lower limb power and tone was normal bilaterally.
95 Dr Slesenger diagnosed a soft tissue injury to the right knee and dislocation of the right patella, for which the plaintiff had undergone arthroscopic repair, and residual right knee dysfunction. He also diagnosed a psychological impairment which, he said, was outside his area of expertise.
96 Taking into consideration the plaintiff’s pre-injury duties, particularly the manual handling and postural requirements, and the repetitive nature of those tasks, and also the unpredictable nature of the terrain in which she is likely to be working, Dr Slesenger advised her against returning to work as a park ranger. In support of this, he noted her current symptoms of functional limitations and the periodic exacerbation of her symptoms associated with squatting, climbing and walking on uneven ground.
97 Dr Slesenger thought the plaintiff’s condition was unlikely to change in the foreseeable future. He considered her prognosis must be guarded.
98 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 22 January 2018. She then advised her right knee was her major problem. She had ache, discomfort and intermittent pain, and the symptoms caused sleep disturbance. The knee felt weak and insecure and occasionally gave way, and her symptoms caused difficulty with kneeling, squatting, stairs and walking on uneven ground.
99 In terms of treatment, the plaintiff occasionally took Panadol.
100 On examination of the right knee, there was Grade 1 quadriceps wasting. There was minor patella joint crepitus and pain on patella compression. The knee was mildly irritable and there was mild hypersensitivity around it. It was stable to examination.
101 Mr Miller also noted the plaintiff had suffered an adverse mental state reaction with problems with anxiety, depression and probable development of a Chronic Regional Pain Syndrome.
102 From the point of view of the right knee, Mr Miller thought the plaintiff would have difficulty with work that involved large amounts of prolonged standing, walking, twisting, turning, kneeling, squatting and walking on uneven ground. Therefore it was likely to be the situation permanently that she could not return to her pre-injury duties on any significant full or part-time basis.
103 Mr Miller did not change his view, having been provided with the operation report and recent MRI scan. He thought the plaintiff was not likely to require any form of further surgical intervention and was unlikely to develop arthritic disease.
104 Dr Brendan Hayman, psychiatrist, examined the plaintiff in February 2018. He diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood consequent to the plaintiff’s work injury and its sequelae, which had now resolved.
Work documentation
105 The position description for a Natural Reserves Senior Ranger detailed operational, customer service and organisational responsibilities.
106 By letter dated 5 January 2017, the defendant advised the plaintiff of the outcome of the independent medical assessment conducted by Dr Lange in December 2016.
107 The defendant advised, having carefully considered the implications of Dr Lange’s report, including in respect of its obligations to provide the plaintiff with a safe working environment under the Occupational Health and Safety Act 2004, it appeared clear that it would be unsafe for her to return to work in the position, and there were no adjustments the defendant could reasonably make to the position to enable her to perform its inherent genuine and reasonable requirements.
108 Although strictly not required to do so, the defendant had also considered whether there were any other available positions that the plaintiff could safely perform, including administratively based positions, but unfortunately there were no suitable vacant positions available
The Defendant’s medico-legal evidence
109 The plaintiff was examined by Dr Stephen Stern, psychiatrist, in June 2015. He thought she was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
110 Whilst the report following Dr Lange’s examination in December 2016 was not in the defendant’s court book, it was referred to in a number of documents, including Dr Slesenger’s report.
111 Therein, it was noted that Dr Lange confirmed the dislocation of the right patella and internal derangement of the knee as a result of the injury. He considered that the plaintiff’s ongoing impairment was related to the traumatic patellar dislocation in 2013. In his view, she could not return to her pre-injury role and, in particular, noted difficulty walking on uneven ground, utilising a Whipper Snipper and pushing, pulling and climbing.
112 Dr David Barton, consultant occupational physician, examined the plaintiff in March 2017.
113 The plaintiff then told him that at her lowest point, her problem was 10 to 15 per cent of normal. She now felt that it improved to about 85 per cent, but having said that, this level had not changed since about two months after the operation. She felt pain was caused if she went beyond her limits. She could not fully straighten her knee or fully bend it, and she had trouble squatting and kneeling.
114 On examination, there was no particular tenderness around the knee joint. There was about 5 degrees of fixed flexion deformity, although it was unclear why this was present. There was an excellent range of flexion, but slightly less than demonstrated on the left. The knee joint was stable to clinical examination. There was no joint effusion and no particular problems in stressing the patella, which appeared to track normally. There was no crepitus. Thus, on clinical examination, apart from a mild fixed flexion deformity, there was no particular abnormality to be found.
115 Dr Barton was not convinced there was any ongoing incapacity related to the knee and believed the current functioning was near enough to being normal and allowed the plaintiff to work normally. He believed her condition could be considered to have now resolved, it having been a considerable period of time since the operation and initial injury. He thought she needed no treatment, apart from advice to simply exercise if she wanted. He considered her prognosis was excellent.
116 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in August 2017.
117 The plaintiff then told him she felt her knee had recovered to around 85 per cent. She now noted intermittent pain and had difficulty kneeling and squatting. She advised she could experience intermittent exacerbations of pain.
118 At that stage, the plaintiff had enrolled in a Master’s of teaching, but did not go ahead with that degree.
119 On examination, there was evidence of some wasting of the quadriceps and there was no knee effusion. There was patellofemoral tenderness and tenderness over both joint lines. The plaintiff could extend her knee within a few degrees of extension. There was pain on flexion. The knee was stable.
120 Mr Dooley thought the plaintiff sustained an impact injury to her right knee which may have involved some damage to the superficial articular surfaces of the patellofemoral joint.
121 Accepting the injury sustained, it was Mr Dooley’s view that one could not explain all of the plaintiff’s ongoing symptoms on an organic basis only, and he believed she had a psychological reaction to her situation which could be explained, in part, by what she felt to be a most unreasonable dismissal from her job.
122 From an orthopaedic point of view, Mr Dooley believed it important the plaintiff remained generally active and undertook low impact exercise.
123 Mr Dooley considered the plaintiff would note difficulty with regular heavy physical activity and with activity that involved a lot of squatting or kneeling. He believed she would continue to note some intermittent knee pain, but thought that there was a potential for further improvement in relation to thigh muscle strength and knee movement.
124 In Mr Dooley’s view, the plaintiff would note difficulty with heavy domestic activities such as lawn mowing and heavy gardening, and she would struggle to go jogging. At times, she could note difficulty climbing stairs or walking on very uneven ground.
125 Mr Dooley thought the plaintiff’s ongoing pain related to the residual effects of her knee injury and also her psychological reaction to her situation. He believed that the current intensity of her pain could improve with time and her prognosis depended on both physical and also psychological factors.
Correspondence
126 The plaintiff wrote to the defendant on 23 February 2017.
127 In that correspondence, the plaintiff advised she discussed with Dr Ledger the position description for the role of Natural Reserve Ranger and determined which of the key duties she may struggle with, given her work induced disability. She advised the few criteria that they determined would be affected by her disability that had been highlighted, and a description of how they may be impeded had been included.
128 The plaintiff advised, in addition to her being able to satisfactorily complete most of her role, she had a list of works currently requiring assistance that she would be able to undertake immediately on reinstatement. The list was in line with the position description and also encompassed her specialist skills, which were previously utilised prior to taking maternity leave.
129 The plaintiff advised she had compiled the report in order to give evidence of her ability to safely undertake the vast majority of her roles as a Natural Reserves Ranger with the defendant. A large number of the roles she suggested were office based.
Overview
130 It is not in dispute the plaintiff suffered a compensable injury to her right knee in the incident. While initial liability for surgery was denied by the defendant, the Medical Panel found employment was a cause of the plaintiff’s knee injury, as had orthopaedic surgeon, Mr Dooley, and other practitioners in recent times.
131 There is no suggestion of any relevant pre-existing knee problem, or any significant non-organic component to the plaintiff’s presentation.
132 As counsel for the defendant indicated, this is purely a case about range.[32]
[32]T27
133 The consensus of medical opinion is that as a result of the impact to her right knee in the incident, the plaintiff sustained a soft tissue injury in the setting of patellofemoral instability. Mr Dooley thought this injury may have involved some damage to the superficial articular surfaces of the patellofemoral joint, and Dr Slesenger thought there was dislocation of the right patella. These practitioners agreed that as a result thereof, the plaintiff has residual right knee dysfunction.
134 Despite successful surgery in June 2014, since that time, on clinical examination, various examiners have found wasting of the right leg,[33] knee tenderness[34] and crepitus.[35]
[33]Mr Dooley and Mr Miller
[34]Dr Slesenger and Mr Dooley
[35]Mr Miller; T34
Credit
135 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[36]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[36](2010) 31 VR 1 at paragraph [12]
136 There was no attack on the plaintiff’s credit in this case. Whilst the defendant undertook surveillance of her, as its court book index confirmed, there was no film shown and no other evidence challenging the plaintiff’s evidence of her difficulties. I found the plaintiff to be a truthful witness who did not overstate her level of pain and restriction.
Pain
137 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[37]
“The evidentiary basis of the pain assessment will ordinarily comprise the following: inter alia
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[37]ibid
138 I accept the submission on behalf of the defendant that the plaintiff’s description of pain post surgery is very much in the mild to moderate range of the spectrum.[38] Counsel for the plaintiff acknowledged it is true the plaintiff’s complaints of pain were in the “minor key”.[39]
[38]T27
[39]T32
139 However, as counsel for the plaintiff submitted, the plaintiff has been left with a very fragile knee that is subject to significant flare ups if she does not exercise a high degree of care in her daily activities.[40] These are always subject to taking care not to significantly aggravate her knee. Even the slightest trauma, such as a bump when riding a bike, can cause an aggravation.[41]
[40]T32
[41]T33
140 The plaintiff’s knee feels weak and insecure and occasionally gives way, and her symptoms cause difficulty with kneeling, squatting, stairs and walking on uneven ground.
141 In terms of treatment, the plaintiff ultimately underwent surgery in June 2014 which she paid for herself. Prior thereto, she attended her general practitioner, had physiotherapy and was treated by Dr Chamberlain, who prescribed Lyrica for pain management.
142 Post surgery, the plaintiff freely acknowledges there has been a significant improvement in her pain level; however, restrictions continue in terms of her movement and mobility.
143 Because of her reluctance to take medication, the plaintiff’s use of analgesia is sparing, with the occasional Panadol, particularly to help her sleep, and she takes no prescription medication.[42]
[42]T28
Work
144 Counsel for the plaintiff submitted the plaintiff’s inability to fully participate in her pre-injury ranger role is a consequence which in itself goes very close to being “serious”. This was a career she had chosen ahead of better paying work, for which she had obtained significant tertiary qualifications, which is now denied to her by reason of her knee injury.[43]
[43]T33
145 While the plaintiff’s principal reliance in this application is on employment consequences, it was submitted by counsel for the defendant there was a wide range of employment incorporating both indoor and outdoor activity which she would be fit to perform, including the work she did for six months part time with the Shire, which only finished because the contract ended.[44]
[44]T28
146 Whilst it was conceded the plaintiff’s inability to engage in heavy physical labour was unfortunate, it was submitted it still left open a very broad range of employment, which was characterised by the work that she loved, which is a combination of indoor and outdoor work, working as part of a team and being able to be outdoors.[45] Further, it was submitted it could not be said that the plaintiff can only do part-time or short-term employment as a result of her knee injury.[46]
[45]T29
[46]T30
147 I accept that as a result of her pain and resultant restrictions, the plaintiff has lost her chosen vocation – working outdoors in unrestricted work as park ranger, work which is sometimes very heavy. Despite clearly wanting to return to work with the defendant, the plaintiff’s employment was terminated on the basis that she was unable to fulfil the inherent requirements of her role.
148 Dr Ledger, Mr Tang, Dr Slesenger, Mr Miller and Mr Dooley all agree that because of her knee injury, the plaintiff cannot do unrestricted pre-injury duties as a park ranger.
149 While she would be fit for a range of comparable duties, as counsel for the defendant submitted, the plaintiff cannot engage in the full range of work activities she previously enjoyed. She is an outdoor person, not an office worker. She completed extensive study, in a field which is not particularly well paid, to pursue her vocation. Her inability to go out in the field and engage in activities like fighting fires, sometimes for up to a week at a time, digging and other heavy tasks is, in my view, a serious consequence for her.
Other activities
150 Not surprisingly, given her vocation, the plaintiff has a significant interest in gardening at her own home. Pre incident, she spent no less than two hours a weekend on the garden. She is now however very much restricted in what she can do and is unable to do the lawn or other heavy work.[47]
[47]T33
151 The plaintiff also has some difficulty with housework, requiring assistance from her husband with the heavier tasks. Her sleep continues to be affected by knee pain.
152 Whilst the plaintiff is able to cope with looking after her young child, I accept she is unable to play with him in an unrestricted way because of her knee condition - the recent “horsey” ride being such an example.
153 I also accept, had the plaintiff not injured her knee, she would have resumed playing basketball, despite having a young family, as she is obviously a “sporty” person for whom fitness and team sport is a priority. Her evidence that she cannot return to basketball was not challenged.[48]
[48]T34
154 As a result of her knee injury, the plaintiff has difficulty walking her dogs and riding a bike. Even simply walking on uneven ground, as happened in Bali, the plaintiff’s knee may give way, causing an increase in her knee pain
155 The plaintiff is still a young woman, aged only thirty-two.
156 In Stijepic v One Force Group Aust Pty Ltd,[49] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[49][2009] VSCA 181 at paragraph [43]
157 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
158 Whilst Mr Miller regarded the prognosis for the plaintiff’s knee to be good, with no suggestion of any arthritis in the future, the medical opinion, save for Dr Barton’s view the plaintiff has recovered, is that the plaintiff’s knee problems are permanent and there will be no further significant improvement.[50]
[50]T32
159 Taking into account all the evidence, I am satisfied the plaintiff has a serious impairment of her right knee.
160 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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