Clifford v Victorian WorkCover Authority
[2024] VCC 217
•8 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02224
| ANTHONY CLIFFORD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2023 |
DATE OF JUDGMENT: | 8 March 2024 |
CASE MAY BE CITED AS: | Clifford v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2024] VCC 217 |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right knee injury – pain and suffering – loss of bodily function – aggravation and acceleration – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Ms S De Guio | IDP Lawyers |
HIS HONOUR:
The history of the application
1The plaintiff, Mr Anthony Clifford, who is now aged sixty years, has a long history of right knee problems. These problems date back to 12 May 2003. On this day, Mr Clifford hurt his right knee playing basketball. At that time, he worked as a journalist with Harness Racing Victoria. This injury occurred in the course of that employment.
2As a result of the basketball injury, Mr Clifford underwent a right knee ACL reconstruction on 4 June 2003. Mr Clifford said that he was advised by his treating orthopaedic surgeon, subsequent to this surgery, that he may suffer degenerative change in the right knee joint, and he may, as time progressed, come to a total knee replacement (“TKR”).
3Mr Clifford said that he had a good functional outcome following the ACL reconstruction surgery. He said he was able to return to work and resume a range of physical activities. However, Mr Clifford conceded that he did have a level of ongoing pain, and suffered flare-ups of right knee problems.
4In 2004, Mr Clifford changed jobs. In September 2004, he commenced working as a stevedore with Patrick Stevedores Holdings Pty Ltd (“Patrick Stevedores”). In order to secure this position, Mr Clifford had to pass a pre-employment medical assessment. He said this was a strenuous test.
5Mr Clifford said this work as a stevedore was physically demanding and he generally coped with the demands.
6On 2 September 2015, Mr Clifford was working onboard the ship “MSC MESSINA”, which was berthed at East Swanson Dock. While unlocking overhead containers on the ship’s deck, Mr Clifford’s right foot was caught on the edge of a manhole which had been left open by a co-worker. As a result, Mr Clifford fell, causing his right knee to hyperflex (“the incident”). Mr Clifford said he was in a lot of pain and his right knee swelled.
7Mr Clifford was taken to the Epworth Hospital Emergency Department for assessment and treatment. An MRI scan, undertaken on 7 September 2015, revealed a tear to the posterior crucial ligament and tears to the lateral and medial meniscus. Mr Clifford was referred to Mr James Chiu, orthopaedic surgeon.
8On 9 October 2015, Mr Clifford underwent surgery at the Epworth Hospital in the form of a right knee arthroscopy, partial lateral and medial meniscectomies, debridement of the patellofemoral joint and debridement of the medial femoral and tibial condyles.
9After a period of rehabilitation, Mr Clifford returned to work as a stevedore. He said he had ongoing problems with his right knee, which gradually deteriorated. Mr Clifford said, as a result of the worsening of his right knee problems, on 17 May 2021, he underwent a right TKR.
10After a period of time off work following this surgery, Mr Clifford returned to work as a stevedore. Mr Clifford said his role changed. Mr Clifford said generally he no longer undertakes on-ship duties.
11Mr Clifford’s life circumstances have been complicated by a recent diagnosis of the re-occurrence of Hodgkin’s lymphoma (which he had initially suffered back in 2019).
12Mr Clifford says he continues to suffer pain and restriction in his right knee. He said that impacts him in many ways. Mr Clifford says that the injury which he suffered on 2 September 2015 materially contributes to these problems. Mr Clifford says that, for pain and suffering purposes, the impact upon him is very considerable. Mr Clifford says he should be granted leave to institute common law proceedings in respect to the incident.
13The Victorian WorkCover Authority (“VWA”) who are the worker’s compensation insurer for Patrick Stevedores, accept that Mr Clifford suffered a work-related compensable right knee injury on 2 September 2015. However, the VWA says:
(a) it was only a temporary aggravation;
(b) Mr Clifford has not disentangled the consequences flowing from the 2 September 2015 incident from his pre-existing problems, and any subsequent aggravations;
(c) any consequences flowing from the 2 September 2015 incident do not satisfy the “serious injury” test.
What is the nature of Mr Clifford’s application?
14This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Clifford relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his right knee injury is a “permanent serious impairment or loss of a body function”.
15The relevant definition of “injury” is found in s3 of the Act:
“injury means …
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;”
16For Mr Clifford to be successful, he must establish that the consequences from his right knee injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and to s325(2)(c) of the Act.
What are the issues for the Court’s determination?
17Having considered all of the evidence, the relevant authorities and the respective submissions, the matters for the Court’s determination include:
(a) as to Mr Clifford’s credit and reliability and whether I can accept his evidence;
(b) identification of the Court’s obligation to disentangle;
(c) analysis of the nature and extent of Mr Clifford’s pre-existing right knee injury;
(d) which of the medical opinions should be accepted and the assistance they provide;
(e) what is the nature and extent of Mr Clifford’s right knee injury flowing from the incident and what consequences flow from this injury;
(f) are the consequences flowing from the subject injury “very considerable”.
What conclusions do I reach in respect to Mr Clifford’s credit and reliability?
18As in a great number of cases of this type, Mr Clifford’s credit and reliability is critically important.[1]
[1]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
19Notwithstanding the VWA’s assertion in their closing submissions that this was not a case where credit was in issue,[2] in reality, the VWA did challenge Mr Clifford’s credit and reliability. They did so on important matters. The VWA said:
(a) Mr Clifford exaggerated;[3]
(b) there was “incongruency” in Mr Clifford’s evidence;[4]
(c) that I was not entitled to have regard to various aspects of Mr Clifford’s evidence, in particular, some of the assertions contained in his second affidavit, which the VWA said were not reliable.[5]
[2]Transcript (“T”) 105, Lines (“L”) L27
[3]T98, L14
[4]T99, L23
[5]T106, L2-6
20When in the witness box, Mr Clifford, I accept:
(a) gave his evidence in a frank and forthright manner;
(b) was prepared to make appropriate concessions.
21I do, however, accept that there were some aspects of Mr Clifford’s oral evidence which were at odds with his affidavit evidence. In such instances, I accept his oral evidence.
22Overall, I accept Mr Clifford is a stoic man with a strong work ethic, who endeavoured to, over the years, minimalize the impact the right knee injury sustained on 2 September 2015 had on his life.
23It is through this lens that I undertake my analysis of the issues.
What is the Court’s obligation to disentangle?
24Over the years, both before and after the incident, there have been events which have either clearly or potentially impacted upon Mr Clifford’s right knee. These events include:
(a) the 12 May 2003 basketball injury;
(b) Mr Clifford’s physically-demanding work as a stevedore post 2004 and prior to the incident. In particular, between August and October 2014;
(c) the incident itself;
(d) Mr Clifford’s physically-demanding work as a stevedore upon his return to work after the October 2015 surgery through to the present time;
(e) the May 2018 incident climbing a machine at work;
(f) the ageing process.
25There is no dispute Mr Clifford had right knee problems prior to the incident.
26The law is clear that it is the consequences of the aggravation, acceleration, exacerbation or deterioration of the pre-existing injury that must be assessed as being “at least very considerable” if Mr Clifford is to be successful in his application.[6]
[6]Petkovski v Galletti [1994] 1 VR 436
27The process to be followed in disentanglement of the consequences of the subject injury from other factors is well established.[7]
[7]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; see the analysis at paragraphs [25]-[35]
28It is, of course, appropriate to acknowledge that Mr Clifford is not precluded from a finding of serious injury by reason of the existence of the other contributing factors to his right knee problems.
What is the nature and extent of Mr Clifford’s pre-existing right knee problems?
29In undertaking my analysis of the nature and extent of Mr Clifford’s pre-existing right knee problems, I shall:
(a) firstly review Mr Clifford’s evidence;
(b) then undertake a review of the medical evidence predating the incident.
(a) Mr Clifford’s evidence in respect to his pre-incident right knee problems
30At the time of the 2003 basketball incident, Mr Clifford was aged forty-one years. He said he was referred to Mr Iain McLean, orthopaedic surgeon, for assessment of this injury.
31Mr Clifford said, on 4 June 2003, Mr McLean undertook what he understood to be partial medial and lateral meniscectomies and an ACL reconstruction.[8] Mr Clifford said that, after the surgery, his rehabilitation included a course of physiotherapy treatment. Mr Clifford conceded that, while his right knee function improved, he continued to have some ongoing problems. Mr Clifford was candid in respect to these problems. He said the problems included:
[8]Plaintiff’s Court Book (“PCB”) 5
(a) he could not run or jump on his right knee;
(b) problems squatting;
(c) problems kneeling;
(d) he avoided pivoting and twisting on his right leg;
(e) he had some ongoing pain in the right knee;
(f) the knee would crack and grind;
(g) he avoided walking on uneven ground;
(h) he took Panadol before work;
(i) he took care not to aggravate the right knee;
(j) he wore a knee brace if he was undertaking physically-demanding work.
32Mr Clifford agreed that there was a “flare-up” of his right knee problem in the period August to October 2014. At that time, he consulted his general practitioner, Dr Raouf Mirhom. Dr Mirhom initially prescribed Mobic and Panadol Osteo and sent him for x-rays.
33Mr Clifford said:
(a) Dr Mirhom injected cortisone into his right knee;
(b) the cortisone injection helped;
(c) he did not need any further injections because the first one “fixed it”.
There were no further consultations with Dr Mirhom until after the incident.
34Mr Clifford acknowledged that Mr McLean told him, as a result of the basketball injury, he:
(a) had suffered a significant injury;
(b) would have a permanent problem;
(c) would develop degenerative change within the right knee joint;
(d) would require a TKR.
35Mr Clifford’s evidence about his right knee problems prior to the incident was, however, not all doom and gloom. On the positive side, he said, prior to 2 September 2015, he:
(a) Was able to pass the strenuous pre-employment medical assessment with Patrick Stevedores prior to starting in his new job in September 2004.
(b) Was able to cope with the demands of his work as a stevedore. Mr Clifford said, at times, this work was heavy and physically demanding. He was able to do everything he was supposed to. For example:
(i)climb ladders;
(ii)lift heavy lashing bars;
(iii)negotiate stairs and gangways.
(c) Regularly played golf with a handicap of 18.
(d) Went to the gym. There he would:
(i)walk on a treadmill;
(ii)ride an exercise bike;
(iii)lift weights.
(e) Attend AFL games.
(f) Go to concerts and the theatre.
(g) Mow lawns, do pruning, and clean the pool.
(h) Go on regular walks.
(i) Maintain an active intimate relationship with his wife.
(b) The medical evidence prior to the incident
36I had the benefit of four medical reports which preceded the incident. They were provided in the context of Mr Clifford’s WorkCover claim for the 2003 basketball injury. I was also provided with the clinical notes from Mr Clifford’s general practitioner clinic.
37I go firstly to the report of 3 February 2004 from Mr McLean, who was then Mr Clifford’s treating orthopaedic surgeon.
38Mr McLean said Mr Clifford had suffered an acute disruption of the right anterior cruciate ligament, along with meniscal and chondral pathology.
39Mr McLean detailed the surgery which he undertook on 3 June 2003. Mr McLean said:
“On 3rd June, 2003 I went ahead with operation to Mr. Clifford’s right knee with the findings being of significant AP laxity with associated pivot shift movement and complete disruption of the anterior cruciate ligament. Posterior flap tear of the lateral meniscus was present with complex unstable tearing of the medial meniscus, chondromalacia of the patella of 2+, and a large (2cm diameter) chondral lesion of the medial femoral condyle down onto bone.
Arthroscopic extensive chondroplasty of the medial femoral condyle was performed along with removal of chondral loose bodies, chondroplasty of the patella, medial meniscectomy and partial lateral meniscectomy. This was associated with anterior cruciate ligament reconstruction using hamstring tendon.”[9]
(sic)
[9]Defendant’s Court Book (“DCB”) 17
40Mr McLean last reviewed Mr Clifford on 2 February 2004; that is, eight months post-surgery. At that time, Mr McLean said that Mr Clifford continued with symptoms including pain, crepitus, and restricted movement. As to Mr Clifford’s prognosis, Mr McLean said, as a consequence of the basketball injury:
“... This will undoubtedly cause ongoing and permanent problem and disability to his knee. He is limited to light sedentary office type work at this stage and definitely into the future. He is not able to do any running, squatting, twisting climbing type or more manual work or sports activities. This problem will undoubtedly lead on to further degenerative changes in his knee.”[10]
(sic)
[10]DCB 18
41The remaining three opinions are medico-legal assessments for Harness Racing Victoria’s authorised insurer.
42Mr Peter Kudelka, orthopaedic surgeon, assessed Mr Clifford in August 2003,[11] very shortly after his surgery. It is unlikely that Mr Clifford’s condition was stabilised at that stage. Mr Kudelka said that Mr Clifford had suffered a severe internal derangement involving both the meniscus and the cruciate ligament.[12]
[11]DCB 15
[12]Ibid
43Mr Michael Dooley, orthopaedic surgeon, assessed Mr Clifford on 8 October 2004;[13] that is, seventeen months post-surgery.
[13]DCB 28
44Mr Dooley was not as dogmatic as Mr McLean in respect to Mr Clifford’s future risks of degenerative change and TKR. He said:
“Although patients with specific injuries such as Mr Clifford’s can develop focal arthritis affecting compartments or parts of compartments of the knee, it is unusual for them to require knee replacement in the longterm (sic).”[14]
[14]DCB 31, paragraph [9]
45Mr Dooley concluded that Mr Clifford:
(a) would have intermittent aching of his right knee joint;
(b) was at risk of developing slowly progressive arthritic change;
(c) may have some functional limitation.[15]
[15](Ibid), paragraph [11]
46The final report is from Mr Peter Battlay, general surgeon, who assessed Mr Clifford on 30 May 2006.[16] This assessment was for the purposes of an AMA impairment assessment. Mr Battlay said Mr Clifford had a stabilised permanent impairment to his right knee which equated to an 11 per cent whole person impairment. Mr Battlay contributed little else by way of opinion.
[16]DCB 34
47I pause here to note that the reports of Mr Kudelka and Mr Battlay are of little assistance to me, and I will make no further reference to them.
48I was provided with the clinical notes of the St Kerellos Medical Centre (“St Kerellos”).[17]
[17]Defendant Exhibit 1
49Mr Clifford’s records at this clinic ranged between 17 July 2001 and 30 July 2019.
50Of relevance, I note:
(a) Between 2003 and 7 August 2014, I was not able to locate, nor was I taken to, any consultations by Mr Clifford for his right knee.
(b) There were consultations on 7 August 2014, 15 September 2014, 21 October 2014, and 22 October 2014, when Mr Clifford attended at the clinic for his right knee problems.
(c) On 22 October 2014, Dr Mirhom undertook a right knee injection.
(d) There were no further consultations by Mr Clifford in respect to his right knee problems until 8 September 2015. On that day, Mr Clifford consulted Dr Mirhom for the subject injury.[18]
This evidence is consistent with Mr Clifford’s evidence.
[18]DCB 429-430
What conclusions do I reach in respect to Mr Clifford’s pre-existing right knee problems?
51No doubt Mr Clifford suffered a permanent impairment to his right knee function as a result of the basketball injury. Mr Clifford made appropriate concessions in this regard. I accept his oral evidence in respect to the impact of this injury.
52Apart from four attendances with Dr Mirhom in late 2014, there are no relevant consultations with his general practitioner for in excess of ten years prior to the incident. This is consistent with Mr Clifford’s evidence. Further, there is nothing to suggest that Mr Clifford did not have a good outcome from the 22 October 2015 injection. There were no follow-up consultations. This is consistent with his evidence that the flare-up settled and Mr Clifford maintained, to the time of the incident, the level of pain and function he deposed to.
53As to the orthopaedic surgeon evidence, there is conflict.
54Mr McLean paints a pessimistic picture. I am, however, concerned as to how much weight I can place on this report, which is dated 3 February 2004. Mr McLean’s pessimistic opinion at that time must be contrasted with the reality of Mr Clifford’s actual level of activities between 2004 and the incident. Indeed, I accept that Mr Clifford achieved a far better outcome from Mr McLean’s surgery than Mr McLean had anticipated. No criticism is meant of Mr McLean. I can only speculate about what opinion Mr McLean may have subsequently expressed had he known of Mr Clifford’s successful rehabilitation, the passing of the pre-employment medical assessment with Patrick Stevedores, and his ongoing level of function. Clearly, Mr Clifford’s level of function over a period of approximately twelve years by way of work, recreation, and general activities of daily living, exceeded what Mr McLean had anticipated at the time of his report.
55Mr Dooley, who assessed Mr Clifford after he had commenced work with Patrick Stevedores and had completed further rehabilitation, expressed a much more positive prognosis for Mr Clifford. Indeed, Mr Dooley said that it would be unusual for Mr Clifford to require a TKR by reason of the basketball injury. Mr Dooley said that the likelihood of further degeneration to the right knee joint following the basketball injury was only a “risk”.[19]
[19]DCB 31, paragraphs [9] and [11]
56To summarise, I accept Mr Clifford’s evidence in respect to his pre-incident function and levels of pain. This is consistent with the clinical records from St Kerellos and Mr Dooley’s analysis.
What is the dispute in respect to the right knee injury Mr Clifford suffered on 2 September 2015?
57The VWA conceded that Mr Clifford suffered a compensable injury as a result of the incident.[20] However, the VWA relied upon the opinion of Mr Peter Lugg, orthopaedic surgeon, who said that the incident “caused a temporary aggravation of symptoms to the right knee, but otherwise has not contributed in any long term way to the right knee problem”.[21] Thus, the nature and extent of the subject injury and its permanence are very much in issue.
[20]T12, L5
[21]PCB 93, in response to question 4
58It is in this context that I will review the post-incident medical evidence.
Which of the medical opinions should be accepted, and what assistance do they provide me?
59I shall firstly review the treating medical practitioner evidence before analysing the medico-legal evidence in chronological order.
The treating medical practitioner evidence
60From the treating medical practitioners, I had:
(a) the medical records of St Kerellos/Dr Mirhom from 17 July 2001 to 30 July 2019;
(b) a series of letters and an operation report from Mr Chiu,
(c) letters, an operation report, and a formal Order 33 medical report from Mr David Sime, orthopaedic surgeon;
(d) various radiological reports.
The treating general practitioner evidence
61I was not provided with any Order 33 reports from Mr Clifford’s treating general practitioners. I had the clinical records from St Kerellos.
62Subsequent to the incident, Mr Clifford first consulted Dr Mirhom on 8 September 2015. At that time, he was to see, at the referral of the Epworth Accident and Emergency Department, Mr Chiu in two days’ time.
63The next consultation was 5 December 2015. Mr Clifford had undergone the 9 October 2015 surgery at the Epworth Hospital.
64Thereafter, until 9 May 2018, there are no consultations at this clinic relevant to the right knee.
65On 9 May 2018, Mr Clifford consulted Dr Mirhom. A history was recorded that Mr Clifford had twisted his right knee while climbing a machine at work. Naprosyn was prescribed.[22]
[22]DCB 434
66There are no further entries in the St Kerellos clinical notes in respect to Mr Clifford’s right knee until 26 June 2019. It is uncertain whether there was a consultation on that date. The note simply recorded that a letter was created and printed referring Mr Clifford to Mr Chiu.[23]
[23]DCB 437
67The limited reference to Mr Clifford’s right knee problems in Dr Mirhom’s clinical records accords with Mr Clifford’s evidence. That is, it was primarily his treating orthopaedic surgeons from whom he sought advice in respect to his right knee management, not his general practitioners.
68In respect to the 9 May 2018 consultation, Mr Clifford said:
(a) he did not go back and see a doctor between May 2018 and June 2019 for his right knee;
(b) his right knee settled back to the same condition/level of problems that he had prior;
(c) he continued being careful.[24]
[24]T52, L14-19
69Mr Clifford said he changed general practitioners to Dr Peter Mitchell in September 2019. That coincided with the diagnosis of Hodgkin’s lymphoma.[25]
[25]T53, L30 – T54, L2
70Mr Clifford said that, apart from Dr Mitchell referring him to Mr Sime and providing him with a parking permit, he did not consult Dr Mitchell for his right knee problems.
The treating orthopaedic surgeons
71Going firstly to Mr Chiu. I had a series of letters from Mr Chiu between 17 September 2015 and 2 July 2019.
72Mr Clifford was referred to Mr Chiu from the Epworth Hospital Accident and Emergency Department. Mr Chiu obtained a history:
(a) of the 2003 ACL reconstruction;
(b) that Mr Clifford told him his right knee “normally functioned extremely well until this incident a week ago”.[26]
[26]PCB 18
73At the time of the 10 September consultation, Mr Clifford had pain in the medial and lateral aspects of his right knee, and swelling. There was limitation of movement. Mr Chiu noted the results of the 7 September 2015 MRI scan. Mr Chiu said:
(a) there was some tearing of the posterior cruciate ligament;
(b) there was a tear to the posterior root lateral meniscus;
(c) there was a tear in the posterior horn and body of the medial meniscus;
(d) the ACL reconstruction was intact.[27]
[27]PCB 18
74Mr Chiu recommended surgery.
75Surgery was undertaken on 9 October 2015. Mr Chiu performed a right knee arthroscopy and partial lateral meniscectomy, and partial medial meniscectomy and debridement of the patellofemoral joint.[28]
[28]PCB 21
76This surgery was paid for by the VWA.
77On 23 October 2015, Mr Chiu suggested Mr Clifford may require a Durolane injection into the right knee given his ongoing symptoms.[29]
[29]Ibid
78At the time of the 17 November 2015 review, Mr Clifford was still complaining of ongoing pain and restricted movement. Mr Chiu recommended Mr Clifford proceed to have the Durolane injection.
79On 3 February 2016, Mr Chiu injected Durolane into Mr Clifford’s right knee.
80At the time of the review on 8 March 2016, Mr Chiu said:
(a) the Durolane had really helped Mr Clifford;
(b) Mr Clifford could return to work;
(c) Mr Clifford was almost back to his pre-injury position;
(d) by reason of the injury (by this I understand the injury sustained in the incident), Mr Clifford was likely to require further treatment “down the track”, in the form of either injections, arthroscopy, or arthroplasty;
(e) that if Mr Clifford’s symptoms stabilised, any further intervention could be held off at this point of time.[30]
[30]PCB 24
81I pause here to note that it was Mr Chiu’s opinion as at March 2016 – that is, six months after the incident – that:
(a) it was likely, by reason of the 2 September 2015 injury, that Mr Clifford would come to further treatment, and that may include arthroplasty;
(b) assuming Mr Clifford’s symptoms stabilised, he could hold off on any further intervention.
82The next letter with which I was provided is dated 14 February 2017.[31] At this time, Mr Clifford complained to Mr Chiu of ongoing right knee pain. A repeat Durolane injection was recommended.
[31]PCB 25
83Mr Clifford consulted Mr Chiu again on 11 April 2017.[32] Mr Chiu said, at this time:
(a) Mr Clifford’s right knee was extremely symptomatic;
(b) Mr Clifford had difficulty straightening his right knee;
(c) he injected the right knee with Durolane;
(d) a repeat MRI scan was organised.[33]
[32]PCB 26
[33]Ibid
84At the time of the 30 May 2017 consultation, Mr Chiu recorded that there had been “tremendous improvement”[34] following the Durolane injection. The MRI scan had, however, revealed further pathology including:
(a) a small medial meniscus tear;
(b) two small loose bodies in the Hoffa’s fat pad;
(c) effusion in the right knee.[35]
[34]PCB 27
[35]Ibid
85Mr Chiu said that, as Mr Clifford was working in normal duties and the symptoms were well controlled, he would not proceed to surgical intervention. However, if the symptoms deteriorated, the next step was surgery.[36]
[36]Ibid
86Mr Clifford next consulted Mr Chiu on 14 July 2017.[37] Mr Chiu said Mr Clifford’s symptoms were presently managed, though not resolved. At that time, a conservative approach was to be adopted. However, Mr Chiu again said that, if Mr Clifford’s symptoms worsened, then the options available included injections, arthroscopy and indeed arthroplasty.
[37]PCB 28
87Mr Clifford’s final consultation with Mr Chiu was on 2 July 2019.[38] At this time, Mr Chiu said Mr Clifford’s symptoms had worsened. The pain was diffuse, and there was increasing limitation of movement. Mr Chiu sought approval from the VWA-authorised insurer for payment of the costs associated with further investigation.
[38]PCB 29
88The VWA-authorised insurer, before accepting the cost of such further treatment, asked Mr Chiu to provide further information. Specifically, they sought from Mr Chiu:
(a) an explanation for the gap in treatment;
(b) to identify how this treatment continues to relate to Mr Clifford’s work-related injury or illness;
(c) to provide the medical justification for the treatment;
(d) if ongoing treatment is proposed, for the provision of a treatment plan that has been devised in consultation with Mr Clifford and which includes self-management strategies.[39]
[39]PCB 30
89Mr Chiu provided a report back to the VWA-authorised insurer. Mr Chiu said:
“1) Explanation for gap in treatment.
As was documented previously in the correspondence with his GP in 2016 and 2017, his symptoms were stable and therefore could be left alone. However, over time, there was a possibility that he would require further treatment if the problems recurred. As was documented previously from his procedure performed in 2015, he had significant chondropathology in the medial and patellofemoral compartments. His symptoms have now recurred over time and he has had deterioration in his knee.
2) How this treatment continues to relate to his work-related injury
He initially injured himself at work. His subsequent symptoms and signs are as a result of that initial work injury. His current symptoms and signs relate to an exacerbation of that initial work injury.
3) Medical justification for the treatment.
His symptoms and signs relate to his initial injury sustained at work. He currently has pain, swelling and reduction in movement in his right knee.
4) If ongoing treatment is proposed, a treatment plan.
I have organised weight-bearing X-rays for him. I am awaiting a review with him. The treatment plan will depend on his symptoms and the new findings on his X-rays.”[40]
[40]PCB 32
90I note that, in the course of the application, there was no issue taken that the “initial work injury” which Mr Chiu referred to, was the work injury sustained on 2 September 2015.
91I pause here to note that, in September 2019, Mr Clifford was diagnosed for the first time with Hodgkin’s lymphoma. Not surprisingly, the further management of Mr Clifford’s right knee was placed on hold pending the treatment of this most serious condition.
92The further management of Mr Clifford’s right knee problems was also impacted by the COVID pandemic.
93Eventually, Dr Mitchell referred Mr Clifford to Mr Sime for assessment.
94In his reporting letter of 23 March 2021,[41] Mr Sime noted:
(a) the history of the ACL reconstruction;
(b) the subsequent subject injury of 2 September 2015;
(c) the treatment which had been provided by Mr Chiu.[42]
[41]PCB 34
[42]Ibid
95Mr Sime said that Mr Clifford had suffered “progressive problems”[43] since.
[43]Ibid
96Mr Sime recommended, to Mr Clifford, that he undergo a right TKR.
97Mr Sime said he requested authorisation for the payment of the costs associated with the TKR from the “active work cover (sic) claim”:[44] That is, Patrick Stevedores/the VWA’s authorised insurer, EML.
[44]Ibid
98The right TKR was undertaken on 17 May 2021. It was paid for by Patrick Stevedores/the VWA’s authorised insurer, EML.
99In Mr Sime’s reporting letter to Dr Mitchell following his consultation with Mr Clifford of 11 July 2022, Mr Sime said that Mr Clifford had achieved an “absolutely fantastic outcome”,[45] given where he had started. Mr Sime noted:
(a) the pain had resolved;
(b) Mr Clifford’s modified activities at work.[46]
[45]DCB 49
[46]Ibid
100Mr Sime said Mr Clifford should continue physiotherapy to try to improve his range of motion and continue his functional improvement. Mr Sime noted that further surgery had been suggested by Mr Daniel Sydenham, orthopaedic surgeon. This was in the form of a manipulation under anaesthetic and/or arthroscopy. Mr Sime did not want to proceed to any further surgical intervention, given the risks associated with an adverse outcome.[47]
[47]Ibid
101Mr Sime provided an Order 33 report of 19 October 2023[48] to Mr Clifford’s solicitors.
[48]PCB 35
102Mr Sime, in this report, provided further clarity in respect to his opinion on causation. Given the issues in dispute in this application, for the sake of certainty, I repeat the opinion which Mr Sime expressed:
“1. Mr Clifford is a patient whom I performed a total knee replacement of his right knee on 17 May 2021. This was in the setting of having a long history of problems with the knee including an ACL reconstruction in 2017 (sic) and then subsequently a repeat injury at work at the ship docks. He had further arthroscopic knee surgery with Mr James Chiu around this time and the knee has never significantly improved. [Mr Clifford] went on to develop post-traumatic osteoarthritis and the knee became progressively more painful and stiff over the following years.
2. Mr Clifford’s diagnosis is right knee post-traumatic osteoarthritis with arthrofibrosis. My treatment was a complex primary total knee replacement.
3. The cause of Mr Clifford’s diagnosis is multifactorial. It is related to his traumatic WorkCover injury which occurred whilst working on the ship docks, in addition to the number of procedures that were undertaken on the knee including an ACL reconstruction and an arthroscopic debridement.
4. Given the complexity of Mr Clifford’s initial presentation with essentially 0 degrees range of motion in mid-flexion, he has had an extremely good result. On my last review, his range of motion was 0 to 80 degrees and he was able to function with his activities of daily living quite well. The restrictions imposed on [Mr Clifford] are largely related to his ability to mobilise and perform his normal job tasks with a range of motion of 0 to 80 degrees. There is no specific restriction on what he is allowed to do, however given he has a complex knee problem, the most suitable role would be in a sedentary capacity or in some form of administrative role. Given it has been so long since his knee replacement, I think his improvements would now have stabilised and his current capacity is likely to be permanent.”[49]
[49]Ibid
103Thus, Mr Sime said the cause of Mr Clifford’s diagnosis is multifactorial and it is related to:
(a) the subject injury at Patrick Stevedores;
(b) the ACL reconstruction;
(c) the October 2015 surgery undertaken by Mr Chiu.
What assistance do I gain from the treating medical practitioner evidence?
104From the treating medical practitioner evidence, I accept:
(a) Mr Clifford suffered significant injury to his right knee as a result of the basketball injury;
(b) The basketball injury resulted in the ACL reconstructive surgery;
(c) Mr Clifford underwent physiotherapy and rehabilitation. He made, in general terms, a good recovery;
(d) By October 2004, Mr Clifford’s recovery was such that he passed the pre-employment medical assessment with Patrick Stevedores;
(e) While Mr McLean painted a pessimistic picture in his February 2004 report, Mr Dooley, six months later, painted a much more optimistic outlook. Mr Dooley had the benefit of assessing Mr Clifford’s impairment after he had passed the Patrick Stevedores pre-employment medical assessment and, in fact, had commenced working as a stevedore. Mr Dooley said that Mr Clifford could continue in his current employment, something which Mr Clifford, in fact, did until 2 September 2015.
(f) Mr Clifford had a flare-up of his right knee problems in August 2014. That resulted in consultations with Dr Mirhom and treatment by way of one cortisone injection. There were no further attendances on Dr Mirhom after October 2014 and before the 2 September 2015 incident. That is consistent with Mr Clifford’s evidence that his right knee problem settled and he was able to continue in the manner which he described in his evidence.
(g) At the time of the October 2014 x-ray, it revealed progressing arthritis within the right knee. That was not unexpected.
(h) Mr Clifford suffered an acute injury on 2 September 2015. In particular, he hyperflexed his right knee. That resulted in immediate pain and swelling to the right knee.
(i) Mr Clifford was referred by the Accident and Emergency Department at the Epworth Hospital to Mr Chiu. Mr Chiu had the benefit of assessing Mr Clifford while he was in the acute phase.
(j) Mr Clifford had limited attendances on his general practitioner. The management of his right knee was principally undertaken by his orthopaedic surgeons, Mr Chiu and Mr Sime.
(k) From at least March 2016, Mr Chiu was of the opinion that it was likely that Mr Clifford would require further treatment as time progressed, and that may take the form of arthroscopy or arthroplasty.
(l) Mr Chiu formed the view that:
(i)Mr Clifford’s presenting symptoms and signs in 2019 related to an exacerbation of the work injury of 2 September 2015;
(ii)As at August 2019, Mr Clifford’s pain, swelling, and reduction of movement in his right knee, related to the 2 September 2015 work injury.[50]
[50]PCB 32
Mr Chiu clearly set this opinion out in his letter to the VWA/authorised insurer EML on 23 August 2019. Mr Chiu’s opinion was strongly expressed and goes to the issues in dispute in this application.
(m) The delays in proceeding to the TKR post-2 September 2015, were by reason of:
(i)Mr Chiu’s advice to adopt a conservative approach;
(ii)Mr Clifford’s cancer diagnosis;
(iii)COVID.
I do not accept there is any reasonable basis for the criticism of delay in treatment made by the VWA.
(n) Mr Sime, like Mr Chiu, was of the opinion that the 2 September 2015 injury was a cause of Mr Clifford’s diagnosis.
(o) Mr Clifford had good support from his treating orthopaedic surgeons that:
(i)He suffered a right knee injury on 2 September 2015;
(ii)That injury was a contributing factor to his ongoing pain and problems subsequently;
(iii)There is a relationship between the 2 September 2015 injury and Mr Clifford’s increasing problems which led to the need for the TKR.
The medico-legal evidence subsequent to 2 September 2015
105Moving now to the medico-legal evidence subsequent to the 2 September 2015 incident. I had the following medico-legal reports:
(a) Mr Michael Shannon, orthopaedic surgeon, 17 January 2017;[51]
(b) Associate Professor Miron Goldwasser, orthopaedic surgeon, 27 April 2022[52] and 22 July 2022;[53]
(c) Mr Lugg, 29 March 2023[54] and 19 July 2023;[55]
(d) Associate Professor Elton Edwards, orthopaedic surgeon, 29 August 2023.[56]
[51]DCB 41
[52]PCB 47
[53]PCB 63
[54]PCB 91
[55]PCB 95
[56]PCB 72
Mr Michael Shannon
106Mr Shannon assessed Mr Clifford on 16 January 2017 for the purposes of an impairment claim assessment for an accepted right knee injury (for the avoidance of doubt, the 2 September 2015 right knee injury).
107While Mr Shannon was economical in the history which he recorded, it accorded with Mr Clifford’s evidence.
108Mr Shannon’s findings, on clinical examination, included a 2-centimetre wasting of his right thigh, clicking, and crepitus.[57]
[57]DCB 44
109It was Mr Shannon’s diagnosis that Mr Clifford suffered an aggravation of pre-existing osteoarthritis on a background of pre-existing meniscal degeneration and tears.[58]
[58]DCB 45
110Mr Shannon was asked by the VWA to factor into his assessment Mr Clifford’s previous impairment entitlement (that is, from the 2003 basketball injury which was undertaken by Mr Battlay).
111Mr Shannon said that Mr Clifford’s permanent whole person impairment had increased from 4 per cent to 8 per cent. Mr Shannon said that this was reasonably attributable to the effects of the hyperflexion injury and aggravation of the arthritis.[59]
[59]PCB 47
Associate Professor Miron Goldwasser
112Associate Professor Goldwasser assessed Mr Clifford for the VWA on 27 April 2022.
113Associate Professor Goldwasser obtained a detailed history, which again significantly accords with Mr Clifford’s evidence, and the treating practitioner evidence recited earlier in this judgment.
114On clinical examination, Associate Professor Goldwasser noted:
(a) marked stiffness in the right knee;
(b) visible scarring of 21 centimetres in length;
(c) fixed flexion deformity of 15 degrees with further flexion to 75 degrees;
(d) the knee was stable and there was no effusion or tenderness;
(e) there was numbness on the anterior lateral aspect of the right knee consistent with the nerve being impacted by the TKR procedure;
(f) wasting of the right thigh.[60]
[60]PCB 52-53
115Associate Professor Goldwasser undertook a detailed analysis of the radiology.
116Associate Professor Goldwasser said Mr Clifford had made a good recovery from the ACL reconstruction, but had some residual dysfunction.[61]
[61]PCB 58
117Associate Professor Goldwasser noted that Mr Clifford had passed the pre-employment medical assessment for Patrick Stevedores, and, prior to September 2015, was doing his work in a satisfactory manner.
118Associate Professor Goldwasser detailed the 2 September 2015 incident and the subsequent medical treatment which Mr Clifford received, including the TKR. Associate Professor Goldwasser noted the delay in the management of the right knee injury because of Mr Clifford’s cancer diagnosis and COVID.
119At the time of Associate Professor Goldwasser’s assessment, it had been suggested to Mr Clifford that he should undergo a manipulation of his right knee under anaesthetic and a further arthroscopy. These procedures had been delayed because of inflammation within the right knee joint. Mr Clifford told Associate Professor Goldwasser he was considering having the manipulation under anaesthetic. In these circumstances, Associate Professor Goldwasser said the condition had not stabilised and he would not undertake an AMA impairment assessment.[62]
[62]PCB 59
120By letter dated 15 July 2022, Patrick Stevedores’ authorised insurer asked Associate Professor Goldwasser to proceed with completing an AMA impairment assessment. This request was made in the context that:
“… We confirm that the worker has contacted EML to advise he has since been reviewed by Dr (sic) Sime and has decided the risks outweigh the potential benefits from further knee surgery and is therefore not going to proceed with surgery.”[63]
[63]PCB 63
121Associate Professor Goldwasser then completed his whole person impairment assessment pursuant to the fourth edition of the AMA Guides. He concluded that Mr Clifford was suffering a 21 per cent whole person impairment.[64]
[64]PCB 64
122Associate Professor Goldwasser was asked to apportion between the 2003 basketball injury and the 2 September 2015 injury.
123Associate Professor Goldwasser undertook a careful assessment which was generally based on a history which I accept to be correct.[65] Associate Professor Goldwasser concluded that 40 per cent of Mr Clifford’s current knee impairment was available for apportionment.[66] That is, 60 per cent was attributable to the 2 September 2015 injury.
[65]For completeness, I note there was one aspect of the history which related to kneeling which Mr Clifford conceded was not correct.
[66]PCB 65
Mr Peter Lugg
124By letter dated 13 February 2023, Mr Lugg was asked by the VWA solicitors to supply a report and opinion based “purely ‘on the papers’”.[67]
[67]PCB 91
125I was not provided with this letter of instruction.
126Mr Lugg reviewed the materials which had been provided to him and made a number of observations. Mr Lugg said, of the 2 September 2015 work injury, “this appears to have caused further new acute injury to his right knee”.[68]
[68]PCB 92, paragraph [6]
127Mr Lugg went on to say, of the 2 September 2015 incident, that:
“On the balance of probabilities therefore I believe the manhole incident was (sic) only caused a temporary aggravation to the right knee symptoms and no permanent contribution…. .”[69]
[69]PCB 93, in response to question [5]
128Mr Lugg said that, in the absence of the 2 September 2015 incident, Mr Clifford’s “likely prognosis with respect to treatment such as the surgery of Mr Chiu and Mr Sime would likely to have been the same”.[70]
[70](Ibid), in response to question [6]
129Mr Lugg, subsequent to the provision of his “on the papers” report, met with Mr Clifford on 21 June 2023.
130Mr Lugg obtained a history from Mr Clifford. Mr Lugg questioned Mr Clifford in respect to his current symptoms.
131Of the 2 September 2015 incident, Mr Lugg said:
“I asked him specifically about the manhole injury in 2015 and he said that he did not need the total knee replacement till after that manhole injury, although he did realise that he had an arthritic knee prior to that incident.”[71]
[71]PCB 98
132Mr Lugg’s findings, on clinical examination of Mr Clifford’s right knee, included:
(a) a 3 to 5 degree block to full extension;
(b) flexion to 75 degrees at best (left to 120 degrees);
(c) right quadriceps wasting.
133Mr Lugg said there was little to add to his summary set out in his earlier report.
134Of the mechanics of the 2 September 2015 incident, Mr Lugg said:
“He had an injury where he has stumbled down in a manhole on a ship with worsening of symptoms in 2015. This injury may have caused a posterior cruciate ligament tear, probably with judging on the MRI scan appearance. It might have also caused some further tearing of menisci but did not affect his ACL reconstruction.”[72]
[72]PCB 101
135Mr Lugg went on to say that, in his opinion, the manhole injury caused an exacerbation of Mr Clifford’s symptoms at the time, but had little effect on the overall condition of the right knee, which simply continued to deteriorate anyway.[73]
[73](Ibid), paragraph [4]
Associate Professor Elton Edwards
136Associate Professor Edwards examined Mr Clifford for his solicitors on 29 August 2023.
137Associate Professor Edwards was provided background medical material. In particular, he was provided with the reports of Mr Lugg.
138Associate Professor Edwards obtained a history which was generally consistent with Mr Clifford’s evidence. He reviewed the radiology and the background medical material.
139On clinical examination, Associate Professor Edwards’ findings included:
(a) right quadriceps wasting;
(b) a range of movement markedly abnormal extending from 3 to 70 degrees;
(c) normal stability;
(d) the right leg overall alignment was slightly valgus.[74]
[74]PCB 74
140Of the 2 September 2015 injury, Associate Professor Edwards said:
“The injuries identified on MRI at that time are outlined above in dot points. In summary, there was an incomplete posterior cruciate ligament tear and meniscal and chondral damage.
However, it is my opinion that the injury is best described as a general aggravating injury to a knee which had previously had a serious injury and reconstructive surgery and 12 years of slow deterioration.”[75]
[75]PCB 75, in response to question 3
141Associate Professor Edwards thought, based on the October 2014 x-rays, that Mr Clifford was almost certainly going to require further surgery.
142Associate Professor Edwards said that Mr Clifford had “significant restrictions” to his right knee. Associate Professor Edwards said these restrictions cannot be attributed to the 2 September 2015 injury only. There were also contributions from:
(a) the prior basketball injury;
(b) the surgical procedures (i.e., the ACL reconstruction and the October 2015 surgery).
143Associate Professor Edwards said there was a low possibility of Mr Clifford requiring further revisionary surgery.
144Associate Professor Edwards did not agree with Mr Lugg’s opinion in respect to the consequences flowing from the 2 September 2015 injury. He said:
“I am in agreement that prior to the second incident there were significant degenerative changes within the knee as seen on the x-ray performed in 2014. It is however my opinion that the manhole incident was a significant event which aggravated both the underlying pathology and the symptoms associated with those pre-existing changes. It is my view that the manhole incident was a substantial contributing factor to the ongoing deterioration which resulted in a knee replacement approximately six years later. It is accepted, in my view, that a traumatic event to an arthritic knee will aggravate the underlying symptoms without necessarily resulting in measurable radiological changes, starting a pathway of clinical deterioration resulting in subsequent surgery, in general knee replacement.”[76]
[76]PCB 76
145Associate Professor Edwards went on to conclude that, while the ACL injury was the start of Mr Clifford’s entire problem, it was the manhole incident which significantly accelerated the process which had previously commenced, and which resulted in, earlier disability to Mr Clifford.[77]
[77]PCB 77
What assistance do I gain from the post-2 September 2015 medico-legal evidence?
146There is dispute among the medico-legal experts. In simple terms, Mr Lugg is the outlier. Mr Lugg says that the incident of 2 September 2015 only caused a temporary aggravation of Mr Clifford’s right knee problems. Each of Mr Shannon, Associate Professor Goldwasser and Associate Professor Edwards, accept that Mr Clifford, as a result of the 2 September 2015 incident, suffered injury which contributed to a permanent deterioration.
147True, it is, that each agreed Mr Clifford had pre-existing degenerative change within the right knee joint and had a level of pre-existing problems, including pain. However, each of Mr Shannon, Associate Professor Goldwasser and Associate Professor Edwards said, as did the treating orthopaedic surgeons Mr Chiu and Mr Sime, that the 2 September 2015 injury contributed to Mr Clifford’s ongoing problems and, in particular, the need for the TKR.
148While it is not an accounting exercise whereby the party with the greatest number of supporting opinions wins, I do take into account the weight of the medical evidence. In this case, each of the orthopaedic surgeons who either treated or assessed Mr Clifford post-2 September 2015, were aware of his pre-existing right knee problems and turned their minds to the consequences that flowed from the 2 September 2015 injury.
149Mr Lugg’s opinion is not only against the weight of the medical opinion and Mr Clifford’s evidence, but I also consider his reasoning to be internally inconsistent. Mr Lugg, in one breath, said Mr Clifford suffered an “acute injury” on 2 September 2015, then postulated that this injury did not impact on Mr Clifford’s diagnosis subsequent to the October 2015 surgery. This is a view that Mr Lugg formed prior to meeting with Mr Clifford. When compared to the reasoning of the other orthopaedic surgeons and the totality of the evidence in this application, I do not accept Mr Lugg’s analysis. He:
(a) appears to have a fixed view that, post the ACL reconstruction, no further intervening events could ,or would, impact upon the state of Mr Clifford’s right knee;
(b) did not address Mr Chiu’s evidence that, as of March 2016, he considered Mr Clifford a candidate for arthroplasty, the need for which he attributed to the 2 September 2015 incident;
(c) does not explain why Mr Chiu, Mr Sime, Mr Shannon, Associate Professor Goldwasser, and Associate Professor Edwards were wrong in concluding that the 2 September 2015 incident, which Mr Lugg himself concedes to have been an acute injury, had no lasting consequences.
150I do not accept Mr Lugg’s conclusions that the 2 September 2015 incident was merely a temporary aggravation and had no long-term consequences.
151Of the medico-legal assessors, it is Associate Professor Goldwasser who I found most helpful. His was a careful and detailed opinion. His finding of a 60/40 apportionment is consistent with the balance of the evidence as I accept it.
What are my overall conclusions flowing from the totality of the medical evidence?
152I accept:
(a) Mr Clifford suffered an acute injury to his right knee on 2 September 2015 on a background of pre-existing degenerative change.
(b) It was the injury sustained on 2 September 2015 which necessitated the surgery undertaken on 9 October 2015.
(c) As early as March 2016, Mr Chiu identified that Mr Clifford was likely to require further treatment and, in the context of this case, possibly an arthroplasty. Mr Chiu said the need for such treatment was consequential upon the 2 September 2015 injury.
(d) While Mr Clifford, subsequent to 2 September 2015, had ongoing right knee problems, it was recommended by Mr Chiu, and quite reasonably and properly adopted by Mr Clifford, to continue with a conservative approach for as long as possible.
(e) There was no merit in the VWA criticism in respect to Mr Clifford’s delay in undergoing the TKR. It was:
(i)based on advice;
(ii)contributed to by:
· the cancer diagnosis
· COVID.
(f) The 2 September 2015 injury materially contributed to the need for the TKR.
(g) Mr Clifford, from a technical and functional perspective, had a very good, but not perfect, outcome from the TKR.
(h) While there is a risk that Mr Clifford may need revisionary/further surgery in the future, that is a possibility, not a probability.
Has Mr Clifford suffered a permanent injury as a result of the incident?
153It follows from the conclusions which I have reached on the medical evidence, that I accept Mr Clifford has suffered an injury as a result of the incident, which is permanent. The damage to the internal structures of Mr Clifford’s right knee by way of ligament injury, meniscal injury, and aggravation and acceleration of the underlying degenerative change, all contributed to a permanent worsening of the state of Mr Clifford’s right knee and had a consequential impact on his pain and function. It also contributed to the need for the TKR which was undertaken on 17 May 2021.
154I accept, for the purposes of this application, that Mr Clifford’s injury has stabilised.
Are the pain and suffering consequences flowing from Mr Clifford’s 2 September 2015 injury very considerable?
155It is Mr Clifford who bears the onus of proof.
156To establish serious injury, the threshold is high.
157As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[78] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Mr Clifford to be successful, I have to be persuaded that the consequences due to the right upper limb injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[78][2009] VSCA 181
158As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[79] in range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”
[79][2013] VSCA 326 at paragraph [59]
159I must also, as a part of my analysis, give consideration to, not only what it is that Mr Clifford says that he has lost, but also what it is that he has retained.[80]
[80]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
160I must also be conscious, as set out earlier in this judgment, that I am to assess only those consequences flowing from the subject injury. I must exercise care not to give heed to consequences which Mr Clifford has not established as being attributable to the incident and the subject injury.
161Before moving further with my analysis of the consequences suffered by Mr Clifford, I need to deal with the submission made by Mr Chancellor that the TKR, of itself, constitutes a very considerable consequence.[81] That is, to put it in colloquial terms, the TKR, itself, “gets Mr Clifford over the line”.
[81]I refer to Mr Chancellor’s submissions at T119, L20-27.
162Mr Chancellor relied upon Stone v Jarvis, which formed part of the Humphries & Anor v Poljak[82] Court of Appeal analysis. In particular, Mr Chancellor made reference to the passage where the Court said:
“… If the knee joint is now in such a condition that there is a real risk of the necessity of total replacement, it can fairly be described as very considerably damaged.”[83]
[82][1992] 2 VR 129
[83](Ibid) at 148
163I do not accept Mr Chancellor’s submission that:
(a) the passage which he relied upon is authoritative for the proposition which he has put forward;
(b) a TKR, of itself, is sufficient to justify the granting of leave.
164Indeed, a careful reading of the Court’s analysis in Stone addresses the overall consequences of the knee injury which the applicant in that case was said to have suffered.[84]
[84]See in particular the analysis in Humphries and Anor v Poljak (ibid) at 146-148 and 171.
165The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[85] It is the observations made by Maxwell P that provide me with greater assistance in respect to the tasks which I am to undertake in the completion of my determination.[86]
[85](2010) 31 VR 1
[86]Ibid see in particular Maxwell P’s at paragraphs [9]-[17]
166Before proceeding further with my analysis, I make two initial observations:
(a) I accept Mr Clifford, when giving his oral evidence, was a frank and honest witness. He made many concessions which were against his interest in the application.
(b) Mr Clifford agreed, and the weight of the evidence in this application is, that he had an extremely good result following the TKR.[87]
[87]T56, L16-18
167Referring firstly to pain.
168Mr Clifford said:
(a) The TKR was largely successful in resolving the pain in his right knee.[88]
(b) He agreed that his pain levels were much less now than prior to the TKR.[89]
(c) After the TKR, the grinding pain was gone.[90]
(d) By July 2022, he was in no pain.[91]
(e) The TKR was largely successful in alleviating his pain.[92]
(f) When he walks there is no pain. It is only when he gets tired and he limps that he gets some pain.[93]
(g) He still has some residual pain.[94]
(h) Post surgery his pain is significantly improved.[95]
[88]T57, L6-7
[89]T57, L8-11
[90]T58, L1-2
[91]T59, L6-7
[92]T57, L8-11
[93]T65, L10-12, T64 L30-31
[94]T65, L1
[95]T66, L14
169In respect to the medical treatment which he has continued to receive, Mr Clifford said:
(a) he has not consulted his general practitioner since September 2019 for assessment or treatment of his right knee;[96]
(b) he has not been back to see his current treating orthopaedic surgeon, Mr Sime, since July 2022.[97]
[96]T59, L13-17
[97]T58, L13-15
170Mr Clifford agreed that his right knee condition has not necessitated a visit to a doctor for treatment since July 2022.[98]
[98]T59, L18-21
171Mr Clifford said he takes Panadol for pain. Mr Clifford prior to the incident took Panadol for pain.
172I accept the levels of pain which Mr Clifford now suffers are modest. In this regard, the TKR has been successful. Indeed, it is the disabling effect from the TKR, itself, rather than pain, which impacts upon Mr Clifford.
173This then takes me to the restriction of movement within the right knee joint itself and the impact upon Mr Clifford’s mobility.
174There were varying assessments by the medical practitioners of Mr Clifford’s range of right knee motion post TKR. In his oral evidence, Mr Clifford agreed with Mr Sime’s assessment in July 2022, that a range between 0 and 80 degrees was correct. This, of course, represents a limitation in normal movement of the right knee.
175I accept there is a level of stiffness consequential to the TKR. This restriction impacts Mr Clifford in:
(a) walking;
(b) kneeling and squatting.
176I must, of course, acknowledge that Mr Clifford had a level of impaired motion in the right knee joint prior to the 2 September 2015 incident, and his capacity to kneel and squat was already impaired.
177Moving now to work.
178Mr Clifford has been very stoic throughout. Mr Clifford must be congratulated on what has no doubt been a lot of hard work in achieving the level of function which he has achieved.
179Mr Clifford has continued to work as a stevedore. Up until 2019, he continued to work as a straddle driver and an on-ship foreman.
180Mr Clifford said that, by reason of his right knee injury, he no longer works as a ship foreman. Mr Clifford agreed that, when he returned to work after cancer treatment, he did not resume this role. Mr Clifford, however, said, because of his right knee injury and the consequential impairment, he had already decided the ship-foreman role was too demanding.
181This evidence was disputed by the VWA.
182They relied upon the evidence of Mr Stuart Bloom. Mr Bloom also said Mr Clifford was coping with his work as a straddle driver and yard-team foreman.[99]
[99]DCB 4-5, paragraphs [3] and [4]
183I accept:
(a) It was appropriate, by reason of the cancer treatment and immune issues, that Mr Clifford not return to on-ship work.
(b) That the physical demands which the on-ship work placed on Mr Clifford’s right knee, and the risks which that work presented, are such that it was reasonable for Mr Clifford to form the view he should, at some stage, give up that work.
(c) That Mr Clifford has continued to work as a straddle driver and has been available for, and undertaken, yard team-leader duties. These duties involve significant physical demands.
(d) Mr Clifford has had to modify the way he climbs ladders by reason of his knee injury;
(e) Mr Clifford needs to exercise a level of care when negotiating rough or uneven surfaces.
184The last two of these restrictions existed prior to the subject injury.
185Mr Clifford has continued to undertake his work as a stevedore subsequent to the TKR. This is not a case where the applicant has had to give up a much-loved career. This is not a claim for serious injury certification for pecuniary loss. I must exercise care to only give heed to such work-related consequences as are permissible.[100] I accept there has been an impact upon Mr Clifford’s activities at work, but I must also acknowledge that he has continued to undertake the work as a straddle driver and yard foreman. I give some weight to this consequence, but temper this by reason of:
(a) the nature of the work which Mr Clifford has continued to undertake;
(b) the pre-existing right knee injury and consequential problems which flowed.
[100]See in particular Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]
186Moving now to sleep.
187Mr Clifford said the problems which he had with sleep prior to undergoing the TKR had “[p]retty much” resolved.[101] However, Mr Clifford said that, if he slept the wrong way – for example, if he turned on his side during sleep and bent his knee – that would wake him. However, if he slept in a good posture, the pain was not there.
[101]T70, L23-26
188I accept that, intermittently, Mr Clifford’s sleep is interrupted. However, the significant night pain and impact upon his sleep which he had suffered prior to the TKR, has resolved.[102]
[102]T74, L29 – T75, L7 and T70, L27 – T71, L14
189I do not consider there has been any impairment upon Mr Clifford’s cognitive function by reason of either pain or medication.
190Moving now to the general activities of daily living.
191Mr Clifford conceded, on several occasions and in general terms, he was currently able to carry out his activities of daily living quite well.[103]
[103]T56, L24-25 and T72, L15-16
192There was no evidence, nor was it suggested, that Mr Clifford was not able to self-care. Indeed, given he is working full time and undertaking, on his own evidence, a wide range of activities at work, I would not expect there to be.
193Moving now to household and domestic activities.
194Mr Clifford agreed he still undertakes gardening. For example:
(a) using a blower;
(b) using an edge trimmer;
(c) raking leaves;
(d) pruning.
195Mr Clifford said, as long as he did not have to kneel, he would be able to maintain his garden.[104] It is noted Mr Clifford had problems kneeling prior to the incident.
[104]T67, L18-19
196Around the house, Mr Clifford agreed he still undertakes maintenance activities. For example:
(a) painting;
(b) changing light bulbs.[105]
[105]T63, L6-10
197I am not convinced there has been any significant deterioration in Mr Clifford’s capacity to undertake household and domestic activities from the situation that existed prior to the incident.
198Moving to sport and recreational activities.
199Mr Clifford agreed, in his oral evidence, that he continues to play golf, though he needs a cart.[106]
[106]T60, L23 – T61, L2
200Mr Clifford said he continues to attend AFL football. Indeed, he has season tickets.[107] Mr Clifford said he obtained an aisle seat so he could sit on the outside aisle and put his legs out to the side. The purchase of a season ticket runs contrary to the assertion made in his second affidavit that he seldom attended such an event.[108]
[107]T69, L15-22
[108]PCB 16, paragraph [10]
201Mr Clifford said he has restrictions in interacting with his grandson. For example, he cannot kneel on the ground to play with him. Mr Clifford expressed concern that, as his grandson gets older, he will be restricted in his capacity to play sports with him.
202Mr Clifford said the right knee injury has impacted upon his intimate relationship with his wife. Mr Clifford said his sex life is virtually non-existent, which causes emotional pain and stress.
203Again, I note Mr Clifford’s concession that, prior to the subject injury, he had problems kneeling. It is difficult to tease out just what the real impact the subject injury has had in respect to these various consequences complained of.
204Further, where there is conflict between the consequences complained of by Mr Clifford in his affidavit material and his oral evidence, as I have previously set out, I adopt the oral evidence. That painted a much less gloomy picture.
205Having considered the issues I have to grapple with in this application, I have formed the view that this is one of those applications, where, as Ashley J said in Dwyer v Calco Timbers Pty Ltd (No 2),[109] the significance of what has been lost may be informed by what is retained. In this regard, I note Mr Clifford continues to:
(a) Work as a stevedore. I accept at times this is physically-demanding work.
(b) Play golf.
(c) Undertake a range of gardening activities.
(d) Undertake a range of home-maintenance activities.
(e) Attend football matches. Indeed, he has season tickets.
This list is not exhaustive.
[109](Supra)
206I must also take into account the significant concessions made by Mr Clifford in respect to the level of pain which he now suffers. As I have noted earlier in this judgment, it is, at best, modest. While I acknowledge that Mr Clifford has undergone major surgery with the inherent associated risks, and has no doubt worked very hard in his rehabilitation in achieving the level of function which he has, that, in itself, does not satisfy the threshold test. Mr Clifford, as with many injured workers who initially suffer acute injuries and undergo major surgical procedures, has achieved a very good outcome. There is no evidence that, in the normal course of events, that state of affairs is going to change in the foreseeable future. Further surgery is only a possibility, not a probability.
207While I accept the consequences flowing from the subject injury may be “significant or marked”, I do not accept that the consequences are now, or in the foreseeable future, “at least very considerable”.
208Notwithstanding Mr Clifford suffered from an acute injury on 9 September 2015, which, I accept, materially contributed to the need for a TKR, and while Mr Clifford does have some ongoing residual consequences, I do not accept the requisite threshold requirement for a grant of leave has been satisfied.
Consequential orders
209I will hear the parties in respect to the consequential orders to be made in this matter.
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