Braunack v Wodonga City Council
[2011] VCC 957
•16 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05960
| GABRIELLE BRAUNACK | Plaintiff |
| v | |
| WODONGA CITY COUNCIL | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 2 and 3 May 2011 |
| DATE OF JUDGMENT: | 16 May 2011 |
| CASE MAY BE CITED AS: | Braunack v Wodonga City Council |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 957 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left knee – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W R Middleton SC with | Wisewoulds |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 24 February 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the left knee.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti (1994) 1 VR 436 and Guppy v Victorian WorkCover Authority (2010) VSCA 164.
13 The plaintiff relied upon two affidavits and she was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
14 The plaintiff is aged thirty six, having been born on 7 August 1974. She is a single mother with two children aged five and three.
15 The plaintiff commenced employment with the defendant in 2002 on a fulltime basis as a home carer, having obtained a Certificate III in Community Services and a Certificate IV in Aged Care.
16 The plaintiff worked thirty to thirty eight hours a week with the defendant and also worked two hours a week with Australian Home Care as a home carer. In cross-examination, the plaintiff denied that she had done more hours in 2004 to 2005 as the printout from Australian Home Care set out an average of seven hours per week.
17 The plaintiff’s work as a home carer involved looking after clients at their own homes with personal care, including showering, and also respite care and home cleaning.
Pre-Existing Condition
18 The plaintiff deposed that as at February 2005, she had not had any problems with her left knee for several years. He knee had dislocated a couple of times three or four years prior to the said date but after that she had had no problems or symptoms with the knee at all.
19 In cross-examination, the plaintiff said that she had only one dislocation prior to the said date and that occurred in 1995/the late 1990s when she twisted her knee getting out of the car. She attended Wodonga Hospital, her knee was put in a brace for three or four weeks and she had no problems thereafter. She denied any further dislocations until the incident.
20 The plaintiff could not recall being referred to Mr Khoury by Dr Byrne, a general practitioner in Wodonga, in 2002 after further dislocations, nor could she remember any problem with her right knee dislocating or any right knee surgery being performed by Mr Pike.
21 On the second day of the hearing, the plaintiff agreed she had had surgery on her right knee, having seen a surgical scar when she looked at her knee the night before, after court. However, she could still not recall undergoing any procedure on her right knee.
22 The plaintiff did not have any physiotherapy in 2002 for her left knee. She could only recall a period of physiotherapy between April and June 2005 following the March 2005 surgery.
23 In cross-examination, the plaintiff agreed she told medico-legal examiners, Mr Reid and Mr Jones, that she had no problem with her knee before the incident, because she did not think it was relevant.
24 The plaintiff agreed she denied having any previous knee injury on her claim form. When it was suggested to her this was not true, she said: “I don’t know because at the time when I read that I thought it meant like at that time, like 2005”. She did not understand that she had been asked whether she had any problem with her knee before.
The Incident
25 On the said date, the plaintiff suffered injury to her left knee whilst manoeuvring a client in a wheelchair into her bedroom at her home. When pushing the wheelchair, and having to manoeuvre it in a limited space, the plaintiff twisted her knee and struck it on the wheelchair and fell to the ground, immediately feeling knee pain (“the incident”).
26 The plaintiff was cross-examined about the incident circumstances. She confirmed that in manoeuvring the patient, she twisted her left knee and then hit it on the side of the wheelchair and fell to the ground.
27 The plaintiff denied the version of the incident set out in Ms Belgre’s affidavit and also denied telling her that she had previously dislocated her left knee five years earlier when her sister’s bathroom was being renovated. Further, the plaintiff agreed she did not tell Mr Reid that she had twisted her leg.
28 The plaintiff attended Wodonga Regional Health Services on the said date and her left knee was x-rayed.
29 The plaintiff was referred to an orthopaedic surgeon who told her she had suffered an acute dislocation of her patella. She underwent surgery in March 2005 and a month later underwent a manipulation under anaesthetic of the left knee.
30 Following the incident, the plaintiff was unable to work for several weeks.
31 The plaintiff deposed that although she returned to work, she was very limited in her ability to work because of her knee injury.
32 The plaintiff’s evidence as to the work hours she returned to after surgery was totally contradictory. At first she said she returned to full time normal duties with difficulty some time after the surgery, having had physiotherapy for a couple of months. She then said she had never returned to her pre-injury workload of thirty to thirty eight hours per week.
33 The list of the plaintiff’s working hours agreed upon by the parties set out that the plaintiff worked twenty seven to twenty eight hours per week in late June and July 2005 and then between twenty and twenty five hours for most weeks until December 2005.
34 The plaintiff’s hours were significantly less after July 2006, varying from three to thirteen hours a week. From January 2007 she worked mainly around four to five hours a week until her hours were recently increased.
35 The plaintiff was cross-examined about a reduction in the cleaning work certified by Dr Steele in January 2006. She maintained this reduction was because of her knee condition not her pregnancy, although Dr Steele made no mention of the plaintiff’s knee condition in his note of 6 January 2006.
36 The plaintiff’s hours were reduced to four hours a week after the birth of her child in early 2007. On her return to work, these hours continued until she had time off for the birth of her second child. On her return to work she resumed these hours until two months or so ago, when they were increased to from nine to eleven and a half hours a week.
37 The plaintiff agreed that she now works three shifts a week with four and a half hours on the Wednesday and two and a half hours a day on two other days. She would like to do more hours but is unable to do so because of her knee.
38 The plaintiff agreed in cross-examination that if she worked any further hours, however, her pension would be affected and that her present work situation fits in with caring for her young children.
39 Following knee surgery, the plaintiff also did home care work for other employers. The plaintiff commenced work with Kirinari in the middle of 2006 where she worked until early 2011. She also worked for PNR/ERIN from January 2007 to July 2009. The plaintiff worked there most weeks and did what work was available, working up to eighteen hours a fortnight.
40 The plaintiff agreed that she resigned from her other jobs like Australian Home Care because it was not worth her time and she was getting more hours with the defendant.
41 When asked whether she was content working her current arrangements, the plaintiff said: “Yes, because I do have ongoing pain in my knee, so if I didn’t have that pain I’d like to increase my hours.”
42 The plaintiff agreed as Mr MacKinnon deposed she agreed that she was currently working with the defendant to build her hours, based on her having a full medical clearance with no restrictions. She had stated to the defendant that she was committing to working with it to increase those hours.
43 The plaintiff agreed she was getting a parenting pension which was reduced if she worked further hours. She would struggle to manage her childcare arrangements if she worked beyond her current hours.
Pain and Restriction
44 The plaintiff deposed in May 2010 that she had constant knee pain, especially in cold weather. Her knee swelled after being on her feet for lengthy periods. It was unstable and buckled under her.
45 Sometimes the plaintiff’s kneecap popped out or dislocated and sometimes she has pushed it back herself. Recently that occurred and she had been taken by ambulance to hospital where she underwent x-rays. The plaintiff had been told she should not push it back herself.
46 In examination in chief, the plaintiff confirmed that she had been to Outpatients at Wodonga Hospital three times since the incident when her left knee had dislocated and she could not put it back in. It had also dislocated two or three times at home and had been put back in by her or family members.
47 The plaintiff deposed in May 2010 that she had been advised she required further surgery on her knee but as that date she had great difficulty seeing her doctor. She was supposed to be having physiotherapy but she was unable to afford it.
48 The plaintiff deposed on 29 March 2011 that she continues to suffer from constant left knee pain and regular swelling when the knee dislocated, which occurred from time to time, and it also gave way on her.
49 The plaintiff is taking Panamax and also Panadol for knee pain very regularly and occasionally she wears a brace when her knee feels unstable, but it is uncomfortable to wear.
Restrictions
50 Because of the plaintiff’s ongoing knee symptoms, squatting, getting on her hands and knees, walking up stairs or over rough ground and climbing ladders, in particular, all cause extreme difficulty for her.
51 The plaintiff has particular difficulty in performing activities associated with looking after her young children.
52 Household and domestic activities, including vacuuming and cooking and any activity involving prolonged standing all cause increasing pain.
53 The plaintiff is unable to do gardening and her mother comes around and does the lawn mowing. The plaintiff has difficulty making and changing the beds and bathing her children as she has to bend down to do so.
54 The plaintiff’s knee restricts her more than her wrist, although that also restricts her.
55 The plaintiff deposed to losing income because of her knee injury.
The Plaintiff’s Medical Evidence
56 Mr Khoury, orthopaedic surgeon, saw the plaintiff following the incident, in which he considered she had injured her left knee, causing a significant dislocation of the left patella.
57 Mr Khoury advised clinically, the plaintiff had injured the articular cartilage of the patella which required debridement, and he sought permission for an arthroscopy with post-operative physiotherapy.
58 Mr Khoury thought that the plaintiff, within a week of that procedure, would be able to perform office duties as per a return to work plan that had been devised by the defendant.
59 Mr Khoury performed an arthroscopic chondroplasty and removal of loose chondral bones (“the knee surgery”) on 24 March 2005 to treat an acute dislocation of the patella with severe chondromalacia of the lateral facet of the patella.
60 On 22 April 2005, Mr Khoury, having diagnosed a stiff left knee following arthroscopy, carried a manipulation under anaesthetic.
61 An intern from Albury Base Hospital reported on 28 April 2005 that the plaintiff had been an inpatient for management of her left knee stiffness. After discharge, he advised that she would not be able to attend all housework and she would require some home help for the next four weeks. Further, he considered the plaintiff should continue with further physiotherapy to improve her mobility.
62 Health Focus Physiotherapy treated the plaintiff on 4 April 2005 when she presented after the knee surgery. It was noted the plaintiff had had a patellar dislocation previously and was now in severe pain and had considerable swelling. It was noted that Mr Khoury had attempted to drain the knee but could only aspirate a minimal amount.
63 There were further physiotherapy attendances on 12 April and 3 May 2005 and a number of other attendances throughout May, the last being in June 2005.
64 Albury Wodonga Health reported to Dr Steele on 6 April 2010 that the plaintiff suffered a dislocation and reduction of the left knee after twisting that day. It was noted that the plaintiff had apparently had this multiple times before and had surgery with Mr Khoury.
65 On 7 April 2010, Wodonga Health advised Dr Steele the plaintiff presented to Emergency with a query of dislocation of the left knee after accidently twisting her leg. The dislocation had been reduced by her partner. It was noted the x- ray performed showed no fractures and the plaintiff had been managed with a splint for two weeks. Dr Steele was asked to review the plaintiff with regards to her continued joint healing and stability, as well as the possible need for review by an orthopaedic surgeon.
Investigations
66 An x-ray of the plaintiff’s left knee was carried out at the request of Dr Stewart from Wodonga Regional Health Services on 24 February 2005.
67 It was reported that the patella was in a normal position. The patellar groove in the femur appeared to be somewhat shallow and the lateral condyle appeared slightly dysplastic. The knee joint appeared within normal limits and no joint effusion was noted.
68 Dr Rofe from Wodonga Regional Health Services organised a left knee x-ray on 16 October 2008. No effusion was evident in the suprapatellar bursa. On the AP view, the patella was positioned slightly more laterally than usual, which suggested there may be an element of residual subluxation. It was noted the knee joint appeared normal with no signs of arthritic change, and no active bone lesion or fracture was recognised.
69 A further x-ray was organised on 3 February 2009.
70 It was reported there appeared to be a small effusion in the suprapatellar bursa. The knee joint appeared normal with no signs of arthritic change, active bone lesion or fracture. There was no patellar dislocation evident but an element of lateral subluxation was not ruled out.
71 The report of a further left knee x-ray organised by Albury/Wodonga Hospital Emergency Department on 7 April 2010 set out that on the lateral view, there was no overt effusion in the suprapatellar bursa. The patella was not dislocated but appeared slightly laterally shifted on the AP view. The femorotibial joint spaces were well maintained but there were no signs of arthritic change or radiopaque loose body evident, nor any fracture or active bone lesion detected.
Medico Legal
72 Mr Reid, general surgeon, examined the plaintiff for medico legal purposes on 1 November 2010 to report on injuries to her left knee and left carpal tunnel syndrome.
73 The plaintiff told Mr Reid that on the said date she was pushing a wheelchair which was difficult to manoeuvre when she struck her left knee on the wheelchair and fell, suffering immediate pain.
74 After having undergone surgery, the plaintiff told Mr Reid she had had four or five events of recurrent dislocation of the patella over the past five years and had persistent knee pain. The dislocations occurred in different positions of the knee and unexpectedly. There had been no pattern.
75 The last dislocation reported was in early 2009.
76 The plaintiff told Mr Reid that after the knee surgery, she was off work for about two weeks and she had not seen Mr Khoury since the earlier post operative period and had not seen any other orthopaedic surgeon since then despite four or five subsequent dislocations.
77 The plaintiff used a knee brace until early 2009. At present, she had pain in the knee all the time, worse on bending and with squatting.
78 The plaintiff then worked in her normal duties but for only five to ten hours a week, partly because of persistent pain in her knee but also because she had to look after her young children.
79 The plaintiff told Mr Reid she had no previous problems with her knees; in particular, she had not had any events of dislocation of the patella prior to the incident.
80 On examination, there were no deformities of the knees and no swelling. Examination of the left knee showed no tenderness but the plaintiff showed apprehension when patellar manipulation was attempted, indicating that there was a fear and awareness of the possibility of the patella dislocating with manipulation. That apprehension was also present when movements of the knee were tested.
81 There was reduced active flexion of the left knee compared to the right but there was a greater degree of passive flexion. The plaintiff complained of pain at the extreme flexion of the left knee and there was full extension of both knees.
82 There were no abnormalities in the medium lateral collateral ligaments or in the cruciate ligaments and the menisci were clinically normal.
83 The x-ray of the left knee taken 24 February 2005 was noted.
84 Mr Reid commented that the plaintiff had recurrent dislocations of the left patella, a half centimetre diameter chondral lesion over the lateral facet of the patella with loose fragments in the joint which were removed at operation.
85 Mr Reid noted there were no actual restrictions which had been imposed by the plaintiff’s doctor on her type of work. He noted the plaintiff was doing normal duties but on restricted hours, partly because of pain and partly because of childcare requirements.
86 The plaintiff told him she had not had any event of dislocation for nearly two years. He thought she should therefore be able to perform all of the tasks within her normal duties. He considered, however, she would need to be careful when straightening up from a bent position of the knee and turning towards her right at the same time. He considered that the plaintiff currently had a mild restriction of flexion of the left knee.
87 The plaintiff told Mr Reid that she took two Panamax a day for pain.
88 Mr Reid thought the plaintiff could have further events of dislocation of the patella in the future and that the damage to the articular cartilage could result in osteoarthritis of the patellofemoral component of the knee joint later. He diagnosed dislocation of the patella with chondral damage to the articular surface of the patella. He noted that following this injury, there had been recurrent dislocations on about five occasions. He considered the incident was a significant contributing factor to the plaintiff’s impairment which he thought was then minor and permanent.
89 Mr Reid considered that the left knee was not likely to preclude or restrict the plaintiff in relation to her social, domestic or current recreational activities. He thought there was a notional restriction to recreational activities, noting that she was not doing any in the sense that she would not be able to undertake activities such as jogging or netball or any other activity requiring sudden change of direction. He considered this problem was permanent.
90 Mr Reid did not think the plaintiff’s knee condition should preclude or restrict her from prolonged sitting, standing or walking, driving or stooping or from walking on even ground, but on uneven ground carried the risk of an episode of recurrent dislocation. He considered repetitive bending and twisting should be restricted but lifting and carrying need not be so. He felt the restrictions were minor, in that there should just be an awareness of the possibility of dislocation and care in undertaking movements of bending and twisting. Mr Reid did not consider the plaintiff would face future employment or occupational restrictions in the type of job that he thought she was now doing but she should not, in general, undertake jobs that required twisting of the knee.
91 Noting the reduction in the frequency of dislocations, Mr Reid thought there would continue to be an improvement in the stability of the knee but that deterioration, however, was likely with respect to the patellofemoral articulation where osteochondritis and osteoarthritis were likely to occur and deterioration to take place over the next five years or more. He thought if events of recurrent dislocation became more frequent, the plaintiff may require an operation for realignment of the patella and she also may require arthroscopies for cleaning up the joint if and when arthritis set in with chondromalacia or osteophyte formation.
92 Mr Reid considered the prognosis was that recurrent dislocations were possible and the plaintiff was likely to develop osteoarthritis and osteochondritis in her left knee in the future.
Claim Documentation
93 The WorkCover claim form dated 25 February 2005 set out that the plaintiff suffered a dislocated left patella whilst pushing a wheelchair. She was just about to push a client and twisted and then hit her knee on the side of the wheelchair. She denied having had any previous disability in the area of the present injury condition.
94 The investigation/injury incident form dated 25 February 2005 set out the plaintiff suffered injury when she was “just about to push client out to lounge, twisted and then hit knee on side of wheelchair”.
The Defendant’s Lay Evidence
95 Victoria Hamilton, Human Resources Officer with the defendant, swore an affidavit on 13 April 2011.
96 She deposed that the plaintiff commenced employment with the defendant on 13 May 2002 as a part time home carer.
97 The plaintiff’s duties included administration and general home care for clients, including housecleaning, meal preparation and taking clients shopping. The plaintiff also provided assistance with personal care and hygiene, including assistance with showering, toileting and hair care.
98 Ms Hamilton referred to the Injury report dated 25 February 2005 completed by the plaintiff and her team leader.
99 A rehabilitation assessment was initially undertaken by Konekt on 11 May 2005 to assist the plaintiff in a return to work and upgrade of pre injury duties.
100 The plaintiff has since had two children and subsequently reduced her hours to four and a half per week voluntarily. There was no indication that this reduction in hours was in relation to her knee injury. The plaintiff has been offered extra shifts beyond those hours; however the defendant understood the plaintiff has chosen not to work these additional shifts. The plaintiff had lost minimal time in relation to the carpel tunnel injury.
101 Sandy Belgre, team leader of Aged Services with the defendant, swore an affidavit of 22 November 2010.
102 Ms Belgre was present at the home where the plaintiff injured herself on the said date.
103 On that date she and the plaintiff were observing an occupational therapist organised by the client’s case manager show how to transfer the clients from bed to shower chair and shower chair to wheelchair.
104 The client was sitting in the hallway of her home in a wheelchair with the plaintiff standing behind her with her hands placed on the handles of the chair, then within a split second the plaintiff fell to the floor and gave a loud yell.
105 At no time did the plaintiff transfer the client or push the client whilst the client was sitting in the wheelchair.
106 An ambulance was immediately called to attend to the plaintiff. During the time they were waiting for the ambulance, the plaintiff stated clearly that her knee had given way before five years ago when her sister’s bathroom was being renovated.
107 Ms Belgre reported the incident to the occupational health and safety officer when she returned to work.
108 Glen MacKinnon, Aged Services Assessment Coordinator with the defendant, swore an affidavit on 28 April 2011. His work involved overseeing rosters, home care workers and coordinating the allocation of resources to respond to client needs.
109 During the eleven months he worked with the defendant, the plaintiff had no restrictions placed on her as the result of any work related injury.
110 Since 2006, the plaintiff had worked minimal hours, with average hours per week being four and a half. This had been largely at her request due to her commitment as a parent, other health problems that were non work related in addition to her working at other employments.
111 The plaintiff’s work in general as a home carer involved a combination of home care, personal care and respite care.
112 Generally speaking, a visit to a client’s home would be approximately eighty per cent home care duties and the remainder of time being spent on personal and respite care, depending on the needs of the client and the degree of disability.
113 At each home the plaintiff spent between half an hour and one and a half hours doing a variety of duties such as cleaning, meal preparation, shopping and accompanying clients to pay bills.
114 At the time of the incident, the plaintiff was attending two to four homes on one day per week only and was not cleaning for the entire period.
115 The only tasks involving rigorous cleaning were one offs, such as window cleaning or cleaning the oven. The cleaning duties undertaken should not have involved any level of repetitive activity and home carers were advised that when undertaking cleaning duties, they must pace their work.
116 As he understood it, the plaintiff was fit to perform her duties as a home carer with no restrictions on her hours, the consequence of her alleged left hand injury.
117 The plaintiff is frequently offered additional hours that are refused. There has been no suggestion that the plaintiff’s inability to work shifts is due to her alleged injury.
118 The plaintiff’s current roster is four and a half hours on Wednesday and two and a half hours on Thursday and Friday. The roster showed that the large percentage of the duties are personal care duties, including shopping and assisting with showering clients.
119 The defendant is currently working with the plaintiff to build these hours based on her having a full medical clearance with no restrictions. The plaintiff has stated that she is committed to working to increase those hours.
The Defendant’s Medical Evidence
120 Dr Byrne from Wodonga referred the plaintiff to Mr Khoury, orthopaedic surgeon, by letter dated 25 March 2002, in which he advised the plaintiff was a young lady with a recurrent dislocation of the left patella. The dislocation was the second in that knee and was without apparent cause.
121 Mr Khoury wrote to Dr Byrne in Wodonga on 4 April 2002, thanking him for his referral of the plaintiff.
122 Mr Khoury noted the plaintiff had a right lateral release and arthroscopy done for a currently dislocating patella by Ian Pike a few years ago which was very successful.
123 Mr Khoury advised that quite recently the plaintiff had knocked her knee on a coffee table over Christmas and dislocated the left patella and this was reduced at the Base Hospital. A few weeks ago she re-dislocated the kneecap and this spontaneously reduced. She had no episodes prior to Christmas of dislocation of the left patella. Since then she had been noticing the kneecap was subluxating.
124 On examination, the plaintiff had a positive apprehension test with no patellofemoral clicking. There was no effusion with a full range of motion and the knee was otherwise stable.
125 Mr Khoury noted x-rays ordered by Dr Byrne showed some lateral patella subluxation and tilt consistent with the plaintiff’s problem.
126 Mr Khoury felt that at that stage the plaintiff was no doubt experiencing a recurrent patellofemoral subluxation. He referred her to Health Focus in Wodonga for physiotherapy so she could build up her quadriceps muscles enough to control her symptoms. He advised he would review her in three months and possibly recommend further surgery to realign the kneecap if she did not settle.
127 Mr Khoury wrote to JLT Workers Compensation Services (“JLT”) on 29 March 2005 advising of the earlier arthroscopy performed by him.
128 Mr Khoury advised the plaintiff had rung his office and advised she was in extreme pain which was not controlled by pain medication and her limb was extremely swollen. Mr Khoury requested the plaintiff be admitted to hospital for investigation and pain relief.
129 Mr Khoury wrote to JLT again on 31 May 2005. He noted the plaintiff had suffered stiffness in the left knee and required an exercise bike and funding in relation thereof.
130 The defendant tendered notes of the plaintiff’s attendances at the Clinic which set out that on a number of occasions from May to December 2008 she reported walking and exercising, cycling and going to the gym.
131 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff for medico legal purposes on 1 November 2010.
132 The plaintiff told him of the incident when manoeuvring a client in a wheelchair when the inner aspect of her left knee struck the wheel of the chair and as a consequence the plaintiff reportedly fell to the floor.
133 The plaintiff denied any previous history of left or right knee symptoms or injury.
134 On examination, the plaintiff described symptoms of swelling in the left knee with spontaneous dislocations since her reported first dislocation some two and half years ago.
135 On examination, the plaintiff stood with mild bilateral valgus deformities of her knees. The left knee had a range of movement from zero to ninety degrees with the plaintiff voluntarily limiting her range of knee flexion.
136 Clinically, both kneecaps tended to sublax laterally on flexion. There was no evidence of any swelling in the left knee and the cruciate and lateral ligaments were clinically normal.
137 Mr Jones noted the operation note of 24 March 2005 set out a Grade III chondral lesion was identified to affect the lateral facet of the patella with loose chondral fragments being removed from the knee.
138 Mr Jones commented while the plaintiff denied any previous history of left knee injury or complaint, she appeared to have suffered a similar problem affecting her right knee in the past. In his view, the plaintiff suffered from constitutionally unstable kneecaps with an association with bilateral valgus deformities in both knees.
139 Mr Jones considered the plaintiff’s current complaint reflected some advanced patellofemoral wear affecting, particularly, her left knee, with some degree of patellofemoral instability.
140 Given the arthroscopic features as defined by Mr Khoury, Mr Jones believed that the Grade III wear changes affecting the lateral facet predated the reported injury. He thought it possible that some of the cartilage fragments removed by Mr Khoury resulted from what appeared to have been a lateral dislocation of the plaintiff’s left patella.
141 Mr Jones thought the natural course for a patient with an unstable patella with valgus knees was premature development of osteoarthritis and from time to time they were predisposed from spontaneous dislocations of the kneecap, sometimes precipitated by relatively minor events, which seemed to be the situation in the plaintiff’s case.
142 Mr Jones thought there appeared to be a minor functional component to the plaintiff’s symptoms and that she appeared to voluntarily limit her range of knee movement. However, he believed the plaintiff suffered from the effects of patellofemoral arthritis affecting her left knee and to some extent, an unreliable left knee which could possibly give way from time to time as her history suggested.
143 Mr Jones was not in a position to detect any psychological reaction relating to the plaintiff’s knee condition.
144 Mr Jones believed the plaintiff had the capacity to work in spite of her left knee complaint. He thought ideally she would be best employed in work which did not require her to work with the knee in extreme degrees of flexion, including squatting and kneeling or climbing stairs or ladders.
145 The defendant tendered a number of entries relating to attendances by the plaintiff at Wodonga Hospital after the incident.
146 On 24 February 2005, the plaintiff dislocated her left knee when pushing a wheelchair and relocated her patella automatically. She was given Pethidine in the ambulance with good effect. A past history of right knee dislocation five years earlier was noted.
147 On 10 April 2005, the plaintiff presented at Emergency with ongoing swelling of the left knee post arthroscopy three weeks earlier. There had been a dislocation of the left patella nine weeks earlier. It was noted there was a past history of dislocated right patella.
148 On 9 June 2006, the plaintiff presented at the Hospital with a painful, slightly deformed left wrist following a slip on a wet floor. She had some numbness and tingling and reduced movement.
149 On 16 October 2008, the plaintiff was conveyed via ambulance to the Hospital with left knee pain. It was noted she was moving furniture when she twisted awkwardly and felt knee pain. The plaintiff was pushing a wooden box around whilst holding a child in one arm. “Bumped left knee into the box then fell down. Felt patella dislocate” and the plaintiff relocated patella. At that stage the plaintiff was unable to move her left knee.
150 It was then noted there was a history of dislocation to the left patella in 2005, 1993 and 1992.
151 An x-ray of the left knee was performed at the Hospital on 16 October 2008. On the AP view the patella was positioned slightly more laterally than usual, which suggested there may be an element of residual subluxation. The knee joint appeared normal with no signs of arthritic change and no active bone lesion or fracture was recognised.
152 On 3 February 2009, the plaintiff presented to the Hospital following an alleged assault, where she said she was pushed by her partner, fell and dislocated her left knee, which she had relocated herself. It was noted six times previously the knee dislocated.
153 An x-ray of the left knee was carried out at the Hospital on 3 February 2009. It was reported there appeared to be a small effusion in the suprapatellar bursa. The knee joint appeared normal. No patellar dislocation was evident but an element of lateral subluxation was not ruled out.
154 It was noted on 7 April 2010 that the plaintiff’s left knee had dislocated the previous night and that she had a history of knee dislocation. The plaintiff had presented with a query of dislocation after accidentally twisting her leg. Her partner had reduced the dislocation at that time.
155 Dr Steele was advised by the Hospital that the dislocation was on a background of multiple previous events and the plaintiff had previously been seen by Mr Khoury.
156 An x-ray of the left knee taken on 7 April 2010 showed the patella was not dislocated but appeared slightly laterally shifted on the AP view. There were no signs of arthritic change or radiopaque loose body evidence and no fracture or bone lesion was detected.
157 The Electronic Patient Care Report relating to that attendance on 6 April 2010 set out the plaintiff put her daughter to bed, turned and dislocated left patella which was realigned by her husband. The past history was left patellar dislocation on approximately five occasions once every six months.
158 Dr Andrews, who had treated the plaintiff’s knee in 2005, examined her for medico legal purposes in relation to the carpal tunnel syndrome. On examination in March 2010, Dr Andrews noted the plaintiff had an injury to her left knee with two arthroscopies several years ago:
“This had essentially returned to a normal functioning knee now. She does still get some aching which does not impact on her ability to use her knee.”
Overview
159 I find that the plaintiff suffered a compensable injury to her left knee in the incident at work.
160 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might
be able to satisfactorily explain its conduct.”
161 Whilst the claim was accepted, it was submitted by counsel for the defendant that there was no long term or serious impairment relating to the incident injury.
162 As treating surgeon, Mr Khoury, described, the plaintiff suffered an acute dislocation of the left patella with severe chondromalacia of the lateral facet of the patella in the incident.
163 In this case, where there is a pre-existing left knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
164 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
165 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2005 materially contributes to her impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
166 The Court of Appeal dealt with the question of aggravation cases in Guppy v Victorian WorkCover Authority (2010) VSCA 164. Whilst the Court held it was clearly appropriate for the learned trial judge to follow Petkovski, the Court found there was no inconsistency between Petkovski and Grech.
167 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the incident is permanent at the time of the hearing in its effects on the left knee and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
168 Obviously when considering the extent of any pre-existing condition, the plaintiff’s evidence is particularly relevant. In this case, a considerable attack was made on the plaintiff’s credit by counsel for the defendant in this regard.
169 The plaintiff’s credit was primarily attacked on the basis of her failure to acknowledge previous knee dislocations and right knee surgery, and at times to specifically deny the occurrence of earlier dislocations to doctors examining her for the purposes of the present claim.
170 Whilst I accept the plaintiff was a genuine witness, she was a terrible historian. At times her answers were totally inconsistent with her frequently having difficulty understanding relatively simple questions and giving contrary answers to the same question on different occasions.
171 Clearly, the plaintiff had problems with both knees prior to the incident. Whilst she could only recall one occasion of left knee dislocation in 1995/late 1990s when she twisted her knee getting out of a car, (an incident not referred to in any clinical notes), I find the plaintiff had similar problems with her left knee on a number of other occasions in 2002 as noted by Mr Khoury who then diagnosed a recurrent patella femoral subluxation. The history taken at Wodonga Base Hospital when the plaintiff attended in 2008 for a dislocation, also referred to other dislocations in 1992 and 1993.
172 Further, I accept that prior to the incident the plaintiff also had right knee problems, with surgery performed by Mr Pike, referred to in Mr Khoury’s report. This surgery was confirmed by the plaintiff only after she looked at the surgical scars on her knee after the first days hearing, although having done so she still could not recall having had surgery.
173 I accept, as Mr Jones described, that the plaintiff has had a longstanding valgus deformity affecting both knees which has resulted in dislocations on a number of occasions.
174 However, from 2002, when she last saw Mr Khoury until the said date, it does not appear that the plaintiff had any further problems with her left knee.
175 The dislocation in the incident was one of some severity which required surgery in March 2005 and a further manipulation under anaesthetic a month later. The plaintiff was then off work for three months, during which time she underwent physiotherapy treatment. On her return to work in late June, the plaintiff initially worked about twenty five hours per week.
176 Whilst counsel for the plaintiff submitted that this dislocation created a situation where the plaintiff was vulnerable to further dislocations of the nature reported at Wodonga Hospital on three occasions after the incident, there is no evidence from her treating doctors since the incident, Mr Khoury, Dr Andrews or Dr Byrne, in this regard.
177 The available medical evidence does not really support this submission.
178 Mr Reid simply noted that following the incident injury there had been recurrent dislocations of the patella on about five occasions. He had been told by the plaintiff that she had no previous problems with her knees; in particular, she had not had any events of dislocation of the patella prior to the incident – which is clearly incorrect.
179 Mr Jones did not express a view in this regard.
180 In my view, the incident was yet another dislocation, not creating a potential vulnerability to further dislocations. Whilst there may be excruciating pain experienced by the plaintiff on those occasions, I am not satisfied that this is a consequence of the dislocation in this incident.
181 Further when one looks at the post incident dislocations reported to the Wodonga Hospital, two appear to have resulted from a specific trauma to the plaintiff’s knee and were not caused by the plaintiff’s knee merely “popping out”.
182 Save for her attendances at the Hospital for these dislocations and a visit to Dr Steele in relation to the 2008 dislocation, the plaintiff has not required medical treatment since 2005. The plaintiff did not complain of knee pain on any other visit to the Federation Clinic after the incident.
183 Mr Khoury saw the plaintiff in the months following the knee surgery and has not reported since that time. Dr Andrews, who treated the plaintiff for her knee condition in 2005 has not reported at all in relation to her left knee injury, save in the context of an examination of her left hand carpal tunnel syndrome.
184 The plaintiff’s case, in terms of her left knee, is therefore essentially a medico- legal one and one based on medical opinion ignorant of the plaintiff’s pre- existing bilateral knee problems.
185 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
186 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
187 The plaintiff has not been prescribed medication for her knee condition since the time of the surgery. Whether or not the plaintiff takes Panamax or other painkilling medication is unclear from her evidence and the history given by her to various doctors.
188 Whilst the plaintiff’s claim was not brought in relation to loss of earning capacity in respect of her left knee, it was submitted the plaintiff’s knee injury had resulted in a restriction in her employment capacity.
189 The plaintiff’s evidence in relation to her work after the incident was unclear and inconsistent.
190 I accept that, prior to the incident, the plaintiff was working thirty to thirty eight hours per week as a home carer with the defendant. Save for a short period off work following surgery, during which the plaintiff underwent physiotherapy from April to June 2005, the plaintiff was able to return to working twenty seven or so hours per week, subject to Dr Andrews certification that she not engage in heavy lifting or bending.
191 No further restriction relating to the plaintiff’s knee condition has been placed on her duties by any medical practitioner since that time. In the absence of any reference to the plaintiff’s knee by Dr Steele when he restricted the amount of cleaning to be undertaken by her in January 2006 at the time of her advancing pregnancy, I am not satisfied that this work restriction was based on the plaintiff’s knee condition.
192 Subsequent to the birth of her first child, the plaintiff returned to work on much more limited hours. Mr MacKinnon and Ms Hamilton’s evidence that this reduction was at the plaintiff’s request with no mention made by her of any knee problem, was not challenged.
193 Whilst there is a reduction in the hours worked with the defendant since the incident, the plaintiff worked with other employers, PNR, Home Care Australia and Kilimani whilst working for the defendant.
194 Further, the plaintiff is limited in the amount of time she can work to enable her to continue to receive a single parent’s benefit. She has two children of pre-school age for whom she has to make arrangements to care for and her current arrangements fit in with that program.
195 Taking these factors into account, although I accept that the plaintiff has experienced some pain and restriction in the performance of her work duties as a result of her knee condition, I am not satisfied that there are any consequences relating to the plaintiff’s employment that are serious.
196 Further, I accept that the plaintiff continues to have some problems bending, squatting, walking and negotiating stairs because of her knee condition. However, notes of the plaintiff’s reported level of activity on attendances at the Federation Clinic during 2008 is somewhat different to the plaintiff’s evidence in this regard
197 The plaintiff has some difficulty with housework and gardening and tasks associated with looking after her two young children
198 In my view however, these consequences are not “serious” in the Humphries v Poljak sense.
199 There is no evidence from the plaintiff’s current general practitioner who has treated her since the end of 2009 when she left the Federation Clinic. Further there is no lay evidence corroborating the plaintiff’s level of complaint and disability.
200 Medico legal examiner Mr Reid thought any restrictions relating to the plaintiff’s knee injury were minor and that her knee condition was not likely to preclude or restrict her in relation to social, domestic or her current recreational activities. He thought there should just be awareness on her part of the possibility of further dislocations and that she should take care undertaking movements of bending and twisting.
201 Whilst acknowledging the likelihood of the plaintiff developing osteoarthritis due to the damage to the articular cartilage, Mr Reid thought the plaintiff’s impairment was minor.
202 Dr Andrews, who treated the plaintiff’s left knee in 2005, when examining her left wrist for medico-legal purposes in March 2010, noted that her left knee had essentially returned to a normal functioning knee. She still suffered some aching at times which did not impact on her ability to use her knee.
203 Taking into account all the evidence, I am not satisfied the plaintiff has serious long term impairment to her left knee from the incident. Accordingly, her application seeking leave to bring proceedings for pain and suffering in relation to her left knee injury is dismissed.
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