Bobadilla v Gateway Park Hotels Pty Ltd
[2009] VCC 249
•30 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-03593
| MARITES BOBADILLA | Plaintiff |
| v | |
| GATEWAY PARK HOTELS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 & 19 March 2009 |
| DATE OF JUDGMENT: | 30 March 2009 |
| CASE MAY BE CITED AS: | Bobadilla v Gateway Park Hotels Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0249 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – application under s.134AB(16B) Accident Compensation Act 1985 – serious injury in respect of pain and suffering and loss of earning capacity consequences – leave granted to plaintiff to bring proceeding for damages in respect of serious injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with | Clark Toop & Taylor Lawyers |
| Mr A Ingram | ||
| For the Defendant | Mr J Batten | Minter Ellison |
| HER HONOUR: Introduction |
1 Marites Bobadilla brings this application seeking leave pursuant to s.134AB(16B) of the Accident Compensation Act 1985 (the Act) to bring a proceeding for the recovery of damages in respect of injury to her right knee occurring in the course of her employment on 24 August 2004.
2 The plaintiff alleges that her right knee injury is a serious injury within the meaning of paragraph (a) of the definition of serious injury in s.134AB(37) of the Act. The relevant body function in which there has been impairment or loss is the right leg.
3 Ms Bobadilla commenced her employment with Gateway Park Hotels Pty Ltd as a housekeeper room attendant on 30 May 2000. She worked full-time without any restrictions on her employment until following the August 2004 incident.
4 The circumstances of the injury are set out in the plaintiff’s affidavit, sworn 4 May 2007. In summary, she walked into a lift and slipped on water or like substance that was on the lift floor suffering a twisting injury to the right knee. She felt pain but kept working (the incident).[1]The plaintiff sought treatment the following day from Dr Cheung at the Glenroy Road Clinic.
[1] Paragraph 7 affidavit of M Bobadilla sworn 4 May 2007 PCB 65 Ms Bobadilla has had two arthroscopic procedures and intensive physiotherapy. Currently she manages her pain with Tramal, Panadol and the occasional Panedeine Forte. A third operative procedure has been postulated but not explored.[2] The plaintiff continues to experience ongoing symptoms of pain and associated stiffness in the right knee.
[2] Mr C Jones DCB 27 refers to the possibility of a surgical attempt to realign the patella tracking6 Mr Jordan, SC, on behalf of the plaintiff, submitted that the Court ought to be satisfied that the plaintiff suffered injury to her right knee namely, aggravation of a degenerative condition, otherwise described as aggravation of chondromalacia patella in the right knee.
7 He submitted that there is a clear physical basis for the plaintiff’s injury and that there is no merit in the defence submission that this case concerns a “disentanglement” problem. He pointed out that the one psychiatrist who has reported in this application, namely Dr A Kaplan, says that it is likely that the plaintiff’s pain and resultant suffering is largely, if not entirely of organic origin.[3]
[3] PCB 51
8 He urged the Court to make a finding that the plaintiff has discharged her onus with respect to serious injury as defined for both pain and suffering and loss of earning capacity consequences in relation to her right knee injury.
9 Mr Batten, on behalf of the defendant, denies that the plaintiff has a serious injury as defined. The defence does not dispute - employment from May 2000; an incident occurred during the course of employment on 25 August 2004; a Workcover claim was lodged and accepted and Workcover payments were paid until about May 2006 when terminated at the 104 work stage. He submitted that the plaintiff has not discharged the onus of proof in relation to both pain and suffering and loss of earning capacity consequences.
10 Mr Batten submitted the issues in the case to be determined are firstly, the identification of the injury, secondly, the consequences of the identified injury, thirdly, the need to disentangle any non organic component and finally, an assessment of the plaintiff’s ability to undertake suitable employment.
11 Mr Batten relied primarily upon a report received from a medico-legal consultant, Mr Ian Jones, orthopaedic surgeon, who examined the plaintiff on 2 April 2008.
12 What Mr I Jones contends, and it is the primary position that the defendant adopts, is that Ms Bobadilla’s current situation relates to an underlying pre- existing condition that is, chondromalacia patella and that the plaintiff’s current symptoms arise from the effects of chronic mal-tracking of the patello-femoral joint. The defence submission is that there are no pathological effects of the incident and any acute effects following the August 2004 incident have resolved. The defendant accepts there is an ongoing pain effect but says that relates to the underlying congenital condition.
13 In the event that the Court is satisfied that the plaintiff has suffered a compensable injury that is still productive of symptoms, the defendant contends that this is a case that requires effectively a disentanglement of non- organic components.
14 Mr Batten referred to the plaintiff's presentation in court and to the opinions of Dr Kaplan, consultant psychiatrist, Mr Brearley, consultant surgeon and Mr Clive Jones, consultant orthopaedic surgeon. He submitted that there is a non-organic component which has factored into Ms Bobadilla’s post injury presentation and that the Court should be left in a mind that is unclear as to just how extensive the non-organic component is.
15 Further, Mr Batten submitted that the consequences of the compensable injury from the point of activities of daily living including acting in the capacity as a carer for her husband, albeit in the presence of pain, are not very considerable when a comparison is made in accordance with the statutory test.
16 Finally, Mr Batten submitted that the plaintiff has not exercised her residual capacity for suitable employment and that incorporates the concept of re- training and rehabilitation. The defendant, says that the plaintiff is capable of suitable light duties and denies that she is totally incapacitated. He relied upon Dr Doig, the treating orthopaedic surgeon’s report of May 2006, where he confirmed following the second arthroscopy his clinical examination showed improvement and his opinion was that the plaintiff is capable of suitable light duties.
The evidence
17 Ms Bobadilla gave evidence and was cross-examined. Each party tendered documentation in respect of Ms Bobadilla’s injury, the compensation claim, medical reports and radiological investigations. The defendant’s Court Book discloses that the plaintiff has been the subject of surveillance. No evidence of the result of these attempts at surveillance was produced by the defendant. No attack was made on the plaintiff’s credit.
18 Ms Bobadilla gave her evidence through an interpreter. The plaintiff has sworn two affidavits in support of her application dated 4 May 2007 and 17 March 2009 which she adopted as being true. Those affidavits set out the difficulties that she has suffered following the incident at work on 25 August 2004. Her evidence concerning the injury and its consequences went largely unchallenged.
19 My overall impression was that the plaintiff was a straightforward witness who did not seek to exaggerate her situation and gave responsive answers. She became teary at times and was upset in cross-examination. This is not surprising given the lack of progress and pain and stiffness that the plaintiff experiences associated with her right knee condition despite two arthroscopic procedures, extensive physiotherapy and a self managed exercise program. I am satisfied that the plaintiff is genuine.
20 I find her evidence is both reliable and truthful. I accept her evidence and in particular, her evidence concerning the nature and extent of her injury and its consequences in terms of the way in which the right knee condition interferes with her activities of daily living.
21 I further accept her evidence concerning the various attempts to return to work on a graduated basis, the difficulties she experienced attempting to undertake the modified duties that did not properly accommodate her injury and the efforts she has made in terms of retraining and rehabilitation.
22 Facts not in dispute: The plaintiff is aged forty one. She was born in the Philippines and Tagalog is her first language. Her date of birth is 16 February 1967. She married in 1991 and has a 16 year old son. The plaintiff completed four years of post primary schooling in the Philippines. She came to live in Australia with her husband in 1998. On leaving school she worked with her mother in a small village general store. She then cared for her son and did not re-enter the workforce until about 1998 when she commenced work as a relief tea lady at Vaucluse Hospital, Brunswick. She has limited skills in spoken English and poor to non-existent skills in reading and writing in English. Prior to the incident Ms Bobadilla did not suffer any symptoms or injury to her right knee. She lives in Newport in the western suburbs of Melbourne.
Chronology of treatment
23 On 24 August 2004 the plaintiff saw Dr Cheung, general practitioner who noted that the plaintiff walked with a slight limp. He diagnosed knee strain and prescribed analgesia and provided her with a certificate for four days of work. An x-ray was organised that was reported as being normal. [4]
[4] Dr A Hill’s medical report 28 June 2006 PCB 2424 Dr Hill from the same clinic took over her management on 6 September 2004 and continues to be her doctor. He noted that Ms Bobadilla had not returned to work, that she had a persistent limp and that there was reduced movement on flexion and extension of the right knee.
25 By 1 October 2004 the plaintiff’s pain was worsening despite physiotherapy and anti-inflammatory medication and she was referred to Mr Stephen Doig for an orthopaedic opinion.
26 Mr Doig first reviewed Ms Bobadilla on 4 October 2004. The plaintiff was complaining of ongoing throbbing pain in the right knee primarily medially. He examined the right knee and it was stable. There was minor medial joint line tenderness with a negative McMurray. He noted marked patellofemoral crepitus and tenderness. There was negative apprehension test. His diagnosis was of chondromalacia patella that was confirmed by MRI.
27 He concluded that the conservative treatment had not helped and recommended arthroscopy. This was performed on 7 December 2004 during which it was found that the plaintiff had moderate chondromalacia patella.
28 Mr Doig continued to review the plaintiff and arranged physiotherapy.
29 On 22 February 2005 he noted, clinically, the plaintiff had some mild wasting but had a virtual range of full movement from 0-150 degrees with little crepitus. He advised a return to work.
30 Ms Bobadilla returned to work on restricted duties two hours per day three days a week from 18 April 2005 following a five week trip back to her home country in the Philippines.
31 When reviewed by Mr Doig on 17 May 2005 following her return to work the plaintiff complained that she was having problems with stairs and with bending. He noted that the right knee was clinically stable with minimal crepitus and a good range of movement.
32 Ms Kristine Miles, physiotherapist, in an undated report to the Workcover claims agent,[5] states that she took over the responsibility for the plaintiff’s physiotherapy from a colleague on the 19 April 2005. The report details the significant problems experienced by the plaintiff following the first arthroscopy. She recorded up to 4 cm of thigh muscle wasting and significant crepitus under the patella, particularly extending the knee from a flexed position. She noted four months post operatively that the swelling from surgery had not settled.
[5] PCB 26-2933 Ms Miles worked with the plaintiff to try and build up her very weak and wasted thigh. She noted that the plaintiff struggled with work, barely tolerating one hour on her feet, yet the plaintiff persisted with 3-4 hour shifts which Ms Miles states aggravated her symptoms considerably.[6]
[6] Dr A Hill also recorded the plaintiff’s difficulties following her return to work, PCB 2434 Following the second arthroscopy the plaintiff continued to undertake physiotherapy. Ms Miles noted the plaintiff made gains but they were slow. Ms Miles commented that the plaintiff worked hard to try and build up her right leg to no avail.
35 The report of Ms Miles is very illuminating and confirms that Ms Bobadilla was highly motivated to improve her condition, that she made consistent and genuine attempts at her rehabilitation and attempts to return to work on a graduated basis performing light duties despite the obvious ongoing physical difficulties she experienced.
36 When Mr Doig reviewed the plaintiff on 6 September 2005 the plaintiff complained of still being sore and limping. She was exercising regularly, working four hours day three days a week and doing a lot of walking.
37 On 11 July 2005, Ms Bobadilla saw Mr Michael Shannon, orthopaedic surgeon, for a second opinion. He agreed the plaintiff had sustained chondral damage to the right knee along with chondromalacia of the patella. [7]
[7] Letter to Dr A Hill from mr M Shannon dated 14 July 2005, PCB 52A & 52B38 On examination, he noted the plaintiff could stand on the right leg but was unable to hop or squat. There was tenderness anteriomedially and two to three centimetres of wasting of her thigh such that she can barely straight leg raise. He considered that the right knee was stable and there was no significant effusion but there was patellofemoral crepitus. [8]
[8] PCB 52A & 52B
39 He reviewed the photographs taken at the arthroscopy performed by Mr Doig. He found that they show chondromalacia of the patella and articular cartilage loss on a fairly significant area of the medial femoral condyle. [9]
[9] PCB 52A40 Mr Shannon’s opinion was that the plaintiff sustained chondral damage to the right knee, and has ongoing problems associated with chondromalacia patella and articular cartilage loss on the medial femoral condyle.
41 In his opinion the arthroscopic chondroplasty performed by Mr Doig improved the situation, but the plaintiff’s knee was by no means normal and the most obvious feature on clinical examination was significant thigh wasting. He recommended that the plaintiff concentrate on a program of quadriceps and hamstring strengthening to build up the thigh so that the symptoms are tolerable.
42 Because of the plaintiff’s ongoing problems Mr Doig organised a repeat MRI scan that was performed on 8 September 2005. That showed some diffuse thinning in the medial patella facet. He advised the plaintiff to continue physiotherapy.
43 When reviewed by Mr Doig on 28 November 2005, he noted that the plaintiff had quite marked quadriceps wasting on the right side and still had an irritable patellofemoral joint. The plaintiff was at that stage working three days a week
44 On 24 January 2006 he recorded that the plaintiff still had an irritable patellofemoral joint. She developed some crepitus again under the right patella.
45 A repeat arthroscopy was performed on 14 March 2006 at which time Mr Doig noted some minor fraying over the superior aspect of the femoral trochlea. The operation report notes that there was one small area which may have been impinging here. This damage was cleaned up to a smoother surface. The area of the old medial femoral condyle also showed some very minor fraying that was not marked. This was resected back to a smooth surface. The joint was otherwise described as normal.
46 Mr Doig reviewed the plaintiff on 18 April 2006. She told the doctor that her condition felt different from before and her knee was still sore. He considered clinically she was still improving and he arranged for ongoing physiotherapy and advised a return to work.
47 He reviewed the plaintiff further on 16 May 2006, at which time there was moderate range of movement noted, quite marked quadriceps wasting and continuing improvement. He advised her to go back to work on light duties.
48 Mr Doig considered that the plaintiff suffered a twisting injury to the right knee at work as a result of slipping on a wet floor on or about 25 August 2004 and the mechanism of injury is consistent with this.
49 His diagnosed the plaintiff’s injury as being traumatic chondromalacia patella. He states:
“Because she’s specifically denied having any troubles with her knee before this and has now had considerable trouble with it afterwards I consider that the injury has been a significant contributing factor to her current situation and since this occurred at work then her employment was a significant contributing factor to this.”[10]
[10] PCB 22
50 He considered the plaintiff capable of suitable light duties not doing any heavy lifting, bending or twisting and or any excessive stair climbing. He did not articulate what sort of employment he would classify as suitable light duties. His opinion was that the plaintiff’s incapacity for full duties is materially contributed to by the injury.
51 In an addendum to his report Mr Doig noted a report from Dr Mutton and Dr Baker both occupational physicians who reviewed the plaintiff at the request of the defendant.
52 Dr Mutton’s expressed opinion was that the plaintiff was not doing all that well although Dr Doig thought following the second arthroscopy she was in fact slowly and steadily improving.
53 He noted Dr Baker’s opinion that she does not have a capacity for her previous light duties but certainly has the capacity for undertaking sedentary based work. He says he agrees with that. He anticipated further improvement back to a modification of her normal duties. He was uncertain as to when that would happen.[11]
54 Dr A Hill, general practitioner, in his report dated 28 June 2006, states that the plaintiff suffered an injury to the right knee involving the patella and femoral joint space as a result of the slipping incident at work and that work is a significant factor to her injury. He considered that the plaintiff had an ongoing incapacity as a result of the injury and that she was not fit for her pre-injury duties as a room attendant. [12]
[11] PCB 23 [12] PCB 25
55 In his second report of 18 March 2009 Dr Hill confirmed that the plaintiff has continued to consult him on a regular basis without any significant improvement. He noted the various attempts to return to work on limited hours and duties and confirmed the plaintiff was unable to sustain her return to work. He confirmed continuing complaints of pain in the right knee particularly when walking for several hundred metres. He confirmed wasting of the right quadriceps and difficulty kneeling and flexing the knee due to intense stiffness and pain.[13]
[13] PCB 25A56 He considers that Mrs Bobadilla has persisting injury to the right knee following the incident at work. He stated that the plaintiff’s prognosis remained guarded although he considered the knee may improve over the course of the next year.
Medico legal opinions
57 Mr Kenneth Brearley, surgeon, was asked by the plaintiff’s solicitors to review the plaintiff for medico-legal purposes. He did so on 24 November 2006 and 21 November 2008.
58 He diagnosed Ms Bobadilla’s injury as chondromalacia of the patellofemoral compartment of the right knee joint moderate to severe grade. He confirmed that there was radiological evidence of mild maltracking of the patella which is a congenital condition. He states that the maltracking of the patella has not been caused by the chondromalacia and prior to the fall at work the plaintiff had not suffered from any symptoms at all of this maltracking and it is not responsible for her ongoing symptoms. [14]
[14] PCB 3359 His opinion is that the chondromalacia patella is responsible for her ongoing pain and particularly, measurable wasting of the thigh musculature (measuring 45.5cms in circumference at a point 10cms above the upper pole of the right patella compared with 47.5cms at an equivalent point on the left side). He described the wasting as “quite considerable”.
60 He considered the plaintiff’s condition to be permanent in that it will last for the foreseeable future and that there is no likelihood of any improvement because there is marked damage to the patellofemoral articular surfaces.
61 In his report dated 21 November 2008 Mr Brearley states that there had been no improvement of the right knee condition since the last review. He noted very marked crepitus from movement. Investigations have shown well-marked articular cartilage thinning in the knee indicative of ongoing damage. In his opinion it is likely that she will now have full thickness chondral loss in the patellofemoral compartment as a result of the chondromalacia. [15]
[15] PCB 38 16 DCB 27
62 He opined the degenerative articular cartilage changes throughout the right knee have worsened with consequent increase in her symptoms and disability and there is marked crepitus on flexion of the right knee joint indicative of such degenerative change in the patellofemoral compartment of the knee.
63 He confirmed that the plaintiff has constant pain in the right knee and an inability to stand or walk for long distances. She is unable to bend without considerable pain and cannot squat or crouch. She is unable to run and walks with a distinct limp. He does not consider she has a capacity for pre-injury employment or even light cleaning for this would involve standing and walking.
64 The defendant’s medical material insofar as the nature of the injury and the cause of the plaintiff’s problem includes a report from Mr Clive Jones, orthopaedic surgeon, who reviewed the plaintiff on 18 July 2007.
65 He diagnosed patella chondromalacia and says that the underlying cause of that problem is patella maltracking which is a developmental condition. He considers that the plaintiff’s problem clearly pre-existed prior to the fall and that the fall appears to have caused some aggravation of this underlying condition. He considers the patellofemoral joint is abnormal and will remain so and ongoing symptoms can be expected. 16
66 He opined that there is no doubt that the plaintiff has anterior knee pain that is typically increased by activity such as kneeling, squatting and stair climbing and she is definitely restricted in her capacity to perform domestic and leisure activities and activities of daily living such as walking, kneeling, squatting and standing.
67 He was asked to comment on Mr Brearley’s opinion that the maltracking of the plaintiff’s patella is a congenital condition that is not contributing to her symptoms. He states Mr Brearley’s view is correct. Quite frequently patella maltracking does not produce symptoms until well-developed arthritis is present. The plaintiff’s condition appears to be an aggravation of pre-existing asymptomatic congenital condition on which minor degenerative changes are imposed[17].
[17] DCB 2868 Mr Clive Jones acknowledged that the work the plaintiff performed as a room attendant involved considerable physical activities such as making beds, vacuuming, cleaning bathrooms and toilets and that her knee problem would make it difficult for her to undertake relatively demanding work of this nature. He states “clearly she will have ongoing problems and her incapacity is permanent”.
69 He considered that her work capacity is reduced. The plaintiff is Filipino, speaks reasonable English and has no ability to read or write English and no acquaintance with any sedentary occupation. He stated “theoretically she would be capable of performing sedentary work on a full-basis”. He did not consider there to be any major evidence of clinical depression. He acknowledged impairment may be functional but thought it was probably minor. [18]
[18] DCB 2970 Dr Mary Wyatt, occupational physician, reviewed the plaintiff on 12 March 2008. She confirmed a diagnosis of chondromalacia patella and the clinical findings suggested a mild to moderate continued problem. Dr Wyatt noted that the plaintiff had no symptoms in the left knee.
71 She agreed that there was evidence of maltracking shown in the CT scan and that it is likely this has predisposed Ms Bobadilla to the problem and the fall at work sparked the problem.
72 Dr Wyatt confirmed this condition typically causes problems with tasks that require bending of the knee. Activities such as kneeling or squatting, sitting with the knees in a hyperflexed position, or activities such as running will often stir the symptoms.[19]
[19] DCB 3273 There are some medical reports from doctors who saw the plaintiff in the early stages following the injury.
74 Dr John Lange, occupational physician, saw the plaintiff on 6 April 2005 and on 22 June 2005. His findings are somewhat limited due to the fact he did not see the plaintiff following the second arthroscopic procedure.
75 Dr Lange noted the twisting injury to the right knee with a sudden onset of right knee pain. MRI findings reveal chondral damage to the patella. He did not have the results of arthroscopy. His provisional diagnosis on the basis of the MRI was chondral lesion to the patella. He noted that the plaintiff stated that her condition improved slightly since the 7 December 2005 arthroscopy. She still had chronic pain in the right knee over the medial aspect of the joint especially on ascending and descending stairs. He considered that the plaintiff was capable of undertaking light work.[20]
[20] DCB 4 & 576 At the second review the plaintiff stated she was experiencing difficulties working three hours, three days per week. Clinically he thought the plaintiff’s condition had improved and he recommended an increase in her hours with restrictions: no repeated squatting, no climbing stairs and 10 minute rest breaks after two hours of work.[21]
[21] DCB 877 Dr Philip Mutton, occupational physician, reviewed the plaintiff on 22 May 2005 prior to the second arthroscopy. He reviewed the MRI’s and confirmed that the investigations revealed evidence of diffuse chondral loss particularly on the patella but no significant meniscal or ligamentous injury.
78 From a clinical point of view he stated that the plaintiff appeared to be significantly affected by pain in the right knee with reduced range of movement and quite marked crepitus and slight disorder of gait.
79 His opinion was that it was likely the plaintiff sustained an aggravation of degenerative changes in the right knee following the incident at work and that she may have sustained a low grade tear of the medial meniscus. He considered that the plaintiff did not have capacity for pre-injury employment. The plaintiff’s prognosis was poor given the plaintiff appeared not to have made significant progress following surgery undertaken in December 2005.[22]
[22] DCB 1380 Dr Chris Baker, occupational physician, reviewed the plaintiff on 1 May 2006. He confirmed that the plaintiff was suffering from a patellofemoral syndrome of the right knee. He also postulated that there was some degree of adjustment disorder with symptoms of anxiety and depression amplifying her symptoms. He considered that the plaintiff was unfit for her pre-injury duties or even restricted duties. He recommended sedentary duties, such as repairs of hotel linen and uniforms.[23]
[23] DCB 22 24 DCB 24
81 In a supplementary report dated 2 June 2006 Dr Baker agreed that the plaintiff could work as a ticket collector, car park attendant, console operator and light assembly work provided she could sit behind a counter and did not have to undertake other activities. He did not clinically examine the plaintiff prior to the provision of this report.24
82 Mr Ian Jones’ opinion is that the plaintiff has a constitutional problem namely, maltracking of the patella in the femoral groove, which both clinically and on CT scan is more pronounced on the right side. He found that Ms Bobadilla has bilateral patellofemoral wear that is more pronounced symptomatically and clinically in the right knee. He believes maltracking of the patella in the right knee has been the cause of her chondromalacia patella. [25]
[25] DCB 3883 Whilst Mr Ian Jones is prepared to accept that Ms Bobadilla may have suffered a twisting injury to the right knee in the incident described on 25 August 2004 he states that this did not cause her right knee condition. There was no history of direct blow to the knee.
84 Although the incident may have aggravated her patellofemoral wear (which he believed would have been quite advanced at the time of her incident) he believed the effects of the injury would have resolved within a few weeks. He is the only medical examiner to express this opinion. All the other medical experts who comment on this aspect accept that the work injury is a significant contributing factor to her current presentation.[26]
[26] Mr S Doig, PCB 22; Dr A Hill PCB 25;Mr K Brearley PCB 33; Dr J Lange DCB 5; Dr M Wyatt DCB 33;85 Mr I Jones believed the current symptoms in the right knee now no longer relate to the injury described by the plaintiff but result from the effects of the chronic maltracking of the patellofemoral joint. He acknowledged that the plaintiff has a similar condition on the left side which, as yet, is not as severe and not as systematic.
86 Relying on that opinion, Mr Batten urged the court to make a finding that the plaintiff’s current symptoms result from the effects of the chronic maltracking of the patellofemoral joint and that any effects following the fall at work on 25 August 2004 have now ceased.
87 I reject Mr Batten’s submission that the plaintiff’s condition is congenital in origin and at best the effects of the incident at work were only temporary in nature and have resolved.
88 The weight of medical opinion supports the finding that as a consequence of the twisting incident that occurred in the course of the plaintiff’s employment as a room attendant in August 2004 the plaintiff sustained injury to her right knee being articular cartilage loss on the medial femoral condyle and aggravation of her underlying chondromalacia patella condition.
89 I am further satisfied that the plaintiff did not exhibit any symptoms in the right knee prior to the incident at work and that the incident caused her underlying condition to become symptomatic. Her left knee exhibits no symptoms.
90 I reject the opinion of Mr Ian Jones in the light of the expressed opinions of the other consultants whose opinions I have already referred to.
91 I am satisfied that the plaintiff has demonstrable problems with pain, disability and stiffness in the right knee and there is an objective clinical sign of her ongoing condition, namely, the considerable wasting of the right thigh.
92 In the event that the Court makes a finding the plaintiff has suffered injury Mr Batten urged the court to make a finding that the pain that has manifested itself following the incident is a result of the plaintiff having psychological problems and cannot be attributed to a physical cause. He referred to a “disentanglement” problem.
93 I accept Mr Jordan’s submission that there is no merit in the defence submission that this case concerns a disentanglement problem. He pointed out that the one psychiatrist who has reported in this application, namely Dr A Kaplan says that it is likely that the plaintiff’s pain and resultant suffering is largely, if not entirely, of organic origin.[27]
[27] PCB 51
94 I am satisfied, to use the words of Redlich JA in Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, that:
“The medical evidence has sufficiently identified the physical
consequences of the injury for the plaintiff.”
95 On balance, I am satisfied that there is a clear physical cause for the plaintiff’s injury and the consequences of that result in impairment to the right knee. I accept the physical consequences are as outlined by the plaintiff and the various doctor’s reports.
96 I have had regard to the plaintiff’s evidence regarding the difficulties in relation to her right knee condition that she has experienced following the incident. I accept her evidence in respect of the nature of the injury suffered and the effects of the injury. Ms Bobadilla has, since 25 August 2004, suffered considerable pain in the right knee notwithstanding two arthroscopies and extensive physiotherapy and her own personal self-directed exercise program. She is unable to run, is limited in the amount of walking she can do, kneeling and squatting are difficult. She has difficulty on stairs, dealing with the heavier aspects of her housework, cannot do gardening, no longer able to go dancing and fishing.
97 I am further satisfied that those consequences meet the statutory requirement of serious injury.
98 In summary, the pain and suffering consequences of the plaintiff’s impairment or loss or body function of her right knee when judged by comparison with other cases in the range of possible impairments or losses of body function could fairly be described as being more than significant or marked and as being at least very considerable.
99 I am satisfied that the impairment to the right knee or loss of body function of the right knee is permanent in the sense that it is likely to last into the foreseeable future.
Loss of earning capacity
100 I am also satisfied that the plaintiff has discharged the burden of proof in this regard both in relation to the very considerable test and in relation to the additional stringent tests contained in s.134AB(38)(e)-(g).
101 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving a relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability. I am satisfied the plaintiff has satisfied this onus.
102 The documentation reveals that following the first arthroscopy there were a series of assessments and return to work plans devised following assessments by Drs Mutton, Baker and Wyatt. The plaintiff also underwent assessment by Yasar Battal, Carfi Psychological and Rehabilitation Services who facilitated a graduated return to work with the defendant.
103 It is evident from the material that the plaintiff did return to work on light duties working three days per week four hours per shift. On 2 May 2005 her hours of working were reduced to nine hours per week because she continued to have pain and restricted movement in the knee.
104 On 13 July 2005 the plaintiff left for her home country in the Philippines and returned to Australia on 4 September 2005. On 5 September 2005 she consulted her treating doctor and was cleared to return to work on modified duties working 12 hours per week. She continued to have pain in her knee and was unable to increase the hours of working. On 27 October 2005 she was cleared to increase her working hours to five hours per day three days per week.
105 On 4 November 2005 the plaintiff’s treating physiotherapist, Ms Miles, contacted the occupational rehabilitation provider and advised that the plaintiff has barely tolerated being on her feet for greater than one hour at a time and was struggling with her current duties. She recommended sedentary duties be explored and incorporated into a return to work plan.
106 The occupational rehabilitation provider was advised on 9 November 2005 that the defendant, was unable to provide sedentary duties given the plaintiff’s limited English communication skills and lack of sedentary duties available.[28]
[28] DCB52
107 The week commencing 14 November 2005 the plaintiff’s hours of work were increased to 18 hours per week. She consulted her treating doctor and the hours were reduced to five hours a day five days a week.
108 On 8 December 2005 Dr Mutton, consultant occupational physician, indicated the plaintiff did not have a capacity for pre-injury employment or the current alternative duties she was performing and he recommended she be restricted largely to sedentary work.[29] The defendant was unable to provide such.
[29] DCB54
109 In evidence the plaintiff stated that she did return to work. She was supposed to be on light duties but she found that her duties were not light and that she had difficulty in performing the duties. She last worked in February 2006.
110 It was recommended, in February 2006, that the plaintiff would be provided with job seeking assistance to seek suitable employment with an alternative employer.[30]
[30] DCB55
111 Following the cessation of employment the plaintiff attended for a WorkStreams Vocational Assessment on 31 March 2006. At that time she was still recovering from a second arthroscopic procedure that was performed on 14 March 2006. The purpose of assessment was to review her current capacity for employment and to determine several employment options. She was currently certified unfit for all work due to surgery by her treating doctor, Dr Hill.
112 The author, Samantha Tweedale, noted the educational history, that is, that Ms Bobadilla completed her education in the Philippines, finishing high school at the age of 16. In evidence, the plaintiff clarified that she completed only four years of schooling post-primary school. She had difficulty at school and barely passed primary school.
113 The plaintiff reported to Ms Tweedale that she could speak and understand English relatively well but struggled with reading and writing. She reported she attended a secretarial college in the Philippines for three years. In her evidence, the plaintiff clarified that she undertook these courses but failed twice and did not achieve a pass in that area and never sought or obtained employment in that area. The only employment she had in the Philippines was assisting her mother who ran the village shop.
114 Ms Bobadilla came to Australia in 1998. She had some limited employment working as a relief tea lady at the Vaucluse Hospital. In her evidence, she stated that she obtained that employment through friends, that she was filling in for somebody who had taken leave and that it was relatively light work for a few hours per week. Thereafter she had some factory work and finally she obtained employment at the Gateway Park Hotel on 30 May 2000.
115 At that time the assessor noted that she was highly motivated to return to work with her pre-injury employer, however, the plaintiff was fearful that her pre-injury role was unsuitable for her and this limited her alternative work.[31] The assessor noted that she had a low level of English speaking, reading and writing skills and limited varied working experience.
[31] DCB78
116 The assessor considered redeployment options as suitable alternative employment being cleaning supervisor, ticket collector/usher, console operator, assembly worker and package container filler. It was recommended that an English retraining course would greatly assist in the plaintiff’s redeployment.
117 Whilst I accept that the plaintiff may be able to perform some aspects of the positions suggested, given that the plaintiff has difficulty walking and standing for any length of time, the physical demands of a cleaning supervisor, ticket collector/usher, console operator, assembly worker would be such that they would not be suitable employment.
118 In relation to package container filler and assembly worker positions because sitting and standing for any length of time aggravates the plaintiff’s right knee condition I am not satisfied that these positions are suitable employment options. To suggest otherwise would be seek to artificially create a role for the plaintiff’s to fit her limited capacities and not to consider the reality of the all the necessary requirements of the suggested positions.
119 In addition to the vocational assessment the plaintiff co-operated with the WorkCover provider to attend Jobseeker Plan Assessment on 12 June 2006.
120 Ms Pavlidis, vocational adviser, stated the plaintiff agreed to participate in occupational rehabilitation on her doctor’s approval. Ms Pavlidis noted that she had a low level of English speaking, reading and writing skills, limited varied work experience and that the possibility of her securing employment was low due to her return to work perspective and reported restrictions due to her injury.[32]
[32] DCB 98121 Finally, the defendant sought to rely upon a vocational assessment report prepared Mr Greg Bishop of Ayres Management Services. [33] Mr Bishop had not interviewed the plaintiff so his report relied on written material only.
[33] DCB 103-112122 It is important in order to form a proper professional assessment of the plaintiff’s vocational skills that an interview takes place to determine the plaintiff’s level of English communication and comprehension and her level of reading/writing/numeracy and other skills. It would therefore not be appropriate for the court to act upon this report and I reject it accordingly.
123 I do not accept that the fact that the plaintiff is currently receiving a carer’s pension to care for her husband translates into an ability to be able to perform work as a carer in a commercial sense. The plaintiff’s evidence was that she assists her husband to shower and dress each day and prepares his meals and does the household shopping.
124 I reject the defence submission that the plaintiff has not realised her residual earning capacity. At home, she is not subject to any time constraints and can care for her husband at her leisure. The physical consequences of her injury would in any event prevent her from undertaking that role.
125 I further reject the defence suggestion that the plaintiff was not motivated to return to work given her various attempts to return to work with the defendant. She was asked in cross- examination whether she sought further work with the defendant following the second arthroscopic procedure.
126 It is evident that the defendant was not able to provide suitable duties and therefore the fact that Ms Bobadilla did not seek further placement with the company is reasonable.
127 I have had regard to the plaintiff’s own unsuccessful efforts at obtaining suitable employment through her friends.
128 I have had regard to the plaintiff’s own efforts in relation to retraining. In addition to attending the WorkStreams and the WorkCover assessor for her vocational assessments she has also attended the Commonwealth Rehabilitation Services (CRS).
129 CRS assisted her in compiling a resume. The plaintiff has made enquiries through CRS insofar as an English course is concerned.
130 I consider that she has made all reasonable efforts to undertake rehabilitation and retraining.
131 Having regard to all those factors, combined with her pain and restriction levels from which she suffers due to the compensable injury, I find that the plaintiff has no capacity for suitable employment.
132 It is agreed that the plaintiff’s pre-injury without injury earnings are $520 per week gross. I am not satisfied that the plaintiff has a current work capacity for suitable duties within the meaning of s.5 of the Act and consider that her after injury earnings are nil.
133 I am satisfied that she has discharged the burden pursuant to s.134AB(19)(b) and that she thereby has satisfied the statutory tests including the other binding tests set out in s.134AB(38)(e)-(g).
134 When the requisite comparison is made with other cases in the range of possible impairments and losses of a body function is made, the loss of earning capacity consequences may be described as being more than significant or marked and as being at least very considerable.
135 The plaintiff has discharged the burden of proof in relation to injury to her right knee in respect to both pain and suffering consequences and pecuniary loss consequences.
136 Leave is granted to bring proceedings for recovery of damages accordingly.
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