Conway v State of Victoria (Department of State and Regional Development)
[2016] VCC 1403
•3 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04676
| RUSSELL MICHAEL CONWAY | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF STATE AND REGIONAL DEVELOPMENT) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 August 2016 | |
DATE OF JUDGMENT: | 3 October 2016 | |
CASE MAY BE CITED AS: | Conway v State of Victoria (Department of State and Regional Development) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1403 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right and left knees – whether or not injury occurred in the course of employment – whether or not injury occurred before or after October 1999 – nature and extent of injury – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Zlateska v Consolidated Cleaning Service Pty Ltd & Anor [2006] VSCA 141; Comcare v PVYW (2013) 250 CLR 246; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61; TGT Transport v Zammit (2000) 2 VR 312; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms M Fitzgerald | Adviceline Injury Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr P V Bourke | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Conway, alleges he suffered injury to his right and left knees in the course of his employment with a State Government department in 2000 or 2001. His duties required him to carry heavy computer equipment up and down stairs in a building or buildings in Melbourne. He started to suffer pain in 2000, and in 2001, when he was carrying equipment, heard a noise in his knee and suffered significant pain.
2 On a number of occasions, he was investigated for gout. The treatment for the injury to his knees has generally been conservative. He has remained in employment, but alleges a range of activities, in particular sporting and recreational activities have been lost or curtailed.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mr Conway’s employment from October 1999. The body function said to be lost or impaired is the bilateral function of the knees; alternatively, the function of the right knee.
4 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 Mr Conway was the only witness called to give evidence and be cross-examined. In addition, several of his affidavits, affidavits of friends with whom he shared recreational activities, medical and radiological reports, clinical notes and WorkCover documents were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Mr Conway was born in India in 1960 and is now fifty-six years old. He came to Australia in 1968. He married in 1991.
7 He completed Year 12 and has a Bachelor of Economics degree. In 1978, he joined the Victorian Public Service. He worked in various State Government departments, and in 1995, commenced work at the Liquor Licensing Commission. He worked in the IT Department.
8 His medical records indicate that in 1996, he suffered an injury to his right knee after a fall at work. He said he could not recall the incident and did not suffer any significant ongoing problems.
9 Further, according to his affidavit, he said he recalled having a cortisone injection to his right knee before a long car trip in the early 1990s, but did not experience any ongoing difficulties. He thought the injection was administered by a doctor in Port Melbourne.[1]
[1]Transcript (“T”) 31
10 In addition to his work, Mr Conway had a busy family, recreational and social life. He and his wife travelled regularly around Victoria and interstate. He jogged, played social tennis and pennant squash. He enjoyed bushwalking and fishing and was a member of a fishing club from the early 1990s. He assisted his wife with domestic duties, and did most of the maintenance around his house, including the garden. He was otherwise well and was not suffering any significant physical injury nor disability at the time of the subject injury.
History of the injury
11 Mr Conway has given a range of descriptions of how and in what circumstances his right and left knees came to be injured.
12 According to his affidavit, he described the onset of symptoms as follows:
“A significant part of my job with the Defendant required me to regularly move heavy computing equipment between workstations and around the building in which I worked. Some of the equipment, such as computers and printers and the like, could weigh 20 to 25 kilograms and, as the lifts in the building were not all that reliable, my colleagues and I often had to carry the equipment up and down flights of stairs. Consequently, I suffered injury to my knees, especially to my right knee.
The designated date of my injury is 6 March 2001. On that day I recall suffering severe pain in my knees while at work. After work I consulted my then treating General Practitioner, Dr Johnston of Box Hill. At that stage, the pain I was suffering was worse in my right knee compared to the left knee. I had also noticed that the right knee would swell up frequently and it would lock up from time to time.”[2]
[2]Plaintiff’s Court Book (“PCB”) 4-5
13 On 30 March 2001, Mr Conway sought treatment from Dr Scott Peverelle, osteopath. His report records the following history:
“Mr Conway consulted the clinic complaining of bilateral knee pain. He said this began after four years performing particular duties, some of which involved carrying computers and printers up and down 4 (four) flights of stairs. This could occur many times per day and would often involve carrying 20 to 25 kilograms each time.”[3]
[3]PCB 22
14 According to Dr Peverelle’s clinical note,[4] Mr Conway was said to have developed right and left knee pain two to three years before, the right knee pain having developed because he was favouring his right side.
[4]Exhibit B
15 In the course of cross-examination, Mr Conway said that the area in which he worked from 1994 or 1995 was a premises on Victoria Parade, East Melbourne.[5] He said that in 2001 or 2002, he moved to Nauru House.[6] He said once or twice a week, sometimes more often, he would move computer equipment up and down within the four floors of the Victoria Parade building.[7] Sometimes computers and screens had to be replaced. He said the lifts were regularly inoperable,[8] and it was quicker to walk up and down the stairs. It was a very old building.
[5]T17-18
[6]T18
[7]T19
[8]T20
16 In evidence, he said that around 2000 or 2001, he suffered an injury to his right knee:
“... I was carrying a large printer down a flight of stairs and that’s when I heard what sounded like a gunshot, a very loud, very low thing, but I didn’t know what it was. ... .”[9]
[9]T27, L4
17 Save in respect of one specialist, Mr Jones, it is clear from the history to the various doctors, both treating and consultant, that Mr Conway had never described the onset of injury in that way.
18 Later, he said pain came on in his left knee, because of overusing his right knee. He did not go and see a doctor the day he heard the sound in his knee. A few days later, he went to see his general practitioner, Dr Johnston, or another doctor at his clinic in Box Hill. There is no report from Dr Johnston, nor any clinical notes from his clinic.
19 Mr Conway said he did not realise he had a “fractured kneecap” until after an MRI scan was undertaken in 2007.
20 Further in cross-examination, Mr Conway, in referring to the Victoria Parade building, said:
“... the particular building is very old. The carpet was in tatters. There were holes all over the place. It was a combination of carpet and vinyl. And yes, when you are carrying something very heavy in your hands it makes it difficult to see where you’re going and sometimes you accidentally trip on something but you don’t – I didn’t fall. It was sort of a trip.”[10]
[10]T52, L18-25
21 He then conceded that the stairs were not carpeted.[11] He said the building was in a very poor state of repair.
[11]T53
22 Mr Conway was then taken to his WorkCover Claim Form.[12] The document was signed by him on 14 August 2001. The injury or condition was said to be “spurs on both knee caps”. The “date of injury” was – “6/3/01 – unknown”. He said the injury arose gradually over a period of time. Question 17 asked “what were you doing just before the injury occurred?” Question 18 asked “what happened unexpectedly?” Question 19 asked “how exactly were you injured?” Question 20 asked “exact location where the injury/condition occurred”. None of these questions were answered in the Claim Form. Question 25 asked “if you did not report your injury/condition give reason”. Mr Conway answered “I only became aware of the injury after x-rays were taken – I had been treated with anti-inflammatory tablets till then”, and further, “staff members who noticed me hobbling over the past 18 months”.
[12]PCB 52-54
23 Mr Conway completed an Incident Notification/Register of Injuries.[13] The date of the incident was said to be 6 March 2001. The place where the incident occurred was said to be Nauru House. The “activity at time of incident” was “walking out of building – Nauru House”. Under “description of incident” there is recorded:
“Extreme pain in both legs – difficult to walk downstairs – had to stop and sit down to reduce pain – possible cause was carrying large printer from one location to another to make place for new printer earlier that morning.”
[13]PCB 63
24 In cross-examination, the document was put to Mr Conway. His evidence was confusing when he was asked to explain whether this was the episode where there was the “gunshot” type noise.[14] He said that he was not “walking out of the building” when he suffered the injury. He said it did happen at Nauru House and that it was due to carrying a printer, on a floor on which he was working. This was said despite the focus of his earlier cross-examination being carrying equipment up and down floors at Victoria Parade.
[14]T81, L16 – T83, L12
25 Mr Conway was examined by Dr John Silver, occupational physician, in September 2001. To that practitioner, he gave the following history:
“He said that he has had problems with both legs for some twelve to eighteen months. He complained of intermittent knee pain and that this pain extended up the front of both thighs and down into the shins, ... He said that he had to take time off work with this from time to time because of his inability to bend his knee and walk.
…
He consulted his GP who told him to take anti-inflammatory medication and who sent him to a rheumatologist (gout specialist) who said he did not have gout after taking a number of blood tests. No specific diagnosis was made and his treatment consisted with the ongoing use of anti-inflammatory and analgesic medication on a symptomatic basis.
On 6 March 2001 he said that he developed bilateral symptoms ‘and I couldn’t walk on either of them’. He sat down and rested and took more anti-inflammatory medication, but his symptoms have continued and fluctuated.
He returned to his GP following the early March incident, and was told to continue with his medication for the intermittent flare-ups of his pain ….”[15]
[15]DCB 2
26 When asked whether employment was a significant contributing factor, Dr Silver said:
“If this is the correct diagnosis [probable patellar tendinitis or pre-patellar bursitis], it is a condition that is not specifically work related but which is activity related and could be construed to be associated with walking, squatting, bending and stair-climbing at work.”[16]
[16]DCB 3
27 In a further report of 5 October 2001, Dr Silver said:
“The condition is not work related but it has apparently, at least symptomatically, been aggravated by his work.”[17]
[17]DCB 5
28 In July 2002, Mr Conway’s treating general practitioner, Dr Johnston, referred him to Mr John Bartlett, orthopaedic surgeon. According to his report:
“Over the past two years he has been troubled by recurring pain and occasional swelling in both knees. This does not relate to any specific injury. By time of consultation symptoms had settled down although he still had difficulty with activities such as squatting and kneeling.
…
His disability does relate to the slight patella mal-alignment causing articular cartilage compression on the lateral facets of the patellofemoral joint.”[18]
[18]DCB 6
29 He denied telling Mr Bartlett that there was no specific injury.
30 In evidence, Mr Conway said he saw Mr Bartlett only for a very brief time, and was told to come back and see him again in ten years for a knee replacement.
31 According to a report from Mr Mark Whitty, orthopaedic surgeon,[19] the following history was received when he saw Mr Conway on 29 January 2003:
[19]PCB 26
“Mr Conway was referred to me by Dr J Johnston on 29/1/03. He reported 18 months of recurrent swelling of his knees for which he had previously consulted Mr John Bartlett. He reported at the time that his work was behind his problems. More specifically, his complaint was of locking of the right knee with tenderness along the medial joint line. An MR[I] scan showed that he had mild pre-patellar bursitis and a probable cystic lesion in the intercondylar region.
The option of arthroscopy was discussed ... .
…
He reported that on 3/7/08 that he felt that it had been the use of stairs that had led to his problems and stated that he often tripped when carrying out the duties that you have mentioned in your brief.
It transpires that Mr Conway does have a long history of work related complaint, having seen Mr Greg Collis-Brown, physiotherapist, I gather, since 1996 following a fall at work then. Mr Conway had registered himself as a private, non-compensable patient initially as he was unsure of the relationship of his work injuries to work, not surprisingly, as the development of quadriceps tendonopathy (sic), meniscal and cruciate ligament cysts take time to develop and are not necessarily sudden injuries. At the very least, the nature of the work mentioned in your brief is capable of aggravating any such underlying condition.”[20]
[20]PCB 26-7
32 Mr Conway received physiotherapy treatment from Mr Collis-Brown, musculoskeletal physiotherapist, whom he saw on 26 June 2007, at the referral of Mr Whitty. The history was as follows:
“Mr Conway stated that he injured his right knee due to a fall at work in 1996. He would also get problems with his left knee. He had been using the anti-inflammatory medication, Voltaren for 4 years. He also described being administered 2 steroid injections in the right knee.”[21]
[21]PCB 30
33 Mr Conway came under the care of Dr Jack Owczarek, general practitioner, from July 2009. He is the only general practitioner to have provided a report. He complained of left knee pain present for many years. He said there had been a patellar fracture of his right knee sometime in the past, although there were no symptoms in the right knee at that time. In November 2009, he returned complaining of right knee pain, and again, in 2010. Dr Owczarek said:
“At no stage did the patient mention anything about carrying of computers and printers up and down four flights of stairs many times in a day in the setting of his knee related symptoms.”[22]
[22]PCB 25
34 This statement was presumably in response to a letter from Mr Conway’s solicitors of the 30 May 2012 which, in part, said:
“We are instructed that the injuries occurred as a result of carrying computers and printers up and down four flights of stairs many times per day.”[23]
[23]Exhibit 1
35 To Mr Lau, physiotherapist, in July 2015, Mr Conway said that he twisted his right knee whilst carrying a printer down stairs at work, some fifteen years before.[24]
[24]PCB 33
36 More recently, to Mr Thomas Kossmann, orthopaedic surgeon, Mr Conway gave the following history:
“In the year 2000 he had an accident when he was carrying large printer equipment. He stepped forward injuring his right knee. At this stage he was working in the IT section of a company and often had to carry heavy equipment upstairs in his office. He told me that the office was on the third floor. Mr Conway told me that he went to several doctors … .”[25]
[25]PCB 34
37 Finally, to Mr Ian Jones, orthopaedic surgeon, who Mr Conway first saw in July 2015, he said:
“Onset of Right Knee Complaint
The patient reported he first developed some symptoms in his right knee while working in the liquor licensing section in Victoria Parade. The patient stated that this was an old building. Due to malfunctioning of the lift, the patient was required to carry large Hewlett Packard printers from the third to the first floor coming down stairs and going up multiple times a day over a seven year period
Acute Injury
The patient stated that on one particular date (unable to be recalled) the patient described experiencing a bang in the right knee. He continued coming down the stairs carrying the items rep[o]rting pain in his right knee. He was off work for some two or three days at the time.
…
Left Knee Complaint
The patient reported the onset of his left knee symptoms in 2005. He attributed his left knee complaint to overuse secondary to his right knee complaint. There was no history of injury suffered to the left knee.”[26]
[26]PCB 7-9
38 Despite a history to many doctors of carrying computers and printers up and down stairs many times a day, in cross-examination, Mr Conway said that it occurred “at least once or twice a week”.[27]
[27]T19-20
Conclusions as to the causative relationship between injury and employment
39 There are two matters to consider in determining whether Mr Conway’s injury occurred in compensable circumstances as the Act requires:
(i) The first is whether, the onus being upon the plaintiff, I am satisfied the injury occurred in the course of employment;
(ii) The second is whether it occurred after the “black hole” period concluding October 1999.
40 The latter issue was not pursued by Mr Middleton in final addresses. Depending upon the history which is accepted, some of the activities which Mr Conway alleges gave rise to injury may have occurred prior to October 1999. Nonetheless, his allegation was that there was a particular incident which occurred around March 2001 which led to a significant increase in pain in his right knee. Although Mr Tobin emphasised that the plaintiff’s claim was for injury arising “in the course of employment” it would appear that the bulk of his problems commenced from that incident in March 2001. In these circumstances I am of the view the injury occurred after October 1999.
41 A more significant issue is how and in what circumstances the injury occurred. As can be seen from the histories above, there have been a range of explanations given as to the circumstances surrounding injury.
42 I place little reliance on the version of events given by Mr Conway in his various affidavits before the Court, and in his evidence. He was an unsatisfactory witness in many respects. His answers to questions in cross-examination were regularly unresponsive. On many occasions, he sought to avoid answering direct questions by giving long and meandering explanations as a means of avoidance. It is clear from the early part of his evidence, that he sought to blame the lifts and the premises at Victoria Parade as being somehow responsible for his injury. When presented with the Injury Register which referred to the incident occurring at Nauru House, his explanation was quite unsatisfactory.
43 Further, his evidence that there was a noise like a gunshot when the injury occurred is quite unbelievable in circumstances where, save to Mr Jones, to whom he described a “bang”, he did not give anything like that history to any other doctor, in particular to the doctors who treated him around the time of the injury. In my view, the evidence was invented in an attempt to link the fracture shown on the MRI of 2007, to the workplace incident.
44 Further, I was unimpressed by Mr Conway’s evidence about his involvement in fishing. According to his affidavit, he said that despite a keen interest in fishing prior to the injury, he now rarely went fishing as he found it painful and difficult. He did say he was still involved with his fishing club. In cross-examination, he admitted that in 2007, he purchased a boat with a trailer, and launched it, with others, from time to time. Further, he was president of the Greensborough Fishing Club until 2011. He was also Chairman of the Victorian Recreational Fishing peak body until 2015.[28] There was no mention of these activities in his affidavits. Despite claiming in his affidavit he played pennant squash, he admitted in cross-examination that he stopped in 1998, several years before the injury.[29]
[28]T87-8
[29]T 91
45 In these circumstances, I place little reliance on Mr Conway’s evidence, and seek objective support wherever possible.
46 In my view, it is important to take account of the histories to doctors who examined Mr Conway in the early years, and contemporaneous documents in order to determine the circumstances of the onset of injury.
47 In the WorkCover Claim Form the injury was said to arise over time, although, curiously, the date of the injury is said to be both “6/3/01” and “unknown”. There is no detail in the form as to how the injury occurred. The Register of Injuries records as a possible cause, the carrying of a large printer up and down stairs. In 2001, Mr Conway complained to Dr Silver of problems in both his legs over twelve to eighteen months, although was said to have developed bilateral symptoms on 6 March 2001. Dr Silver thought the condition was not specifically work related, but may have been aggravated by his work, including stair climbing.
48 To Mr Bartlett, he did not complain of any specific injury.
49 In 2003, he told Mr Whitty that he thought “his work was behind his problems”. Later, he referred to the use of stairs.
50 To Mr Collis-Brown, the origin of the problems appeared to be a fall at work in 1996.
51 When he first consulted Dr Owczarek in 2009, there was no mention of carrying equipment at work.
52 There is no report from Dr Johnston, nor are his clinical notes available. He was the treating general practitioner around the relevant time and the history provided to him by Mr Conway in early 2001 would be important. I accept that he has retired from practice and neither the plaintiff’s practitioners, nor the Authority (who were provided with a signed authorisation) have been able to obtain those records. There was no evidence as to what attempts had been made to try to locate the records.
53 There were also other general practitioners who treated Mr Conway, although at a later time. Likewise, there are no reports from them. The situation is most unsatisfactory, but in the circumstances, I am reluctant to draw an inference that had a report with the clinical notes of Dr Johnston been produced, they would not assist the plaintiff’s cause.
54 From all of this, I conclude I am not satisfied that there was any particular incident at work which gave rise to Mr Conway’s right knee injury. I am not satisfied that anything in particular occurred on 6 March 2001, save possibly for some increase in pain in his right knee, probably in the course of his work activities. I am satisfied that in fact he had some pain and swelling in the right or possibly both knees over a number of years before March 2001. In my view, what occurred was that Mr Conway, having suffered pain in one or both knees over a period of years, searched for some possible causes of his problems. Given what was written in the Register of Injuries and the history to Dr Silver, he decided around March 2001 that it was the carrying of computers and printers in the course of his work, either at Victoria Parade, or Nauru House, or both, that was the probable cause. At a later time, after he became aware of a fracture in the area of the patella from the 2007 MRI scan, he came up with the concept of an incident of some sort to explain the fracture, and then embellished it by suggesting the incident was accompanied by a “gunshot” like sound. I am confirmed in this view as, before the MRI of 2007, there had been three earlier MRI scans which, according to Mr Conway, had failed to reveal any problem. It was only with the fourth scan that Mr Whitty was said to be able to diagnose a fracture.[30] There was no explanation as to why this radiology was not provided. It would be significant in determining whether or not there was a fracture in the area of the patella. Absent any satisfactory explanation, I infer those scans would not have assisted the plaintiff’s cause.
[30]PCB 70
55 The later practitioners, in particular Mr Kossmann, are reliant on the accuracy of the history provided by Mr Conway in order to attribute his knee problems to employment.
56 Before injury can be said to arise “out of” employment, there must be a causal relationship between the injury and the employment.[31] Further, given the claim here is for injury “arising in the course of” employment, there must be a temporal relationship between injury and employment.[32] Employment may be a significant contributing factor even if other factors are more significant. An injury may have multiple significant contributing factors.[33]
[31]See Zlateska v Consolidated Cleaning Service Pty Ltd & Anor [2006] VSCA 141
[32]See Comcare v PVYW (2013) 250 CLR 246
[33]Zlateska (supra) at paragraph [73]; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 at paragraphs [56[-]56], [60], [77] and [79]
57 In Popovski,[34] Ashley J held that the word “significant” in the phrase “significant contributing factor” meant “of considerable amount or effect”.
[34](Supra) at paragraph [61]
58 In TGT Transport v Zammit,[35] Winneke P considered that the phrase “significant contributing factor” imposed a requirement of a “strong causal connection” as between injury and employment.
[35](2000) 2 VR 312 at paragraph [30]
59 Bearing these authorities in mind, and considering the contemporaneous documents and reports, I am satisfied that there is a sufficient causal link between Mr Conway’s employment, in particular carrying computer equipment up and down stairs at one or other, or both, buildings, and the onset of symptoms in at least his right knee. In particular, the doctors who examined him at the time, Dr Silver and Mr Whitty, both, either directly or indirectly, drew some association between his work duties, and the onset of symptoms, even if those symptoms represented an aggravation of an underlying condition. In my view, that is a sufficient link, which is strengthened when combined with the albeit rather vague description in the Claim Form and Injury Register.
The nature of the Injury
60 There was a significant debate in the course of final submissions as to the precise nature of the injury or disorder to Mr Conway’s knees. Mr Middleton, in particular relying on the reports of Mr Jones, said the condition was wholly or predominantly gout. Mr Tobin, in particular relying on the reports of Mr Kossmann, said Mr Conway’s clinical picture was one of trauma, or degenerative disease to the knees, with gout possibly playing some minor role.
61 In the course of his evidence, although somewhat unclear, Mr Conway accepted that he had been prescribed medication for gout on around three occasions, although went on to say that it provided little relief. He said Dr Johnston might have diagnosed gout.[36]
[36]T28
62 According to the report of Dr Owczarek, in 2011, investigations revealed elevated urate levels which he said were “consistent but not diagnostic of gout”.[37] According to clinical notes of Eastern Health, in 2015, a diagnosis of poly articular gout was made.[38] The “impression” was “acute gout in setting of prostatic sepsis involving knee”. Further, under “diagnosis”, “tissue from left knee: mild acute synovitis consistent with gout”.[39] Similarly, the Discharge Summary of that hospital[40] noted “gout L knee”.
[37]PCB 24
[38]Exhibit 2
[39]Exhibit A
[40]Exhibit C
63 In his report of February 2012, Mr Kossmann received a history that Mr Conway had been hospitalised at Box Hill Hospital and that a diagnosis of gout of the left knee had been made.[41] He noted various blood urate levels had been taken in September 2012 and January 2015, which were all within the normal range. He concluded he could not find any investigations to indicate Mr Conway was suffering gout in the years before September 2012.
[41]PCB 41
64 In his first report of July 2015, Mr Jones said the following:
“As a background to this man’s right quadriceps tendinopathy and bilateral patellofemoral wear problem, there is a history of a recurrent effusion particularly in the right knee. The recurrent nature of these problems are suggestive possibly of gout or chondrocalcinosis and I note in his GP’s letter at one stage his serum levels of uric acid were elevated. It would be of interest to know whether the flare ups of his left and right knee conditions with the associated severe swelling to the degree reported by the patient coincide with an increase in the serum uric acid level in the blood. … .”[42]
[42]DCB 13-14
65 In his second report of April 2016, Mr Jones was provided with the Eastern Health (Box Hill Hospital) records. He noted the diagnosis of gout. He said that information:
“… leads me to believe that this man’s major problem of recurrent knee pain and swelling relate to a diagnosis of gout. He does have evidence of a mild degree of patellofemoral arthritis affecting both knees.”[43]
[43]DCB 19
66 Mr Jones recommended repeated measurements of serum acid levels.
67 I will now turn to examine the evidence as to the underlying condition in Mr Conway’s knees.
68 In 2001, Dr Silver diagnosed “Probable patellar tendinitis or pre-patellar bursitis”,[44] although he noted the diagnosis was not specific.
[44]DCB 3
69 In 2002, Mr Bartlett noted a moderate degree of patellofemoral joint pain and crepitus. He said:
“His disability does relate to the slight patella mal-alignment causing articular cartilage compression on the lateral facets of the patellofemoral joint.”[45]
[45]DCB 6
70 X-rays of both knees in August 2001, undertaken by Dr Johnston, revealed:
“Femoro-tibial joint space height and patello-femoral joint spaces are preserved but there is early osteophytic lipping at the lateral aspect of the patellar articular surface bilaterally and findings would suggest early patello-femoral joint degeneration. No joint effusion or radio-opaque loose intra-articular body, no other abnormality is seen.”[46]
[46]PCB 55
71 Absent any explanation from Dr Johnston, it is difficult to know what to make of this x-ray report.
72 The next year, Mr Bartlett referred to a “recent x-ray showed evidence of excessive lateral patella[r] pressure in both knees”.[47] It seems unlikely that was reference to the August 2001 x-ray. In any event, that x-ray makes no reference to any patella fracture.
[47]DCB 6
73 The diagnosis by Dr Peverelle, osteopath, is of little assistance as I am not satisfied he has the relevant expertise.
74 Mr Whitty said an MRI scan of 2004 revealed a cyst anterior to the cruciate ligament. That MRI scan was not produced. An arthroscopy was discussed. Mr Conway returned to Mr Whitty in 2007. He said the MRI scan of 2007 showed:
“… quadriceps tendonopathy (sic), almost to the stage of fracturing of the upper pole of the patella. Meniscal cysts were also noted. … .”[48]
[48]PCB 26
75 In 2007, Mr Collis-Brown, physiotherapist, said Mr Conway:
“… presented with right patella[r] tendinopathy with knee effusion, weakness and pain.”[49]
[49]PCB 31
76 Mr Kossmann, orthopaedic surgeon, examined Mr Conway in 2012, and again in 2016. His reports are extensive. The history he received was of a number of knee injuries, including to his right knee in 1996 and to both knees in 2000, when he was carrying computer equipment. His diagnosis was:
“Pain and movement restrictions right knee on the basis of bilateral meniscal tear, quadriceps tendinopathy and interstitial partial tearing with traction enthesopathy, bone oedema and non-displaced fracture of the superior pole of the patella and bilateral meniscal tear associated parameniscal cysts.
Pain and retropatellar friction of the left knee”.[50]
[50]PCB 38
77 This opinion reflects, almost word for word, the conclusion of the MRI scan of May 2007, some six years after the alleged injury. He said Mr Conway was at high risk of developing accelerated osteoarthritis to the right knee with the prospect of a total knee replacement at some stage in his life. He thought the degenerative changes would occur in both the right and left knees. He said that the gout, at best, had aggravated, accelerated and exacerbated the bilateral knee conditions over the last two or three years.
78 Mr Jones, also an experienced orthopaedic surgeon, reported in 2015 and 2016 as earlier stated, he received a history of acute injury to the right knee, with the onset of left knee symptoms in 2005. He said the MRI scan (of 2007) suggested the presence of right quadriceps tendinosis. He said:
“… A partial avulsion of the quadriceps tendon from the patella would be consistent with his history and treatment following this diagnosis. It would seem from history that the possible avulsion fracture may have healed although there is no recent x-ray information to confirm this. Investigations in the past have suggested patellofemoral arthritis affecting both knees and the patient continues to have symptoms and signs in both patellofemoral articulations. In his right knee, there is quadriceps tendinosis and the patellofemoral arthritis together with the left knee condition could be exacerbated by the recent repeated stair climbing and carrying activities he was reporting in the past.
I believe that the effects of the aggravation to his patellofemoral wear problem have ceased.
As a background to this man’s right quadriceps tendinopathy and bilateral patellofemoral wear problem, there is a history of a recurrent effusion particularly in the right knee. The recurrent nature of these problems are suggestive possibly of gout or chondrocalcinosis and I note in his GP’s letter at one stage his serum levels of uric acid were elevated … .
…
Based on the available information, I do not believe that this patient’s current right or left knee problem of recurrent swelling and pain and incapacity are the result of any work related injury. The mild degree of patellofemoral arthritis affecting both kneecaps and his quadriceps tendinopathy may have been exacerbated by the frequent stair climbing as described over a seven year period and although the patient has some current signs of this of both conditions, I do not think they are the result of his employment or any work related injury.
I cannot establish any other factors other than those referred in terms of gout or chondrocalcinosis which may be the cause of this patient’s recurrent severe right knee pain and swelling and similar but less severe symptoms affecting his knee.”[51]
[51]DCB 13-14
79 In his further report of April 2016, having been provided with the records of Eastern Health, Mr Jones said:
“The information from the Box Hill Hospital leads me to believe that this man’s major problem of recurrent knee pain and swelling relate to a diagnosis of gout. He does have evidence of a mild degree of patellofemoral arthritis affecting both knees.
…
… In terms of prognosis, it is likely that the mild patellofemoral wear symptoms described by the patient will progress simply with the passage of time particularly if there is a background of gout. It is possible that in the long term this man may be prone to a deterioration in his level of knee symptoms and function possibly requiring knee replacement surgery in the extreme long term.”[52]
[52]DCB 19
80 As earlier stated, I am satisfied that as a result of Mr Conway carrying equipment in either, or both, of his employment premises, he suffered the onset or aggravation of symptoms in his right, and possibly, left knee. I am not satisfied there was any particular incident involved.
81 I am satisfied that Mr Conway suffers from gout in both knees. This is evident from the diagnosis of Eastern Health as recently as 2015. It is difficult to say with any certainty for how long he has suffered that condition, but on the basis of his evidence that he was prescribed medication a number of times, albeit with little relief, it is likely the condition has persisted for some years. I accept the opinion of Mr Jones to the effect that the gout, at least at the present time, is causing recurrent knee pain and swelling. This, at least in part, explains the symptoms from which Mr Conway is currently suffering.
82 I am also satisfied that, in addition, he suffers from an underlying, probably degenerative condition in each knee. That is evident not only from the MRI scan of 2007, but also from the opinions of Messrs Kossmann and Jones. I am, however, not satisfied that the fracture referred to in that scan can be related to his employment. Were it otherwise, I am of the view it would have been picked up by Dr Silver or Mr Bartlett on review of the early radiology.
83 The various practitioners have described the condition in Mr Conway’s knees in different ways. For the sake of simplicity, I will refer to it as patellofemoral joint condition. I am satisfied that, at least to some extent, this condition was caused by or aggravated by the work activities to which I have referred in 2000 and 2001. As earlier stated, I found Mr Conway’s evidence generally as lacking in credibility. I have reservations about whether his knee problems are as serious as he makes out. His evidence about the reduction in his fishing activities was unimpressive. He has remained in full-time work, albeit, he says, undertaking work tasks with difficulty.
84 The opinions of the practitioners who examined Mr Conway in the early years are important. They talk of minor degenerative changes and the prospect of improvement with conservative care. The absence of other investigative scans and opinions of earlier treating general practitioners make it difficult to precisely understand the nature and extent of the progression of the patellofemoral joint condition in the years since. It is difficult to say with any certainty now whether, taking away the effects of gout, what is seen is the progression of an underlying degenerative condition, as opposed to the continued effect of the work-related aggravation.
85 It is always difficult to determine which of two opposing medical opinions to accept absent the authors attending for cross examination. Both Mr Kossmann and Mr Jones are experienced orthopaedic surgeons. Both were provided with a large range of materials. On balance, I prefer the opinion of Mr Jones. His assessment of the extent of the involvement of gout appears to me to be more in line with findings of other practitioners and Eastern Health. Further, Mr Kossmann’s diagnosis is in a large part a repetition of the findings on the MRI scan and lacks a more succinct analysis. I find Mr Jones’ diagnosis more analytical. I prefer his assessment that while there is a mild degree of patellofemoral degeneration affecting both kneecaps and, further, that the quadriceps tendinopathy may have been exacerbated by the stair climbing activities, he did not think this was related to any work injury. Moreover, the recurrent knee pain and swelling occurred as a result of his gout, not the underlying degenerative condition. Essentially, Mr Jones’ assessment is that there is an underlying degenerative condition of the knees which was probably aggravated by the work activities in 2000 and 2001, the current presentation is not work related, and the symptoms, in particular of pain and swelling, are related to Mr Conway’s gout.
86 There is, thus, a disentangling exercise to be undertaken to exclude those symptoms which relate to gout. The onus is upon the plaintiff to identify those pain and suffering consequences related to the employment injury.[53]
[53]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [24]-[25]
87 Given the length of time since the onset of symptoms, it is difficult now, in particular with the absence of the reports and investigations to which I have referred, to know the exact nature and extent of the effect upon Mr Conway’s knees of the work activities. The onus is upon the plaintiff to prove all these matters, on the balance of probabilities. Given, in particular the opinion of Mr Jones, which I accept, I am not satisfied the plaintiff has met that onus. I am not satisfied that even given there is some part of Mr Conway’s presentation in relation to his knees at the present time, which is related to his work activities, I am not satisfied that that part achieves the “very considerable” level of consequences that the legislation requires.
88 Accordingly, the plaintiff’s application should be dismissed.
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