Bonetti v TAD Pty Ltd
[2020] VCC 104
•21 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-01967
| JOHN BONETTI | Plaintiff |
| v | |
| TAD PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 February 2020 | |
DATE OF JUDGMENT: | 21 February 2020 | |
CASE MAY BE CITED AS: | Bonetti v TAD Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 104 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application.
Catchwords: Serious injury application – pain and suffering and loss of earning capacity – paragraph (a) of definition of serious injury – whether injury occurred in one or more discrete incidents or in course of employment – plaintiff disabled from performing pre-injury duties – whether alternative suitable employment available – whether prospect of pain management course affects permanence of disability.
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013.
Cases Cited:Lu v Mediterranean Shoes Pty Ltd [2000] VSC 65; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; De Agostino v Leatch [2011] VSCA 249; RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386; Guppy v VWA [2010] VSCA 164; Altona Bus Lines v Lococo [2002] VSCA 159; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
Judgment: Leave granted to bring a damages claim with respect to pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W. R. Middleton QC with Mr B. Hill | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Ms C. A. Kusiak | Hall & Wilcox Lawyers |
HIS HONOUR:
Background
1 Mr Bonetti was born in 1963 and completed Year 10 at Williamstown Technical College. He undertook an apprenticeship at the Williamstown Naval Dockyard, working there for some years afterwards. Later, he worked performing steel fabrication work at the Laverton North Steel Mill operated by the company now known as “One Steel Limited”. He was employed by the defendant, TAD Pty Ltd, and he was working as a boilermaker. (Plaintiff’s Court Book (“PCB”) 14-15, paragraph 1.
2 Mr Bonetti’s work in 2013 entailed daily use of a scissor lift “and work up to approximately 15 metres”. According to Mr Bonetti, “The scissor lift is very difficult to get into and out of. The gate mechanism requires you to crawl in and out of the work platform”. (PCB 15, paragraph 2)
3 On 22 March 2013, he was using the scissor lift to “carry out repair works on the ventilation system” at the complex. He said that he felt increasing pain in his left knee as he was getting into and out of the lift. He reported the problem but was able to continue working, but his knee “slowly got worse”. (Ibid)
4 Mr Bonetti lodged a claim with his WorkCover insurer nominating 22 March 2013 as the day in which he suffered an injury. The incident was described as follows, “climbing ladders at work and getting into and out of scizzor [sic] lifts”. (PCB 155)
5 The employer’s representative provided a report to the insurer accepting as correct the description of injury and accepting that Mr Bonetti had suffered a work-related injury. (PCB 158)
6 Mr Bonetti had had a prior history of left knee pain. He attended Dr Ailina Ismail at the Hampstead Drive Medical Centre in Hoppers Crossing on 13 November 2012, complaining of “left knee pain, climbing ladder often tender over lateral compartment and post compartment”. The doctor took a history that Mr Bonetti “works climbing up and down ladders”. (Exhibit 4)
7 Following the incident reported as having occurred in March 2013, Mr Bonetti attended Dr Donald Fraser at the Hampstead Drive Medical Centre on 8 April 2013. The clinical notes refer to the attendance in 2012 and record “symptoms initially improved but have relapsed with climbing stairs, ladders at work and getting into and out of scissor lifts”. The notes record treatment by chiropractor, Peter Portelli, with acupuncture and Epsom salts.
8 Dr Fraser referred Mr Bonetti for specialist treatment to Ms Anita Boecksteiner. (Exhibit 1) Ms Boecksteiner, an orthopaedic surgeon, carried out arthroscopies in September 2013 and again in May 2014. Mr Bonetti says he was “off work” for several weeks following each arthroscopy. (PCB 15, paragraph 3)
9 The following year, on 12 February, Mr Bonetti was tasked to carry out work on an extraction fan being part of the plant’s ventilation system. He said:
“This involved me climbing up and down about 80 stairs [scil steps] with tools and a welder … the employer gave me no choice and by about 9 o’clock when I came down for smoko my knee was so painful I knew I wouldn’t be able to go back up.” (PCB 15, paragraph 4)
10 Mr Bonetti lodged another claim under the WorkCover scheme, describing his injury as “left knee, tear in cartlage [sic]”. (PCB 159) He described the circumstances of his injury as follows, “returned to work after previous scrapping [scil scraping] of left knee, climbing up stairs aggravated more. Caring [scil carrying] heavy tools as well.” This event was said to have occurred on 12 February 2014. (Ibid) Mr Bonetti says he was “put on restricted duties and then … made redundant”. (PCB 16, paragraph 4)
11 Ms Boecksteiner carried out the second arthroscopy on 15 May 2014. (PCB 28)
12 Mr Bonetti then obtained further employment with a company known as “Engineering Direction”, where he worked for some seven months undertaking welding and steel fabrication. This company he said “ran out of work”. He was then employed by an organisation known as “Andy Anderson”, carrying out industrial cleaning.
13 As at the date of an affidavit he swore on 15 December 2015, he said “I am working full-time cleaning factories and am able to cope with the work …”. (PCB 16, paragraph 5) At that time, he said he required weekly physiotherapy “to keep the mobility up”, and took Panadol Osteo weekly but had not seen his doctor in recent months. (Ibid, paragraph 6)
14 As at December 2015, he said he could “drive certainly locally and, perhaps up to an hour but then the knee will become painful. Kneeling, squatting, bending and walking up and down stairs is now very difficult and I have to avoid that as much as possible.” (PCB 16, paragraph 7) His previous interest in gardening was by then restricted to “light gardening”. His ability to carry out maintenance around his residence was also restricted. (Ibid)
15 Previously, he had been able to go on long walks with his dog for perhaps 40-50 minutes, but by then he could “do only 10 to 15 minutes and have to stop”. (PCB 17, paragraph 7)
16 In anticipation of this hearing, Mr Bonetti swore a supplementary affidavit on 8 January this year. He said “Unfortunately, my left knee has not improved and in fact, has gotten worse.” (PCB 18, paragraph 1) As to his work with Andy Anderson, he said “I lasted there until September 2016”. (Ibid, paragraph 2)
17 On 12 September 2016, having sought a second opinion on his knee problem, he was referred to orthopaedic surgeon, Mr Russell Miller, who performed “an arthroscopic clean-up” of his left knee on 12 September 2016 and provided a replacement for his left knee in an operation carried out on 21 March 2017. (Ibid, paragraph 4)
18 Mr Miller carried out a further operation to remove scar tissue on 10 October 2018. (PCB 19, paragraph 4) He also had a nerve block performed by Dr Symon McCallum a pain physician, who proposed a further surgical procedure “to insert some type of pain modulator”, which procedure Mr Bonetti declined. (Ibid, paragraph 5)
19 Mr Bonetti attended a few sessions with psychologist, Vicky Palmer, in 2019. He continued to attend the clinic “hoppersphysio” for physiotherapy and massage “about twice a week”. He also undertook hydrotherapy at the aquatic centre in Hoppers Crossing weekly. (Ibid, paragraph 8)
20 As to current medication, he said that he took one 5 milligram Endone “as needed for pain”, which in practice meant once or twice a week, and four Nurofen tablets “most days”. He also took Nexium for indigestion and Tixol, 30 milligrams, for depression. (Ibid, paragraph 9)
21 WorkSafe has approved funding for a pain management course which would involve physiotherapy, psychology and medication. (Ibid, paragraph 10)
22 According to his senior counsel, he has not proceeded with the course because “he was having physiotherapy at Hoppers Crossing and they wanted to divert him from Hoppers Crossing/Werribee to Essendon or Frankston”, which was unsatisfactory for Mr Bonetti. (Transcript (“T”) 6, Lines (“L”) 18-22.
23 Mr Bonetti claims that he is restricted in the length of time for which he can walk and where he can walk, finding pain and difficulty walking uphill or downhill and being limited to 10-15 minutes before a rest is required. (PCB 19, paragraph 14) He said that he has difficulty entering and exiting his car. He suffers discomfort and pain when he sits down with his leg flexed. He tries to keep his left leg elevated when he sits. Even then, he has to move it to gain a comfortable position. (Ibid, paragraphs 16-17) His sleep is disturbed by left knee pain. (Ibid, paragraph 21). His ability to squat is limited and he had to give up 10-pin bowling. (Ibid, paragraphs 22-23) His knee “can give way if I turn to my left too quickly”. (Ibid, paragraph 24) He is subject to shooting pains. (Ibid, paragraph 25) He has had to give up snorkelling and swimming because the kicking element “causes me pain”. (Ibid, paragraph 26) His social life, which previously centred around his old football club, has been greatly restricted. (Ibid, paragraph 27) Mr Bonetti says he is in constant pain, which leaves him depressed. (PCB 21, paragraph 28)
24 Solicitors acting for Mr Bonetti commenced this proceeding in 2016. They filed an Amended Originating Motion dated 27 July 2018, seeking leave to bring a damages claim pursuant to s134AB of the Accident Compensation Act 1985. In the latest version of the Statement of Claim filed 9 September 2019, he seeks damages relative to two injuries said to have been suffered on 22 March 2013 (described as the first accident) and 12 February 2014 (described as the second accident).
25 There is also a claim for injury arising out of the general course of employment as a result of Mr Bonetti being “required to carry out heavy, repetitive and awkward lifting and walking in the course of his employment”.
26 According to his Particulars of Injury filed as long ago as 15 September 2016, Mr Bonetti claims to have suffered a serious injury based upon injury to his left knee and aggravation of osteoarthritis in that knee. He relied upon paragraph (a) of the definition of serious injury, being “permanent serious impairment or loss of a body function”.
Expert opinions
27 Treating orthopaedic surgeon, Ms Boecksteiner, provided a report by way of letter dated 28 April 2014 to the WorkCover insurer. She noted that as at that time Mr Bonetti had been made redundant “but even at home now the locking symptoms he is reporting more and more frequently”. She recommended that the second arthroscopy be carried at Essendon Hospital on 15 May that year. (PCB 34-35)
28 Dr Donald Fraser, one of Mr Bonetti’s treating general practitioners at Hampstead Drive Medical Centre, provided a report by way of letter dated 30 March 2015 addressed to “Sir/Madam”. The doctor said that Mr Bonetti had been “diagnosed with traumatic cartilage damage to patellofemoral joint” which had been confirmed by arthroscopy. He noted that Mr Bonetti’s “work as a boilermaker requires crouching, crawling and squatting, getting in and out of scissor lifts which would be consistent with his injuries”. The doctor noted that, as at that time, Mr Bonetti’s most recent attendance was on 13 June 2014, that is some nine months previously. (PCB 36).
29 Treating orthopaedic surgeon, Mr Russell Miller, provided a report by way of letter dated 3 August 2018 to the Accident Compensation Conciliation Service. He reported carrying out surgery on Mr Bonetti on 12 September 2016 “in the form of arthroscopic debridement of the left knee”. He said this procedure “revealed severe disease in the knee involving the medial compartment with areas of exposed bone. There was extensive disease in the patello-femoral joint.” (PCB 38)
30 Mr Miller reported carrying out further reviews and ultimately further surgery, entailing a total knee replacement on 21 March 217 carried out by Mr Miller at Western Private Hospital. He said he found “severe disease”. He referred to “ongoing problems with ache, discomfort and pain in the knee and problems with stiffness in the knee. [Mr Bonetti] underwent a number of investigations which revealed no evidence of infection.” (PCB 39)
31 Mr Miller reported on further surgery at Freemasons Hospital on 21 December 2017 “with arthroscopic arthrolysis”, which he said led to an increased range of motion 5/120 degrees and “There was significant improvement following that”. (Ibid)
32 Mr Miller referred to a further review carried on 1 August 2018, at which Mr Bonetti reported “ongoing problems with his left knee with ache and discomfort in the knee. He had developed a reduced range of motion and recurrence of the arthrofibrosis”. (Ibid)
33 Mr Miller concluded “This man has had complex problems with his left knee for which he has undergone a left total knee replacement this has been complicated by arthrofibrosis.” Mr Miller advocated further surgery. (Ibid)
34 As to prognosis, Mr Miller said “This man will not be fit to return to work for the foreseeable future and I do not anticipate a return to work for at least approximately four months.” (PCB 40)
35 Mr Miller provided a further report dated 18 June 2019 addressed to Mr Bonetti’s solicitors. Having reviewed the history and provided details of earlier surgical interventions, Mr Miller said that Mr Bonetti:
“underwent further surgery on 10/10/2018. The knee was manipulated under anaesthesia. The range of motion was again increased. The post-operative range was flexion 5-120°. Arthroscopy revealed a small clear effusion in the knee. There was mild synovitis and mild arthrofibrosis. Arthroscopic synovectomy and arthroscopic arthrolysis was performed. The culture results were all negative.” (PCB 44)
36 On review on 7 March 2019, Mr Miller said Mr Bonetti:
“had ongoing ache and discomfort in the knee. There has been improvement in the range of motion with range of motion being flexion 0-100°. The wounds were well healed. There was no swelling or oedema.” (Ibid)
37 Mr Miller recommended review by a pain management specialist, observing “I did not think the client would be fit to return to physical work for the foreseeable future”. (Ibid)
38 As to his future capacity for work, Mr Miller said:
“This man has ongoing problems with the left knee. He will have difficulty with work that involves, prolonged standing, prolonged walking, twisting, turning, kneeling and squatting. He could not return to work as a cleaner and a return to work will be difficult to achieve in this case.” (PCB 45)
39 As to further treatment, Mr Miller advocated “ongoing conservative treatment including analgesics, anti-inflammatory agents, physiotherapy, hydrotherapy and possible gymnasium program”, as well as “ongoing pain management”. (Ibid)
40 Pain physician, Dr Symon McCallum, reported to treating general practitioner, Dr Ailina Ismail, by letter dated 4 February 2019. The doctor referred briefly to Mr Bonetti’s history and observed:
“It hurts when he bends his knee more than 90°. He sits for 10-15 minutes and has to stand. It wakes him up in his sleep. Every 20 steps he has to sit.” (PCB 48)
41 As to Mr Bonetti’s “Psychosocial status”, the doctor observed:
“He is frustrated. He has got a history of depression. He is upset about the future. He is tired frequently and he is anxious about the future. He denies suicidal thoughts and panic attacks. He has not had any traumatic events in the past.” (PCB 49)
42 Dr McCallum provided a number of recommendations including Mr Bonetti giving up smoking and having a nerve block of the knee. He suggested a limit on the use of Voltaren and said “He is possibly a candidate for a multidisciplinary pain rehab program”. This is presumably a description of the program which has been approved for funding but not yet carried into effect referred to above. (Ibid)
43 Dr McCallum provided a further report, presumably for medico-legal purposes, to Mr Bonetti’s solicitors by letter dated 22 September 2019. In answer to specific questions, Dr McCallum said:
“At this stage, we will take a biopsychosocial approach to Mr Bonetti’s condition. His level of function is very poor as is his mood. He is going to be deconditioned. I do not think he will be able to do any job in a reliable manner due to his poor sleep, poor mood, poor level of function and pain.
I think this incapacity is likely to last for the foreseeable future. I believe he currently has no current work capacity.” (PCB 54)
44 Orthopaedic surgeon, Mr Thomas Kossmann, carried out a review and assessment of Mr Bonetti for medico-legal purposes, reporting to his solicitors in a letter dated 15 June 2015. As at that date, Mr Bonetti told the surgeon:
“that his symptoms had improved and since October 2014 they had stabilised. He is not reliant on any ongoing analgesia.
… He denied symptoms of locking, giving way, or clicking. He has had difficulty with stairs, in particular ascending stairs and he has difficulty walking on uneven ground. He is able to kneel and squat.” (PCB 56)
45 Mr Kossmann observed nevertheless:
“Mr Bonetti’s prognosis regarding his left knee is poor. The natural history of degenerative osteoarthritis of the knee is often progressive in nature. He will require further treatment with pain medication, anti-inflammatories, physiotherapy and hydrotherapy. However ultimately he will require surgical intervention in form of a total knee replacement in the near future.” (PCB 58)
46 According to Mr Kossmann, in the two incidents of 22 March 2013 and 12 February 2014, “Mr Bonetti suffered a symptomatic aggravation of left knee degenerative osteoarthritis”. (Ibid)
47 According to Mr Kossmann:
“Mr Bonetti should avoid manual work of a repetitive heavy nature necessitating prolonged weight bearing and repetitive kneeling. He is also not able to walk long distance, uneven ground, up-downstairs, climbing ladders and squatting. This limitation will persist for the foreseeable future.” (Ibid)
48 Mr Kossmann said “Mr Bonetti does not have the capacity to perform his pre-injury duties, which necessitated repetitive kneeling. This incapacity will persist for the foreseeable future.” (Ibid)
49 Mr Kossmann provided a further assessment and report by letter dated 1 December 2018, reporting on his examination carried out that day. As to his present complaints, Mr Kossmann reported:
“Mr Bonetti complained of persistent left knee pain. He can only sit for a short period of time with his knee in a flexed position. He can sit in a car for only 15 to 30 minutes before he has to stop and stretch his left knee. He can only walk short distances. He suffers from locking symptoms in his left knee in the morning when he is getting up. He complained of swelling of his left knee. He has had difficulty with stairs. He has difficulty walking on uneven ground. He is not able to kneel and squat. He has no back pain.” (PCB 62)
50 On this occasion, Mr Kossmann regarded the prognosis for Mr Bonetti’s left knee as “unclear”. He said:
“Mr Bonetti has no work capacity at present. He should avoid walking long distances, on uneven ground, up and down stairs, on inclines and declines, kneeling, squatting and lifting of heavy items of more than 5kg. Once Mr Bonetti’s left knee condition has improved, I recommend review for determining his future treatment needs, prognosis and work capacity. Until then, he will remain 100% incapacitated.” (PCB 65)
51 Mr Kossmann conducted a further review of Mr Bonetti based on an interview and examination on 21 October 2019. Having reviewed the complex history of Mr Bonetti’s knee problems and the various surgeries, Mr Kossmann noted, as at 21 October 2019, Mr Bonetti could:
“only sit for a short period of time with his knee in a flexed position. He can sit in car for only 15 to 30 minutes before he has to stop and stretch his left knee. He can only walk short distances. Mr Bonetti suffers from locking symptoms in his left knee in the morning when he is getting up. He complained of swelling of his left knee. He has difficulty with stairs. He has difficulty walking on uneven ground. Mr Bonetti is not able to kneel and squat. He has no back pain. He told me that he became anxious and he saw Vicky Palmer, psychologist, twice.” (PCB 70)
52 Mr Kossmann described Mr Bonetti’s prognosis as to his left knee as “unclear”. (PCB 75) Mr Kossmann said that Mr Bonetti “has no work capacity at present”. He lacked capacity even for light or modified duties. He should avoid walking long distances on uneven ground or down stairs or on inclines and declines, kneeling, squatting and lifting of heavy items of more than 5 kilograms.
53 Mr Kossmann said “Once Mr Bonetti’s left knee condition has improved, I recommend review for determining his future treatment needs, prognosis and work capacity. Until then, he will remain 100% incapacitated.” (PCB 76)
54 Mr Russell Miller, who it will be recalled has carried out a number of operative procedures on Mr Bonetti’s knee, furnished an “orthopaedic medico-legal report” by way of letter dated 25 October 2019 to Mr Bonetti’s solicitors. Mr Miller said that as at that date Mr Bonetti had:
“ongoing problems with ache, discomfort and intermittent pain in the knee, difficulty with prolonged standing and walking. The pain is diffuse and involves the knee and the leg. He has difficulty with kneeling, squatting and stairs.” (PCB 86)
55 According to Mr Miller, the relationship with this left knee condition with Mr Bonetti’s employment was:
“complex and multifactorial. The relevant factors include: pre-existing disease, the described injuries and aggravations in March 2013 and 2014, significant physical work over a protracted period of time and subsequent development of a chronic regional pain syndrome.” (PCB 89)
56 He said:
“The current clinical status of the left knee is regarded as being substantially relating to his work as a boilermaker.” (Ibid)
57 Dr Robyn Horsley, occupational physician, carried out an assessment of Mr Bonetti at her rooms on 3 September 2018. She provided a report of her assessment to Mr Bonetti’s solicitors by a letter of the same date, presumably for medico-legal purposes. Following a lengthy consideration of Mr Bonetti’s history, other medical report and assessment, Dr Horsley said:
“Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. Mr Bonetti is permanently unfit for his previous role as a boilermaker and ship builder. The critical physical demands are beyond his capacity. He is also permanently unfit for his previous role as an industrial cleaner.” (PCB 99)
58 Dr Horsley suggested a return to work in a “hands-on” capacity “but at bench level”. The doctor noted limited computer skills. (Ibid) Dr Horsley observed, however, “Mr Bonetti is awaiting further surgery on the 10th October 2018. He has not reached maximum medical improvement.” (PCB 100) The doctor said “as time is passing, his attractiveness to an employer is declining as his transferable skills are declining”. (PCB 101)
59 Dr Horsley reassessed Mr Bonetti in an examination on 6 November 2019, reporting to his solicitors by letter of the same date. The doctor repeated the conclusion that Mr Bonetti was permanently incapacitated from his pre-injury employment, with the only possible return to work at the “bench level” in a “hands on” role. (PCB 110)
60 The doctor noted the proposed pain management course organised by Dr McCallum. According to Dr Horsley:
“Review of his functional tolerances after completion of the [pain management] program would be of value. On the basis of his current functional tolerances, I do not believe he has any realistic capacity for work.” (Ibid)
61 The doctor concluded:
“His opportunities for re-deployment [in paid employment] are very limited.
Mr Bonetti has now been out of the work force for three years. He is 56 years of age. His attractiveness to an employer is declining as time is passing. On the basis of his presentation today, it is likely that he will remain out of the work force into the longer term. There are significant barriers to return to work. (PCB 111-112)
62 Psychologist, Ms Katrine M. Green, provided a vocational assessment report dated 14 January 2019. Having considered a wide range of potential employments, she said that Mr Bonetti has:
“very few sedentary transferable skills including having below average English literacy skills and being computer illiterate. It is therefore considered that the occupations of parts interpreter/sales assistant - motor vehicle parts and accessories, service advisor - information officer, workshop supervisor, trainer/assessor and vocational education teacher have no relationship to his work history and transferable skills and therefore from that perspective all of them are not suitable employment options for him. Aside service advisor – information officer which is a reasonably sedentary role the remainder of these occupations are physical in nature to the extent that they are incongruent with the physical restrictions provided in the medical opinions … Therefore from a physical perspective they are not suitable employment options for him.” (PCB 133)
63 She concluded that “due to Mr John Bonetti’s left knee injury and current physical capacity, he is unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future.” (Ibid)
64 Ms Green provided a supplementary report dated 29 November 2019. She concluded “the opinion provided in the vocational assessment report dated 14 January 2019 remains unchanged.” (PCB 152)
65 Dr Ailina Ismail of the Hampstead Drive Medical Centre, provided an updated report to Mr Bonetti’s solicitors by letter dated 29 January this year. Dr Ismail remarked:
“I am surprised that the report by Katrine Green did not look into sedentary duties which are not physically demanding on his knee such as clerical work / administrative duties in which he could be retrained. Once retrained, he can slowly return to work on a part-time basis eg starting with 4 hours every Monday, Wednesday and Friday, subject to regular review. (PCB Supplementary, page 4)
66 Mr Peter Battlay, surgeon, examined Mr Bonetti at his Collins Street rooms on 22 March 2013 at the request of the WorkCover insurer. He reported on the examination by letter to the insurer dated 15 August 2013. Mr Battlay noted that as at that date Mr Bonetti had worked for Smorgon Steel for 12 years as a boilermaker “having done maintenance in the smelt down area which required him to climb stairs continuously and access the work through a scissor lift”. (Defendant’s Court Book (“DCB”) 7 He reported an attendance on local general practitioner, Dr Fraser, in 2012.
67 According to Mr Battlay, Mr Bonetti:
“says that he actually put his claim on 22/03/13 when there was no specific incident to aggravate his knee. This is merely the result of cumulative climbing. He says that in light of his symptoms he has been redeployed in a different area. He now works at ground level and does not climb, squat or kneel. He says that he has changed jobs with another worker and he is much more comfortable with this than he used to be. (Ibid)
68 Mr Battlay concluded:
“Mr Bonetti has symptomatic osteoarthritis in his left knee. … I accept that his work for the company over a number of years, including stair and ladder climbing and working from a scissor lift has aggravated the underlying condition.” (DCB 9)
69 Mr Battlay carried out another examination of Mr Bonetti on 11 December 2013, reporting to the WorkCover insurer by letter dated 16 December 2013. Mr Battlay recorded:
“His main problem is that it hurts him to bend the knee, he says because of the swelling both at the front and at the back of the knee. He says that there is not much pain, just a tight feeling in the knee. He is not aware of any clicking or locking. He tries generally to keep busy and apart from avoiding squatting and kneeling, he does mow the lawns at home and does what he can because he ‘likes to keep busy’.” (DCB 16)
70 As to prognosis, Mr Battlay said:
“His knee will not recover completely and it may be inappropriate for him to go back to the part of the job that requires him climbing steps. However, on level ground he will probably be able to resume working after the holidays.” (DCB 17)
71 Mr Battlay said that Mr Bonetti should be able to work on level ground as long as not required to squat or kneel. Subject to those limitations, he could return to full-time employment. (DCB 18)
72 Asked if Mr Bonetti’s knee condition related “to the incident of March 22, 2013”, Mr Battlay replied “I doubt if this relationship will ever cease”. (DCB 19)
73 Mr Michael Shannon, orthopaedic surgeon, examined Mr Bonetti on 16 April 2014 and reported to the WorkCover insurer in a letter dated 17 April 2014. Mr Shannon was of the view that Mr Bonetti could not return to his pre-injury duties or hours and that he had “a very limited work capacity”, (DCB 27) being unable to return to work in modified pre-injury duties. Mr Shannon said:
“He may be capable of alternate employment which does not involve kneeling, squatting, climbing and heavy lifting.
Essentially he needs to obtain sedentary or predominantly sedentary employment.” (Ibid)
74 Mr Michael J Troy, orthopaedic surgeon, examined Mr Bonetti at his Collins Street rooms on 11 July 2014, reporting to the WorkCover insurer by letter dated 16 July 2014. Mr Troy concluded that Mr Bonetti was not suitable for return to his pre-accident employment but:
“He does have a current work capacity where he can stand in an erect position doing his work in his trade. He states he has been 35 years doing his trade. He noted that previously when he was back at work he was working in a workshop at a bench and with all his experience he could go into a teaching environment.” (DCB 32)
75 Mr Troy provided a supplementary report based on the same examination in a letter to the insurer dated 1 August 2014. Mr Troy said that what was described as “the reaggravation of 12th February 2014” (DCB 35) had resolved. He endorsed a return to work plan dated 12 July 2014.
76 Consultant psychiatrist, Dr Timothy J Entwisle, assessed Mr Bonetti on 25 July 2014 and provided a report to the WorkCover insurer dated 29 July 2014. Dr Entwisle recorded:
“He told me that he was actively looking for work. He believes he has a work capacity as a boiler maker/welder provided that there is no heavy lifting, bending or stair work involved.” (DCB 36)
77 According to the doctor, Mr Bonetti described him:
“an otherwise reasonable level of ambulatory activity. He can bend. He can lift weights. He can walk short distances. Stairs aggravate his condition. He is able to dress and drive. He is able to assist at home. He doesn’t go shopping because he doesn’t like it.” (DCB 38)
78 The doctor said “Mr Bonetti was a man of limited grasp. His verbal capacities were poor”. (DCB 39)
79 Dr Gerard Powell, “consultant orthopaedic surgeon”, examined Mr Bonetti at his East Melbourne rooms on 27 June 2016, providing a report to the WorkCover insurer dated 5 July 2016. Dr Powell noted that at this time Mr Bonetti was “currently working as an industrial cleaner”. (DCB 45) He said Mr Bonetti “now has worsening symptoms”. (Ibid) He continued:
“The condition is the same injury as his original compensable injury and does not represent an aggravation or new injury at his new place of employment. As such it still remains compensable under the claim 12120076529.” (DCB 46)
80 According to the doctor, “the diagnosis is one of progressive osteoarthritis of the left knee”. (Ibid) He said that if a total knee replacement proved necessary “it would be related to the 2013 left knee claim”. (DCB 47)
81 On 26 September 2017, Mr Bonetti attended Dr Peter Wilkins, occupational physician, for assessment at the request of the WorkCover insurer. Dr Wilkins reported to the insurer by letter dated 6 October 2017. Dr Wilkins recorded the usual range of complaints perceived by other practitioners. He said that according to Mr Bonetti:
“He cannot operate a manual vehicle at all. He told me he double-foots on stairs and uses ramps whenever possible. He told me he cannot use a ladder. Except when performing his hydrotherapy exercises, he avoids squatting because this is painful.” (DCB 53)
82 Dr Wilkins said:
“I recommend a further review by his operative surgeon, and if he has not achieved a return to work in a suitable role within the next six months I would then be pleased to review him further should you so wish.” (DCB 57)
83 Dr Wilkins provided a supplementary report to the insurer by letter dated 13 March 2018. He did not carry out a further examination. Asked whether Mr Bonetti had a current work capacity and requested to provide yes or no answers, Dr Wilkins said:
“He does not. However, based on Dr Miller's assessment (performed some five months after my own), and two months after subsequent surgery) it is likely that he will have some capacity within the next month to six weeks.”(DCB 65)
84 According to Dr Wilkins, Mr Bonetti “may well be able to undertake suitable clerical or light retail employment, beginning in the next 6-8 weeks”. (Ibid) The doctor believed Mr Bonetti would be able to undertake a graduated return to work “on suitable duties”, though not his pre-injury employment.
85 On 16 April 2018, at the request of the insurer, Mr Bonetti attended the Collins Street rooms of occupational physician, Dr John Wilson. The doctor provided his report and assessment in a letter of the same date. The doctor took a history similar to those taken by many other examiners, taking a history inter alia that “Sleep is restless”. (DCB 70)
86 As to the left knee, the doctor said:
“The condition is significantly age-related degeneration, although I note in this particular worker’s case that he has a history of playing Australian Rules football and therein is a significant contributing factor. He has suffered a workplace aggravation as a result of climbing stairs.” (DCB 71)
87 Somewhat intriguingly, the doctor remarked:
“On the basis of the history that has been provided it appears that the incapacity has materially contributed to the claimed condition. I accept that it could be claimed that the worker's condition now would be no different had he not had the incident in the baghouse at Smorgon Steel; however, there is no evidence that would support that postulate.” (DCB 71)
88 According to the doctor, the worker’s reported symptoms and functional tolerances are consistent with the clinical examination. (DCB 72)
89 According to Dr Wilson, the knee replacement was “designed to give the patient quality of life and … it should not be subjected to abnormal or extreme forces”, such as return to pre-injury duties. (DCB 73)
90 Dr Wilson said that Mr Bonetti had “a current work capacity”. The doctor then went on to exclude, for a variety of reasons, a number of the suggested alternative occupations which had been under consideration. (DCB 73)
91 Invited to consider the definition of “suitable employment” in the WorkCover legislation as a guide to an alternative occupation, Dr Wilson said “I have not identified any other types of employment that the worker could do”.
92 According to Dr Wilson, “The barriers that I anticipate with returning the worker to suitable employment are the lack of transferable skills. In particular, he has limited computer skills.” (DCB 74) Dr Wilson said that Mr Bonetti was “able to participate in occupational rehabilitation services as have been indicated”. (DCB 75)
93 Dr Wilson’s conclusion was that “The worker has capacity to do an essentially sedentary occupation; however, he appears to have inadequate transferrable skills that would enable such a transition.” (DCB 76)
94 Mr Bonetti was also examined for medico-legal purposes by orthopaedic surgeon, Mr Vasudeva Pai, on 10 December 2018. In accord with the opinion of other examiners, Mr Pai excluded the possibility of Mr Bonetti’s return to pre-injury duties, observing “He may be able to do a few jobs of light sedentary nature where postural changes are available and where there is not much walking or standing”. (DCB 85) He recommended “a sitting/standing desk”. He said “The musculoskeletal symptoms cannot be improved as it is nearly two years since the knee replacement.” (Ibid) He said “the prognosis is moderate. He [Mr Bonetti] has had only fair results out of his total knee replacement”. (DCB 86)
95 More recently, Mr Bonetti attended the rooms of orthopaedic surgeon, Mr Richard Pease, for medico-legal assessment at the request of the defendant. Mr Pease remarked “This gentleman impressed me as an entirely genuine individual, there was no evidence of exaggeration”. (DCB 92)
96 Mr Pease agreed with other examiners that Mr Bonetti would be unable to return to his pre-accident duties. He said, however:
“he would be capable of quite a wide range of employment in which he was not required to place any stress on his knee, where he was not required to sit for long periods nor to do any squatting or bending.” (DCB 95)
97 He excluded a number of suggested occupations suggesting work as a service adviser/information officer – remarking that Mr Bonetti “would probably need to upgrade any computer skills he has”. He continued “His age and education might make it difficult for him to obtain employment”. (DCB 95)
Legal considerations
98 Section 134AB of the Accident Compensation Act precludes a worker suffering injury in the course of employment in obtaining damages with respect to that injury, except in accordance with the provisions of the section. The section authorises the recovery of such damages “if the injury is a serious injury and arose on or after 20 October 1999 but before 1 July 2014”. (Sub-section 2)
99 “Serious injury” is defined in sub-section (37) as follows:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
100 Sub-section (38) of the Act includes important additional provisions as to the operation of these principles. Paragraph (b) of sub-s(38) provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;”
101 Mr Bonetti seeks leave to bring a damages claim not only for pain and suffering but also loss of earning capacity. By virtue of s134AB(38)(e)(i), leave to bring such proceedings “the worker has a loss of earning capacity of 40 per centum or more”.
102 In determining loss of earning capacity, paragraph (f) of s134AB(38) requires a comparison between the gross income which the worker is either earning or capable of earning in suitable employment at the relevant time, “whichever is the greater”, with the gross income which the worker is earning or capable of earning from personal exertion “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”.
103 The phrase “suitable employment” is defined in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013 in the following terms:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker's pre-injury employment;
(iii)the worker's age, education, skills and work experience;
(iv)the worker's place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;”
104 By s5(2) of the Accident Compensation Act, that definition applies to proceedings relative to that statute.
Contentions of the parties
Defendant’s contentions
105 On behalf of the defendant, Ms Kusiak of counsel submitted that where there was more than one discrete injury occurring on different occasions “the court must separate out the components of the injury on each occasion and cannot aggregate the injuries even if caused to the one body part, across several incidents”. She referred to Lu v Mediterranean Shoes Pty Ltd [2000] VSC 65 and AG Staff Pty Ltd v Filipowicz [2012] VSCA 60, where it was contended that the putative serious injury was an aggravation of an earlier injury. The application to succeed must establish that the aggravation in itself constituted the serious injury.
106 Ms Kusiak referred to Petkovski v Galletti [1994] 1 VR 436; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; De Agostino v Leatch [2011] VSCA 249 [11]; RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386 [2]; Guppy v VWA [2010] VSCA 164 [18]-[19]. She said that the decision of the Court of the Appeal in Filipowicz’ case required the trial court to identify each injury, identify and separate the impairment consequences of each injury, and identify whether the additional impairment caused by the aggravation injury qualified as a serious injury as defined. This required a comparison between the plaintiff’s condition before the injury and after the injury “and an assessment of the additional impairment should then be made”.
107 Ms Kusiak noted that, as this case was argued, Mr Bonetti claimed that he suffered an injury throughout the course of his employment with the defendant between 2004 and 2014, on 22 March 2013 and on 12 February 2014. She said no consideration should be given to matters before 2012 because she said Mr Bonetti denied left knee symptoms prior to 2012. (T24, L2)
108 Medical opinion she said was largely “consistent … it’s a diagnosis of an aggravation of osteoarthritis of the left knee (see, for example, Shannon DCB 21; Miller PCB 44; Kossmann PCB 58) … the impairment is therefore of the lower left limb”. (T95, L20-25)
109 According to Ms Kusiak, the claim of a serious injury “throughout the course of employment” should be rejected because prior to March 2013 the injury “wasn’t significant enough for [Mr Bonetti] to take more than one day off work”. (T24, L20) Despite Mr Bonetti’s complaints of left knee pain in late 2012, he remained on normal duties and full-time hours until March 2013. (T24, 24-28) She said that according to his affidavit (at PCB 21) his left knee pain really kicked off in March 2013 and February 2014. She referred to T24, L11.
110 She noted that whilst an x-ray of the left knee was carried out on 16 November 2012, which demonstrated degenerative change, joint effusion and Baker’s cyst (PCB 22), no referral to a specialist was made following that image. Therefore, as to the symptoms in late 2012 “the court cannot be satisfied that these symptoms are long lasting nor are the consequences arising from these symptoms very considerable when viewed against a range of other cases”.
111 As to the incident on 22 March 2013, Ms Kusiak said “the consequences … were not serious nor were they long term”. She said that after undergoing the arthroscopy in September 2013, Mr Bonetti said that he had a period of recovery before returning to full-time hours and unrestricted duties for eight or nine weeks. (T28, L7-12) Although he was not required to kneel, squat or climb stairs, his pain was manageable with these restrictions. (T28, L16) He took no time off because of his knee upon return to work until February 2014 (T28, L29), and the left knee was pretty manageable until February 2014. (T29, L28)
112 Ms Kusiak said that following the 2013 arthroscopy, treating surgeon, Ms Boecksteiner, recommended no further operative treatment until the further injury in February 2014. (PCB 34-35, T29, L27)
113 She said that Mr Bonetti was able to continue work as a boilermaker and then as an industrial cleaner from October 2014 until September 2016. “In this way, any consequences arising from the 22 March 2013 injury, of which there were few following the arthroscope in September 2013 were not long term”.
114 She turned next to the aggravation or injury said to have occurred on 12 February 2014. She said “the consequences … were not serious nor were they long term”. She said that, according to the history taken by Dr Entwisle (DCB 36), by 25 July 2014 Mr Bonetti was only taking Panadeine Forte, (T30, L28) was looking for work (T31, L7), and believed he had capacity to work as a boilermaker provided he was not required to do heavy lifting, bending or stair work. (T31, L9)
115 She noted histories taken by Mr Kossmann in July 2015 (PCB 55-57, T32), that the symptoms in Mr Bonetti’s left knee had improved since October 2014 and he was not taking ongoing pain medication. She noted that Mr Bonetti could not recall Mr Kossmann’s finding on examination of no symptoms of clicking or locking or giving way of the left knee.
116 She also noted Mr Bonetti’s evidence of improvement after the second arthroscopy in May 2014 before noticing worsening left knee symptoms in around July 2014. (T33, L25 - T34, L1) She said Mr Bonetti did not have a detailed recollection of the symptoms and so contemporary histories, such as those taken by Dr Entwisle and Mr Kossmann, should be preferred sources on this point.
117 According to Ms Kusiak, the evidence of worsening symptoms in the left knee in 2014 was inconsistent with Mr Bonetti’s return to work as a boilermaker with the company, Engineering Direction, in October 2014. She noted he only left that employment due to a downturn in demand. Therefore, there was no evidence that the left knee symptoms “prohibited him from working as a full time boilermaker” between October 2014 and June 2015. The 2013 aggravations “either resolved or alternatively were not significant enough to restrict the plaintiff from full time physical work and thus were not serious”.
118 Ms Kusiak said the submission was strengthened by Mr Bonetti’s subsequent employment in June 2015 with Andy Anderson. There, he was required to wash concrete floors with high pressure hoses, requiring him to use resistance in his legs to steady himself (T39, L1), working full-time (T38, L16-18), being on his feet for most of the shift, and only sitting down for breaks (T40, L15), being required to drive to factories located in regional centres such as Geelong (T37, L23-29), and spending 40-90 minutes in the car travelling to and from work (T37, L23-29).
119 Ms Kusiak said the evidence was that Mr Bonetti was coping with work at that time (T41, L23, PCB 16), taking only weekly Panadol Osteo. (T41, L25) Therefore, the employment with Andy Anderson for nearly a year showed “that the aggravations in 2013 and 2014 no longer had a significant impact upon [Mr Bonetti’s] functioning and therefore were not serious”.
120 There was nothing, she said, inconsistent with the defendant’s contentions which were to be found in the Court of Appeal decision of Altona Bus Lines v Lococo [2002] VSCA 159. She referred in particular to [82]-[86], concluding:
“the plaintiff's not permitted to ask whether but for the injuries in March 2013 or February 2014, he would have gone on to develop the symptoms he now complains of, including the requirement to undergo a total knee replacement. … the re-emergence or, alternatively, the worsening of the plaintiff's left knee symptoms, upon his return to work and subsequent employment, is highly significant.” (T103, L12-20)
121 Ms Kusiak referred to admissions made in cross-examination of Mr Bonetti by reference to clinical notes kept by his general practice clinic and his physiotherapist as to left knee symptoms which he suffered whilst employed by Andy Anderson (26 October 2015 (T53, L1-7), 5 September 2016 (T58), 17 November 2017 (T53, L19-27).
122 She said, in comparison to the evidence available to the court in Lococo, there is limited evidence … to suggest that the injuries in March 2013 or February 2014 play a part in the incapacity or impairment currently alleged by the plaintiff”.
123 She referred to Mr Troy’s supplementary report dated 1 August 2014 (DCB 35), stating “the re-aggravation of 12 February 2014 had resolved and the plaintiff’s current ongoing incapacity was contributed to by the aggravation on 22 March 2013”. She referred to Mr Shannon (DCB 27). She said Mr Bonetti’s treating general practitioner, Dr Fraser, in his report of 30 March 2015 (PCB 36), attributed the left knee symptoms to the first incident but had not reviewed Mr Bonetti since 13 June 2014.
124 She also noted the observation by Mr Miller (PCB 45), that Mr Bonetti’s work as an industrial cleaner “would have contributed to the evolution of the left knee disease”. She noted that in Mr Miller’s later report (PCB 89), he did not clearly explain whether work with Energy Direction and Andy Anderson was causally material. She made similar comments relative to the report by Dr McCallum (PCB 48 and PCB 54).
125 Insofar as Mr Kossmann had stated (PCB 76), that the general course of Mr Bonetti’s employment with the defendant as a boilermaker had contributed to his current diagnosis, she said that that opinion was insufficient because it does not state the degree of contribution or whether it was significant, and does not address Mr Bonetti’s work with Energy Direction.
126 She noted that Mr Bonetti had complained of worsening symptoms while working as a cleaner for Andy Anderson, and there was no medical opinion which considered the impact of these matters on Mr Bonetti’s current employment.
127 As to the issue of economic loss, Ms Kusiak referred to the statements by a number of examiners that Mr Bonetti retained a capacity for sedentary employment. She said “when asked if he would be able to work teaching trades, he gave evidence that he was not qualified to do so. (T70, L10) He did not refer to his left knee in his answer”. She said he gave inconsistent evidence about the effects of his right shoulder on his capacity for employment. She referred to T51, L25 and T82, L16.
128 There was no evidence to establish permanence. She referred to the pain management course which it seems Mr Bonetti will undertake, and the reference to the possibility of an improvement in employment prospects relative to this by Dr Horsley. (PCB 111, T74, L22)
Plaintiff’s contentions
129 Mr Middleton QC and Mr Hill on behalf of the plaintiff, submitted that Mr Bonetti should be viewed as “a man without guile or sophistication”. (T111, L31) They said that analysis of the physiotherapist’s clinical notes indicated complaints about right shoulder pain commencing 1 July 2015, mentioned for the last time on 29 July of that year. (T112, L20-26)
130 They said that this consideration should indicate that Mr Bonetti’s answer that right shoulder pain could prohibit him from doing physical work now (T51, L25) should not be taken literally. They said his memory as to the progress of his symptoms was imperfect and could not be relied upon. (T113, L16-21) They said:
“The fact is that this man has for seven years, come March of this year, been afflicted by a knee problem which has seen and given rise to seven operations, and prospectively, if he was of a mind to do it, according to Dr McCallum, he'd be a candidate for a stimulator.” (T113, L22-26)
131 The clinical notes from the physiotherapist, they said, as from 2 June 2014 were consistent with Mr Bonetti having physiotherapy on a fortnightly or weekly basis paid for by the insurer, which they said was “in itself is evidence of an ongoing problem consistent with the original insult to the knee, aggravated as it was by the second occasion and the second need for surgery.” (T115, L27-30)
132 Mr Bonetti’s return to work should be treated as indicative of his stoicism (T116) and therefore not to be held against him.
133 According to Messrs Middleton and Hill, the evidence showed that Mr Bonetti continued to receive physiotherapy “at the present time”. (T118, L13-17)
134 Mr Middleton and Mr Hill said that despite suggestions that the present state of Mr Bonetti’s knee could be attributed to his work at Engineering Direction or as an industrial cleaner for Andy Anderson, no specific event had been identified. (Ibid, L21-21) They said that whilst Mr Bonetti had been cross-examined at length and in detail by reference to clinical notes from his general practitioner’s clinic and his physiotherapist, the matters to which he deposed in his affidavit were not “greatly challenged”. (T120, L1-9)
135 The history taken by general practitioner, Dr Ismail, on 19 November 2012, and the claim form lodged on 22 March 2013, were consistent. The employer had accepted the accuracy of Mr Bonetti’s description of his injury and the circumstances surrounding it in the employer’s report relative to that claim. (T121)
136 Accordingly, they said any suggestion that subsequent surgeries were not connected to the injuries claimed for was without foundation. (T122) The clinical notes identified no particular event which could be regarded as a “novus actus”. (Ibid, L22-25)
137 As to loss of earning capacity, they said Mr Bonetti’s age was clearly relevant. They referred to the definition of “suitable employment” in the statute. Moreover, the insurer had, according to the material, been active in seeking to find alternative employment for Mr Bonetti without success. (T129)
138 Mr Middleton and Mr Hill said that vocational expert, Katrine Green (PCB 133), concluded that there was no suitable alternative employment for Mr Bonetti having regard to his below average English literacy, lack of computer literacy and his physical limitations. (T126)
139 The prospect of the pain management course did not alter this picture. Such a course they said “teaches you how to cope better with your pain rather than cure your pain”. (T127, L21-22) The evidence showed that Mr Bonetti’s limitations were organically driven. (Ibid, L24-25)
140 They stressed that Mr Bonetti had been suffering from his injury for some seven years and was under a constant need for medication. They said “he’s on serious medication, as well as getting serious treatment from physiotherapy”. (T130, L8-13) They said Mr Miller gave Mr Bonetti a prognosis which was “only fair”. (Ibid, L18) They said Mr Bonetti’s persistence in employment was indicative of his stoicism rather than any resolution of his injuries or their consequences. (T131, L1-12)
Conclusions
Pain and suffering
141 An initial question to be dealt with is whether the allegedly “serious injury” which Mr Bonetti is said to have suffered should be regarded as constituted by the 2013 or 2014 incident or his course of employment with the defendant company commencing in 2004.
142 The authorities referred to and relied on by Ms Kusiak establish that where any individual discrete injury is relied upon, it must be assessed separately against the criteria for a “serious injury” under the statute. It cannot be aggregated with another alleged discrete injury.
143 It will be recalled that in August 2013, Mr Bonetti was said to have told surgeon, Mr Peter Battlay, as recorded in Mr Battlay’s report, “that he actually put in his claim on 22/3/13 when there was no specific incident to aggravate his knee. This is merely the result of cumulative climbing.”
144 Mr Bonetti, when I asked him about this passage in Mr Battlay’s report, said:
“Did you tell him that? If you did, would it have been true? --- I couldn’t remember, Your Honour.
So you might have told him that. If you did tell him that, would it have been true? --- Could be.” (T26, L26-30)
145 With a seven year history and so many surgeries, it is unsurprising that Mr Bonetti’s memory of the course which his condition took over time is imperfect and lacking in detail. Mr Battlay, it seems, wrote his report on the same day that he saw Mr Bonetti viz 15 August 2013. Mr Battlay’s account of the history given to him is likely correct, and Mr Bonetti did not seriously disagree.
146 The view that 22 March 2013 was the culmination of a process rather than the date on which a particular incident occurred, is consistent with and supported by the description of events by Mr Bonetti. On the claim form under the heading “What happened and how were your injured?”, he wrote “climbing ladders at work and getting into and out of scissor lifts”. The references to scissor lifts in the plural. There is also a reference to “climbing ladders”, again plural, consistent with the alleged process over time rather than being a singular event.
147 This is also consistent with the history taken by Dr Ismail on 13 November 2012, referring to “left knee pain, climbing ladders often tender over lateral compartment …”. (Exhibit 4)
148 Where an injury occurs over a period of time in the course of employment, there is necessarily a progression. During the early period of development of an injury, one would expect it to be asymptomatic with symptoms developing over time. Mr Bonetti’s employment with the defendant commenced in 2004. The first symptoms which seem to have led Mr Bonetti to seek medical attention manifested themselves in 2012, being of such significance the following year as to lead him to make a WorkCover claim and subsequently undertake arthroscopic surgery. All of this is consistent with an injury progressing in the course of employment.
149 Ms Kusiak submitted that, viewed as a separate and discrete injury, the event of 22 March 2013 should be regarded as having resolved. She put to Mr Bonetti that, before the incident of February 2014, Mr Bonetti worked unrestricted duties. He said that this situation remained for eight or nine weeks before the February 2014 incident. (T28, L12-13) During that time, Mr Bonetti conceded that his left knee pain was manageable, but the balance of his answers showed he may have made an inappropriate admission to the effect that he was back on “unrestricted work duties”. He said his knee pain was manageable “because I wasn’t kneeling, squatting or climbing upstairs”. (T28, L16-17) That is, it would seem he was back on full working hours but on modified or restricted duties. During this eight to nine week period, he did not take any time off. (Ibid, L28-29)
150 The incident in February 2014, which occurred when he was back climbing stairs, was when he was returned to normal duties. (T29, L10-13) He had the second arthroscopy later that year. In the result, the apparent improvement in the period 2013 to 2014 was the result solely of the modification of Mr Bonetti’s duties. One may accept that the first arthroscopy would have procured some improvement, but it seems not to have altered the fundamental trajectory of Mr Bonetti’s left knee injury.
151 There must, however, be an issue as to the permanence of the injury which Mr Bonetti has suffered. First, the expert opinions are replete with statements suggesting prospects of future improvement. Secondly, a pain management course has been approved by the WorkCover insurer. Only a difficulty as to venue has precluded its implementation. Taking the second matter first, Mr Middleton and Mr Hills contended that the pain management course could not in itself alleviate Mr Bonetti’s pain and restrictions but merely assist him to manage them or “live with them”. There may be situations where a pain management course could revolutionise an injured worker’s situation. This could occur where the pain and restrictions are predominantly functionally, rather than organically, driven.
152 In the present case, whilst there has been some tangential talk of a functional overlay and regional pain syndrome, which might or might not be functionally driven – a matter which was not gone into in evidence – there is abundant material supporting the organic basis for Mr Bonetti’s pain and restrictions. He has, as noted, undergone some seven pieces of surgery. It is difficult to see, therefore, how a pain management course could change the fundamental reality of his organic injury or its consequences.
153 As to the statements of optimism which are to be found in expert reports, all that one can say is that the passage of time has not vindicated them. Some seven years have passed since Mr Bonetti made his initial claim. Repeated surgery has achieved only limited success. Not even a full knee replacement has significantly improved his condition. In my view, Mr Bonetti’s condition should be regarded as permanent.
154 Section 134AB(38)(c) of the Accident Compensation Act requires that, for a finding of serious injury to be made, the pain and suffering consequences when judged by comparison with other cases in the range of possible impairments, needs to be “fairly described as being more than significant or marked, and as being at least very considerable”. What are the considerations that bear upon that issue?
155 First, it is noteworthy that Mr Bonetti has sought to persist with employment, first as a boilermaker, and then as an industrial cleaner. Given the undoubted reality of the pain and restrictions which are consequent upon the injury to his left knee, his persistence in employment should be seen as evidence of stoicism which ought not be held against his success in an application of this type: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [47].
156 Mr Middleton and Mr Hill correctly observed that the truth and accuracy of Mr Bonetti’s account of his pain and restrictions in his two affidavits was not challenged in cross-examination. Mr Bonetti’s inability to walk up inclines or down declines or for any period beyond 10-15 minutes, or to squat or kneel, are very significant constraints upon his ordinary living activities, aside from the effect which it may have on his ability to undertake paid employment. He is required to take the powerful painkilling medication, Endone, once or twice a week as well as four Nurofen tablets. He also has to take Nexium “for indigestion” caused by the other medications. (PCB 19, paragraph 9)
157 Recreations, such as snorkelling, tinkering with his car and so forth, are now either completely excluded or strictly limited. His sleep is impaired. According to his supplementary affidavit:
“I find if I roll over in my sleep, I can wake up from left knee pain. I slowly get back to sleep or I just get up. I sleep less hours than I used to before I was injured as the pain wakes me up in the morning. I stretch my legs before getting out of bed in the morning or for example, when I go to the toilet at night.” (PCB 20, paragraph 21)
158 In Haden, Maxwell P said:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.” ([2010] VSCA 69 [45]
159 The pain and suffering consequences of Mr Bonetti’s injury merit the description “very considerable”.
Loss of earning capacity
160 All examiners are agreed that Mr Bonetti’s injury has the consequence of unfitting him for his pre-injury employment duties. There have been suggestions that he could engage in employment as a boilermaker but limited to “bench”-style duties. There was no evidence, however, that such employment opportunities exist.
161 The predominant opinion was that the only employment which Mr Bonetti would be suited for with his physical pain and restrictions would be sedentary work, which would entail administrative duties and the use of computer technology. Katrine Green and others observed that his English literacy was limited and that he had no computer skills. Doubtless, courses are available providing training in elementary computer operation. However, it is doubtful, in my view, that this gentleman, who has passed his mid-fifties without displaying any aptitude for either administrative tasks or computer work, could, with his present skill level and lack of what the experts described as “transferrable skills”, adapt to sedentary computer-type work.
162 I agree with the conclusion of Ms Katrine Green that realistically there are no employment opportunities for Mr Bonetti. This conclusion is little different from the opinions of defendant’s experts, such as Drs Wilson and Wilkins. It follows that his loss of earning capacity is 100 per cent, far more than the mandatory 40 per cent required by the statute, for a finding of serious injury with respect to loss of earning capacity.
Final conclusion
163 Leave should be granted to the plaintiff to bring a damages claim, seeking damages both for pain and suffering and loss of earning capacity.
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