Barrett v Victorian WorkCover Authority
[2024] VCC 1364
•12 September 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05873
| ANGELA DOONE BARRETT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 20 August 2024 | |
DATE OF JUDGMENT: | 12 September 2024 | |
CASE MAY BE CITED AS: | Barrett v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1364 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left knee – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and CompensationAct 2013
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Connelly v Transport Accident Commission [2024] VSCA 20
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Mr C Woollacott | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar with Ms J Clark | Wisewould Mahoney |
HER HONOUR:
Introduction
1Mrs Angela Barrett, the plaintiff, is a fifty-three-year-old team leader and trainer. She claims to have suffered an injury to her left knee in an incident that occurred on 5 July 2021 while working for her employer, now known as Triple Zero Victoria (“the employer”).
2Mrs Barrett seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and CompensationAct 2013 (Vic) (“the Act”). Her claim is that she has a “serious injury” to her left lower limb, specifically her left knee.
3To succeed, Mrs Barrett must establish that the permanent impairment consequences arising from her compensable left knee injury are “serious”. That is, that the impairment consequences can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Mrs Barrett suffered a compensable injury to her left knee. The VWA contested the proceeding primarily on the basis that the impairment consequences of the compensable left lower limb injury did not satisfy the statutory threshold.
5The issues for determination are:
(a) Was Mrs Barrett a reliable witness?
(b) What are the permanent impairment consequences of Ms Barrett’s compensable left knee injury?
(c) Are the permanent impairment consequences “serious”?
6The relevant legal principles are well known and were not in dispute.
7For the reasons that follow, I find that Mrs Barrett has satisfied her onus to establish that the permanent impairment consequences of her left lower limb injury are “serious”.
Background
8The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
9Mrs Barrett was born and brought up in Mount Gambier. She completed Year 12 and then worked as a nanny and swimming coach in Australia and overseas.
10In about 1991, Mrs Barrett suffered an injury to her left knee while playing netball. She underwent arthroscopic surgery and recovered well. She deposed to not suffering from any left knee pain over the following years.
11Thereafter, Mrs Barrett lived in Noosa and worked in hospitality.
12In or about 1999, Mrs Barrett obtained a Diploma of Building Design at Nambour TAFE. She then worked for a building company for several years.
13In about 2011, Mrs Barrett obtained a Bachelor of Science, with a major in paramedics, from Central Queensland University.
14Mrs Barrett moved to Victoria, and, in May 2017, she began working for the employer as an on-shift workplace trainer full time. She usually worked two twelve-hour day shifts and two twelve-hour night shifts every eight days.
15On 5 July 2021, Mrs Barrett was performing Triple Zero despatch duties. She was sitting on a chair on wheels and moving between workstations. She alleged that she suffered a twisting injury to her left knee when her left foot became caught in some raised or damaged carpet. This was the incident in which she suffered the injury the subject of this application.
16On 23 July 2021, Mrs Barrett consulted her general practitioner (“GP”) at The Quay Family Healthcare clinic regarding her left knee. Her GP ordered imaging and referred Mrs Barrett for physiotherapy.
17On 5 August 2021, Mrs Barrett consulted Mr Chatar Goyal, orthopaedic surgeon, regarding her left knee. Mr Goyal recommended a trial of conservative treatment initially.
18As Mrs Barrett had continuing symptoms, she returned to Mr Goyal on 21 October 2021. He recommended she undergo an arthroscopic medial meniscal repair. This took place on 22 February 2022.
19Mrs Barrett had physiotherapy for her left knee condition between August 2021 and April 2022. She had two further physiotherapy sessions in April 2024.
20Save for a period of six weeks following the surgery, Mrs Barrett has continued to work full time for her employer. In 2023, she was promoted to the role of team leader.
21Mrs Barrett currently takes four to six Panadol or ibuprofen for her knee condition daily and performs regular home exercises. She continues to see a chiropractor on a regular basis, as she had done prior to her knee injury.
22Mrs Barrett developed left Achilles pain following her left knee injury. Ultimately, she did not claim that as a consequential injury in this application.
Was Mrs Barrett a reliable witness?
23The VWA submitted that Mrs Barrett was not a reliable witness. Junior Counsel for the VWA submitted there were omissions from Mrs Barrett’s affidavit in relation to her health both prior to and since her injury.[1] It was submitted that Mrs Barrett was unreliable as to her periods of incapacity from those other conditions.
[1] Transcript (“T”) 68
24Junior Counsel for the VWA submitted that I ought to prefer the accounts recorded in medical records to Mrs Barrett’s account.
25I bear in mind that clinical records are not a verbatim record and are the treating practitioner’s note of what they understood the patient to have said. There is considerable room for error or misunderstanding. Given this, caution should be exercised when considering the content of clinical notes.
26The VWA played approximately eleven minutes of surveillance footage, taken on 7 May 2024, of Mrs Barrett walking her dog. She walked at a gentle pace along the beach. On several occasions, she reached down to pick up a ball her dog had found and threw it. She also kicked the ball with her right leg.
27Junior Counsel for the VWA suggested that Mrs Barrett squatted when she picked up the ball. To my observation, her bending was, at best, a slight squat.
28Mrs Barrett said, and I accept, that she was walking among the seaweed to avoid the softer sand. The video surveillance did not show Mrs Barrett performing any activity that she said she could not perform. In my view the surveillance footage did not undermine Mrs Barrett’s account of her impairment consequences.
29Leading Counsel for Mrs Barrett submitted that Mrs Barrett was a witness of truth, whose evidence was given in a “frank and forthright” manner.[2] It was submitted that she made several declarations against interest.
[2]T84
30I found Mrs Barrett a straightforward witness. She gave her evidence in a frank manner and made concessions against interest. She had some difficulty remembering specific dates, but I found her evidence regarding the impairment consequences of her left knee condition consistent and convincing.
31I find that I can generally rely on Mrs Barrett’s account of her pain and restrictions. I am fortified in that view by the opinion of Mr Russell Miller, who found Mrs Barrett to be co-operative, clear and straightforward in her presentation.
What are the permanent impairment consequences of Mrs Barrett’s compensable left lower limb injury?
32Mrs Barrett deposed to experiencing constant pain in her left knee, which varied from a dull ache to sharp or severe pain, depending upon her level of activity. She also experienced restricted movement and swelling. Her left knee would give way from time to time.
33Mrs Barrett alleged she has difficulty kneeling, squatting, jumping and twisting. She struggled to go up and down stairs and traverse inclines and declines. Walking on uneven surfaces was difficult. She struggled to walk quickly and jog.
34Mrs Barrett said she had difficulty standing or sitting for prolonged periods. She needed to change postures frequently. She has consulted a podiatrist and modified her footwear.
35Mrs Barrett alleged she is restricted in her capacity to perform domestic activities as she struggled to “get down to anything low”.[3] She is limited in relation to gardening because of difficulty kneeling.
[3] Plaintiff’s Amended Cout Book (“PCB”) 15
36Mrs Barrett deposed to sleep disturbance most nights. She takes an over-the-counter product, Sleep Assist, about four times a week. She said that her left knee is usually stiff and sore in the mornings.
37Mrs Barrett deposed to leading a very active lifestyle prior to her knee injury. She previously skied for several days on a few occasions each winter and surfed multiple times a week in the warmer months. She played social tennis weekly. In addition to those regular pursuits, Mrs Barrett enjoyed long walks, playing golf, horse riding from time to time, and an occasional game of netball. Although she can now play golf by using a golf cart, and walk reduced distances, she alleged that many of other activities are lost to her due to her left knee injury. In addition, she is restricted in the activities that she can perform when attending the gym.
38Mrs Barrett tendered an affidavit from her partner, Scott Cooke, sworn on 1 July 2024. The VWA did not seek leave to cross-examine him.
39Mr Cooke deposed to the active lifestyle he and Mrs Barrett enjoyed prior to her knee injury and the restrictions he observed in Mrs Barrett’s ability to pursue those activities. Further, he deposed to Mrs Barrett’s restriction in performing domestic activities, and sleep disturbance.
40Mrs Barrett said that her left Achilles pain improved after she consulted a podiatrist and altered her shoes.
41This is a convenient point to consider the medical evidence tendered.
Treating doctors
Mr Chatar Goyal, orthopaedic surgeon
42Mrs Barrett tendered two letters from Mr Goyal dated 5 August 2021 and 21 October 2021, as well as an operation report dated 22 February 2022.
43On 5 August 2021, Mr Goyal diagnosed an exacerbation of osteoarthritis. He noted that imaging revealed a small meniscus tear. He recommended a trial of conservative management and opined the condition should improve over eight weeks.
44On 21 October 2021, because of Mrs Barrett’s continuing symptoms, Mr Goyal recommended an arthroscopic repair of the left meniscal tear.
45Mr Goyal performed the arthroscopic surgery on 22 February 2022. This was a medial meniscectomy and chondroplasty.
Dr Melissa Reed, GP
46Mrs Barrett tendered a report from Dr Reed dated 3 July 2024.
47Dr Reed has been Mrs Barrett’s GP since 8 February 2022. Mrs Barrett has not consulted Dr Reed with respect to her knee injury since May 2022 and she was therefore unable to comment upon her current condition.
Grand Slam Physiotherapy
48Mrs Barrett tendered a report from Mr Lucas Anderson dated 22 April 2024 and a report from Ms Holly Lipson dated 20 June 2024.
49Mrs Barrett attended for treatment at Grand Slam Physiotherapy between August 2020 and April 2022, and again from April 2024. At her most recent attendances, she was given a home-based rehabilitation program.
50Ms Lipson expressed optimism that Mrs Barrett would experience improvement in the functionality of her knee.
51Mr Anderson noted that, in the event the home-based rehabilitation program did not lead to improved knee function, consideration would be given to a referral back to Mr Goyal.
Medico-legal reports
Mr Russell Miller, orthopaedic surgeon
52Mrs Barrett tendered three reports from Mr Miller dated 30 March 2023, 17 April 2024 and 21 June 2024. Mr Miller examined Mrs Barrett on 29 March 2023 and 16 April 2024.
53When seen on the first occasion, Mr Miller reported that Mrs Barrett complained of:
“… ache, discomfort and intermittent pain and swelling in the left knee. The knee feels weak and insecure, but there is no frank giving way. There has been moderate improvement following her knee surgery. Her symptoms have now plateaued and they cause difficulty with kneeling, squatting and prolonged walking. They cause her to intermittently walk with a limp and she has also had to modify her shoe wear.”[4]
[4] PCB 53
54On examination, Mr Miller found Grade 1 quadriceps wasting with flexion of “5‑130°”, and patellofemoral joint crepitus and pain on patellar compression. The knee was stable to examination.
55Mr Miller opined that there had been an aggravation of a pre-existing asymptomatic disease, with the work injury causing a further superimposed injury and medial meniscal tear. The prognosis was only fair and there was a likelihood of medium to long-term deterioration. This may require further surgery in a ten-to-twenty-five-year timeframe.
56Mr Miller noted that Mrs Barrett would have difficulty with work involving prolonged standing, walking, twisting, turning, kneeling, squatting, stairs, walking on uneven ground and climbing. He noted a reduced capacity for domestic and gardening activities and a marked reduction in recreational pursuits.
57When examined on 16 April 2024, Mrs Barrett reported that she felt her symptoms were “a bit worse”.[5] On examination, Mr Miller made similar findings to his previous examination, although flexion was to only 120 degrees and there was a small effusion. Mrs Barrett had a slight limp.
[5] PCB 60
58Mr Miller’s views were largely unchanged, save that, given the pattern towards deterioration, he opined that further surgical intervention was likely to occur within a ten-to-twenty-year timeframe.
59In his third report, Mr Miller relevantly confirmed that the likely future surgery was a total knee replacement.
Mr Graeme Brown, orthopaedic knee, shoulder and sports surgeon
60Mrs Barrett tendered two reports from Mr Brown dated 10 August 2023 and 5 July 2024. Mr Brown examined Mrs Barrett prior to providing each of those reports.
61On examination on the first occasion, Mr Brown found:
“… she had a normal gait with no limp. Her knee alignment was normal. Examination of the left knee revealed a range of movement from 5° fixed flexion to 130° … moderate tenderness on the medial joint line … normal anterior cruciate ligament, posterior cruciate ligament, medial collateral ligament, and lateral collateral ligament. McMurray’s test (a test for meniscal pathology) was negative. There was no thigh wasting.”[6]
[6] PCB 78
62Mr Brown opined that Mrs Barrett suffered a flap tear of her left medial meniscus in the incident at work, which had been adequately resected at arthroscopy. Mr Brown noted that Mrs Barrett was unable to wear heels, struggled to kneel and had pain if she walked for more than two hours. He noted that she was no longer able to play tennis.
63Mr Brown noted that Mrs Barrett had tried to put on a ski boot, but found it aggravated her heel pain.
64Mr Brown did not challenge Mrs Barrett’s claimed restrictions in his ultimate opinion (although Mrs Barrett challenged the accuracy of the restrictions he recorded).
65When seen on the second occasion, Mr Brown noted:
“… her left knee symptoms have remained unchanged. She thinks her knee is not 100%; however, her knee pain has not worsened. She describes knee swelling, which was not commented on previously, but says that the swelling is not new.
Additionally, the left Achilles tendon pain has improved.
…
Not noted in the previous report was that [Mrs] Barrett used to surf up to twice weekly over the summer. After an accident, she has stopped surfing.”[7]
[7] PCB 83
66On examination on this occasion, Mr Brown found:
“… she had a normal gait without a limp when she walked. Her leg alignment was normal. Today, her left knee had a range of movement from full extension to 115° flexion ([Mrs] Barrett said she’d been walking this morning, so the knee was slightly more painful than normal). The knee had mild tenderness along the medial joint line. Again, the knee ligament examination was normal.”[8]
[8] PCB 83
67On this occasion, Mr Brown noted that Mrs Barrett walked 4 to 5 kilometres most days but started to limp halfway through the walk. She reported increased pain with walking on soft surfaces such as at the beach, on uneven ground and stairs. She experienced pain on side-to-side movement and was not able to play tennis. She reported pain with prolonged sitting, standing, and walking “but this has not changed since she was seen previously”.[9]
[9] PCB 83
68Mr Brown noted that he did not detect any functional component or psychological reaction in Mrs Barrett’s presentation.
Findings
69I am required to consider the impairment consequences attributable to the compensable knee injury, separating them from consequences arising from other conditions.
70Mrs Barrett was asked about issues that she had with arthritis in her fingers and surgeries to remove ganglions. I accept Mrs Barrett’s evidence that she did not have ongoing problems with those conditions following recovery from her surgeries. It was suggested that Mrs Barrett would not have been able to play tennis while those conditions were particularly active. I accept Mrs Barrett’s evidence that she had a bigger grip put onto her tennis racquet and was generally able to continue to play.
71I accept Mrs Barrett’s evidence that her Achilles pain has settled and is not causing any restrictions.
72The VWA suggested that Mrs Barrett had not been experiencing symptoms of significance in her left knee since 2022 and that was the explanation for the minimal treatment she had received since 2022.[10]
[10]T15
73I accept Mrs Barrett’s evidence that she has continued to undertake a home-based exercise program and has not sought further treatment, as she is resigned to the fact that she has ongoing symptomatology in her left knee. I further accept that Mrs Barrett has undertaken the recommended exercise programs, but not experienced improvement in her pain and restrictions.
74The VWA submitted that there was no explanation for the absence of a report from Mr Goyal following the arthroscopic surgery in February 2022. However, Mrs Barrett was not asked about her attendances on Mr Goyal following the surgery during cross-examination, or the circumstances in which she was discharged from his care.
75I note that there is no dispute on the medico-legal evidence regarding the diagnosis. Both Mr Miller and Mr Brown note ongoing symptomatology.
76Mr Miller found Grade 1 quadriceps wasting on each examination. Mr Brown found there was no wasting. Neither party addressed the Court on this difference. This is difficult to resolve purely on the reports. Doing the best I can, I prefer Mr Miller’s examination findings, as his examination findings were generally more detailed.
77Only Mr Miller has opined as to the future prognosis and treatment needs. I accept his opinion that Mrs Barrett’s knee will likely deteriorate and there is a likelihood that she will come to a total knee replacement in ten-to-twenty years.
78I find that Mrs Barrett suffers from constant discomfort or pain in her left knee of variable severity. It varies from a constant ache to sharp, severe pain. When there is more pain, Mrs Barrett applies ice and elevates her left leg. She experiences restriction of movement and intermittent swelling. She takes over-the-counter medication daily for her pain. Her knee feels unstable.
79I accept that Mrs Barrett struggles to kneel and squat low. She struggles to sit or stand for prolonged periods and uses a standing desk at work to vary her posture.
80I find that her sleep is impacted most nights, and she regularly takes an over-the-counter product to assist with this.
81Mrs Barrett remains able to drive. She drives approximately seventy-five minutes each way to work but has to stand and stretch her leg afterwards.[11]
[11] T59
82I find that, prior to suffering her knee injury, Mrs Barrett led a very active life. She walked about 8 kilometres four days a week and in addition would walk 26 kilometres a couple of times a month. She skied several times each winter and surfed several times a week in the warmer months. She played tennis twice a week, played golf regularly and occasionally social netball.[12]
[12] T43
83I find that Mrs Barrett is no longer able to ski. I do so, because I accept Mrs Barrett’s evidence that her knee condition prevents her from wearing ski boots.
84I accept that Mrs Barrett’s left knee injury prevents her kneeling on the surfboard. I find that this activity is now lost to her.
85By reason of Mrs Barrett’s mobility issues, that is, her inability to move side to side, I find that she is unable to play tennis due to her left knee injury.
86I note that Mrs Barrett remains able to play golf but uses a golf cart.
87Mrs Barrett is no longer able to walk as far as she previously did and struggles to walk on soft sand.
Are the permanent impairment consequences “serious”?
88Mrs Barrett must establish that the permanent impairment consequences of her left knee condition are “more than significant or marked” and “at least very considerable” when compared with other cases in the range of possible impairments or losses.
89Mrs Barrett has been able to continue to work in her pre-injury role and has been promoted. This is a factor to consider but does not disentitle her to a finding that she has a “serious injury”.[13]
[13]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
90I must consider what has been lost in the context of what has been retained.[14]
[14] TTB SMS Pty Ltd v Reading [2020] VSCA 203
91Mrs Barrett experiences constant, but variable, discomfort and pain in her left knee, requiring daily medication. The pain regularly affects her sleep. The functional losses which she experiences have impacted many of her daily activities.
92Mrs Barrett has retained the ability to drive and travel. She did not depose to any restriction performing personal care activities or socialising. There is no evidence of any cognitive impairment.
93Mrs Barrett has had little in the way of treatment since 2022. No treatment is currently planned.
94Significantly, there is a likelihood that her left knee condition will deteriorate, requiring a total knee replacement in ten to twenty years.[15]
[15] Connelly v Transport Accident Commission [2024] VSCA 20
95In undertaking the value judgement required of me, I find that the impairment consequences of Mrs Barrett’s left knee injury meet the “very considerable” test. The collective effect of the various impairments which I have found, including the total loss of Mrs Barrett’s primary sports of surfing, skiing and tennis, as well as the likelihood that she will come to a total knee replacement in ten-to-twenty years, are “very considerable” consequences to her.
Conclusion
96Mrs Barrett’s application is granted.
97I will hear the parties on the issue of costs.
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