Cole v George Weston Foods Pty Ltd
[2014] VCC 927
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04620
| GLENDA COLE | Plaintiff |
| v | |
| GEORGE WESTON FOODS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 28 and 29 May 2014 | |
DATE OF JUDGMENT: | 27 June 2014 | |
CASE MAY BE CITED AS: | Cole v George Weston Foods Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 927 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower left limb – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592
Judgment:Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering consequences as a result of her employment with the defendant on 17 July 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr C Harrison | Slater & Gordon Ltd |
| For the Defendant | Mr R Meldrum with Ms G J Cooper | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 17 July 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is to the plaintiff’s lower left limb.
6 The plaintiff relied upon two affidavits, sworn 9 April 2013 and 18 March 2014. The plaintiff and Dr Peter Ferguson were cross-examined. I have not summarised the affidavits and evidence of the plaintiff nor the evidence of the Dr Ferguson; however, I will refer to the relevant evidence of the plaintiff and Dr Ferguson in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of her impairment to the lower left limb in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
11 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
12 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serous injury”;[7]
[7]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[8]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]Section 134AB(38)(j) of the Act
[9]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods (supra) at paragraph [67]
The Issue
13 Counsel for the defendant informed the Court the issue was whether I accepted the medical evidence of Mr Ian Jones or the evidence of Mr Iain D McLean. Both medical witnesses are orthopaedic surgeons specialising in knee surgery.
14 Counsel conceded that if I accepted the view expressed by Mr McLean, then the plaintiff’s injury would be serious in respect to pain and suffering.
Investigations
15 On 25 July 2008, a left knee x‑ray recorded:
“No significant supra-patella[r] bursal effusion demonstrated.
No bony abnormality seen.”
16 On 28 July 2008, a left knee ultrasound recorded:
“The collateral ligaments are intact, there is no effusion and no Baker’s cysts.
An MRI would be required to examine the menisci.”
17 On 27 August 2008, an MRI scan of the left knee recorded findings:
“Patella[r] and quadriceps tendon is normal. The cruciate and collateral ligaments are intact. There is a radial tear involving the body of the medial meniscus. There is an oblique tear in the body of the lateral meniscus. No large effusions. No chondral abnormality. Juxta-articular soft tissues normal. No marrow oedema. No other signal abnormality.
Summary:
1 Radial tear involving the body of the medial meniscus.
2 Oblique tear involving the body of the lateral meniscus.
3 No other signal abnormality.”
18 On 15 October 2008, the operative note of Mr Dougal James, orthopaedic surgeon, recorded:
“Under general anaesthetic arthroscopy was performed through the routine portal. The principal finding was a radial tear of the posterior aspect of the medial meniscus leading to an interstitial cleavage tear. Debridement was performed. There was a small area of grade 3 chondral damage over the medial femoral condyle adjacent to the intercondylar spine; this was debrided. The ACL was present and normal. The lateral meniscus, lateral articular surfaces were normal. The patellofemoral joint articular surfaces were normal but for a very minor grade 3 chondral erosion over the central vertex. The portals were closed with subcuticular Monocryl.”
19 On 21 September 2010, Mr James’ operative notes recorded:
“Arthroscopy was performed through the routine portals. The principal finding was a previous medial menisectomy. The posterior horn had a further cleavage tear; this was debrided, removing the under surface (tibial surface). There was grade 3 chondral damage at the posterior aspect of the medial femoral condyle, particularly on the most medial aspect of the femoral condyle, almost to bone; a debridement of the irregular margins was performed. The medial tibial plateau was better preserved. The ACL was present and normal. On the lateral side there was a lax popliteus hiatus allowing the posterior horn to be prolapsed forward. The inner half of the posterior third of the lateral meniscus was removed to stop impingement and forward prolapse to the posterior horn. The adjacent articular surfaces were undamaged. The patellofemoral joint articular surfaces were well preserved. The tourniquet was released and the portals were closed.”
20 On 2 August 2011, an x‑ray of the left knee revealed findings:
“Loss of articular cartilage in the medial compartment with marginal lipping and varus deformity is seen. Patellofemoral degenerative change evident.
Conclusion:
Osteoarthritis.”
21 On 20 September 2011, the operative notes of Mr James confirmed:
“The principal finding was an almost absent medial meniscus, the medial femoral condyle had longitudinal grade 3 chondral damage almost to bone over 5 x 15 mm zone, the irregular delaminating margins were debrided. The medial tibial plateau was better preserved. There was quite prominent synovitis over the ACL involving the ligamentum mucosae, there was also haemorrhage in this area – debridement was performed. The lateral articular surfaces were better preserved but the lateral meniscus was able to be prolapsed into the joint from the stretched popliteus hiatus, further debridement was performed leaving a 2 to 3 mm thick bridge over the popliteus hiatus. The patellofemoral joint chondral surfaces were satisfactory.”
22 An MRI scan of the left knee performed on 1 December 2012 showed:
“Status post-partial resection of the medial meniscus. Appearances suggestive of an oblique horizontal tear through the posterior horn of the lateral meniscus. Grade 4 chondromalacia within the medial and lateral knee joint compartment with grade 3 to 4 chondromalacia within the patellofemoral joint. Small knee joint effusion. Tiny Baker’s cyst.”
The medical reports
Dr Peter Ferguson
23 In July and December 2012, Dr Ferguson, general practitioner, reported that the plaintiff presented on 17 July 2008 with a “twisted left knee on way out of work”. Her left knee did not settle with conservative management and she was referred to Mr Dougal James, orthopaedic surgeon, in August 2008. The plaintiff underwent a left knee arthroscopy in October 2008. She returned to work on 17 November 2008.
24 The plaintiff presented again in July 2010 with a recurrent soreness of her left knee. She was referred to Mr James and underwent a repeat arthroscopy in late September 2010. She was reviewed by Dr Ferguson on 29 October 2010, one week after returning to work, with left knee swelling and an associated limp. She was referred to physiotherapy and an exercise physiologist.
25 The plaintiff returned to modified part-time work in January 2011 (4 hours per shift), and increased her hours to 6 hours per shift in March 2011.
26 In July 2011, the plaintiff reported an episode of feeling her left knee “give way”, causing her to fall, landing on that knee. In August 2011, the plaintiff reported constant pain in the left knee and a feeling of instability in the joint. She was again referred to Mr James.
27 In September 2011, the plaintiff underwent her third left knee arthroscopy. She was reviewed on 7 November 2011, when she had no knee pain or limping, and was certified fit to return to full-time modified duties. On 22 November 2011, she reported an exacerbation of the left knee pain with sideways movements at work. Three weeks later, she complained of no improvement. She was referred to a pain clinic at Geelong Hospital.
28 In December 2011, Dr Ferguson arranged a formal assessment of her capacity by a physiotherapist. From the results of this assessment, as at January 2012, Mr Ferguson notes the plaintiff was unfit to return to her former duties, and was capable of performing clerical duties only.
29 Dr Ferguson gave evidence that in 2006, the medical practice had approximately 12,000 patients and there were ten to twelve medical practitioners. Patient records were managed via a computer system. On the day of their appointment, patients report to the receptionist, who records their arrival on the computer system for the individual doctor. The doctor collects the patient from the waiting room, and then views the patient record on the screen in the consulting room. Dr Ferguson said that as a general rule, he trusted it was the correct patient record on the computer screen and he would make his entry. He conceded that he had experience of entries ending up on the wrong file; it was fairly rare but it happened in the past. He said the surname ‘Cole’ is a common surname in the local area and there were at least a dozen ‘Cole’ surnames on the patient list. He said that he had a patient, Ms Gwen Cole, who is an elderly woman and suffers terrible arthritis, including in her knees.
30 He acknowledged that Dr Ong and Dr Hui, who variously attended upon the plaintiff, would not have known many of the patients; they were medical registrars in training at the time. Dr Ferguson said all doctors and new registrars in the practice are trained to use the computer system.
31 In reference to clinical notes of the practice in November 2006, Mr Ferguson confirmed that a McMurray’s test is a clinical test examining the right knee to try and elicit crepitus or grinding in the knee with rotating the foot and pushing it against the femur. He said a McMurray’s test is part of a clinical diagnosis for a meniscal tear.
Mr Dougal James
32 In June and December 2012 and October 2013, Mr James, orthopaedic surgeon, provided medical reports at the request of the plaintiff’s solicitor.
33 Mr James confirmed that he performed an arthroscopy on the plaintiff’s left knee in October 2008. Her initial post-operative recovery was satisfactory and uneventful.
34 The plaintiff was referred back to Mr James in July 2010, having experienced increasing medial joint line pain in the left knee, with episodes of giving way. She could not recall any new specific injury or precipitating event. He recommended a further review arthroscopy, which was performed in September 2010. The plaintiff was reviewed in October 2010 and on another occasion, when Mr James diagnosed low-grade residual post-operative synovitis.
35 In August 2011, the plaintiff was referred back to Mr James. He recommended a further arthroscopy, anticipating that he would need to debride more of the lateral meniscus. He reviewed the plaintiff post-operatively on 27 September 2011.
36 It was Mr James’ opinion that the plaintiff presented with tears evident on MRI scan involving the posterior aspect of the medial and lateral menisci in her left knee. Over the course of three arthroscopies, there had been progression of articular cartilage damage over the medial femoral condyle. She had a sub-total medial menisectomy and a posterior horn lateral menisectomy. He thought she would see a progression of degenerative changes within the knee, particularly on the medial side, with the passage of time. He thought she was likely to have discomfort with kneeling, squatting and crouching. He said she had an increased risk of developing degenerative changes (arthritis) over the medium to distant future, as evidenced by the slow progression of chondral damage over the medial femoral condyle.
37 In December 2012, Mr James said he reviewed the plaintiff in November 2012, when she complained of ongoing pain emanating from the medial femorotibial joint aspect of her knee. She walked with a limp. He thought her degenerative change had progressed and she may require surgery in the future. He said her condition was basically stable and unlikely to show significant improvement or deterioration over the coming months.
38 The plaintiff was reviewed in October 2013. He said in the future, she will require a resurfacing arthroplasty (total knee replacement). He thought it would be required anywhere between one and five years, depending on the rate of progression of her symptoms.
Mr Ian Jones
39 In August 2013, Mr Jones examined the plaintiff at the request of the defendant’s solicitor. He reported that the plaintiff suffered a degenerative tear affecting the posterior horn of her medial meniscus. This led to some premature wear of the posterior aspect of the medial foraminal condyle. The condition of her knee had progressed since her original injury. X-ray and arthroscopic information suggested some progressive arthritis involving the medial lateral compartment of the knee with the patellofemoral joint.
40 Mr Jones said he could not exclude the possibility that the work incident in July 2008 caused or aggravated the posterior horn tear of the plaintiff’s medial meniscus. He said it was unlikely to be the basis of the wear affecting the posterior aspect of her medial femoral condyle; this would not have developed in three months between the time of the work incident and her surgery.
41 Mr Jones said the plaintiff’s history of knee pain in November 2006 and the clinical diagnosis of medial meniscal tear were relevant to the plaintiff’s history and presentation. He thought it possible she suffered a medial meniscal tear in 2006 that was responsible for damage to the articular cartilage at the back of her femoral condyle, but that the incident of July 2008 caused an aggravation of the meniscal tear.
42 Mr Jones went on to say it was possible that, even without the incident of July 2008, the meniscal tear may have simply progressed with the passage of time, necessitating chondroplasty and meniscal resection. It was his belief that the progressive degeneration of the left knee was not affected by a possible aggravation of a pre-existing medial meniscal tear. He concluded that the plaintiff’s knee would be in the same position even without the injury described on July 2008.
Mr Iain D McLean
43 In January 2014, Mr McLean medically examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed:
“Left knee internal derangement related to medial meniscal tear/pathology with medial chondral change. Ongoing symptoms and problems indicating failure to stabilise, resulting in two further surgical procedures related to medial and lateral menisci and articular surface, particularly medially. Progressive degenerative changes/osteoarthritis of the left knee.”
44 Mr Mclean said the plaintiff was significantly limited with all physical activities, which would continue into the foreseeable future. He said she did not have the capacity to perform pre-injury work duties, but she could perform light semi-sedentary work activities, whereby she would be sitting most of the time, with the ability to get up and move about as necessary. His prognosis was very guarded, because she had significant degenerative changes of the left knee/osteoarthritis with associated significant restrictions of range of movement, with limitation of mobility and progression of degenerative changes over time. He said there would ultimately be a need for total knee replacement surgery.
45 In March 2014, Mr McLean was provided with extracts of the Brookes Street Medical Centre, the plaintiff’s general practice, which recorded her attendance on three occasions, on 22 and 29 November 2006 and 19 December 2006, complaining of left knee pain.
46 Mr McLean was asked to comment on Mr Jones’ report in light of the records of the plaintiff attending the general practice in 2006 complaining of knee pain.
47 Mr McLean disagreed with Mr Jones’ conclusion. He accepted the plaintiff’s honesty and recollection that her symptoms did subside without any ongoing problem and that she was able to continue to work without restrictions. He said the plaintiff’s knee pain in November 2006 was “clinically diagnosed by her general practitioner”. At that time, she was fifty-three and one would expect a degree of constitutional wear or early degenerative change to be occurring to her knees. He said this means there would be some wear of the articular/chondral surfaces, some degenerative changes within the menisci, meniscocapsular degenerative changes, and subchondral bone changes, that are all ongoing, and with stress or load, may produce symptoms that will then settle down with appropriate caution and anti-inflammatory medication.
48 Mr McLean said this generally meant they had not produced a significant internal derangement at that time. The vulnerability, however, is present. Further, as the person ages, the abovementioned tissues and pathology are referred to as constitutional degenerative change. The joints are then more vulnerable to injury, which tips the balance from relatively or totally asymptomatic underlying degenerative changes to that of a more symptomatic, problematic knee of both meniscal and chondral origin.
49 It was Mr McLean’s view that the work injury of July 2008, when the plaintiff missed a step, causing her to jar her left knee, produced the symptomatic problematic left knee. He described the sequence as then setting off a “degenerative cascade” with the failure of the joint to stabilise, with healing and sealing and the meniscal margin and the articular surfaces. This then led to a further two arthroscopic surgical interventions. It was his view that the injury of July 2008 was the material contributing factor.
Credit of the Plaintiff
50 The plaintiff’s credit was not substantively in issue. She answered all questions directly. She did not embellish the consequences of her injury. She was asked questions about events up to eight years ago. Her memory may have been less exact about events six to eight years ago than of more recent times, but I accept that as reasonable.
51 The plaintiff was questioned in relation to the clinical records of the Brooke Street Clinic dated November and December 2006. In her second affidavit, the plaintiff deposed that she was shown the clinical notes of the medical practice. She had no recollection of attending the doctor on these occasions. Further, she had no recollection of suffering from knee pain prior to injury on 17 July 2008. She said she did not recall being seen by Dr Ong and Dr Hui.
52 In taking this view, I note it was not put to the plaintiff that in December 2006, she suffered sleeplessness, was taking Voltaren or that she ought to remember having had a brace.
53 Overall, I accept that the plaintiff was an honest witness.
Analysis of the evidence
54 There was an issue as to whether or not the general practitioner’s notes of 2006 related to the plaintiff. The plaintiff could not recall these attendances. Dr Ferguson gave evidence about the practice’s record system and conceded that errors in patient records were possible, but the probability of this occurring was “rare”. It is unnecessary for me to determine whether the 2006 attendances related to the plaintiff for the following reasons:
(i) At the attendances in November and December 2006, there was a clinical diagnosis of medial meniscal tear only; there was no radiology performed and no referral to any specialist.
(ii) The evidence is that between December 2006 and 17 July 2008, the plaintiff attended at the general practice on seven occasions, for unrelated conditions, without mention of left knee pain.
(iii) In addition, the plaintiff’s evidence was that she was able to undertake her work duties without restriction. Her work with the defendant involved standing and walking for a large part of her day. She was required to squat, twist and lift boxes during the course of her work with the defendant. She was able to enjoy an active lifestyle outside of work.[10]
[10]Plaintiff’s affidavit sworn 18 March 2014 – paragraphs 4 and 5
55 Accordingly, I accept that from December 2006 to 17 July 2008, being the date of the work incident, the plaintiff’s left knee was symptom free.
17 July 2008
56 The plaintiff’s evidence was that on 17 July 2008, as she was leaving work at approximately 1.15am, she was walking down steps at work which were not well lit. She missed the step at the bottom and placed all her weight onto the left knee. She suffered immediate pain in her left knee. She consulted her general practitioner, who recommended conservative treatment of Voltaren and two days off work. Eight days later, she attended her general practitioner, who ordered x‑rays and an ultrasound of the left knee. The plaintiff was complaining of her leg giving way, and was referred to Mr James, orthopaedic surgeon.
57 An MRI scan of 27 August 2008 showed a radial tear involving the body of the medial meniscus, and an oblique tear involving the body of the lateral meniscus with no other significant abnormality. Mr James recommended the plaintiff undergo an arthroscopy.
58 Following the first arthroscopy, Mr James reported there was a recognisable tear to the posterior third of the medial meniscus. There was also relatively minor chondral damage affecting the medial femoral condyle and medial tibial plateau. The lateral meniscus appeared normal.
59 In October 2008, the general practitioner’s notes recorded “already walking better”.[11] By 30 October 2008, Mr James reported the plaintiff was walking without a limp.
[11]Medical Records of the Brooke Street Clinic dated 24 October 2008
60 The plaintiff returned to work in November 2008. She performed light duties for approximately one month, and then returned to full-time duties.
61 The plaintiff’s evidence was that she had a “good period” after the first operation in 2008. The plaintiff gave evidence that for probably six months after the first arthroscopy, she was pain free, but was still walking with a limp.[12] After that time, she suffered ongoing nagging pain and had intermittent giving way of the knee, walking with a slight limp.
[12]Transcript 33, Lines 7-24
62 On 15 July 2010, the general practice records confirmed that the plaintiff reported a sore left knee which related to work. The plaintiff reported it intermittently giving way. The plaintiff’s evidence was that the knee gave way monthly, and by the time she saw her general practitioner, it was more frequent. The plaintiff was referred to Mr James, who confirmed increased pain and intermittent giving way.
63 A second arthroscopy was performed on 21 September 2010. The plaintiff’s evidence was that she attended physiotherapy for approximately a month.
64 In October 2010, Mr James recorded the plaintiff had a mild limp and her recovery was slow. This was confirmed by her general practitioner. In December 2010, a cortisone injection was administered into her left knee.
65 In January 2011, the plaintiff returned to work on modified part-time hours per shift, then increasing her hours to six hours per shift in March 2011. Gradually, her hours were increased until she eventually tried normal duties. This lasted only a couple of weeks, when she returned to her general practitioner with knee complaints.
66 In late July 2011, the plaintiff reported that her left knee gave way, causing her to fall on her left knee. By 11 August 2011, she was referred back to Mr James, who recommended a third arthroscopy, which was performed on 27 September 2011. Mr James confirmed there had been further progression of her degenerative change and that she may require further surgery in the future.
67 The records of the general practitioner variously noted that between the second and third arthroscopies, the plaintiff “walked with a limp, hobbled on her left leg, still walking with antalgic gait, awkward persistent mild limp, limp less obvious, limping, inability to walk”.
The medical reports
68 Mr Jones said the plaintiff denied any previous history of left knee injury.
69 Mr Jones would not exclude the possibility that the work incident on 17 July 2008 caused or aggravated the posterior horn tear affecting the medial meniscus. He said the plaintiff’s medical history in November 2006 and the clinical diagnosis of a medial meniscal tear at that time was relevant to her presentation. He said it was possible that had the plaintiff suffered a medial meniscal tear in 2006, that this was responsible for damage to the articular cartilage at the back of her medial femoral condyle. Taken in this context, the work injury in July 2008 caused an aggravation of the meniscal tear.
70 He said the injury in July 2008 was unlikely to have been the basis of wear affecting the posterior aspect of her medial femoral condyle; this would not have developed within the three months between the injury and surgery.
71 Mr Jones then said it was possible, even without the event of July 2008, that the meniscal tear may have progressed with time, resulting in chondroplasty and meniscal resection.
72 After discussing the possibilities, Mr Jones concluded the plaintiff had progressive degeneration affecting her left knee which was not impacted by a possible aggravation to her pre-existing medial meniscal tear. He believed the plaintiff’s knee would be in the same position even without the work injury.
73 Mr Jones predicated much of his reasoning on the clinical diagnosis of a meniscal tear in November 2006. There was no radiology of the knee in 2006 and no referral for specialist opinion. Mr Jones was not provided with Mr McLean’s latest report upon which to comment.
74 Mr McLean provided two reports. At the time of writing the first report, he was unaware of the plaintiff’s history of medial knee pain in November 2006. He diagnosed left knee internal derangement related to the medial meniscus tear/pathology with medial chondral change, ongoing symptoms and problems, indicating failure to stabilise, resulting in two further surgical procedures related to medial and natural menisci and articular surface, particularly medially, and progressive degenerative changes/osteoarthritis of the left knee.
75 In his second report, Mr McLean disagreed with Mr Jones’ conclusion that the plaintiff’s knee would be in the same position even without the work injury of July 2008. He reasoned that in November of 2006, the medial knee pain was “clinically” diagnosed as a medial meniscal tear. The plaintiff would have been fifty-three years of age at that time, and a degree of constitutional wear or early degenerative change to her knees would be expected. This meant there would be some wear of the articular/chondral surfaces, some degenerative changes within the menisci, meniscocapsular degenerative changes and subchondral bone changes that are all ongoing, and with stress or load, which may produce symptoms that will settle down with appropriate caution and anti-inflammatory medication. That is, in general, they would not have produced a significant internal derangement at that time. However, there was a vulnerability present.
76 Mr McLean said that with age, the abovementioned tissues and pathology are referred to as constitutional degenerative changes, the joints then being more vulnerable to injury, which tips the balance from relatively or totally asymptomatic underlying degenerative changes, to that of a more symptomatic, problematic knee of both meniscal and chondral origin.
77 It was Mr McLean’s opinion that the work injury of July 2008, when the plaintiff missed a step, causing her to stumble and jar onto her left knee, has produced the symptomatic problematic left knee. He described the sequence as setting off a “degenerative cascade”, with the failure of the joint to stabilise with healing and sealing of the meniscal margin and the articular surfaces. This then led to further arthroscopic surgical interventions.
78 I accept the opinion of Mr McLean. He logically explained his reasons for disagreeing with Mr Jones’ opinion. He refers to the November 2006 records, and places them in context with reference to the plaintiff. He concludes that the work injury of July 2008 produced the symptomatic left knee problem.
79 Accordingly, I accept that on the balance of probabilities, that the plaintiff’s work injury of July 2008 was a cause of the plaintiff’s left knee condition.
80 Counsel for the defendant submitted that the consequences of the work incident of July 2008 were of relatively short duration. The submission was that the plaintiff underwent an arthroscopy and returned to pain-free heavy work, which she performed for approximately six months. This would indicate that the work injury in 2008 was not a knee changing event. Furthermore, Counsel submitted that the second and third arthroscopies were not triggered by any event, but were the result of a progressive degenerative condition unrelated to the July 2008 event. This submission was not supported by the medical evidence, nor was it supported by the plaintiff’s evidence. It was not put to the plaintiff that the work was heavy. Further, the plaintiff’s evidence was that after the six-month period returning to work, she suffered a nagging pain or an ache of a fluctuating nature, and difficulty walking due to pain. She reported incidents of her knee giving way before the second procedure.
81 In view of the defendant’s concession that if I accepted the reasoning of Mr McLean, the plaintiff’s injury would be serious in respect to pain and suffering, I propose to grant the plaintiff’s application.
82 In such circumstances the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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