Clements v VWA

[2024] VCC 715

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-05439

CHELSEE CLEMENTS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF JUDGMENT:	27 May 2024
CASE MAY BE CITED AS:	Clements v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 715

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – workplace injury – left knee injury – whether injury resolved – whether injury due to pre-existing condition – whether serious injury impairment consequences present

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2014          

Cases Cited:

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Liu	Slater & Gordon
For the Defendant	Ms L Burke	Lander & Rogers

HIS HONOUR:

1Chelsee Clements fell through a cellar trapdoor at work in February 2015 and injured her left knee.  She claims that the injury to her left knee results in a determination that she has sustained a serious injury for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2014 (“the Act”).  There is no dispute that she sustained an injury at work.  Rather, the defendant contends that the injury was simply a temporary aggravation which has resolved and that any ongoing complaints that Ms Clements makes simply relate to a constitutional condition which afflicted both knees prior to the incident in February 2015.  The defendant further argues that even if there remains an extant injury to the left knee, the consequences of that are not more than significant or marked.

2For the reasons which follow, I find that the plaintiff has sustained an injury to the left knee which remains symptomatic. I further find that the impairment consequences which flow from that injury to the left knee are more than significant or marked.

Relevant background history

3The plaintiff was born in March 1986.  She suffers from a congenital condition which is most easily understood as being small bilateral patellae.  This makes her prone to subluxation of the patellar itself in both the right and left knees.  She estimated that over the course of her life, prior to the injury in 2015, she had sustained a few subluxations of her patella.[1]   Nevertheless, such a congenital condition did not hinder her in childhood physical activity.  She particularly enjoyed dancing and later in life had a regular interest in running and hiking.

[1]Defendant’s Court book (“DCB”) 31 Dr Dickinson, Plaintiff’s Court book (“PCB”) 58 Dr McLean

4She finished school at the end of Year 12 in regional Victoria and then came to Melbourne.  She began working in a variety of different hospitality jobs in pubs and restaurants.

5She was referred to an orthopaedic surgeon in about 2012 for the ongoing subluxation of her kneecaps.[2]  Nothing came of this.  No further investigations seem to have occurred nor was any course of treatment embarked on.

[2]PCB 19

6In about 2014, she began working at the defendant premises as a restaurant supervisor.  She worked full time hours which were up to about 40 hours.  These were spent on her feet performing activities which were usual in the hospitality industry; she would obtain drinks from fridges, pour drinks, serve meals, tidy the restaurant.  In her first affidavit she described sustaining injury in the following way:[3]

“[8] On or about 11 February 2015 I was carrying glassware back to the bar. Near where the bar was located was an underground cellar. As I headed toward the bar I stepped onto the edge of the cellar. The restaurant was dimly lit and I did not realise that the cellar door was left open. I fell hitting my left knee very hard on the edge of the cellar. Half my body was in the cellar.”

[3]PCB 14 at [8]

7She had a few days off work and then went to see her treating doctor, Dr Williams, on 16 February 2015.[4]  He prescribed painkillers and noted extensive bruising about the left thigh.  He provided her with a certificate off work and referred her for x-ray.  This was conducted on 24 February 2015 and showed no fracture or dislocation in the left knee.  A small effusion was noted.[5]

[4]PCB 32

[5]PCB 29

8She went back to see Dr Williams in March 2015, with ongoing problems from the fall but also concerned by the traumatisation she experienced in the fall.  It is to be noted that the plaintiff had been diagnosed with bipolar disorder at a young age and was on medication at the time of the incident.  That mental  condition was, it appears, well controlled by medication.  Due to ongoing problems with the left knee, Dr Williams referred the plaintiff for MRI scanning.  This was conducted on 13 March 2015, due to ongoing pain and on a history of being “unable to straighten knee, tender both joint lines”. The MRI was reported to show no fracture and no ligament damage in the left knee.[6]

[6]PCB 30, PCB 15, DCB70

9At some point she was referred for a cortisone injection.[7] Given the ongoing problems, Dr Williams referred her to see an orthopaedic specialist, Mr Altuntas.[8]  He saw her on 31 March 2015.  He noted that the swelling had resolved and that there was now a full range of motion.  He considered on testing that both the MCL and ACL ligaments were stable.[9]  He considered, however, that the MRI scanning showed marked signal changes at the patellar tendon insertion.  In his report to the treating doctor he considered that there was “... Quite significant soft tissue injury around the patellar tendon and patellar fat pad with inflammation”.[10]  He recommended a course of physiotherapy.

[7]PCB15, 57

[8]PCB 15

[9]PCB 37

[10]PCB 39

10During this time the plaintiff was off work during the majority of February, March, April and May.  At the beginning of June 2015, her treating doctor considered she was ready for a return to work on modified limited duties.[11]  He noted at this stage that there was some pain on squatting and considered these activities should be limited.[12]

[11]PCB 32

[12]PCB 32

11It appears that the plaintiff returned to work and gradually built up to full time duties over the next few months.  In late 2015, she changed jobs. She continued working in hospitality until the COVID period.  She then obtained a job at Bunnings as a floor attendant and finally, over the two and a half years or so, she has worked in the Bunnings cafe as a barista.

12I will now return to deal with some of her medical attendances after October 2015, when she returned to work, as there was much contention as to whether she had ongoing symptoms and treatment for her left knee injury.

13Dr Williams recorded that, as of the beginning of 2016, he had stopped seeing her  in respect of the left knee injury and considered that she was able to return to full duties work on an unlimited basis.[13]  During the remainder of 2016, she did not see her general practitioner or any allied health professional in respect of her left knee problems.  In November 2017, she was seen at a women's clinic in respect of chronic pain in both knees.[14]  In 2018, she sustained an unrelated injury to the right knee and made a WorkCover claim in that respect.  On 23 August 2018, she saw Dr Williams who recorded that her right knee was better but she was having difficulty walking on stairs and after having spending time on her feet.[15]  On 27 September 2018, she saw Dr Williams who recorded that over the last week she had left knee pain which was a constant dull ache associated with work on her feet.[16]

[13]PCB 32

[14]Defendant’s Court Book (“DCB”) 162

[15]DCB 46

[16]DCB 92 – there is some reference in the clinical notes to a fall on wet floor in June 2018 where the right knee was injury (DCB 95). At the consult on 27 September 2018 it appears the right knee continued to have difficulties, however it is clear that Dr Williams decided to obtain an MRI for the left knee at this time. No left knee proximate to this date is found in the tendered materials.

14There is then a considerable gap in any recording of left knee pain from that time throughout 2019 and 2020.  Then, in February 2021, she saw her treating doctors who recorded that, “injury in 2015 left with significant chronic pain and function limitations on left hip/leg”.[17] 

[17]DCB 85

15Later that year, in October 2021, she came under the care of a physiotherapist, Mr Lambsheed.  He took a history of left knee pain over the last few months getting progressively worse over the course of the substantial walking she was doing at Bunnings.[18]  He continued to see her throughout November and into January 2022.[19]

[18]DCB 41

[19]DCB 39, DCB 38

16Her treating doctor consulted with her at the end of that year on 29 December 2022.  He took a history that her left knee was always sore, even at night, and that she had what he termed “... chronic soreness left knee”.[20]

[20]DCB 78-79

17She then began attending physiotherapists at the “Sum of Us Clinic” in 2023, for ongoing problems relating to both knees.[21]

[21]DCB184-190

18She returned to Dr Williams in October 2023, continuing to complain of left knee pain, and his history recorded that she was having difficulty with stairs and walking because it could give way.[22]  He referred her on for x-rays which reported no abnormality.  He considered that she needed an MRI to determine the cause of her ongoing worsening pain.  She remains under his care but has not had the MRI as yet.

[22]DCB 153

What is the injury?

19The plaintiff relied on the medico-legal opinion of Dr McLean, an orthopaedic specialist, to identify the injury she relied on to the left knee.  His opinion was contained in a report dated 23 November 2023.  He opined that the plaintiff suffered:[23]

“traumatic soft tissue injury to the left thigh/quadriceps mechanism. Traumatic left knee fat pad and patellofemoral chondral/chondromalacia, ongoing complex pain syndrome: quadriceps dysfunction and functional disability suggesting progression of degenerative change.”

[23]PCB 51

20In addition, she relied on a report of medico-legal practitioner, Dr Blomberry, who identified that the plaintiff had sustained an organic sensitisation of pain nerve pathways after her injury causing ongoing pain.[24]

[24]PCB 57

21The defendant first argued that the plaintiff had only sustained a temporary aggravation of her underlying condition with some soft tissue bruising in the fall of February 2015.  On the defendant’s case, these conditions had resolved leaving the plaintiff to suffer from ongoing idiopathic changes in the left knee.  I do not accept that submission for the following reasons.

22First, the nature of the injury was a fall with significant force into a cellar trapdoor. It resulted in the plaintiff’s body being caught half into the cellar.  The force of the fall resulted in what all the doctors, who were attending the plaintiff at or about the time of the incident, record as being significant bruising.  Even Dr McLean, who saw photographs taken of the area contemporaneously sometime later, conceded that there was also significant bruising.  The fact of the forceful traumatic nature of the fall is relevant to understand the chronicity of the problems that the plaintiff claims I consider, and it weighs in favour of the plaintiff’s reliance on Dr McLean’s opinion.

23It is also relevant that the plaintiff’s treating doctor considered the mechanism of the fall, in combination with the clinical findings, warranted not only x-ray but then subsequently MRI when the problems did not resolve over a short period.  Even though there was a recording of limited findings on radiology, Dr Williams considered that the problems were so significant that a referral was made to the treating specialist, Mr Altuntas.[25]  All this occurred within a period of two months of the occurrence of the injury.  Cortisone injection also occurred.[26]  These matters clearly indicate that there was significant symptomatology, at least clinically.

[25]PCB 37

[26]PCB 15, 57 and DCB 70

24Secondly, the diagnosis by those practitioners who attended the plaintiff at around the time of the incident also supports the notion that there was a significant injury. A review of the treating doctor’s notes and report shows that Dr Williams was so concerned after her symptoms did not settle by March 2015, that he embarked on a course of action which was more than simply to watch and wait.  Rather he pursued investigations and referral. This demonstrated his consideration that the condition was severe enough to warrant such a step.  The ultimate diagnosis by the specialist orthopaedic surgeon was that there was a significant problem which was attended by functional impediments which remained ongoing some four months after the initial insult.

25These matters underpinned Mr Altuntas opinion made considering the radiology, and the clinical examination, to demonstrate “quite significant soft tissue injury around the patellar tendon and patellar fat pad with inflammation”.[27]  By the time he had consulted with the plaintiff there had been some improvement of the range of motion and so, while there was no call in his opinion for further invasive treatment, he did consider that a course of physiotherapy was warranted given the ongoing problems.

[27]PCB 37

26Turning now to the medico-legal practitioner who examined the plaintiff on behalf of the defendant to investigate acceptance or otherwise of her claim and return to work.  Dr Wood, physician, recorded that at that time, in mid-2015, she was reporting “... generalised aching around the knee both day and night”.  He recorded difficulty with squatting and stairs and a constant aching in bed was worse after work.[28] I find that all of that material supports the notion that the plaintiff had sustained a significant injury to the soft tissues in the left knee in the fall.

[28]DCB 25-26

27Third, the plaintiff’s ongoing treatment over the years since the injury reveal continual problems with chronic pain and functional limitations in the left knee.  There was much debate about this during the course of trial.  The defendant’s case was that there had been extremely limited attendances since the date of injury to  treating doctors or allied health practitioners in relation to the left knee problem.  In that circumstance the defendants submitted that the plaintiff’s injury had resolved by, at the latest, 2016.  Even if they were wrong about that, the defendant submitted, then the impairment consequences claimed by the plaintiff were inconsistent with her lack of attendances for treatment.

28As I have set out above, it is quite clear that the plaintiff had large gaps in her treatment history since 2015.  However, it is abundantly clear that as of late 2015, the plaintiff’s treating doctor had cleared her for a return to work and she had done so.  In a setting where the treating specialist had not offered any further invasive treatment, the plaintiff had no option but simply to tolerate pain and continue on with her life.  In that circumstance, it is unsurprising that the plaintiff did not regularly attend for ongoing problems in the left knee. She did attend for other problems, sometimes associated with right knee. But the fact was she had been investigated by MRI for the left knee and diagnosed by her specialist in this regard. There was nothing further she could do.

29What the notations over the years since 2015 reveal, however, is that the plaintiff has on occasion attended complaining of constant pain and limitations in some activities related to her left knee.  Though those attendances are not voluminous, the lack of attendance does not mean that the pain and limitations that the plaintiff complained about on her attendances were not real and ongoing.

30To this extent, it is relevant to record that I considered the plaintiff to be a witness who answered questions to the best of her ability and was not evasive.  She often gave answers which were against her interest, such as her ongoing problems to both knees.  While there was some inconsistency in her evidence, and she might have been considered unreliable on isolated points, overall I did not consider there was any major attack on her credit or on her reliability.  I find she was a credible and reliable witness.  This finding, specifically as to the veracity of her evidence regarding the symptoms she complains of, is supported to a limited extent by Mr Dickinson, who did not consider there were any signs of functional overlay.[29]

[29]DCB 21

31Further, I do not consider that the opinion of Mr Dickinson can be accepted as to the diagnosis of the injury.  He records his opinion that:[30]

“the injury was largely a bruise to the left side. It was also associated with lateral subluxation of the left Patella which was consequent upon underlying dis locatable patellae and for which she had had treatment previously for a long time.”

[30]Ibid

32It can be seen immediately that this diagnosis of injury does not engage with the MRI or the opinion of the treating specialist opinion of Mr Altuntas.  The opinion of Mr Dickinson does not find reflection in the MRI, which does not detail any subluxation of the left patella nor is it consistent with findings initially by Dr Williams.  In fact nowhere in the initial material contemporaneous to the date of injury is there a recording of a subluxation of the left patellar.  Mr Wood does not comment in similar terms to this and certainly Mr Altuntas’ opinion is markedly different, as I have set out above.  It is completely unclear why Mr Dickinson comes to this opinion.  I do not accept his opinion and prefer the opinion of the treating specialist who saw and examined the plaintiff contemporaneously with the injury.

33For all these reasons, I would accept the plaintiff’s submission and I find the plaintiff has suffered an injury to the left knee in the terms identified by Dr McLean.

Impairment consequences

34Before coming to address the issue of impairment consequences, two matters need to be dealt with. The defendant raised the issue of permanency of the plaintiff’s injury.  In particular, reliance was placed on Dr Williams’ opinion in his report of 2 May 2024, that an MRI needed to be performed to investigate the ongoing pain. This was an opinion formed after X-rays conducted in November 2023 revealed no abnormality but some mild subluxation. Reliance was also placed on the opinion of Mr Blomberry that a pain management course needed to be undertaken.

35Given my finding above as to my rejection of Mr Dickinson’s opinion, I note that Dr McLean is the only orthopaedic specialist opining on the current state of the plaintiff's condition.  To this extent, I accept his opinion in preference to the treating doctor or Mr Blomberry, as Dr McLean’s opinion is specialist to the area of orthopaedics. He considers that the only form of treatment necessary is conservative treatment with no role for operative or surgical programmes.[31] While he did not have the x-ray of November 2023 it was overall recorded that there was no abnormality recorded save for mild subluxation. While radiology is useful clinical examination in combination with history and the experience of the speciailist are brought to bear in arriving at an opinion. Bearing those matters in mind I do not consider Dr McLean’s opinion is undermined by not having the x-ray of November 2023 and I prefer it to Dr Williams and Dr Blomberry.

[31]PCB 52

36I consider that the plaintiff's condition is stable for the purposes of making an assessment in respect of serious injury.  That finding is supported by the fact that the plaintiff has now travelled some nine years since the date of injury and is largely being treated conservatively.  To that extent, the past is a good guide to the future and supports Dr McLean's findings.

37The defendant also submitted that the plaintiff’s pre-injury condition needed to be taken into account given that she had idiopathic patellar pathology which predisposed her to knee problems.  This much can be accepted.  However, it is undisputed that really she had only a very few subluxations in the years prior to the date of injury.  Many of these occurred when she was young, and the last time she was referred for treatment for them was in about 2012.  From that time to the time when she suffered the injuries, is a period of some three years.  In that period of time she worked full time in hospitality and was on her feet regularly.  In addition, she performed a range of household and recreational functions with no impediment.  This history is very strong evidence that while she had an underlying condition it posed no real consequences in her everyday life.  I find that there are no consequences relating to her pre-existing condition that need to be separated from those which arose after the 2015 workplace incident.

38The defendant further argued that the plaintiff had problems with her right knee which are extant and “muddy the waters” in respect of isolating her left knee symptoms.  In this area the plaintiff was cross-examined and gave evidence which I consider to demonstrate that she was a truthful witness.  She freely acknowledged that her right knee experienced crunching and made it, at times, difficult to perform activities.  However, she made point that this was at a much lower level than anything she experienced in respect of her left knee.  Having reviewed the evidence, I consider that the plaintiff’s evidence clearly separates the impairment consequences which flow from the injury to the left knee resulting from the workplace injury and that which emanates from the idiopathic condition in the right knee.  I have dealt with each of the impairment consequences described below and sought to isolate impairment consequences which relate solely to the left knee rather than to do with the right knee.

39As to work, she works in a position on her feet for her entire shift.  Her evidence is that she favours for right leg in order to take pressure off the left leg, as she described like a “flamingo”.[32]  The evidence that she gave was to the effect that being on the left leg consistently causes worsening pain and ache.  Her affidavit evidence deposed that she found it difficult to stand for long periods and needed to have a seat when she could because of the pain in the left leg.  She deposed to having increasing pain throughout the day and that it often would become swollen at night.  This became worse over the course of a week and she would often apply ice to the left knee.[33]  For a worker who left school at 18 and has worked in manual retail jobs for nearly 20 years as an adult this is a constant, everyday concern. I consider that a significant consequence.

[32]T18 L28, T21 L13

[33]PCB 20 at paragraph 7, DCB 154

40I find that the pain is constant in the left knee.[34]  That pain varies from being moderate to flaring up on occasion.  To deal with this pain she deposes to taking, and I accept, Naproxen every night for two to three weeks and will then have a break.  In between these times she takes four Ibuprofen tablets five days a week.[35]  I consider that this is a significant medication load needed to cope with her injury. Other than medication and icing the knee the plaintiff, on occasion, has had physiotherapy but this has been paid for privately and she does not have this on a consistent basis.  I note that on occasion the physiotherapy has been for the right knee as well.  To this extent, I disregard the need for physiotherapy as being presently necessary for her left knee condition.

[34]PCB 16, DCB 78-79, DCB 85, DCB 91

[35]PCB 20

41The plaintiff deposed to being limited in range of recreational activities. These particularly were her love of hiking which she would do once per month prior to the date of injury.  She has not been able to return to this activity since the date of the injury.

42She also deposed to being limited in household chores by reason of difficulty in having to bend squat or stoop.  These matters can be accepted, noting that the plaintiff has been able to do all these tasks but needs to take regular breaks in order to complete them.  I do not place much weight on these limitations.

43I accept that the plaintiff’s sleep is disrupted by reason of her left knee pain.  It was put that she was also disrupted in her sleep by reason of her mental health.  The plaintiff accepted this was the case but identified that this only occurred a few times a month, and that the main source of her disrupted sleep was the left knee which woke her once or twice a week.  She has given a similar history to other medical practitioners in the case.[36]  I accept that evidence.

[36]PCB 21, 55

44It is also relevant to consider those functional capacities which the plaintiff has retained.  She has remained able to work full time in normal duties since shortly after the date of injury.  That work is generally on her feet requiring her to be physically active either in hospitality or at Bunnings.  She is able to perform all the activities of daily living and is able to maintain her house by herself.  She can attend numerous social events such as concerts or sporting activities, and she was shown in social media posts to have gone to several of these.  There was nothing inconsistent in the social media posts with what the plaintiff deposed to.  For example, she was asked about being able to attend cricket or football matches at the MCG or Docklands Stadium and accepted that at times she would have to go down the stairs to her seat.  She did, however, make the point that she used the ramps to climb up to the relevant level of the stadium before going to her seat.  As to the concerts she attended, she gave evidence that she was seated at the Palais Theatre for a blues performance.

45Balancing these matters, I consider that the plaintiff has sustained a serious injury by reason of the matters which I have set out above.  In summation, I consider the injury to be serious for the following reasons:

(a)   the long-term chronicity of problems being some nine years;

(b)   the constant pain of a moderate level with flare ups requiring ongoing Ibuprofen and stronger prescription medication in the form of a Naproxen;

(c)   the impact on the recreational activities of hiking in particular;

(d)   the fact that at the date of injury she was 29 years of age and will have to endure this constant pain for the vast majority of her life;

(e)   the fact that she has only ever worked in hospitality and retail positions in which she is required to be on her feet means that her injury is constantly a factor that she has to manage.

46I will make a determination in the plaintiff’s favour in accordance with s335 of the Act. I will give parties seven days to file orders giving effect to the judgment above and in respect of costs.