Busuttil v Trucare Dry Cleaners Pty Ltd
[2011] VCC 1468
•2 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05639
| LEONARD BUSUTTIL | Plaintiff |
| v | |
| TRUCARE DRY CLEANERS PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 and 31 May 2011 |
| DATE OF JUDGMENT: | 2 September 2011 |
| CASE MAY BE CITED AS: | Busuttil v Trucare Dry Cleaners Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1468 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment of the left knee- impairment of the lumbar spine- psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Nowicki Carbone |
| Mr A Ingram | ||
| For the Defendants | Ms J Forbes | Minter Ellison |
| 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 on during the course of his employment with the first defendant from January 2006 to February 2007 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
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 lumbar spine and left knee.
5 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.
Outline of Section 134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(vi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii) 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;
(viii) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(xii) 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 in reaching my conclusions.
6 The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied upon an affidavit sworn by his daughter, Priscilla, and his wife, Elizabeth. 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
7 The plaintiff is aged sixty four, having been born on 2 June 1947 in Malta. After attending school in Malta, the plaintiff arrived in Australia around 1960 at the age of thirteen.
8 Shortly thereafter, the plaintiff commenced working initially at Kinnears & Sons. He then worked for Bradmill for fourteen and a half years as a machinist. In 1975, the plaintiff gained full time work as a subcontractor for Ansett Freight Express and did that job for about twenty years.
9 The plaintiff’s duties during that time involved some lifting and he experienced intermittent pain in his neck but he always managed to continue working. Occasionally he had a day or two off work and his symptoms subsided.
10 For the following eight years the plaintiff was as an owner/driver for Berri Limited transporting juice cartons to various clientele, working in a chilled refrigerated environment.
11 In mid 2002, the door of the plaintiff’s work vehicle hit him on the back of his neck and as a result he suffered bruising and was in pain for a number of weeks. He had a month off work and was treated with acupuncture and other conservative massage techniques, as well as anti-inflammatories, before returning to work.
12 In cross-examination, the plaintiff denied that he hurt his lower back in that incident and said that Dr Sammut’s notes to that effect were incorrect. The plaintiff could not remember having painkillers at that time, nor could he remember complaining of a sore low back in January 2003.
13 In his claim form relating to the present application, the plaintiff set out that he had previously injured his low back. Working at Ansett and at Berri he had a bit of pain and had a couple of days off but he always went back to work. In cross-examination, whilst the plaintiff then denied he had lower back pain before starting work with the first defendant, he later agreed this in fact was the case.
14 The plaintiff agreed that from 2002 to 2004 Dr Sammut prescribed Mobic which the plaintiff took regularly for his osteoarthritis.
15 The plaintiff deposed that shortly prior to suffering injury with the first defendant, he had also noted some discomfort in his shoulders and hands which have since continued to cause him some discomfort.
16 The plaintiff deposed that he found the cold environment in which he worked at Berri worsened his neck and hand symptoms. He had difficulty using his arms overhead. From time to time he had someone help him do his round of deliveries.
17 Radiological investigations were carried out in relation to these symptoms.
18 When he finished work at Berri, the plaintiff made a claim under his income protection policy (“the policy”) with AXA (“the insurer”).
19 The plaintiff received payments under the policy for two years and he was then told by the insurer that he had to go back to work. The plaintiff told the insurer that he could not do his old job and he was advised to get a different job.
20 Whilst in receipt of payments under the policy, the plaintiff had no intention of going back to work. He agreed he never thought he would work again when he completed the documents for the insurer because his health did not feel that good.
21 The plaintiff deposed that his neck and hand symptoms made it difficult for him to cope with gardening at that time and he had given up fishing and hunting. To the best of his recollection he had not gone fishing since that time. However, he only had gone hunting once since those injuries about three years ago and he really struggled.
22 On about 30 January 2006, the plaintiff commenced employment with the first defendant. His job required loading and unloading of formal wear out of a delivery truck.
23 When the plaintiff started this job, he had a good relationship with the first defendant’s manager, Mr Gandolfo. The plaintiff was told he was to work a forty hour week, earning a wage of $700 plus overtime; he would be permanent and entitled to holiday and sick pay.
24 For the first six weeks or so, the plaintiff worked forty hours a week with ten hours overtime. However, as time passed the plaintiff was constantly placed under pressure by Mr Gandolfo, who was abusive and pushed the plaintiff to work as fast as possible and as a result the plaintiff was often stressed.
25 The plaintiff deposed that his work required heavy lifting, bending, twisting and jumping off the back of the truck which produced the onset of and progression of his lower back and left knee symptoms almost two months after he started work with the first defendant.
26 In examination in chief, the plaintiff described that between six to eight weeks after he started work, he first felt left knee pain when he fell between the gap between the dock and the truck at Crown. The clothes came back and hit him and he fell backwards (“the incident”). He did not report the incident or any injury because Mr Gandolfo was unsympathetic.
27 The plaintiff deposed he was required at work to jump off the back of trucks, which he believed progressively aggravated the conditions in his lower back and left knee. Although his left knee became progressively worse, he attempted to continue working.
28 The plaintiff deposed that when he loaded and unloaded the truck at Crown, he had to jump off the back of the truck because there were no steps or stand provided to him. He tried to rectify this situation by taking abandoned milk crates he found at Crown and using them as stepping stones off the truck. However, the crate was a poor substitute for a proper step because the plaintiff still had to jump down onto the crate and then jump off it onto the ground.
29 Further, if workers at Spurlings, to which the plaintiff also made deliveries, found the crate, they would often throw it away and the plaintiff would not be able to find another one until one was abandoned at Crown.
30 In cross-examination, the plaintiff described his work duties in further detail. He was required to do one or two deliveries of dry cleaning to Spurlings. At that site he had to jump from the truck onto a crate he took with him.
31 Whilst unloading at the first defendant’s premises there was a single step, (photograph tendered) which was very low to the ground, available for the plaintiff to back the truck onto for him to jump out of the truck.
32 The plaintiff confirmed that he was not required to jump from the back of the truck at Crown as there was a loading dock.
33 The plaintiff confirmed there were telescopic arms in the back of the truck for loading and unloading the dry cleaning, which he would push down and he did not have to do lifting.
34 The plaintiff continued to work with the first defendant but his left knee pain persisted. He had problems doing heavy lifting and any form of work which required prolonged standing or physical exertion. His left knee was in significant pain and discomfort.
35 The plaintiff did not report a knee injury before finishing work in February 2007 because he felt Mr Gandolfo was unsympathetic. The plaintiff did not write a resignation letter setting out any physical problems.
36 The plaintiff deposed in 2008 that he believed all the jumping he was forced to do as he was rushing to perform his duties aggravated his injuries to the point where he finally had to seek medical attention and eventually stopped working on or about 5 February 2007.
37 At that time, the first defendant offered the plaintiff two days work a week but the plaintiff told him he could not do it.
38 The plaintiff had perhaps three or four days off work because of his knee condition whilst working for the first defendant, but not following the incident. Following the incident he kept on jumping at work and his knee got worse.
39 To the best of his recollection the plaintiff attended Dr Sammut from about August 2006 in relation to his left knee injury. He treated the plaintiff conservatively and referred him to Dr Lim, a rheumatologist.
40 When asked about the first entry referring to his left knee in Dr Sammut’s notes on 8 August 2006, the plaintiff agreed it was some months after the incident and that his knee was getting worse, having done some landscaping. His knee was already sore and made worse by the gardening. He could not remember being told by Dr Sammut at that time that it was likely his knee problem was due to osteoarthritis.
41 The plaintiff told Dr Sammut about all his problems before he gave up work, “how he felt down and what happened.” The plaintiff thought he spoke to Dr Sammut in February 2007 about continuing working and the plaintiff told him he could not do it any more.
42 In cross-examination, the plaintiff said that he could not remember telling Dr Sammut that whilst working for the first defendant he had had any back pain. The onset of back pain was at the time of the incident and slowly, slowly he had a problem with his knee and he kept on working. He resigned because he could not do his job anymore because of the pain.
43 The plaintiff first consulted Dr Lim on 14 September 2006 complaining of persisting left knee pain. Dr Sammut referred the plaintiff for an x-ray of his left knee which was undertaken on 9 December 2006, and then later referred the plaintiff for an ultrasound in January 2007. Dr Lim referred the plaintiff for an MRI scan to his left knee which was undertaken in March 2007.
44 After ceasing work with the first defendant, the plaintiff again claimed under the policy. That claim, which related mostly to his knee, was accepted. His hand condition was not part of the claim but his hands did get worse handling hangers whilst working for the first defendant.
45 The plaintiff made a WorkCover claim in August 2007. He filled out the claim form himself, setting out that his injury was caused by handling goods and jumping on and off the back of the truck. There was no reference in that claim form to the incident.
46 In cross-examination, the plaintiff agreed he did not feel good when this claim was denied. Whilst it was not mentioned in Dr Sammut’s notes, the plaintiff swore on his parents’ grave that he did tell him of the difficulties with harassment at work and Dr Sammut said to him he had to make a decision whether he wanted to keep on working.
47 As a result of his stress and depression related conditions, the plaintiff was sent by Dr Lim to psychologist, Elizabeth Giamarleos, whom he first saw in August 2007. He continued to consult Ms Giamarleos almost once every three to four weeks. In the latter part of September 2007, she diagnosed major depression and anxiety neurosis but the plaintiff was not medicated for that condition at that time.
48 Because of ongoing pain symptoms, Dr Sammut referred the plaintiff for an x-ray of his lower back in August 2007.
49 The plaintiff continued to experience significant discomfort across the back of his left knee and on 28 May 2008, he was referred by Dr Lim to Mr Crowe, orthopaedic surgeon, for an opinion and management of this pain. The plaintiff saw Mr Crowe for the first time on 12 June 2008 and was referred by him for an MRI scan which was undertaken on 9 July 2008.
50 The plaintiff was then also experiencing some discomfort to his left hip and Dr Sammut referred him for an x-ray in August 2008 which did not demonstrate any significant pathology.
51 The plaintiff’s knee condition was getting worse and he found wearing a knee guard helped.
52 The plaintiff’s WorkCover claim was not accepted until 18 January 2010 following a Medical Panel decision, thus prolonging the plaintiff’s treatment to some degree.
53 As the plaintiff was experiencing some discomfort to both shoulders, mainly the right, Dr Sammut referred him for an ultrasound and x-ray in January 2009. The plaintiff understood these investigations demonstrated he had some pathology but neither a tear nor impingement was demonstrated. He has not made a claim in relation to his right shoulder.
54 By March 2009, Dr Sammut was prescribing 20 milligrams of the antidepressant, Lexapro, the dosage of which was later increased to 40 milligrams. The plaintiff was also being prescribed Celebrex, 200 milligrams daily, and Mobic for his pain.
55 At that stage, the plaintiff’s left knee was locking, particularly when he turned on it, and he also experienced occasional swelling. He could only walk short distances and had to rest frequently.
56 The plaintiff continued to experience symptoms of stress and depression which included panic episodes, chest tightness, severe light headedness, pins and needles in his hands, shakiness, fatigue and insomnia.
57 The plaintiff also had symptoms of depression, including numbness, emptiness, sadness, crying and social withdrawal. He had symptoms of general anxiety, including headaches, irritability, anxiety and excessive pre- occupation with the injury, intense distress about his current situation and great fears about the future.
58 By mid 2009, the plaintiff had seen Ms Giamarleos twenty five times and he was continuing to be prescribed Lexapro. She then recommended he continue his current treatment regime and psychological therapy on a three weekly or monthly basis to assist his recovery.
59 Because of continuing significant discomfort in his back, the plaintiff was sent for a further x-ray in April 2010. He had physiotherapy treatment to his left leg and lower back until funding was terminated in February 2011.
60 The plaintiff was referred to Mr Hunt, orthopaedic surgeon, whom he consulted in August 2010 and was referred by him for a lumbar spine MRI scan the following month. The plaintiff understood this investigation showed some pathology but he was advised by Mr Hunt he did not require back surgery.
61 On 8 September 2010, the plaintiff had surgery on his left knee at Epworth Hospital performed by Mr Crowe (“the knee surgery”).
62 Whilst Mr Crowe noted that there had been some improvement on review two months after the knee surgery, the plaintiff said that his knee was still not right. Mr Crowe could not push the plaintiff’s knee back that far. He told the plaintiff that he might have some further knee problems in the future.
63 The plaintiff has been told that in future he could require a knee reconstruction.
64 Initially the knee surgery relieved the pain at the back of the plaintiff’s knee but the front of his knee continued to be tight. The plaintiff cannot squat and do certain things and there is still discomfort. He can do some activities standing up while keeping his knee straight.
65 In the last few weeks prior to the hearing, the pain at the back of the plaintiff’s knee has returned and causes him problems sleeping. Whilst this pain has returned, it is not as bad as it was before the knee surgery.
66 Although the plaintiff attends his local church almost every Saturday, he is unable to kneel and he is frequently required to change his posture when sitting because of lower back pain. His left knee injury does not allow him to bend or squat on the knee or walk for long distances without pain.
67 The plaintiff continues to have pain across his lower back, made worse by activity, particularly when walking. He is only able to stand for about ten to fifteen minutes before he feels he has to sit down to obtain relief. Sitting for long periods is also uncomfortable. The plaintiff continues to experience referred pain into his left buttock and some tingling in his legs.
68 The plaintiff’s lower back and left knee injuries have limited his activities of daily living and lifestyle to a significant degree.
69 The plaintiff can only play bingo for a very limited time due to a sitting intolerance. He still plays bingo four or five times a week, going with his wife or a friend and whilst there he goes for a walk around the bingo centre.
70 The plaintiff’s walking is limited by his injuries. He is no longer able to walk down the street to get the paper – a round trip of thirty minutes – which he previously enjoyed.
71 In about December 2010, the plaintiff was assessed by an occupational therapist and provided with special gardening equipment. The plaintiff is able to undertake lighter duties around the house, depending on the intensity of his pain. His wife helps him and she picks up leaves, amongst other gardening tasks. Prior to injury with the first defendant, the plaintiff did all the gardening duties.
72 The plaintiff deposed that since the onset of his symptoms, he had attempted activities such as home maintenance and assisting his son-in-law with building renovations.
73 In September 2010, the plaintiff and his wife had purchased a ten month old townhouse in West Melton – a property of about eighteen squares with a relatively small front and backyard. At the time of purchase, the house was vacant, with a tenant moving in in February 2011.
74 Between the time of the purchase and that date, the plaintiff and his wife did some work on the garden laying pebbles with their son-in-law.
75 The plaintiff deposed that he wore a knee brace at that time. Before placing the pebbles on the garden bed, he had to manoeuvre and place his body in such a position that he would minimise the pain and discomfort that he was experiencing. However, after a short time of helping, the pain to his left knee and, to a lesser extent, his lower back, became so apparent he started to limp. The plaintiff was in serious pain and discomfort whilst doing the pebble work.
76 In cross-examination, the plaintiff denied he had had any problems with the heavier aspects of gardening before the accident and he was engaged in gardening activities right up until that time.
77 Surveillance film, taken of the plaintiff in October 2010 was shown to him prior to the hearing.
78 Before being again shown the film in Court, the plaintiff was asked about what he recalled about the film. He described how he used a very light wheelbarrow, did some shovelling and things were light and he did not have to bend.
79 The plaintiff was then shown just over an hour of film was shown of his activities on 15, 29 and 30 October 2010.
80 Most of the film showed the plaintiff on 29 October working on the front garden of the property at Kim Lane laying the pebbles over a couple of hours taking breaks at various times.
81 The plaintiff was aware of being filmed on that date. He explained he had only done pebbling work once, when he was shown on film and that sometimes he has good days, and sometimes bad days.
82 From about 10.40 am until leaving the property at 11.52 am, the plaintiff engaged in a variety of gardening tasks, shovelling and laying pebbles, doing hoeing or light weeding.
83 The plaintiff disagreed that he did these tasks with his knees bent. He suggested that he was shown in the video moving very, very slowly.
84 The plaintiff thought he was wearing a dark sort of bandage on his knee but it was not apparent on the film.
85 The plaintiff was filmed the following day over about ten minutes. Whilst at times he was shown limping, at other times he moved more freely than he had been shown the previous day. The plaintiff explained this was the case because he got different pain all the time and sometimes he was better than others.
86 The plaintiff said that it was easier to lay pebbles than drive a truck which was a different thing altogether. His level of activity depends on how he feels on a particular day. If he feels good he can cut the lawn; if he does not, his wife does it. He does not weed the garden beds and gets his son-in-law to do it as he had been unable to because of the bending and problems with his knee.
87 In cross-examination, the plaintiff agreed that he owns three investment properties and over the last five years he has turned over six or seven properties. The properties he buys are new so he does not have to do any work preparing them for rental but he did help at Kim Lane.
88 After doing that pebble work on the 4 x 4 metre area at the front of the property, the plaintiff felt very bad. He was “stuffed” for three or four days. When he was doing the shovelling his knee was not bad.
89 When the plaintiff deposed that he attempted activities such as home maintenance and assisting his son-in-law, the plaintiff meant that he bought the towel rail and toilet roll holder for his son-in-law to install.
90 When asked whether he told Mr Crowe he could perform the gardening activities shown on film, the plaintiff said he told Mr Crowe he could do certain activities but told him that he could not bend his knee.
91 The plaintiff finds that stretching, twisting, pushing and lifting are all activities that flare up his symptoms. When he tries to push himself to do more, his left knee becomes swollen and painful, causing him to limp. This pain fluctuates in intensity and is of a shooting sensation.
92 The plaintiff’s symptoms are worse in the mornings but they also interfere with his sleep unless he takes tablets.
93 As a result of his left knee, lower back and stress related conditions, the plaintiff has developed disturbed sleeping patterns. His appetite is variable and has he has lost four kilograms. His moods are erratic and he has become argumentative. He is socially avoidant and feels disappointed and not needed.
Activities
94 In his July 2008 affidavit, the plaintiff described shooting as his favourite hobby. He deposed, however, he was no longer able to hunt because of his left leg pain, preventing him from walking the long distances required and he was also scared his leg might get stuck in the mud.
95 In the last three years, the plaintiff has gone hunting only once, near Colac with a friend. Although they made stops along the way, the plaintiff found that he had pain across his lower back and had problems getting in and out of the car. Walking on uneven surfaces flared up his left knee and lower back pain. Although he tried to carry things, hide on the ground and such, he found that when he put his body into an awkward position of squatting, kneeling, bending or standing for a long time, he experienced a great deal of pain and discomfort mainly to his left knee and lower back.
96 Before suffering injury, the plaintiff occasionally attended soccer as a spectator. However, since then he has rarely attended matches because pushing through the crowd was very difficult with the pain in his left knee and back.
97 The plaintiff sometimes went fishing on a boat with his nephew but had not been for at least five years. Following his injury, the plaintiff tended to avoid going out on boats because the bouncing of waves caused pain to his left knee and lower back.
98 The plaintiff used to enjoy going dancing with his wife every two weeks. His ability in that regard has been greatly diminished as a result of his injuries and pain. He attempted to take his wife dancing about once every month or couple of months because she loved to go and he did not want to upset her. When they danced the plaintiff could only do so gently and he tended to avoid any vigorous dancing. Indeed, he often found he had to sit down and watch the others. He would not be dancing anymore if it was his hobby alone, because he found it very difficult after the injuries. He only did so because it made his wife happy.
99 Because of his injuries, the plaintiff found it difficult to drive and does not do so as he did before the accident. He had to wear a brace to reduce the pain in his left knee. Often his wife had to drive the plaintiff to bingo which was an added stress on her.
100 Before suffering injury, the plaintiff often climbed on chairs to clean the chandeliers and clear away cobwebs. These and other household maintenance tasks are now very difficult and dangerous. The plaintiff had to pay someone to clean his gutters whereas before he performed that task.
101 The plaintiff avoids walking on uneven surfaces and carrying or climbing as those activities aggravate his pain, mainly to his left knee and, to a lesser extent, his back. His left knee makes him feel physically insecure when he goes out. He has to modify his activities to control his lower back and left knee pain and his lifestyle is restricted accordingly.
102 The plaintiff now has trouble getting into and out of a car and supports himself in such circumstances. He has lower back pain and, to a lesser extent, knee pain when he gets into and out of bed.
103 Until about six weeks prior to the hearing, the plaintiff was having physiotherapy twice a week. However, in March 2011, the WorkCover agent ceased all medical entitlements and the plaintiff has been unable to have any physiotherapy or psychological treatment since that time.
104 The nature of the plaintiff’s injury causes him to frequently limp as he tries to reduce the weight placed on his left knee. He has reduced mobility and needs to take a rest when the pain gets hard to bear, which is upsetting for him and he feels quite useless compared to his pre injury state. Having people look at him when he limps has taken a toll on the plaintiff’s self confidence, making him feel frequently depressed.
105 In the past the plaintiff had experienced emotional problems from previous conditions and injuries he had suffered. However, these were not as significant as the condition he now suffers from following the constant verbal harassment to which he was subjected from Mr Gandolfo over the course of his work with the first defendant.
106 In re-examination, the plaintiff described how his psychiatric problems came on with the Mr Gandolfo. The plaintiff never had any problems before. He was “a cool guy, everything was smooth” and now he cannot even get on with his wife and they are always fighting. The plaintiff lacks tolerance and if he cannot stand things he just has to have somewhere to walk away. He “cannot stand crap” and he has a flare up straight away, even with his wife. They nearly broke up about three our four times and he had a fight with his daughter and kicked her out of the house.
107 The plaintiff is not motivated towards participating in previous enjoyable activities because of his depression. His tendency towards irritability has had an adverse impact upon his marriage and likely complicated interpersonal relationships more generally. The plaintiff’s sexual relationship is compromised.
108 The plaintiff’s current injuries to his left knee, lower back and stress related condition have severely limited his capacity for any day to day activities, social interaction, recreation, pleasure or work, despite his desire to overcome the injuries and become involved in the workforce again.
109 The injury to the plaintiff’s left knee and lower back have not significantly resolved since the onset of his pain, although his knee no longer locks. His condition is worse today than when he went off work in 2004. His neck is not so bad. He can get by with his shoulders but his problem is his knee, lower back and hands. He agreed he had osteoarthritis in his feet which affected his ability a little bit to walk normally.
110 The plaintiff continues to see Dr Choi. He is currently prescribed and takes Celebrex as required; one tablet daily of Comfarol Forte; a paracetamol, 500 milligrams; codeine, 30 milligrams, is his base medication for the partial relief of his pain; the anti-depressant, Escitalopram, 40 milligrams one tablet at night; the anti-psychotic medication, Zyprexa, 5 milligrams; Alepam, half a tablet at night for anxiety and insomnia; fish oil, Glucosamine as required; Lipitor, 40 milligrams, for cholesterol; and Metformin, two tablets daily, each of 500 grams for his diabetes.
111 The plaintiff thought Ms Giamarleos helps him cope with depression and anxiety, perhaps because he is on medication.
112 The plaintiff can no longer perform the physical demands of his previous job involving manually handling heavy bags of garments and large and heavy bundles of hanging clothing, jumping on and off a loading dock and in and out of a vehicle as a result of the injuries he sustained.
113 For the last twenty five years the plaintiff worked as a delivery driver both as an employee and an owner driver and he is dependent on his physical capacity for employment rather then his academic background.
114 The plaintiff does not believe he is able to participate in alternative employment due to the likelihood of even sedentary occupations aggravating his lower back and left knee symptom as he has intolerance for prolonged standing, sitting, walking and bending. He does not believe he could return to or continue to work into the future as a result of his injuries.
115 The plaintiff was earning $700 gross a week while working for the first defendant. He is now completely unable to work and is earning no money. He does not believe he has any capacity for work other than manual work. The first defendant has not offered the plaintiff any programs to return to work.
116 The plaintiff still has a light truck licence, having held a heavy licence for about ten years. He cannot return to that sort of work any more as he cannot handle the traffic and he did not want to cause an accident or maybe kill someone.
117 In cross-examination, the plaintiff agreed he went to the rehabilitation provider, NES, to discuss career options.
118 When NES noted the plaintiff had no interest in working and believed he could not ever recover to undertake any work he knew how to do, the plaintiff said:
“My psychological – the way I have been driven mad and what have you,
I don’t think I could do it. I don’t’ think I could do it.”
(sic)
119 It was not that the plaintiff had no interest in working, it was because he could not because of his physical and psychological condition.
120 Whilst working for the first defendant, the plaintiff’s income was put into his superannuation fund. When it was suggested to the plaintiff in cross- examination that he was financially secure so he did not need to work, he said he had always been a worker since the age of thirteen when he came to this country, having then told his employer he was fifteen. He “had never taken a cent off the Government or anything else. If he was as he was before, he would work again, but he is not in that condition any more.”
121 In re-examination, the plaintiff explained that he would not be able to use the clutch at work with his left leg, even in a light truck. As a driver he had to climb up and down and lift things and he had the psychological problems of worrying about having an accident and the pressure.
122 In terms of his future on the finalisation of the case, the plaintiff said:
“Between you and me, I’d never be the same as I was before – I’ll never be the same. I have lost a lot of friends, they don’t talk to me any more because I burst out and I sort of lose it.”
The Plaintiff’s Medical Evidence
123 A certificate provided by Dr Sammut on 27 July 2007 set out the plaintiff had an injury to the left knee resulting from jumping in and out of the back of a truck.
124 When Dr Sammut reported in November 2007, he thought the plaintiff suffered from multiple medical problems and he assumed the upcoming Conciliation was about the plaintiff’s left knee injury.
125 Dr Sammut understood the plaintiff’s job involved loading and transporting and unloading the contents of a truck and that he often had to jump from the back of the truck onto the road and the step was too low.
126 Dr Sammut reported that he had been seeing the plaintiff for over eight years. He noted the plaintiff had a history of widespread osteoarthritis in relation to which he had referred him to a rheumatologist, Dr Webb, and the plaintiff was then seeing Dr Lim.
127 Dr Sammut advised the plaintiff had developed reactive depression as a result of his pain and had been referred by Dr Lim to a psychologist. Dr Sammut had recently added an antidepressant to the plaintiff’s medication.
128 Dr Sammut felt the work with the first defendant may have aggravated and/or contributed to the plaintiff’s left knee problems. He noted the plaintiff’s previous physical work was also in the transport business, and age would have been a great contributor to his widespread osteoarthritis. He thought the plaintiff was unfit to return to pre-injury duties and because of his multiple medical problems, was unfit to return to any gainful employment. He then thought the plaintiff’s general prognosis was guarded and that he may need indefinite continued medical treatment.
129 In October 2009, Dr Sammut agreed the plaintiff should have investigation and treatment by left knee arthroscopy.
130 Dr Choi took over the plaintiff’s care on 10 March 2010 when Dr Sammut retired.
131 The plaintiff told Dr Choi he had bad dreams of his past work experience of harassments and bullying and had chronic pain and a high level of anxiety because of his past experiences.
132 The plaintiff told Dr Choi he would like to defer his forthcoming operation until after the Court case. His left knee was constantly painful and stiff. His lower back flared up, especially in the winter months. Both those factors made his mental condition worse.
133 Dr Choi noted the plaintiff had been certified as totally and permanently incapacitated to do his pre injury work and that his chronic anxiety and depression had also significantly impacted on his ability to find any suitable duties. The plaintiff also complained of memory lapses and poor concentration and his knee swelled up from time to time and he was unable to cut his lawn or do heavy housework.
134 As of July 2010, Dr Choi thought the plaintiff would require ongoing psychological counselling.
135 Dr Choi reported on 24 May 2011, having been provided with a number of reports.
136 Dr Choi noted the plaintiff’s main symptoms were chronic left knee pain, pre and post surgery, mechanical back pain of many years and mixed anxiety as a result of his injuries.
137 Dr Choi noted it was possible the plaintiff may need a knee replacement in the near future because of the associated degenerative changes in his left knee. As far as the plaintiff’s back was concerned, Dr Choi noted the September 2010 MRI showed canal stenosis at L4-5 with a broadbased disc bulge with extension into the left intervertebral foramen.
138 Dr Choi thought the plaintiff’s pain was chronic and would probably get worse over time. He believed the plaintiff’s condition was unlikely to improve at any time in the future, noting his back and knee symptoms had persisted.
139 Dr Lim, rheumatologist, provided a number of short reports to the plaintiff’s solicitors and also correspondence to the plaintiff’s treating doctors.
140 The plaintiff first saw Dr Lim on 14 September 2006 on referral from Dr Webb. At that time Dr Lim diagnosed a complex left knee injury with a partial anterior cruciate tear and arthritis of the hands.
141 In a letter to Dr Cygler of UHG Life Insurance, Dr Lim advised the plaintiff should avoid activities which made him stress his knee. Dr Lim believed the plaintiff’s line of work which required lifting and getting up and down with loads would be difficult for him and would aggravate his arthritis. He advised a return to the same line of work would be difficult for the plaintiff and whilst rehabilitation was useful, he thought the plaintiff should consider a less physical type of work and should not return to a physically demanding job if he wanted to preserve the use of his joints.
142 Dr Lim reported to Dr Sammut on 21 February 2007 that the plaintiff complained of recurrent pain to the back of the left knee which the plaintiff put down to years of work involving landing on the left knee when loading and unloading the truck.
143 On examination, there was a small effusion and tenderness of the posterior lateral margin of the knee and there was a baker’s cyst. The x-ray showed calcification in the lateral meniscus and osteophytes. An MRI scan was advised.
144 That MRI scan showed complex damage to the knee which Dr Lim thought was consistent with injuries related to work. Dr Lim then advised a period of observation and trying to avoid taking NSAIDS on a regular basis.
145 In July 2007, Dr Lim reported to Dr Sammut that the plaintiff came for review complaining about his knee playing up two days a week.
146 Dr Lim referred the plaintiff to Ms Giamavelous on 9 August 2007 for an anxiety disorder, noting he saw the plaintiff for osteoarthritis of his hands and knees.
147 In a report of 12 November 2007, Dr Lim advised he initially saw the plaintiff for his hand condition and also a lot of pain and discomfort in his left knee which the plaintiff put down to years of jumping off trucks and landing on his knees.
148 Dr Lim thought the knee injury was consistent with work related injury through the plaintiff’s description. He thought the plaintiff would have problems doing heavy lifting or any form of work requiring prolonged standing or physical exertion.
149 On 6 December 2007, Dr Lim advised Dr Sammut that the plaintiff still came to see him from time to time, although he told the plaintiff there was little else he could do for his knee in particular.
150 The plaintiff was referred to Mr Crowe by Dr Lim in May 2008 for opinion and management of his left knee pain.
151 In August 2008, Dr Lim reported to Dr Sammut the plaintiff was getting worse pain in his left knee.
152 Dr Lim advised Dr Sammut in January 2009 that he had seen the plaintiff whose hand symptoms were much better since he had stopped work. He noted the plaintiff was still in the process of a very exhausting and stressful work claim which he thought might be consuming him and was not sure if it was good for the plaintiff’s mental health. He noted the plaintiff’s left knee played up from time to time and he found wearing a knee guard helped him.
153 When he saw Dr Lim on 24 April 2009, the plaintiff was preoccupied with his left knee pain and discomfort and also the impending court proceeding in July.
154 On examination, there was some increased medial laxity and Dr Lim discussed with the plaintiff trying to reduce his anxiety levels.
155 On 17 June 2009, Dr Lim advised Dr Sammut the plaintiff had a flare up of knee pain two to three weeks ago and new x-rays were requested.
156 Dr Lim advised the plaintiff’s solicitors in October 2009 that it was correct the MRI report showed meniscal tears with degenerative changes but he noted, however, whether arthroscopic debridement would help someone like the plaintiff was debatable. However, Dr Lim advised he would generally recommend arthroscopy where a patient complained of knee locking and swelling and if he felt a meniscal tear was the cause of those problems.
157 In September 2010, Dr Lim advised that he agreed the plaintiff would benefit from arthroscopic surgery.
158 Mr Crowe first saw the plaintiff on 12 June 2008.
159 The plaintiff told him about the system of work and also the incident. On examination, the plaintiff’s patellofemoral joint was somewhat irritable. His knee was not unstable but he certainly had pain across the back of it where he said was the major component. Mr Crowe thought at that stage the plaintiff would benefit from an up to date MRI scan.
160 Mr Crowe noted in the repeat MRI scan there was no definitive meniscal tear, no chondral flaps in the femorotibial articular surfaces and the patellofemoral joint appeared within the articular cartilage and the patellofemoral joint appeared within normal limits. Although there was some degeneration in the ACL ligament, there was no definitive tearing and indeed that fitted in with the lack of any clinical findings of an unstable knee.
161 In view of those findings, Mr Crowe through it was clear there was no obvious benefit to be gained from surgery. In summary, he advised the findings really indicated a degenerative problem with the knee which could, in all probability, be significantly contributed to by work activities which were described by the plaintiff.
162 Mr Crowe agreed that Dr Rose’s conclusions were quite accurate.
163 On re-examination on 29 June 2009, it appeared to Mr Crowe that the plaintiff’s left knee had deteriorated, with pain at the back of the knee, but he also had episodes of swelling and difficulty in flexing his knee, with pain on the medial aspect. Mr Crowe noted that was somewhat different from when he had seen the plaintiff previously for the MRI scan in July 2008. It showed an altered signal in the medial meniscus but it now appeared a discrete tear of the medial meniscus may have occurred and for that reason Mr Crowe requested a further MRI scan.
164 Re-examination also demonstrated significant tenderness over the medial joint line with a suggestion of a small effusion. Mr Crowe thought that again would indicate a significant problem now with the medial meniscus in the left knee.
165 Mr Crowe advised Cambridge on 8 September 2009 that he obtained the results of the MRI scan. There was significant degenerative intrameniscal signal within the medial meniscus and there appeared to be a tear at the junction of the posterior horn and meniscotibial root with the suggestion of a further degenerative tear in the posterior meniscotibial root. There was also some chondral thinning in the lateral compartment. Further there was some Grade II to III chondral loss on the femoral articular cartilage of the anterior and medial compartments. In view of those significant findings, Mr Crowe thought an arthroscopy was of paramount importance and he sought approval in relation thereto.
166 Mr Crowe advised Dr Sammut on 10 June 2010 that he had reviewed the plaintiff the previous day. He noted fortunately the Medical Panel seemed to have agreed that the plaintiff’s back and left knee injuries were related to work and indeed had certainly exacerbated these conditions.
167 On examination, the plaintiff’s knee certainly was stable. However, he had a slight varus deformity. He had quite a good range of movement but was markedly tender over the medial joint lines with the sensation of the swelling. Mr Crowe advised the clinical findings were in keeping with the MRI scan finding of a probable medial meniscal tear with some degenerative change and therefore he thought an arthroscopy would be appropriate.
168 He requested approval or this procedure from Cambridge on 10 June 2010.
169 Mr Crowe saw the plaintiff on 5 November 2010, two months post- arthroscopy. He noted the plaintiff was doing very well, effusion was diminishing, although it was still present, and there was excellent straight leg raise, feeling more comfortable, with some discomfort on the medial aspect of the left knee. He expected the plaintiff to improve over the next couple of months and proposed review in January.
170 On 7 February 2011, Mr Crowe advised the plaintiff’s solicitors that he had reviewed the plaintiff on 4 February 2011. He advised he thought the plaintiff’s knee was a status quo situation. It was not perfect, as the plaintiff did have some chondral loss; i.e. articular cartilage damage on the medial femoral condyle, but that had been improved by the partial medial meniscectomy. He thought the plaintiff would always have some discomfort when stressing the knee, such as in climbing stairs, but apart from that he noted the plaintiff was performing reasonably well.
171 Mr Crowe thought it must be kept in mind in the future that the plaintiff may have some further degenerative change; i.e. arthritis in the medial femoral condyle area, and so may require further intervention in the future, culminating in perhaps medial knee replacement in a number of years if that occurred. He thought that that should be kept in mind for the plaintiff’s future WorkCover.
172 Elizabeth Giamarleos, psychologist, first saw the plaintiff in 2007 on referral from Dr Lim. The plaintiff’s presenting problems were marked anxiety, nervousness, tremors, unexplained crying, palpitation, constant preoccupation with the work incident, loss of concentration and occasional memory lapses.
173 When she reported in 2008, Ms Giamarleos diagnosed a Chronic Adjustment Disorder with Depression and Anxiety as well as panic attacks. She thought the plaintiff would require ongoing psychological and psychotropic medication and noted resolution of aspects of this condition so that he could settle down and hopefully respond positively to further psychological treatment. She believed the plaintiff’s employment situation had been the major factor in his current illness. She was pessimistic about whether he would ever be able to return to work in the future. She thought the plaintiff had no work capacity and his future was doubtful.
174 In July 2010, Ms Giamarleos reported that the plaintiff’s psychological condition had mildly deteriorated since her last report in June 2009. She thought the plaintiff was still suffering from a Chronic Adjustment Disorder with Depression and Anxiety and he also suffered from panic attacks and a Pain Disorder associated with both psychological factors and general medical conditions, mild in response to his experience of physical pain and inability to work.
175 Ms Giamarleos then thought it difficult to estimate the plaintiff’s prognosis with any certainty but thought it likely to be fair to reasonably good depending on the degree of support available and the amount of stress to which he was subjected. She concluded the plaintiff responded well to psychological treatment and attended his appointments. His progress had been slow, in that he still experienced anxiety and depressive symptoms and also irritability due to physical pain and headaches. However, techniques assisted him in terms of severity and duration of depressive symptoms and irritability.
176 Mr Justin Hunt, orthopaedic surgeon, saw the plaintiff on 31 August 2010.
177 The plaintiff told him of two problems with his job; namely, pressure placed on him by the manager and, secondly, the physical work required; namely, repetitive heavy lifting, bending and twisting, which produced the onset and progression of back symptoms.
178 In addition to lifting, the plaintiff was required to repeatedly get on and off the back of a truck and was therefore often jumping and climbing back onto the truck, thus causing the onset and progression of symptoms of low back and left knee pain.
179 On examination, the plaintiff had an antalgic gait, mainly due to symptoms relating to his left knee. He had reduced lumbar lordosis. He was tender across the lumbosacral junction and also on the left buttock on deep palpation. The plaintiff had restricted range of motion in all planes with almost no extension of his spine and only 30 degrees of normal lateral flexion and 20 degrees of forward flexion. Neurologically his lower limbs were intact apart from an absent right ankle jerk even with reinforcement. Straight leg raising was negative to leg pain symptoms but did reproduce back pain.
180 The plaintiff’s left knee was still slightly swollen due to synovial thickening. There was tenderness along the medial joint line with fine patella crepitus. Patella tracking was normal and there was a full range of motion and all ligaments were stable.
181 Mr Hunt had available to him April 2010 x-ray of the lumbar spine. He thought the plaintiff had mechanical back pain and suggested a further MRI scan which was performed in 2010, after which the plaintiff was again seen.
182 The plaintiff was then advised the MRI scan tended to suggest that he had multiple level degenerative changes in the lumbar region and more specifically evidence of canal stenosis at the L4-5 motion segment due to a combination of broad based disc bulge with extension into the left intervertebral foramen. The plaintiff also had ligamentum flavum hypertrophy and facet joint hypertrophy.
183 Mr Hunt explained to the plaintiff that the MRI findings of degenerative change in the spine explained his ongoing pain symptoms and that he thought conservative treatment was appropriate.
184 Mr Hunt diagnosed chronic lumbar mechanical back pain secondary to symptomatic spondylosis and symptomatic left knee osteoarthritis. The objective findings on imaging supported the presence of degenerative changes in the lumbar spine in addition to the plaintiff’s history on examination supporting an organic basis for his low back symptoms, as did similar factors in respect of his left knee.
185 He found the plaintiff to be a straightforward and reliable historian who did not exaggerate pain responses on examination.
186 In terms of the left knee, Mr Hunt thought it possible in future the plaintiff could require possible arthroscopic debridement surgery or further operative intervention in the form of a knee replacement procedure should his symptoms warrant such management. He deferred to Mr Crowe’s judgment in that regard.
187 Mr Hunt thought the plaintiff’s back injury was stable and it was likely he would have a gradual progression of degenerative change in the lumbar spine which may result in further progression of his mechanical low back symptoms.
188 Mr Hunt considered the plaintiff’s symptoms in both areas were chronic and that they would continue into the foreseeable future.
189 On the basis of the plaintiff’s symptoms, Mr Hunt thought it unlikely he would be able to work again in his pre-injury employment, nor be able to participate in alternative employment due to the likelihood of even sedentary occupations aggravating his symptoms. He therefore thought the plaintiff would remain, in terms of his activities of daily living and work, incapacitated into the foreseeable future.
Medico-Legal Evidence
190 Mr Mangos, general surgeon, examined the plaintiff in February 2009.
191 The plaintiff told him that in doing the work with dry cleaning, the step was a little low and there was always a strain on his legs, particularly the left one. He told Mr Mangos of a particular incident in the loading bay when his leg was very bruised and his knee was swollen. From then on he continued to complain and reported a painful knee and back.
192 On examination, the plaintiff moved fairly briskly with no abnormal gait. His lumbar spine was broad and flat and the alignment was normal. The movements were associated with discomfort and there was a good deal of stiffness. There was restriction of movement on straight leg raising. The reflexes were equal and active.
193 The left knee was not obviously swollen and it was stable. There was no definite increased fluid clinically. Movements of the knee were performed slowly and with discomfort to 90 degrees only. There was tenderness present along the medial joint line and there was no cruciate ligament laxity. Slight crepitus was noted. There was no wasting or neurological deficit noted in the lower limbs and sensation was within normal limits.
194 Mr Mangos had available to him the March 2007 MRI of the left knee.
195 Mr Mangos concluded that the plaintiff suffered from definite multiple work related injuries involving his left knee, shoulders and back. He thought it was most unlikely that the plaintiff would ever return to gainful employment.
196 In his opinion, the plaintiff was suffering a left knee injury with partial tear of the ACL ligament, partial tear of the posterior cruciate ligament, medial meniscus tear and earlier osteoarthritis due significantly to the work he was doing. He was also suffering from aggravated lumbar spondylosis, and anxiety and depression. He considered that in general, eighty per cent of the plaintiff’s incapacity and impairments were organic.
197 Mr Mangos thought the plaintiff’s injuries had stabilised and were permanent. He considered that the plaintiff had no current work capacity and that his social, domestic and recreational activities were certainly restricted. He thought the plaintiff’s prognosis for the future was poor.
198 Mr Mangos agreed with the content of Dr Harmer’s report and also further opined that with the jumping out of the truck, there was undoubtedly a constant severe aggravation of any degenerative changes in both the plaintiff’s knee and back and aggravation was also involved in his duties with the manipulation of laundry material in and out of the van one hundred times a day.
199 Dr Harmer, rheumatologist, saw the plaintiff in February 2009.
200 The plaintiff gave her a detailed history of the duties he was required to perform at Crown and Spurling without the assistance of a step to get out of the truck. The plaintiff also recalled that two months after he had been working he had experienced a fall when delivering at Crown when he landed on his bottom and felt he had also hurt his left knee at that time.
201 On examination, the plaintiff had diffuse tenderness around his left knee, especially in the popliteal fossa. There was no evidence of an effusion. There was slight wasting of the medial aspect of the right knee compared to the left knee which measured 45 centimetres in circumference, compared to 46. There was no calf wasting.
202 The plaintiff complained of pain with movement of his left knee. Reflexes appeared intact and were symmetrical on both sides.
203 Dr Harmer thought the plaintiff’s degenerative problems with his back and left knee contributed to ongoing pain. The plaintiff also reported depression and associated sleep disturbance.
204 Dr Harmer felt the plaintiff had significant degenerative disease in the two areas contributing to his pain. In the future, she suspected he would require ongoing treatment for his left knee, lower back and other degenerative problems to help with pain management. She thought the plaintiff may require further operative review if he developed progressive degenerative disease in his left knee.
205 Dr Harmer thought the plaintiff appeared to have generalised degenerative disease. She thought that the plaintiff’s jumping up and down from the truck at work would be an aggravating factor to the underlying degenerative disease affecting his lower back and left knee. She thought that these conditions were permanent.
206 Dr Harmer considered the plaintiff’s current work capacity was limited by his generalised degenerative disease, particularly his osteoarthritis in his hands and his ongoing symptomatic degenerative disease in his neck and shoulders, restricting movements of his upper limbs and his ability to lift.
207 Given the plaintiff’s work history and his ongoing pain, Dr Harmer thought he would find it difficult to return to any form of paid employment. She considered that limitations to his social, domestic and recreational and employment activities were likely to be permanent.
208 Dr Leonard Rose, pain management consultant, saw the plaintiff for medico- legal purposes on 7 April 2009.
209 The plaintiff told him of harassment at work. He also told him how his truck had no steps on it and he had to jump onto a low step to load and unload vehicles. The plaintiff also told Dr Rose about the incident.
210 On examination, the plaintiff demonstrated marked pain behaviour. He appeared to have a flat affect. Dr Rose felt the plaintiff was difficult to examine because of his complaints of severe left knee pain with almost any movement and almost any attempt to manually examine him.
211 The plaintiff was tender diffusely over the entire left knee posteriorly and laterally, although his pain behaviour made examination extremely difficult. He appeared to be tender centrally over the dorsal spines of L3 to S1 and over the upper and lateral buttocks. Dr Rose was unable to examine the plaintiff’s knee for any physical signs of meniscus damage or damage to the anterior or posterior cruciate ligament.
212 Dr Rose concluded the plaintiff appeared to have suffered from significant left sided knee pain and lower back pain as a consequence of his work. Because of the jumping, Dr Rose believed he sustained significant internal disruption of his left knee, damaging both the medial cartilages and also his anterior and posterior cruciate ligaments. The plaintiff also appeared to have sustained injury to his lumbar spine.
213 Dr Rose noted however, to some extent, even more pronounced was the obvious significant psychological impact of what appeared to have been unwarranted and unnecessary bullying.
214 Overall, Dr Rose thought the plaintiff suffered from a significant disability which almost certainly was likely to permanently prevent him from any form of paid employment in the future. He believed the plaintiff was unlikely to improve at any time in the future.
215 Dr Rose believed the plaintiff suffered from at least seventy per cent organic pain which was directly associated with his knee and lower back injury and there was at least a twenty five to thirty per cent impact on his quality of life and capacity to work from his Post Traumatic Stress Disorder and Depression. He thought the general prognosis for the plaintiff was poor, both from a physical and psychological perspective.
216 Dr Rose re-examined the plaintiff on 11 January 2011, at which time the plaintiff again presented as extremely apprehensive, demonstrating pain behaviour. There was significant decrease in lumbar spinal movement and no reflexes could be obtained because the plaintiff was unable to relax his muscles. There was some crepitus associated with left knee movement.
217 Dr Rose then thought the plaintiff’s depression had worsened. He noted the plaintiff’s knee injury resolved to some extent following surgery and he was far more disabled by back pain. Dr Rose thought that either the knee or back injury would have been physically sufficient enough to prevent the plaintiff from working. He thought the possibility of further knee intervention would be unknown until at least six to twelve months after surgery. He thought the plaintiff was suffering either a Post-Traumatic Stress Disorder or significant Depression and Anxiety which or may not be associated with that disorder.
218 Mr Khan, orthopaedic surgeon, first examined the plaintiff on 12 May 2009.
219 The plaintiff told Mr Khan of harassment by his supervisor. The plaintiff also told him of having to jump from the back of the truck and landing awkwardly on his left leg. At one stage he had sustained a fall which he did not report, and had jarred his left knee at that time.
220 Mr Khan considered, as a result of the repetitive injury suffered by the plaintiff by landing awkwardly and repetitively on his left leg, he had flared up degenerative arthritis in the joint and damaged the anterior cruciate ligament, as well as the suspected tear in the degenerate medial meniscus.
221 Mr Khan thought the plaintiff had non organic symptoms, the diagnosis of which was outside his field, but had been termed as an Adjustment Disorder.
222 Mr Khan initially thought the organic aspect of the plaintiff’s condition contributed sixty per cent to his pain and suffering. He thought in the future the plaintiff may require arthroscopic debridement of his left knee which may be followed by total knee replacement surgery. Mr Khan thought the plaintiff had a limited work capacity from the injury to his back and knee, and as such his injury would preclude or restrict him in relation to social, domestic, recreational and employment activities. He considered the long term prognosis was guarded as the plaintiff not only suffered from the physical aspect of the injury but also the non organic condition of depression and anxiety.
223 By letter dated 29 September 2009, Mr Khan agreed with the knee surgery proposed by Mr Crowe.
224 Following re-examination on 3 May 2010, Mr Khan’s opinion remained essentially the same. He thought the plaintiff had sustained a significant injury resulting in partial incapacity in relation to his back and left knee, having suffered a tear of the degenerative medial meniscus and flare-up of degenerative changes aggravated by work and also a flare-up of disc degeneration at L3-4.
225 Mr Khan re-examined the plaintiff on 17 January 2011. The plaintiff then reported that his sleep was still disturbed by persistent nagging back pain going into his left buttock and intermittent tingling in his left leg. He was not able to perform activities requiring kneeling, bending and squatting.
226 On examination, there was mild limitation of thoracolumbar spine movements. A straight leg raising test was negative on both sides. There was no evidence of any neurological deficit in the lower limbs.
227 Examination of the left knee revealed the plaintiff had mild anterior swelling of the joint. Quadriceps seemed to contract satisfactorily. Lachman’s and McMurray’s tests were negative. The plaintiff could not squat fully on the left knee and range of movement was 5 to 105 degrees. The plaintiff had a mild degree of tightness and patella irritability with Perkin’s sign being mildly positive.
228 Mr Khan noted the plaintiff had shown some improvement following the surgery but his left knee condition continued to persist.
229 Mr Khan thought the plaintiff’s long term prognosis was not favourable and considered he remained totally unfit for his pre injury duties or suitable employment. He thought the plaintiff would be a candidate for total knee replacement surgery in five to ten years on account of the after effects of the injury.
230 Mr Khan agreed with the Medical Panel psychiatrist’s finding that the plaintiff was suffering from Chronic Mild Adjustment Disorder with Depressed Mood. He considered ninety per cent of the plaintiff’s condition was physically based.
231 On 18 January 2010, the Medical Panel decided that the plaintiff was suffering from an aggravation of degeneration of osteoarthritis of the lumbar spine, an aggravation of early degeneration of the left knee, osteoarthritis of the interphalangeal joints of the right and left hand and a Chronic Mild Adjustment Disorder with Depressed Mood.
232 The Panel was of the opinion the plaintiff’s employment with the first defendant could possibly have been, and was in fact a significant contributing factor to those conditions.
233 The Panel found the plaintiff did not have a current work capacity having regard to that definition in s.5 of the Act and that this situation was likely to continue indefinitely.
234 The Panel considered that the plaintiff’s incapacity for work resulted from and was materially contributed to by the aggravation of degeneration of osteoarthritis of the lumbar spine and aggravation of early degeneration of the left knee.
235 Dr Weissman, psychiatrist, examined the plaintiff on 25 February 2009.
236 The plaintiff told Dr Weissman that the problem at work was a lack of steps to get off the truck. He also told him about alleged reported victimisation, harassment and bullying.
237 The plaintiff told Dr Weissman that he broke down very easily and was crying and depressed and became shaky. He had sleep disturbance. He thought about his previous boss a lot.
238 On mental state examination, the plaintiff spoke with pressure and intensity of speech in a voluble manner and gave a dramatic and detailed description of, firstly, his physical injuries and pain, and, secondly, the alleged report of harassment. The plaintiff’s affect was distressed, emotional, tense, frustrated, irritable, moderately anxious and mildly depressed.
239 The plaintiff’s thought stream was normal and there was no formal thought disorder. His thinking revealed marked grievances about his old boss and he was preoccupied with the alleged victimisation. He expressed frustration and depression regarding his physical pain and injuries and he was moderately pain focused and pain preoccupied.
240 On mental examination, there were no formal abnormalities of perception. Cognitive functioning was not formally tested. The plaintiff’s self-esteem and confidence appeared lowered and he had elevated health concerns overall and his insight, awareness and judgment appeared limited.
241 Dr Weissman diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate severity. He thought the plaintiff’s psychiatric symptoms had stabilised.
242 Dr Weissman considered the plaintiff should continue to see his clinical psychologist and general practitioner regularly and also remain on Lexapro.
243 Based on the plaintiff’s overall presentation and his grievances about his pre- injury employer, Dr Weissman thought he would be totally incapacitated to return to work in that job. However, he believed theoretically the plaintiff had a full capacity for suitable alternate duties. Dr Weissman thought the plaintiff’s irritability, depression and anxiety would affect his work performance but not incapacitate him. He also thought, given the plaintiff’s advancing age and time out of the workforce, it was highly unlikely that he would ever return to paid employment again.
244 Dr Weissman thought the plaintiff’s psychiatric prognosis was only poor and that he would continue to experience mild to moderate mixed depressive and anxiety symptoms with considerable frustration and irritability in the foreseeable future.
245 On review in May 2010, the plaintiff told Dr Weissman of a worsening of his physical symptoms. He described his concentration and memory as forgetful, his sex drive was diminished and his socialisation was reduced.
246 Dr Weissman concluded that the plaintiff was suffering from a Chronic Adjustment Disorder with depressed, anxious and irritable mood of mild to moderate intensity or severity. He thought it highly unlikely at that stage, in fact improbable, that the plaintiff would return to paid employment given the definition of suitable employment, his advanced age and his time out of the workforce and the fact there would probably be deterioration if he returned to work. He thought the plaintiff should remain on Lexapro and that his psychiatric prognosis was only fair at best.
247 The plaintiff was examined by psychiatrist, Dr Walton, on 2 July 2009.
248 The plaintiff told him about the incident when he twisted his left knee when it slipped between the truck and the loading dock. He also told Dr Walton of there being problems with no steps at the loading dock.
249 The plaintiff advised he suffered from ongoing lower back pain and pain affecting his lower left limb. The plaintiff also told Dr Walton of harassment by his employer after a month of working, which left the plaintiff at a point where he was a nervous wreck. The plaintiff described to Dr Walton that his employer had broken his spirit.
250 On mental status examination, the plaintiff was thoroughly preoccupied with his injuries and related matters. Dr Walton thought there was nothing indicative of a psychotic disturbance. There was no major cognitive deficit and fundamentally the plaintiff was of normal intelligence. He provided a history of anxiety, irritability, depressed mood, insomnia with nightmares, poor appetite with weight loss, poor concentration and lowered libido.
251 Dr Walton thought the plaintiff was suffering from a Chronic Mixed Anxiety Depressive Disorder which he considered had stabilised. The condition was multiply determined; namely, the effect of the harassment and also the response to physical injury.
252 Dr Walton thought the plaintiff’s symptoms were of moderate severity. He considered the plaintiff’s return to his former employment was permanently contraindicated. Considered in isolation, he thought the plaintiff’s psychiatric condition constituted a substantial partial incapacity for all work. He disagreed with Dr Rose’s specific diagnosis of a Post-Traumatic Stress Disorder but he did think the plaintiff was suffering from work stress injury psychiatric symptoms.
253 Dr Strauss, psychiatrist, examined the plaintiff for medico-legal purposes on 15 October 2009.
254 The plaintiff told him that two months after working with the first defendant he injured his left knee and lower back. His condition was worsened by jumping off trucks into landing bays, leaving him with ongoing left knee pain and lower back pain.
255 The plaintiff also told how his boss would yell at him in front of other staff and had unrealistic expectations in relation to his work performance.
256 On mental state examination, the plaintiff was anxious, agitated and depressed. Dr Strauss could find no evidence that he was deliberately over exaggerating his problems. The plaintiff’s thinking was negative but there was no evidence of any psychosis, delusions or thought disorder. The plaintiff’s memory and concentration were reasonable and he was reasonably well presented.
257 Dr Strauss thought the plaintiff was a genuine man although somewhat agitated, which was not surprising considering the plaintiff’s problems.
258 In Dr Strauss’ view, the plaintiff had a mild to moderate psychiatric condition but combined with his chronic pain and restriction, he felt the plaintiff had suffered from significant problems in relation to the quality of his life and activities of daily living.
259 Dr Strauss doubted whether the plaintiff would ever work again but when all factors were considered, he could not see the plaintiff being rehabilitated. Whilst he thought the plaintiff was a semi invalid, Dr Strauss did not think the plaintiff was deliberately or consciously over exaggerating his problems. He considered the plaintiff was suffering from a psychiatric condition in the form of an Adjustment Disorder with Mixed Anxiety and Depression due to the alleged victimisation and injury. He thought that the plaintiff’s current treatment was appropriate and should continue. In his view, the plaintiff’s prognosis was guarded and that he would always suffer from a psychiatric condition.
The Plaintiff’s Investigations
260 An x-ray of the plaintiff’s left knee organised by Dr Sammut on 8 December 2006 showed probable calcification of the left lateral meniscus. An evaluation with ultrasound was recommended and clinical concerns regarding the presence of a baker’s cyst were reported.
261 An ultrasound of the left knee was organised by Dr Sammut on 19 January 2007 which showed a small left baker’s cyst and small left knee effusion.
262 An MRI scan of the plaintiff’s left knee was organised by Dr Lim in March 2007.
263 It was reported there was a high grade partial thickness anterior cruciate ligament (“ACL”) tear with associated underlying bone marrow oedema within the lateral femoral condyle at the ACL attachment. There was also a partial thickness posterior cruciate (“PCL”) tear and there was swelling and signal abnormality involving the posterior horn. The body of the medial meniscus was highly suspicious for a meniscal tear.
264 An x-ray of the lumbosacral spine was organised by Dr Sammut on 31 August 2007. It was reported there was no crush fracture of spondylolisthesis. Spinal processes, pedicles and S1 joints appeared symmetrical and the soft tissues were unremarkable. Bridging osteophytosis was seen at T11-12, T12 and L1. There was focal indentation with sclerosis at the inferior end plate of T12 and superior end plate of L1 in keeping with Schmorl’s nodes.
265 An MRI scan of the left knee was organised by Dr Crowe on 9 July 2008. It was reported there was menisci mucoid degeneration. There was no tear and no evidence of patellofemoral chondromalacia. ACL suggested mucoid degeneration. There was some degenerative change at the femoral attachment of the ACL.
266 Densitometry was organised by Dr Sammut in July 2008. The findings were consistent with normal bone density with no increase in fracture risk noted.
267 X-rays of both knees were organised by Dr Lim on 17 June 2009. The medial and lateral tibiofemoral compartments appeared preserved n the right knee. There was mild degenerative change present in the patellofemoral compartment.
268 The left knee showed mild degenerative changes in the patellofemoral compartment and the lateral femoral compartment with small marginal osteophytes present.
269 An MRI scan of the left knee on 28 August 2009 was organised by Mr Crowe. It was reported there was a non displaced tear of the posterior horn and meniscotibial root of the medial meniscus with coexistent intra meniscal degenerative signal Grade II-III chondral loss from the femoral articular cartilage anteriorly medial compartment. There was small to moderate joint effusion with mild synovitis but no discernable loose debris.
270 An x-ray of the lumbosacral spine organised by Dr Choi dated 20 April 2010 showed moderately advanced degenerative spondylosis throughout the lumbar spine. There was disc space narrowing at L3-4. It was noted if a disc prolapse was suspected, then a CT scan of the lumbar spine may provide further details if required. There was vertebral compression at T12 and L1. Bone densitometry was recommended to confirm or exclude osteoporosis as the cause.
345 The plaintiff told him he had had trouble with his neck in the past when hit by a door and he had osteoarthritis in his hands, hips and back.
346 On examination, the plaintiff walked without a limp. Examination of the left knee revealed an arthroscopy scar that healed without complication, otherwise knee examination showed a slight loss of range of flexion but normal extension. The knee was stable and there was no joint line tenderness. Quadriceps bulk was equivalent to the right side.
347 Examination of the back showed the plaintiff complaining of symptoms across the lower lumbar region going into the right paraspinous musculature. He was only able to flex and get his fingertips to his knee with limited extension and lateral flexion in both directions. Simulated rotation and axial compression were reported to create back pain. Whilst supine, the plaintiff would tolerate straight leg raising but sat up to 90 degrees without apparent problem in his back. Dr Bowles did not have any investigations available to him.
348 Having seen the surveillance film, Dr Bowles noted whilst the plaintiff may have a sore back, his level of function appeared to be much greater than he was portraying and that he had a capacity to undertake at least mild manual work.
349 Dr Bowles thought passive treatments were not appropriate and were not leading to any tangible benefit. He considered the cessation of physiotherapy would not affect the plaintiff’s ability to undertake activities of daily living or his capacity for employment and Dr Bowles considered a self directed exercise and activity program was all that was required.
350 Dr Bowles concluded medical evidence would support generalised osteoarthritis which had not been caused by employment. He noted the fact that the plaintiff had arthritis made sitting and manual work more difficult and predisposed him to aches and pains. In the absence of a specific trauma to the region, Dr Bowles would not view that the plaintiff’s general burden of osteoarthritis had been added to by that employment.
351 Dr Bowles thought once the plaintiff ceased employment, the aggravating activity would resolve and the plaintiff would be in his present state irrespective of that employment.
352 Noting what appeared to a meniscal tear and an ACL injury, and also extensive bone marrow oedema, Dr Bowles thought there appeared to be a significant degree of knee trauma. On balance, the episode so described and the lack of any apparent significant issue in terms of seeking medical care or treatment or time off work following that, suggested the knee was not in issue to a significant degree in the episode.
353 Dr Bowles thought the plaintiff’s osteoarthritis was constitutional. He believed there was a knee injury, the nature of which was unclear, and the evidence would suggest it was unlikely to have occurred in the course of the plaintiff’s work.
354 Dr Bowles thought the plaintiff would be viewed as being in a similar state to pre-injury duties and hours. He considered there might have been some progression in the plaintiff’s arthritis over a three year period and some deconditioning in reported minimal activity. Tempered against those issues was the surveillance video and report suggesting a reasonable degree of capacity for mild and moderate physical activity. Dr Bowles tended to favour the surveillance report which he would use to suggest the plaintiff could return to pre injury duties and hours.
355 Dr Bowles noted other issues were present. The plaintiff had pursued wage replacement insurance policies in the past. Surveillance would suggest what was being portrayed was not entirely the full situation. He thought the plaintiff’s description of just attending bingo was an understatement of the plaintiff’s true activities.
356 In Dr Bowles’ opinion, the plaintiff was fit to participate in occupational rehabilitation services.
357 In relation to the Medical Panel opinion, Dr Bowles noted that there had been a material change, in that the plaintiff had undergone surgery. Dr Bowles thought the plaintiff’s knee appeared to create little problem for him presently. On that examination, the knee did not show any effusion or significant wasting of the quadriceps and there was a mild restriction of flexion in the left knee which the Panel found.
358 Back movements were difficult to compare as no reference was made to how far the plaintiff could move, though “mild restriction” was the description. Dr Bowles noted the surveillance report would also show an excellent level of function, which would contrast in a significant fashion with the Medical Panel opinion.
359 The plaintiff was examined by psychiatrist, Dr Jager, on 23 December 2010, two months after knee surgery.
360 The plaintiff told Dr Jager he last felt completely well in March 2006. His left foot went down between a truck and loading bay. He “buggered” his back and he kept working for another eleven months until 5 February 2007.
361 At the date of examination, the plaintiff was then seeing a psychologist monthly which helped him “not go nuts”. He told Dr Jager he was very moody and goes off “like a bomb”.
362 Dr Jager had available the surveillance report of 29 November 2010 and videos, the Medical Panel certificate, a Certificate of Incapacity from Dr Choi in October 2010 declaring the plaintiff unfit for any work, the treating psychologist’s questionnaire and Mr Battlay’s report.
363 Dr Jager noted there was no history of psychiatric illness.
364 On mental state examination, the plaintiff’s thought stream was fluent and coherent but the content was negative. He described no bizarre beliefs or abnormal sensory perceptions, was alert and attended well to the interview.
365 Dr Jager noted the surveillance video depicted the plaintiff undertaking moderately heavy labour. Dr Jager considered the video cast doubt on the plaintiff’s credit. He commented it was uncertain therefore what, if any, of the plaintiff’s symptoms were genuine. Based on his reported symptoms, Dr Jager thought the plaintiff had a Major Depressive Disorder. He was uncertain if the symptoms were genuine and therefore if the plaintiff had any mental disorder at all.
366 In the absence of a confident diagnosis to this effect, Dr Jager was unable to state whether the plaintiff’s treatment with antidepressant sedative and anti- psychotic medication was appropriate, or whether psychological treatment and therapy was appropriate. Dr Jager thought there was no evidence of bipolar disorder or a psychotic illness and Olanzapine was not an appropriate treatment. Further, he noted Oxazepam may aggravate the symptoms of depression and in the absence of anxiety, he did not consider it an appropriate treatment for the plaintiff.
367 In Dr Jager’s view, there was some doubt as to whether the plaintiff had a melancholic type of depression and therefore he may not even benefit from the antidepressant medication and it was unlikely he benefited from monthly psychotherapy. The only treatment which Dr Jager thought was appropriate to continue, and even then there was a doubt as to whether there was a Major Depressive Disorder, was the antidepressant medication Escitalopram. Dr Jager thought that if the treatment was ceased, the plaintiff would still be able to undertake the activities of daily living and his work capacity would not be reduced.
368 Dr Jager was uncertain whether the plaintiff had any psychiatric condition. He thought, on balance, the most likely diagnosis was Adjustment Disorder with Depressed Mood, rather than Major Depressive Disorder.
369 Noting the plaintiff was shown undertaking moderately heavy physical work on the video, Dr Jager considered it most likely that his dysphoria dated from the alleged callous and rude treatment from his employer about whom it was likely the plaintiff still harboured unpleasant thoughts.
370 From a psychiatric perspective, Dr Jager thought the plaintiff was fit for his pre-injury duties and that he was fit to undertake vocational assessment and retraining. From a psychiatric perspective alone, he thought the plaintiff was not precluded from undertaking full time employment.
Investigations
371 On 5 April 2002, Dr Sammut organised an x-ray of the plaintiff’s right shoulder. A prominent cortical irregularity was demonstrated at the greater tuberosity. Adjacent calcification measured up to 5 millimetres and suggested calcific tendonitis of the rotator cuff within normal limits elsewhere. It was reported that calcification of the lower neck on the right was non-specific but it may lay at a cervical lymph node.
372 X-rays of both hands organised by Dr Sammut on 24 March 2003 showed severe osteoarthritic change, particularly at the distal interphalangeal joints of the fingers.
Clinical Notes
373 Dr Sammut’s clinical notes were tendered, setting out attendances by the plaintiff from 17 November 2000 until 2 February 2009. Reliance was placed on entries in July 2002 which set out the plaintiff injured his back in the incident at work with the truck door and a complaint in January 2003 of a sore low back and the prescription of Mobic.
Compensation Documents
374 By letter dated 28 February 2011, X Changing wrote to the plaintiff advising him that from 2 June 2011 he was no longer entitled to weekly payments because he had received payments for a total of 130 weeks, he had a current work capacity; or alternatively, he had no current work capacity that was not likely to continue indefinitely.
375 This decision was based on the Medical Panel opinion, the surveillance film, Dr Jager’s and Dr Bowles’ reports, a report from Mr Crowe dated 7 February 2011 and a work assessment by Work Able Consulting dated 11 February 2011.
376 Further, the plaintiff was advised that the provision of ongoing medical and like expenses was considered unreasonable due to the opinions of Dr Bowles and Dr Jager.
Photographs
377 A number of photographs were included in the defendants’ Court Book; namely:
(i) rear of truck depicting aluminium stool; (ii) loading garments on truck; (iii) garments loaded on truck; (iv)
close up of rails inside truck depicting clamp that was used to stop garments from moving end to end;
(v) lower level railings inside truck; (vi) telescopic arm from lower level railing; and (vii) loading garments on truck to lower level railing.
WorkSafe Investigation
378 WorkSafe attended the first defendant’s premises on 27 November 2007 to investigate an incident that allegedly occurred on 5 February 2007 when the plaintiff sustained a knee injury from jumping out of the back of the truck.
379 The WorkSafe officer did observe a step used to get in and out of the truck, so there was no requirement to jump. He was informed that that process was in place when the alleged injury occurred.
380 Having carried out the investigation, WorkSafe found no further action was required in relation to the incident.
Disability Claim
381 A disability claim form dated 29 June 2004 completed by the plaintiff set out that he never expected to return to work.
382 In a progress certificate completed by Dr Webb on 29 June 2004, he noted limited neck movement and tenderness in both hands. Dr Webb set out he thought the plaintiff would never be able to return to his usual occupation or full time work.
Wage and Employment Details
383 Details of the plaintiff’s earnings with the first defendant from 1 February 2006 to 30 June 2006 and 29 January 2007 to 5 February 2007 were tendered.
384 The first defendant provided a letter dated 2 October 2007 setting out details of the plaintiff’s duties, pay and hours worked. In that summary the first defendant advised the plaintiff was not required to undertake lifting of garments as part of his duties.
The Defendants’ Vocational Evidence
385 The defendants relied upon a vocational assessment carried out by Greg Asher rehabilitation consultant from NES on 11 February 2011.
386 A number of suitable employment options were identified for the plaintiff, including delivery driver, $752 per week; dispatcher, $900 per week; sales assistant, $700 per week and fleet controller, $1,000 per week.
387 It was recommended the plaintiff be referred for retraining assessment.
388 Mr Asher noted that Dr Bowles and Dr Jager both reported the plaintiff was overstating his symptoms and both thought he had a capacity for pre-injury employment. The plaintiff refuted that claim and asserted he had no capacity for work ever again and reported that view was supported by Mr Hunt.
389 It was noted the plaintiff was very resistant to undertake job seeking and gave every indication he had no intention of participating in job seeking in any actual outcome focussed fashion. As such, it was thought retraining may prove useful to identify compliance levels, possible re-engagement in job seeking activities, while also upskilling the plaintiff. In such circumstances, it was noted the plaintiff then may be more motivated to acquire employment in his newly widened scope of skills, noting he was very resistant to returning to any form of work of which he was currently aware he was capable.
390 Potential employers contacted by NES thought the plaintiff was both too old and too great a risk for employment due to his previous injury and the physical nature of the employment. Further, the plaintiff would not be considered an applicant for property sales and fleet controller because of his lack of experience. Noting the plaintiff’s lack of motivation towards participating in job seeking, it was thought it was unlikely any program would be successful and a fruitless endeavour. However, Mr Asher thought that were the plaintiff encouraged to participate by receiving training that would take him away from the driving roles he was so resistant to returning to, and had the grounds of the independent opinions explained to him, a more productive outcome may be obtained.
Video Surveillance
391 There was a total of one hour and ten minutes of film taken of the plaintiff over three days - 15, 29 and 30 October 2010.
392 On the first date there was fifty eight seconds of film during which the plaintiff was shown limping at 9.18, 9.29 and 10.02.
393 Most of the film was taken on 29 October when the plaintiff was shown doing work in the garden at the front of his Kim Lane investment property.
394 The plaintiff was shown limping at the property at 9.34 am. He commenced working at 10.39 when he lifted a plastic barrow onto the pile of pebbles in a trailer. For the next ten minutes, although the film was not continuous, he engaged in some hoeing or light weed removal, keeping his left leg straight.
395 At 10.48, the plaintiff had a rest leaning against the trailer. At 10.51, the plaintiff was shown bending over from the waist pulling, or doing some planting, with his left leg straight.
396 At 10.59 the plaintiff laid some plastic and was shown clearly limping whist engaged in this task.
397 The plaintiff shovelled pebbles from the trailer to the ground taking a number of breaks until about 11.05 am, when he took off his gumboots. He resumed shovelling until 11.16. He then shovelled for a further two minutes when he took another break, leaning on his shovel. The plaintiff continued shovelling with further breaks until 11.51. He drove from the property a minute later.
398 Whilst the plaintiff performed hoeing work and shovelling the pebbles, he appeared to bend freely from the waist and was able to work fully bent for extended periods. However when walking around the property he clearly limped and moved slowly and did not appear to do any tasks with his left knee bent.
399 Later that day the plaintiff was again shown at the property at various times until he left at 16.43. When shown walking he was limping. He did not engage in any particular sustained or vigorous activity but was shown standing around, backing his car into the garage and talking to people.
400 The following day there was about ten minutes of footage. The plaintiff was shown in a car park and doing some shopping from about 9 am. At times he walked quite freely but at other times he was shown walking with a pronounced limp.
Overview
401 As counsel for the plaintiff relied principally on the impairment to the plaintiff’s left knee, I propose to consider that application first.
402 Counsel for the defendants submitted that the plaintiff’s application in that regard should fail as there was no compensable injury.
403 Whilst the plaintiff did not depose to a specific incident during his work with the first defendant, and an incident was not referred to in his claim form, his affidavit set out that after two months in that employ, he had problems with his left knee as a result of jumping out of the back of the truck
404 The plaintiff has consistently told medico-legal examiners about a specific incident: telling Mr Battlay as early as 2007; Mr Crowe in 2008; Mr Mangos, Dr Harmer, Mr Khan, Dr Walton, Dr Strauss and Dr Rose in 2009; and Dr Bowles this year.
405 In any event, the plaintiff’s application is brought on the basis of injury suffered during the course of employment, not in a specific incident.
406 The plaintiff’s evidence that he was not provided with any step and had to use a crate when doing deliveries at Spurlings was not challenged. The WorkSafe finding related only to the situation at the first defendant’s premises.
407 Whilst there is little evidence of the occurrence of a specific incident, I am satisfied that as a result of his duties unloading the truck, particularly at Spurlings, where there was no step provided, and at the first defendant’s premises, where there was only a single low step, the plaintiff aggravated a pre-existing previously asymptomatic left knee condition.
408 In Kruisselbrink v Nationwide Maintenance Services Pty Ltd (2010) VSC 260, Forrest J, at paragraph 45, held that s.134AB of the Act is a gateway provision which must be satisfied before a claim for damages can be brought. A finding that a plaintiff has a serious injury does not finally determine the rights of the parties. The focus is on the nature and effects of the compensable injury and not upon the cause of action the plaintiff may have.
409 His Honour held, at paragraph 46, that if there is a compensable injury that occurred after October 1999, the consequences of which are serious, the application succeeds. Otherwise the circumstances of employment, so far as they are relevant to the damages trial, form no part of the consideration of the issue of serious injury.
410 I accept the incident and problems getting off the truck at work were not reported to Mr Gandolfo because the plaintiff was worried about Mr Gandolfo’s reaction to any complaints made by him, given the pressure the plaintiff was under at work.
411 Although the first reference in Dr Sammut’s notes to any knee problem was in the context of the plaintiff’s gardening in late 2006, I accept that prior to that time the plaintiff had a knee problem which was aggravated by the continued jumping at work.
412 I am satisfied that the plaintiff suffered a compensable injury to his left knee during the course of his employment with the first defendant.
413 Whilst there was a fleeting reference to a finding of left knee crepitus on examination by Dr Stevenson in 2004 in relation to the plaintiff’s disability claim, the plaintiff made no complaint to Dr Stevenson or to any other doctor of knee problems before he worked with the first defendant. Further, the plaintiff was not cross examined as to any pre-existing knee complaint.
414 In those circumstances, I do not consider the plaintiff had any left knee problem of any significance before working with the first defendant and this is not therefore an aggravation case.
415 There is also a dispute between the parties as to the nature of the plaintiff’s left knee condition.
416 The plaintiff’s treating surgeon, Mr Crowe, diagnosed a medial meniscus tear which he ultimately treated surgically in 2010. Medico-legal examiners relied upon by the plaintiff have reached a similar diagnosis.
417 The difference in opinion arises with examiners who saw the plaintiff on behalf of the defendants who did not accept the occurrence of the incident or any relationship between the jumping from the truck and the onset of the plaintiff’s knee complaints.
418 In such circumstances, they concluded the plaintiff’s knee condition resulted from an osteoarthritic condition of a similar nature to that which affected his hands prior to commencing employment with the first defendant.
419 Having found the plaintiff injured his left knee in compensable circumstances, I prefer the view of treating surgeon Mr Crowe who found a left medial meniscus tear and obtained the approval of the second defendant to surgically treat that condition.
420 In relatively recent times, the Medical Panel also found the plaintiff’s employment was a significant contributing factor to the plaintiff’s knee condition.
421 Whilst a number of examiners have referred to non organic features in the plaintiff’s presentation on various occasions, I am satisfied that the plaintiff’s left knee condition, which required surgery, is organically based.
Consequences
422 The provisions of s.134AB(38) set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering and loss of earning capacity.
423 The narrative test requires that the consequences of the plaintiff’s impairment when judged by comparison with other cases in the range of possible impairments may be fairly described as being more than significant or marked and at least very considerable.
424 The test requires and evaluation of all the evidence.
425 Whilst there was criticism of the plaintiff’s credit by counsel for the defendants in terms of his affidavits, histories to doctors and the level of activity demonstrated by him on video, I found the plaintiff to be a reasonably truthful witness.
426 In my view, the level of activity involving the plaintiff’s knee shown on film was not great and at times he was shown limping. I accept however that he showed relatively free back movement.
427 The evidence of the plaintiff’s wife and daughter which was supportive of the plaintiff as to his level of pain and restriction relating to his injuries, was not challenged.
428 The plaintiff initially underwent conservative treatment and took medication. As that course did not result in resolution of his symptoms and pain, the plaintiff underwent surgery in 2010 from which he has gained only limited relief, despite the optimism of his treating surgeon.
429 I accept that despite surgery the plaintiff continues to suffer pain and tightness in the front of his knee and problems have recurred in recent times with the back of his knee. The pain varies in intensity and at times is like a shooting sensation. The plaintiff’s walking is affected and at times he limps. He has problems squatting, bending and kneeling
430 I accept that as a result of his knee injury, the plaintiff is further restricted in his capacity to engage in manual work. Whilst he was restricted in his work capacity before the knee injury because of osteoarthritis and a neck condition and had two years off work in receipt of payments under the policy, the plaintiff was fit to take on a reasonably physical full time job which also involved overtime, with the first defendant.
431 Clearly the plaintiff had not given up working, as suggested by counsel for the defendants. Although the plaintiff was very secure financially, and did not need to work, he enjoyed working and he was capable of doing so.
432 There were no restrictions placed on the plaintiff’s duties with the first defendant, either by the plaintiff himself or by his medical practitioners.
433 As a result of duties unloading the truck, the plaintiff suffered the knee injury which has further reduced his capacity for manual employment.
434 Dr Bowles is the only medical practitioner who considers the plaintiff is presently fit for his pre injury duties. Whilst not supportive of a causal relationship between his work duties and knee condition, Mr Battlay, Mr Jones and Dr Kostos thought the plaintiff had a light work capacity and was not fit to return to his pre injury duties.
435 Medico legal examiners relied upon by the plaintiff Mr Khan, Mr Hunt, Mr Mangos, Dr Rose and Dr Harmer thought the plaintiff, as a result of both his left knee and back injuries, would have no capacity for employment currently and in the future.
436 Having viewed the surveillance film closely, I accept counsel for the plaintiff’s submission that the plaintiff moved very slowly at most times on the video, favouring his injured knee. He kept that knee straight when bending and there was no indication that he was able to squat or bend or use his knee in anything like a normal manner.
437 Further the plaintiff took numerous breaks and it could not be suggested he was capable of reasonably heavy work in any realistic work situation, when he could not continually shovel for more than a few minutes at a time.
438 I accept the video was confirmatory to a large extent of what the plaintiff said about his loss of physical capacity in so far as his knee was concerned.
439 Given my view as to the level of knee movement shown on the video and the fact that the plaintiff was shown limping on a number of occasions, I do not consider that had the various medical practitioners seen the film, their view as to the plaintiff’s level of capacity would have altered.
440 I am satisfied that the employment consequences to the plaintiff of his knee condition are serious.
441 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 442 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 443 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
444 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
445 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
446 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein ; See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
447 I am therefore required to determine a “without injury” earnings figure.
448 In terms of the “without injury” earnings figure, counsel for the plaintiff relied on a figure of $700 per week, sixty per cent of which is $420. It was submitted this figure represented the plaintiff’s earning capacity and a later reduction in the hours worked by the plaintiff was not a relevant consideration.
449 Counsel for the defendants submitted that an average should be taken of the plaintiff’s earnings over the entire period of employment from 1 February 2006 to 5 February 2007 – $30,386 or $573 – sixty per cent of which is $343.
450 As the relevant consideration is capacity for employment, I accept the figures submitted by counsel for the plaintiff most fairly represent the plaintiff’s earnings had the injury not occurred.
451 The plaintiff’s present earnings from personal exertion are nil.
452 The plaintiff is now aged sixty four. He has not worked since February 2007. His working life has involved driving and associated lifting duties and manual work.
453 Because of his left knee condition, I accept that the plaintiff would have problems operating the clutch on a work vehicle. He would also have difficulty with duties involving lifting or bending.
454 As all medical practitioners but Dr Bowles agreed, the plaintiff has a reduced capacity for manual work and would have difficulty performing his pre injury duties – further restrictions placed on an already reduced work capacity due to his neck and osteoarthritis conditions.
455 In my view, the plaintiff is motivated to work as evidenced by his return to work with the first defendant after a two year absence from the workforce and his good work history prior to that time.
456 However, I do not consider that the plaintiff would be fit to work in the jobs suggested in the NES report as they require driving, standing for prolonged period and the handling of goods.
457 In my view, taking into account the factors set out in section 5 of the Act, the plaintiff does not have a capacity for suitable employment.
458 Accordingly, I am satisfied that the plaintiff has established that he has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
459 I am also required to consider issues of rehabilitation and retraining pursuant to subsection (g) of the Act.
460 In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of Section 134AB(38)(g).
461 Having satisfied the test laid down by the Act in relation to loss of earning capacity, the plaintiff is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
462 I am satisfied that the plaintiff’s impairment is permanent with him having experienced knee pain since 2007 which has not significantly improved despite surgery in 2010. The consensus of medical opinion is that plaintiff’s prognosis is poor, with some medical practitioners of the view that there is a risk of knee replacement surgery.
463 Accordingly, I grant leave to the plaintiff to bring proceeding for damages for loss of earning capacity and pain and suffering in relation to his left knee.
464 Having made this finding, I am not required to consider the other application pursuant to sub section (a) in relation to the lumbar spine and also psychiatric impairment pursuant to sub section (c).
465 In any event, the application in relation to the lumbar spine, whist not being formally abandoned, was not the subject of submissions with counsel for the plaintiff conceding that the application was “very much a lesser alternative”, particularly having regard to the level of back movement shown by the plaintiff on the video and the plaintiff’s history of back pain prior to employment with the first defendant. As counsel for the plaintiff concluded his submissions, “we do not intend to say a great deal about the back “.
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