Care v Transport Accident Commission
[2015] VCC 424
•15 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04591
| RALPH CARE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2015 | |
DATE OF JUDGMENT: | 15 April 2015 | |
CASE MAY BE CITED AS: | Care v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 424 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – injury to the right knee
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129: Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Pisani v Transport Accident Commission [2014] VCC 462; Transport Accident Commission v Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment: Leave granted.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr I R Fehring | Ryan Carlisle Thomas |
| For the Defendant | Ms R N Annesley QC with Ms M Tait | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 3 December 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right knee.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
8 At the commencement of the hearing, Senior Counsel for the defendant conceded that the consequences of the plaintiff’s current knee condition are severe. However, it was submitted that this condition was not caused by the accident but rather resulted from later aggravations, leading to the plaintiff ceasing work in 2011 and requiring surgery thereafter.[3]
[3]Transcript “T” 7, T10
9 The plaintiff swore two affidavits. He was not cross-examined. 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
10 The plaintiff is presently sixty-three, having been born in March 1952 in England. He came to Australia aged six, and left school, having completed only Form 2.
11 The plaintiff has been a manual worker all his life, with his main occupation driving, principally truck driving. As at the said date, he was working as a full-time driver for JBS, having been in that job for four years.
12 During the course of his employment with JBS on the said date, the plaintiff was driving along Geelong Road when a vehicle veered onto the wrong side of the road. The plaintiff took evasive action, swerving to his right, and his truck collided with the side of a concrete pillar. The plaintiff’s right knee smashed into the dashboard of the truck and it twisted at the same time. His foot was stuck between the pedals, and his truck slewed across the roadway (“the transport accident”).
13 Following the transport accident, the plaintiff’s truck was still drivable. He felt sore, more to his neck. His knee was aching, but it was not too bad. He was pumped up with adrenaline because of the accident circumstances.
14 The plaintiff continued his duties, then attended the police station. He had about two weeks off work. Initially, he had more neck pain than knee pain. However, his neck pain recovered and the knee pain persisted.
15 In his Claim Form signed on 17 December 2008, the plaintiff set out he injured his neck and knee in the transport accident.
16 The plaintiff continued doing general labouring duties and making deliveries. He was told by co‑workers that he was limping. He was feeling knee symptoms but managing.
17 The plaintiff thought, in about October 2009, his knee pain flared up when he was alighting from his truck. He submitted a second WorkCover claim, and it was put back onto the original Claim Form relating to the transport accident. The plaintiff could not remember how much time he had off – perhaps two weeks. In any event, he got back to work.
18 On about 2 June 2011, the plaintiff had another flare-up of knee pain at work when he stubbed his toe when he kicked a raised ramp and jarred his knee.
19 The following morning, when the plaintiff got up to go to work, his knee locked and he fell forward, striking his face against the bedroom dresser, and he needed assistance to get up.
20 The plaintiff’s knee has been very poor since that time. He was limping and using a stick and still making deliveries, but finding it very difficult. On or about 17 June 2011, he was put off work, as he was advised by JBS that he could not keep working because his knee was too bad, and he was not to be working using his stick.
21 The plaintiff’s knee continued to deteriorate. He underwent a right knee arthroscopy and partial medial meniscectomy on 16 November 2011 (“the first knee surgery”) performed by Mr Gong, but that did not help.
22 Mr Gong advised the plaintiff he needed a total knee replacement, which was carried out on 8 February 2012 (“the replacement surgery”). This surgery was complicated by a large bleed, and the plaintiff needed two transfusions of blood. The surgery left the plaintiff’s knee stiff, sore and swollen, and it was too painful to bend.
23 On 20 April 2012, Mr Gong gave the plaintiff a manipulation under general anaesthetic but that procedure seemed to make matters worse.
24 At present, the plaintiff continues to see his general practitioner, Dr Bradley, about monthly. The plaintiff takes medication for his knee and consequential depression. His medication regime consists of Lyrica, Panadeine Forte, Naprosyn, Valium, Sertraline and Nexium. He no longer takes OxyContin because it affected his memory and concentration.
25 The plaintiff had regular physiotherapy until August 2014, when funding was ceased. Thereafter, his knee became worse. He also had counselling for depression until about mid 2014.
26 The plaintiff continues to suffer pain, swelling and stiffness in his knee, and it sometimes feels unstable. He has had a number of falls over the last eighteen months. His knee aches nearly all the time and it is numb on the outside. His knee pain is worse from prolonged postures or if he turns or twists the wrong way. It also aches if he sits for an extended period of time, and he sometimes has to elevate his knee when sitting.
27 The plaintiff has had ongoing problems with sleep. His mobility is impaired, and he continues to use crutches, often two, the use of which causes him back pain.
28 The plaintiff continues to experience stress, frustration and moodiness caused by pain and loss of mobility and employment. He misses working.
29 The plaintiff is restricted in what he can do about the house. He does some chores and helps out where he can. He sometimes does light gardening, but can only do twenty minutes at a time without having to rest.
30 The plaintiff previously enjoyed fishing. He now goes fishing less frequently as he finds it difficult, awkward and painful being in a boat. He has fished from the pier a few times. He has not been able to return to playing golf.
31 The plaintiff tried to get back to motorcycle riding, buying a Yamaha 1000. He had difficulty using the footbrake properly and struggled because of knee pain. He has not ridden the bike since about mid 2014.
32 The plaintiff is also very restricted in playing with his grandchildren, and is no longer able to have a kick of the football or play games with them.
33 Overall, the plaintiff’s knee condition has not improved. He continues to suffer from pain almost all the time. His mobility is impaired and he has restricted use of his knee.
34 The plaintiff is no longer the ‘man about the house’. His partner mows the lawn and does most of the work around the house. This situation makes the plaintiff feel useless.
Investigations
35 There was an x‑ray of the plaintiff’s right knee in December 2008. No fracture was seen, and no bone or joint abnormality was detected.
36 An MRI scan of the plaintiff’s right knee was organised by Dr Gong in October 2009.
37 It was reported there was a subacute to chronic posterior cruciate ligament tear demonstrated in the midsubstance adjacent to the femoral attachment. It remained in continuity. This was associated with a minor radial tear of the posterior horn of the lateral meniscus adjacent to the posterior cruciate ligament. No other meniscal tear was seen.
38 There was mild to moderate medial compartment degenerative change seen, with chondral loss most marked in the anterior medial tibial plateau. The medial meniscus was normal. There was Grade II to Grade III chondromalacia patella seen involving the medial patella facet. The medial collateral ligament was intact, as was the posterolateral corner.
39 Dr Bradley organised an MRI scan of the right knee in September 2011. It was reported there was moderate to high-grade medial joint compartment chondral degeneration with degenerative fraying and mild truncation of the medial meniscus which was minimally extruded into the coronary recess, but no confirmed meniscal flap tear nor bucket-handle tear to account for locking. There was minimal chondral degeneration of the patellar articular cartilage, and small joint effusion with mild synovitis.
The Plaintiff’s treaters
40 The plaintiff’s general practitioner, Dr Bradley, has been treating him since 1997. He reported on 1 December 2011 that the plaintiff had degenerative osteoarthritis of the right knee that had been caused or aggravated by his initial motor vehicle accident in December 2008 and again recently, when he kicked a ramp at work. He thought the plaintiff needed a knee replacement.
41 Dr Bradley reported in 2014 that the injury to the plaintiff’s right knee had been diagnosed as a meniscal tear with aggravating osteoarthritis, followed by knee replacement, complicated by severe bleeding and subsequent fibrosis. He noted the significant restrictions on the plaintiff’s work and daily activities.
42 In his recent report of January 2015, Dr Bradley noted the plaintiff attended on 4 December 2008 with a history of right shoulder, neck and knee pain which occurred following the transport accident. Examination showed right medial knee pain aggravated by stressing the knee. Dr Bradley had no record of any previous right knee pain.
43 Dr Bradley believed that the plaintiff went on to have treatment of these injuries with his work doctor.
44 Dr Bradley next saw the plaintiff on 25 May and 29 July 2009 with unrelated problems. On 15 September that year, the plaintiff complained of right knee pain, a cracking noise on movement, and weakness with giving way at times.
45 Dr Bradley noted the plaintiff had evidence on examination of a medial meniscal tear, and he was referred to Mr Gong.
46 Dr Bradley thought it probable that the transport accident caused injury to the right knee, including meniscal tear and chondral injury leading to osteoarthritis. This initial injury was subsequently aggravated by a further injury in 2009 and 2011 such that the plaintiff underwent a total knee replacement.
47 It seemed likely to Dr Bradley that the transport accident was the start of the knee problem which subsequently required a total knee replacement.
48 In October 2011, having reviewed the plaintiff, Mr Gong thought his presenting condition was exacerbation of degenerative right knee. He noted the knee injury on 2 June 2011 when the plaintiff stubbed his toe on a loading dock, exacerbating his right knee, which had a previous injury in 2009.
49 Mr Gong thought the plaintiff had a degenerative medial compartment in his knee which had been markedly symptomatic from his most recent injury. As a result thereof, he had not improved since June and had been having difficulty walking, requiring a stick. Mr Gong requested permission for a knee arthroscopy.
50 In a report later that year, Mr Gong diagnosed degenerative medial compartment right knee with medial meniscal tear.
51 Mr Gong noted, when first saw the plaintiff on referral from Dr Bradley in October 2009, the plaintiff described medial right knee pain after the transport accident in which his knee hit the dashboard, and he also experienced a twisting force through this, as his foot was fixed to the pedal. The plaintiff described locking and swelling, but no giving way. The pain was variable, depending on the activity during the day.
52 Examination then revealed a medial joint tenderness, as well as posterior sag and posterior draw, indicative of a posterior cruciate ligament tear. Mr Gong noted x‑rays showed some minor medial compartment osteoarthritis with narrowing of the joint space.
53 Mr Gong also noted that the October 2009 MRI confirmed the posterior cruciate ligament tear as well as degenerative changes involving the medial compartment. He diagnosed an exacerbation of pre-existing medial compartment degenerative change with a new posterior cruciate ligament tear. In this setting, the posterior cruciate ligament tear was treated non-operatively with physiotherapy.
54 The plaintiff was seen again by Mr Gong in October 2011, after injuring his knee when he stubbed his toe on a loading dock. The plaintiff noted his knee had never returned to its pre-injury state but had allowed him to work with a level of discomfort. The June 2011 injury exacerbated his symptoms to a level where he was unable to work or perform normal functional activity, and he required a single-pronged stick.
55 Mr Gong then told the plaintiff he was likely to face a total knee replacement. He noted the plaintiff was keen to return to work and have an arthroscopy, which was performed on 16 November 2011.
56 The arthroscopy revealed significant arthritic changes. As of January 2012, the plaintiff continued to be symptomatic, and in Mr Gong’s view, required a total knee replacement.
57 Following that surgery in early 2012, the plaintiff progressed at a relatively slow rate, and Mr Gong thought it appropriate to perform a manipulation under anaesthetic to increase the range of movement.
58 When seen in April 2013, the plaintiff’s knee replacement surgery had been complicated by arthrofibrosis, and he continued to have chronic pain issues with limitation of movement. Mr Gong requested the insurer fund continuing acupuncture and physiotherapy to hopefully get the plaintiff to a level where he could live with his current restrictions.
59 Mr Gong thought there was certainly an underlying degenerative component to the medial compartment of the plaintiff’s knee. This knee degenerative component was exacerbated by the initial transport accident injury when he struck his knee on the dashboard. There was a subsequent exacerbation with the injury on 2 June 2011 when he stubbed his toe on a loading dock.
60 Mr Gong then thought the plaintiff was not suitable for work duties apart from strictly office-related jobs, and he would have difficulty getting to and from work due to his difficulties driving.
Other treatment
61 The plaintiff was referred for counselling to Lydia Lipkewycz, mental health clinician, who saw him on ten occasions. She noted she saw the plaintiff after the June 2011 knee injury.
62 The plaintiff had physiotherapy at Hoppers Physio following the total knee replacement in February 2012 until 2014.
Medico-legal evidence
63 The plaintiff was examined by Mr Westh, orthopaedic surgeon, initially on 8 May 2012.
64 The plaintiff told him of injuring his right knee in the transport accident, knocking it against the dashboard. He also hurt his neck in the transport accident. The plaintiff was complaining of pain, particularly on the medial side of his knee, and attended the company doctor. He also wore a cervical soft collar.
65 The plaintiff told Mr Westh that he was off work for two weeks, and on returning, he had ongoing pain in his knee. In September 2009, he twisted his knee getting out of his truck. His knee was very sore, and there was some swelling. He attended his local doctor. The plaintiff thought he might have had an MRI scan. He was then referred to Mr Gong and advised to have some physiotherapy. He thought he might have had a week off work, and his knee remained sore.
66 On 2 June 2011, the plaintiff stubbed his right foot on the loading ramp and his knee was very sore. He continued working but had increasing pain and finished work early that day. The next day, his leg gave way and he fell forward and injured his face. He ceased work thereafter.
67 Mr Westh noted the plaintiff’s treatment and ongoing complaints. In summary, he noted the plaintiff injured his right knee in the transport accident with an impact injury, with aggravation of underlying degenerative changes. The plaintiff subsequently sustained further injuries in September 2009 and also 2 June 2011, further aggravating his right knee.
68 In a subsequent report, Mr Westh noted the plaintiff’s original impact injury to the right knee would have resulted in aggravation of degenerative changes, and then there were the further injuries.
69 In Mr Westh’s view, from the history obtained, it was more likely that the plaintiff’s initial injury from the transport accident was a significant contributing factor resulting in the right knee replacement, rather than the subsequent aggravations that occurred in the course of his employment.
70 Mr Westh thought that the changes noted on the MRI scan of 9 October 2009 were in keeping with the plaintiff’s initial right knee injury and the transport accident.
71 Following re‑examination in September 2014, Mr Westh confirmed that he considered the plaintiff incapacitated for suitable or pre-injury employment and that the plaintiff had significant restrictions as to social, domestic and recreational activity.
72 In a supplementary report of January 2015, Mr Westh confirmed it was more likely that the initial right knee injury sustained in the transport accident was a significant contributing factor to the plaintiff requiring a right total knee replacement.
73 Dr Horsley, occupational physician, first examined the plaintiff in August 2012.
74 The plaintiff told her of the transport accident, hitting his knee against the dashboard and being jolted, and also injuring his neck. He was off work for about four weeks, but the emphasis of treatment was on his cervical spine. He had a soft collar and some physiotherapy.
75 There was no specific treatment directed towards the plaintiff’s right knee. However, when his neck discomfort resolved, the plaintiff noted ongoing disability in his right knee, with aching, discomfort and recurrent swelling.
76 The plaintiff continued at work until 2009 when he twisted his right knee as he got out of his truck. He saw his local doctor, who arranged physiotherapy, which the plaintiff attended four or five times, but he remained at work with no modifications. He was experiencing increasing difficulties with retrieving carcases and had to get assistance but managed to cope with manual handling by using a hand trolley. He was taking a couple of Panadeine Forte a day.
77 The plaintiff continued driving until 2 June 2011, when he stubbed his right foot on a loading ramp. This significantly exacerbated his right knee condition, and the next day, he fell when getting out of bed.
78 The plaintiff returned to work, but used a walking stick. By 17 June 2011, his employer advised there were no longer suitable duties for him. He went off work and was sent back to Mr Gong.
79 Dr Horsley noted the subsequent investigations and treatment. In her view, the plaintiff originally sustained an injury to his right knee in a dashboard incident. There was a further minor aggravation in 2009 and a further aggravation on 2 June 2011.
80 Dr Horsley thought the plaintiff had underlying pre-existing constitutional degenerative change in the right knee that was aggravated in 2008, further aggravated in 2009, and significantly aggravated on 2 June 2011. She considered the plaintiff had no work capacity.
81 In a subsequent report, Dr Horsley noted the MRI scans of the right knee of October 2009 and September 2011. She was also provided with reports from Dr Bradley and Dr Gong.
82 Dr Horsley was asked to confirm her opinion as to whether she believed the plaintiff’s initial injury and the subsequent right knee replacement most likely arose as a result of the transport accident and not as a result of minor aggravations in subsequent employment.
83 Dr Horsley noted the plaintiff clearly had pre-existing underlying degenerative change in the medial compartment. On history, his right knee condition was exacerbated by the transport accident when he knocked his right knee against the dashboard and was jolted.
84 Dr Horsley noted MRI confirmed a posterior cruciate ligament tear and a small lateral meniscus tear. The underlying pre-existing degenerative change would have also have been noted. On the history, the level of degeneration progressed, eventually resulting in the need for a total knee replacement.
85 Dr Horsley believed the exacerbation on 2 June 2011 was not a major issue in terms of the overall level of degeneration.
86 Noting the MRI scan of 27 September 2011, Dr Horsley thought that clearly, the moderate to high-grade medial joint compartment chondral degeneration had been developing over a long period of time, and that MRI scan highlighted the level of degeneration in the right knee. She noted the plaintiff had subsequently developed arthrofibrosis.
87 Dr Horsley believed the plaintiff had pre-existing degenerative change but it was likely it was aggravated at the time of the transport accident, which resulted in a posterior cruciate ligament tear and a small lateral meniscal tear, which was treated conservatively with physiotherapy. This would have increased the mobility of the joint, and it is likely that this resulted in acceleration of the pre-existing degenerative process.
88 On re‑examination on 23 December 2014, Dr Horsley confirmed her earlier views.
The Defendant’s medical evidence
89 On 18 October 2007, Dr Bradley noted that the plaintiff developed pain over the medial aspect of the knee when driving a small truck.
90 On 4 December 2008, Dr Bradley recorded that, following the motor vehicle accident, the plaintiff was tender on the right medial knee and the right trapezius. He had pain in the right shoulder and neck.
91 There was a subsequent attendance on 8 December 2008, with similar complaints. There was no prescription of medication at that stage.
92 The next mention of a knee complaint was on 15 September 2009, when Dr Bradley noted the plaintiff’s knee was “giving way at times”.
93 In a letter to CGU of 11 August 2011, Dr Bradley noted the plaintiff kicked a ramp forcefully at work on 2 June that year, causing pain in his right knee, causing him to walk with a limp and to have decreased range of movement. When seen later that month, Dr Bradley noted the plaintiff may have had a meniscal tear.
94 Dr Bradley deemed the plaintiff unfit for work on examination on 17 June 2011. He noted the plaintiff had had a past injury to the knee causing a posterior cruciate ligament tear. He was, however, able to work and fulfil his duties at work until his injury on 2 June 2011.
95 A permit to administer Oxycodone from 19 June 2012 to 18 June 2013 was issued to Dr Bradley.
96 On 17 December 2008, Dr Stesin noted that two weeks ago, the plaintiff had a car accident while trying to avoid a car going the other way and hit a bridge. He had a whiplash injury. His right knee hit the dashboard. He went to the Emergency Department and was given anti-inflammatories. He had x-rays of his neck, right shoulder and right knee. He had some restriction of neck movement when driving.
97 Dr Stesin organised a CT scan of the plaintiff’s cervical spine in January 2009.
98 On 6 January 2009, Dr Stesin noted the plaintiff’s neck had been very sore since the accident and he had numbness over the left upper back and had an occipital headache. It was sore when he moved his neck. Diagnostic imaging had been requested of the cervical spine and a CT scan of the upper thoracic spine. There was whiplash injury and numbness on the left upper back and over the right fingers.
99 The plaintiff last saw Dr Stesin in relation to his transport injury on 27 January 2009. It was then noted his neck was much better and he had normal range of movement.
100 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on referral from Dr Stesin for management of his whiplash injury from the transport accident. He saw the plaintiff on 27 April 2009 in relation to his neck only. He did not feel there was any role for surgery.
101 Mr Gong thanked Dr Bradley in October 2009 for referring the plaintiff with right medial knee pain. He noted the transport accident injury involving the plaintiff’s neck, shoulder and knee, and that since then, the plaintiff had been complaining of medial knee pain with episodes of locking. His knee swelled up but did not give way. He had pain on activity which varied from day to day.
102 Mr Gong suspected the plaintiff may have injured his posterior cruciate ligament and medial meniscus, so he organised an MRI scan. He later advised that scan did indeed show a posterior cruciate ligament tear, as well as degenerative changes involving the medial compartment. He recommended physiotherapy as an initial management course and, failing that, there would be an arthroscopy.
103 Mr Gong next saw the plaintiff in October 2011. He noted the previous attendance and the subsequent incident on 2 June 2011 when the plaintiff stubbed his toe and subsequently had marked exacerbation of knee pain.
104 Mr Gong advised it was discussed the plaintiff was likely to face a joint replacement in the future. The plaintiff said he would prefer to have a knee arthroscopy, which Mr Gong agreed to in an effort to get him back to work.
Certificates
105 The plaintiff was initially given eight days off work from 4 December 2008 by Dr Bradley in relation to his neck injury. He was expected to be fit for normal duties on 17 December 2008 in relation thereto. However, he was certified fit for modified duties from 6 to 9 January 2009, with no truck driving or forklift driving, and no lifting in excess of 2 kilograms.
106 There was a similar modified duties certificate until 27 January 2009, when the plaintiff was expected to be fit for normal duties the following day.
107 Dr Bradley certified the plaintiff unfit for any duties on 23 October 2009. He gave a similar certificate from 17 June to 1 July 2011 for an aggravation of a previous injury to the right knee. Further total incapacity certificates have continued thereafter.
108 Mr Gong certified the plaintiff unfit for any duties on 9 October 2009 due to a right knee injury. He expected the plaintiff to be fit for normal duties on 13 October 2009. Mr Gong noted that the injury was suffered in the transport accident.
Medico-legal evidence
109 Mr Peter Scott, senior consultant surgeon, examined the plaintiff in July 2011.
110 The plaintiff denied any trouble with his right knee until 2008 when he had a transport accident, knocking his knee against the dashboard. He was jolted and sustained a neck injury. The plaintiff advised he was off work for about four weeks, during which time the main treatment was for his neck which was x-rayed but he had no knowledge of the findings.
111 The plaintiff was given a soft collar which he wore on and off for six weeks, and then returned to the workforce; however, the plaintiff continued to complain of ongoing ache and discomfort and recurring swelling in his right knee.
112 The plaintiff stated he twisted his knee in 2009 while getting out of his truck. He saw Mr Gong, who suggested there was some internal derangement, and physiotherapy was performed approximately four or five times. The plaintiff took up to eight Panadeine Forte tablets a day. He worked on with ongoing ache, discomfort and swelling in his right knee.
113 On 2 June 2011, the plaintiff stubbed his right foot on the loading ramp which aggravated his incompletely resolved knee problem. He then fell the following day at home.
114 Mr Scott thought the plaintiff suffered from internal derangement of his right knee sustained under compensable circumstances in the transport accident, and those symptoms had continued since that time, with features suggestive of ongoing problems with the knee joint.
115 This condition was probably aggravated in 2009, when the plaintiff was getting out of his car, and again on 2 June 2011, when he stubbed his right toe. There were features suggestive of marked ongoing work-related organic disability with internal derangement, probably in the form of medial meniscal tear and/or medial collateral ligament injury.
116 Mr Scott accepted the plaintiff’s knee problem became apparent under compensable circumstances in 2008, and was aggravated in 2009 and during 2011.
117 Dr Poppenbeek, occupational physician, examined the plaintiff in April 2012.
118 The plaintiff told him his problem began with the transport accident in which he strained his neck and bumped his right knee against the dashboard. He was then off work for about four weeks, with the major treatment directed towards his neck. His neck improved and he resumed full duties for the following three years.
119 The plaintiff continued to have right knee pain, although his neck was relatively comfortable. Following the transport accident, he had had a limp, favouring his right leg; however, the pain was not severe and he continued working full time.
120 The next event was on 2 June 2011, when the plaintiff stubbed his right foot on a loading ramp. This resulted in twisting the right knee, and he had a relapse of severe medial right knee pain, having had right knee pain since 2008.
121 The pain significantly worsened, and when the plaintiff woke the following morning, his knee locked, causing him to fall. He ultimately ceased work in mid-June 2011.
122 On the information available to him, Dr Poppenbeek thought the sequence was probably an initial medial meniscus injury from the transport accident, which, as the plaintiff continued on over the subsequent three years, resulted in significant medial compartment degeneration.
123 As a result, the subsequent injury in June 2011 precipitated a possible further injury to the medial meniscus or precipitated an acute situation of a chronic medial compartment degenerative disease condition. That ultimately resulted in surgery and the subsequent sequelae.
124 Dr Poppenbeek assumed there was no pre-existing condition of the knee, not having access to the 2008 x ray. Thus, there appeared to be only the knee injury from the transport accident and subsequent aggravation in June 2011, which were relevant to the current problem.
125 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in October 2012.
126 The plaintiff told him of striking his knee against the dashboard and also some neck pain from the transport accident.
127 The plaintiff told Mr O’Brien that he was aware of neck and right knee pain. He was advised to wear a collar and diagnosed as suffering from a bruised knee. He was off work for about a week and his neck pain resolved after about a month or so. However, he continued to experience some pain over the anteromedial aspect of the right knee, which frequently caused him to limp, but he continued with his normal work.
128 In about 2010, there was an occasion when, getting out of his truck, the plaintiff twisted his right knee. This precipitated an acute exacerbation of knee pain associated with some swelling. He went to the doctor and was off work for a couple of days, resting his knee and applying ice. He then returned to work, aware of persistent mild right knee pain which occasionally flared up.
129 On 2 June 2011, the plaintiff’s right foot struck a slightly raised ramp, causing him to stumble and immediately produced severe right knee pain, which increased in severity, causing him to fall the following day when his knee locked.
130 Mr O’Brien noted the subsequent treatment and investigations undertaken.
131 Mr O’Brien reported the plaintiff described the transport accident which would appear to have precipitated or been an aggravation of pre-existing osteoarthritis in the right knee. It was following that accident that the plaintiff reported mild, persistent symptoms until June 2011, when there was a work-related incident resulting in severe exacerbation of pre-existing osteoarthritis.
132 Mr O’Brien noted the subsequent operative course and problems resulting from surgery. He confirmed the plaintiff suffered severe aggravation of osteoarthritis of the knee, with pain as a result of his work-related incident following on the initial car accident. That required total knee replacement, complicated in the post-operative phase by a severe haemorrhage, a delay in the onset of rehabilitation and the development of severe soft tissue contracture. He considered the plaintiff was totally and permanently incapacitated for work.
133 Dr Andrew Miller, occupational health consultant, examined the plaintiff in June 2013. The plaintiff told him of the transport accident injury to his neck and knee. His condition improved and he was able to continue normal duties, but he continued to experience episodic right knee pain.
134 Sometime in 2009, the plaintiff sustained an aggravation of the injury to his right knee when he stepped out of a truck and twisted his knee. He had medication and physiotherapy and was able to return to normal duties.
135 In May-June 2011, the plaintiff was walking in a loading area when his right foot struck a raised ramp, resulting in a severe jarring force to his right knee and acute discomfort. He fell at home the following day when his knee locked.
136 Dr Miller noted the plaintiff’s subsequent treatment and investigations.
137 Dr Miller thought the plaintiff had sustained a chronic incapacitating injury to his right knee. The plaintiff’s description of the circumstances of the injury implicated employment with JBS as a significant contributing factor.
138 Dr Miller considered the underlying pathology appeared to be a possible derangement and degenerative condition of the right knee, which had been treated with a joint replacement procedure. He thought the plaintiff had a limited capacity for work.
139 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in June 2014.
140 The plaintiff told him of hitting his knee in the transport accident and that his knee was painful, but he subsequently was able to return to work as a truck driver.
141 The plaintiff said he hurt his knee getting out of a truck on one occasion, and on another occasion at work, a ramp had been left out and he kicked it, which made his pain worse.
142 The plaintiff told Mr Dooley of his subsequent treatment, leading to surgery and the complications thereafter.
143 As far as Mr Dooley could determine, in December 2008, the plaintiff had mild to moderate, naturally occurring degenerative osteoarthritis of the right knee joint affecting the medial compartment. He did not have bone-on-bone osteoarthritic change.
144 Mr Dooley thought the plaintiff sustained an impact injury to the right upper tibial region and/or knee in the transport accident. He believed that in that accident, the plaintiff sustained a soft tissue injury to the right knee that may have involved partial tearing of the posterior cruciate ligament and aggravation of underlying osteoarthritis. There were subsequent incidents in which the plaintiff noted increased knee pain.
145 Mr Dooley thought the so-called tearing of the plaintiff’s medial meniscus would have been part of the underlying degenerative process. Mr Dooley thought that the June 2011 incident played a part in the plaintiff undergoing total knee replacement, but it was not the only factor that led to surgery.
Overview
146 It is accepted the plaintiff suffered an injury to his right knee in the accident which occurred during the course of his employment.
147 Whilst the plaintiff’s main initial complaint was of neck pain, with certificates of incapacity in that regard and early treatment and investigations being undertaken in relation thereto, the plaintiff complained of knee pain to Dr Bradley on 4 December 2008 and a fortnight later to Dr Stesin. The plaintiff’s Claim Form competed on 17 December 2008 also detailed a knee injury.
148 The consensus of medical opinion is that the initial injury was an impact injury to the right knee with a partial tearing of the posterior cruciate ligament with aggravation of pre-existing degenerative change.
149 The only issue in dispute is causation, with the defendant asserting the plaintiff’s current condition is not as a result of his transport accident injury.
150 This is not an aggravation case but one where the relevant injury is the initiating one and there are subsequent aggravations not the subject of this application.[4]
[4]T39
151 Counsel for the defendant however relied on the principles enunciated by the Full Court of the Supreme Court of Victoria in Petkovski v Galletti[5] that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[5][1994] 1 VR 436
152 This approach was followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (trading as Arnold Webbing Australia) v Filipowicz.[6]
[6](2012) 34 VR 309 (4 April 2012)
153 Filipowicz involved two separate injuries to the same body function: the right shoulder. There was an initiating injury in August 2003 when the plaintiff was employed by Arnold Ribbon and a subsequent aggravation injury in July 2006 whilst in the employ of AG.
154 In Filipowicz, the Court of Appeal held:
“… for the purposes of s 134AB of the Act, an aggravating injury must itself qualify as a serious injury.”[7]
[7]Paragraph 29
155 The Court suggested the following approach, given that the plaintiff had suffered two separate compensable injuries:
· First, the judge should have identified each injury;[8]
[8]Paragraph 31
· Secondly, he should have delineated the impairment consequences of each;[9]
[9]Paragraph 32
· Thirdly, in the case of the AG injury, which was an aggravation, although a separate injury, he should have determined whether the injury qualified as a “serious injury” under the Act;[10]
[10]Paragraph 33
· Fourthly, in determining whether the plaintiff had discharged the onus of establishing that the AG injury was serious, he should have made a comparison between the plaintiff’s condition before it and after it, and then have made an assessment of the additional impairment;[11]
· Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. The AG injury had to satisfy the requirements of a “serious injury” in its own right rather than in combination with the Arnold injury.[12]
[11]Paragraph 34
[12]Paragraph 35
156 Unlike Filipowicz, there is one compensable injury in the present case. It does not involve any aggravation of an earlier knee injury.
157 I am required to identify that injury and delineate the impairment consequences thereof. That injury must, in its own right, satisfy the requirements of a serious injury.
158 Whilst the consequences of the plaintiff’s initial knee injury did not become fully apparent until after a minor incident in 2011, I am satisfied the present serious consequences relate to the transport accident.
159 Although the plaintiff does not depose in his affidavits as to any effect on his leisure or domestic activities as a result of the transport accident or the 2009 aggravation,[13] and he required no time off work or significant treatment in relation to the transport accident injury, he was not free of symptoms related to the transport accident.[14]
[13]T24
[14]T14
160 I accept the plaintiff, whilst returning to full-time normal duties, had not recovered totally from the transport accident. He had symptoms but was managing at work with persisting knee pain.
161 The plaintiff complained to Dr Bradley of knee pain on the initial examination on 4 December 2008. Thereafter, the plaintiff went on to have treatment of his neck and knee injury with the work doctor. The plaintiff also told Dr Stesin on 17 December 2008 that he hit his right knee on the dashboard and that he had had x-rays of that knee.
162 Having given Dr Gong a history of the transport accident, the plaintiff complained to him in September 2009 of his knee locking and swelling but no giving way. Dr Gong noted the level of right medial knee pain since the accident was variable depending on the level of activity.
163 Thus there were symptoms of more than just pain prior to 2011.[15]
[15]T57
164 Whilst proof by expert opinion is not required to establish the causal link between an act and an injury[16] and I must evaluate the evidence as a whole, [17] no medical practitioner considered the plaintiff had recovered from his transport accident injury or that it no longer contributed to his present condition.
[16]Pisani v TAC (2014)VCC 462, T15
[17]Transport Industries Insurance Group v Longmire (1997) 1 VR 125, T15
165 The preponderance of medical opinion is that the transport accident is causative of the plaintiff’s present condition.
166 Whilst Dr Horsley initially thought the 2011 aggravation was significant, later somewhat modifying her opinion in this regard, and Mr O’Brien described that exacerbation as severe, all medical practitioners implicate the initiating injury in the plaintiff’s present condition.
167 I accept in this case, there is clear and distinct medical evidence pointing to the involvement of the initiating injury in the plaintiff’s present condition.[18]
[18]T50
168 Dr Bradley thought it probable that the transport accident caused injury to the right knee, including meniscal tear and chondral injury leading to osteoarthritis. Noting the subsequent aggravations, he thought it seemed likely that the transport accident was the start of the knee problem which subsequently required a total knee replacement.
169 Mr Gong, who last saw the plaintiff in April 2013, thought the underlying degenerative component to the plaintiff’s medial compartment of his knee was exacerbated by the initial impact injury. He noted the subsequent exacerbation in June 2011, when the plaintiff stubbed his toe on a loading dock.
170 From the history, Mr Westh thought it was more likely that the plaintiff’s initial injury from the transport accident was a significant contributing factor resulting in the right knee replacement, rather than the subsequent work aggravations.
171 Dr Horsley believed the pre-existing degenerative change aggravated at the time of the transport accident resulted in a posterior cruciate ligament tear and a small lateral meniscal tear. In her view, subsequent conservative treatment would have increased the mobility of the joint and would likely have resulted in acceleration of the pre-existing degenerative process. Ultimately, she believed the exacerbation in 2011 was not a major issue in terms of the overall level of degeneration, having earlier described it as a significant exacerbation.
WorkCover examiners
172 Obviously, these examiners reports tended to focus on the contribution of the plaintiff’s work to his knee condition.
173 On examination in July 2011, Mr Scott thought the plaintiff suffered from internal derangement of his right knee sustained in the transport accident, noting those symptoms had continued since that accident, with features suggestive of ongoing problems with the knee joint.
174 On information available to him on examination in 2012, Dr Poppenbeek thought the sequence was probably an initial medial meniscus injury from the transport accident, and the plaintiff continued on over the subsequent three years, resulting in significant medial compartment degeneration.
175 As a result, Dr Poppenbeek considered the subsequent injury in June 2011 precipitated a possible further injury to the medial meniscus or precipitated an acute situation of a chronic medial compartment degenerative disease condition that ultimately resulted in surgery and the subsequent sequelae.
176 On 2012 examination, Mr O’Brien noted the plaintiff described the transport accident which would appear to have precipitated or been an aggravation of pre-existing osteoarthritis in the right knee. Following the transport accident, the plaintiff reported mild, persistent symptoms until June 2011, when there was a work-related incident resulting in severe exacerbation of pre-existing osteoarthritis.
177 Mr O’Brien confirmed the plaintiff suffered severe aggravation of osteoarthritis of the knee, with pain as a result of his work-related incident following on the initial car accident, requiring total knee replacement.
178 Dr Miller thought the plaintiff had sustained a chronic incapacitating injury to his right knee and that his description of the circumstances of the injury implicated employment with JBS as a significant contributing factor.
179 Mr Dooley believed the plaintiff suffered a soft tissue injury to the right knee in the transport accident that may have involved partial tearing of the posterior cruciate ligament and aggravation of underlying osteoarthritis. There were subsequent incidents in which the plaintiff noted increased knee pain.
180 Any so called tearing of the medial meniscus would have been part of the underlying degenerative process. Mr Dooley commented that the June 2011 incident played a part in the plaintiff undergoing total knee replacement but it was not the only factor which led to this surgery.
Conclusion
181 I accept that the transport accident injury has led to the serious consequences conceded by the defendant as at the date of hearing. Arthroscopic surgery and later, total knee replacement, addressed the posterior cruciate tear and degenerative changes relating to the transport accident found on the 2009 MRI.
182 I accept that the aggravating incidents were hardly traumatic, involving very minor stress on the plaintiff’s knee.[19] I reject the submission that the plaintiff suffered a separate and distinct injury in each incident.[20] In my view, the effect of the transport accident was dramatic and resulted in pathology which could be aggravated in even the most benign circumstances.[21]
[19]T47
[20]T15
[21]T45
183 As counsel for the plaintiff submitted, the plaintiff’s evidence and the medical evidence clearly identified a sufficient causal connecting factor between the initiating injury and the plaintiff’s present condition. That position was not challenged by any medical opinion relied upon by the defendant.
184 In reaching my conclusion, I have analysed the medical evidence as to the contribution of the transport accident to the plaintiff’s present condition. I have not accumulated the effects of all injuries to the plaintiff’s knee. Considered alone, I am satisfied that the transport accident injury has produced consequences that satisfy the definition of “serious injury”.[22]
[22]Altona Bus Lines v Lococo [2002] VSCA 159
185 Taking into account all the evidence, I am satisfied the serious injury consequences conceded by the defendant relate to the transport accident.
186 Accordingly, I grant leave to the plaintiff to bring proceedings for damages.
- - -
0
6
0