Cormack v Victorian WorkCover Authority
[2022] VCC 71
•7 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02270
| DANIEL JOSEPH CORMACK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2022 | |
DATE OF JUDGMENT: | 7 February 2022 | |
CASE MAY BE CITED AS: | Cormack v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 71 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right knee – pain and suffering – workplace injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Randhawa v Transport Accident Commission [2021] VSCA 135
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Lawyers |
| For the Defendant | Ms K Manning | Thomson Geer |
HER HONOUR:
1The plaintiff, Mr Daniel Joseph Cormack, is a forty-one-year-old man. He makes this application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for a serious injury certificate for pain and suffering damages for injuries he sustained to his right knee while employed as a scaffolder by Scaffold Logistics Commercial Pty Ltd (‘Scaffold Logistics’).
2There is no dispute in this case that Mr Cormack sustained a rupture of the anterior cruciate ligament (‘ACL’) of the right knee which, for the purposes of this application, the defendant accepts arose in the course of his employment.
3The issue in this case is whether the injury is a serious impairment or loss of a body function that satisfies the test of being ‘more than significant or marked, and as being at least very considerable’.
4The plaintiff relies on two affidavits dated 5 February 2021 and 7 January 2022, and an affidavit of his wife, Sandy-Lee Cormack dated 7 January 2022. He was cross examined. He otherwise relies on medical reports of Dr Sa’ad Albarki dated 19 March 2019 and 1 October 2021 and medico legal reports of Mr Stephen Doig dated 28 June 2021 and Dr Graeme Doig dated 10 September 2019.
5The defendant relied on medico legal reports of Dr Michael Baynes dated 17 March 2020 and 13 May 2021, and Mr Michael Dooley dated 9 September 2021.
6None of the medical experts were required to attend for cross examination.
Background
7Mr Cormack has been a scaffolder for many years. He commenced work with the employer in 2016. On 3 March 2018 he fell approximately 1.5 metres into a storm water pit when stepping backwards from scaffolding. He landed heavily on his feet and his right knee twisted and buckled.
8He says he was immediately in a lot of pain. He went to the First Aid room and rested and iced the knee. He says it became clear that it was more than a simple strain and he attended his general practitioner, Dr Albarki, on 5 March 2018. He was referred for x-ray and ultrasound which were undertaken on 6 March 2018.
9He was subsequently referred for MRI on 14 March 2018 which showed that the anterior cruciate ligament was chronically ruptured and resorbed, there was extensive meniscal scarring with free margin irregularity, particularly prominent in the lateral compartment and chronic chondral ulceration at the patellofemoral and lateral tibiofemoral compartments.
10Mr Cormack had surgery for right ACL reconstruction on 22 September 2018 with Mr Audi Widjaja.
11In March 2019 he returned to work with Scaffold Logistics, initially doing light office work and subsequently in a trial as a project manager. This job did not require him to be ‘on the tools’ but he was not suited to the role and only lasted about a week. He says he was not coping with the driving required due to knee pain and struggled with the management duties. He was formally terminated from his employment in January 2020.
12In March 2020 he obtained employment as a scaffolder with Steelcon. He says at Steelcon he was struggling with significant knee pain and eventually left that job in April 2021. He obtained work with GGC Rigging and Scaffolding (‘GGC’) in May 2021. GGC is a smaller company than Steelcon and consequently the scale of the jobs undertaken is smaller and more manageable. About 70 per cent of Mr Cormack’s job at GGC is desk based or supervisory only. He spends about 30 per cent of his time ‘on the tools’ but, as he has a supervisory role, is able to delegate tasks he feels he will struggle with. In this way he has managed to continue his employment within the scaffolding industry, which is the only industry in which he has experience.
Plaintiff’s Medical Opinions
13The plaintiff saw Dr Graeme Doig, orthopaedic surgeon, on 14 August 2019. In his report dated 10 September 2019, Dr Doig notes persistent, anterior knee pain. Mr Cormack reported that he has not returned to motor-cycling and had problems with running, squatting and kneeling.
14Dr Doig diagnosed an ACL rupture at the right knee consistent with the work-place incident and requiring operative reconstruction. Dr Doig considered Mr Cormack’s prognosis to be guarded, his outcome from surgery was poor and he had reached ‘maximum medical improvement.’
15Orthopaedic surgeon, Mr Stephen Doig, noted in his report of 28 June 2021 that Mr Cormack’s condition will deteriorate with time. He notes that ‘there is an obvious instability present in the knee although he is coping with this at the moment, but the quite marked Lachman test shows that the ACL reconstruction is slack and has stretched out.’
16Mr Doig recorded Mr Cormack complains that this injury affected his ability to ride motorcycles, surf and run and that driving for more than sixty minutes caused his knee to ache. He noted ongoing knee pain which was getting worse, occasional locking and the need for analgesia in the form of Panadol up to three times a day.
17Mr Doig noted Mr Cormack was at increased risk of further surgery due to the ACL injury and that, in particular, he might require further surgery to redress the looseness of the ACL.
18In his report dated 1 October 2021, Dr Albarki notes that Mr Cormack is currently stable post his knee surgery in 2018.
Defendant’s Medical Opinions
19Occupational physician Dr Michael Baynes examined Mr Cormack on 17 March 2020. In his report of the same date, Dr Baynes found on examination that Mr Cormack was able to walk on his toes and heels and squat without difficulty. He noted that straight leg raising revealed no quadriceps lag, the ligaments were intact, there was no crepitus with movement and his range of movement was normal and pain free. There was no effusion or tenderness to palpation and a McMurray’s test was negative.
20Dr Baynes reported that Mr Cormack had suffered a rupture and reabsorption of the right ACL joint after a twisting injury to the right knee. He said he had undergone a surgical repair and a rehabilitation program with an ‘excellent’ result, particularly over the preceding eight months.
21Dr Baynes concurred that Mr Cormack’s incapacity resulted from the injury sustained on 3 March 2018 and considered that he was now fit for pre-injury duties and hours as a scaffolder including supervisory, hands-on work, forklift driving and administration work. Dr Baynes opined Mr Cormack had a capacity to work as a project manager and carry out the duties and responsibilities as detailed in the position description, including carrying out risk assessments on projects, checking completion levels and job progress, and documentation tasks.
22Dr Baynes examined Mr Cormack again on 13 May 2021. He recorded Mr Cormack’s history that his right knee continues to be quite good with no real change since the last review but that he gets soreness in his right knee in the winter months. He said there was no swelling and had good range of movement and no pain. Mr Cormack advised there is slight restriction in terms of flexion compared to the left side but is able to push his right knee completely backwards. He said his knee occasionally feels insecure but has not given way and there is some occasional grinding in the knee. He said he occasionally gets some pain if he hyperextends his knee. Mr Cormack advised Dr Baynes he had no problems with standing, sitting or walking and can walk on rough ground. He said he can drive for about three hours before he gets some increased stiffness. Mr Cormack was able to kneel or squat without difficulty. Mr Cormack advised he had not had further treatment and does not take medication or undertake any treatment exercises but does attend the gym four days a week doing weights and squats but no real leg strengthening exercises. Mr Cormack continued to play cricket and football with his children. At this time Mr Cormack advised he had no issues with personal grooming, housework or gardening and that he was still able to ride his motorbikes but had sold his dirt bike.
23Mr Cormack advised Dr Baynes that on occasion he has to do a lot of kneeling on smaller jobs tightening up bolts and it feels weird kneeling on his right knee and that he is regularly carrying 30 to 40 kilograms of weights up and down stairs on worksites. Mr Cormack reported some anteromedial diffuse aching on occasions.
24On examination Dr Baynes noted right knee flexion was limited on active movement with the ability to fully flex the knee and no pain on movement. Mr Cormack reported some slight tenderness to palpation over the anteromedial joint line of the knee medial to the patella. Dr Baynes recorded no swelling or effusion, that the ligaments were intact and a McMurray’s test was negative. Dr Baynes noted there was some crepitus on flexion and slight quadriceps lag on right straight leg raising but not on the left. He noted there were well-healed arthroscopic portals.
25Dr Baynes noted that Mr Cormack’s excellent result post-surgery and rehabilitation had been maintained over the past 12 months. He noted Mr Cormack continued to report only minimal symptoms and his diagnosis is unchanged. He did report that clinical examination revealed some slight changes noting some crepitus in the knee compared to examination 12 months prior with some slight quadriceps lag on straight leg raising. Dr Baynes opined that the short-term prognosis is excellent and long term there is an increased chance of developing osteoarthritis.
26Dr Baynes said Mr Cormack does not require any further treatment and should continue with his general fitness routine and should be encouraged to undertake strengthening exercises of his quadriceps and hamstring muscles. Dr Baynes believed there was still a minor work-related contribution in that whilst he has had an excellent result from surgery, there are still some subtle alterations to function of the right knee compared to the left.
27Mr Cormack was examined by orthopaedic surgeon Mr Michael Dooley on 30 August 2021. In a report dated 9 September 2021, Mr Dooley noted Mr Cormack walked without a limp. He recorded no effusion in his right knee and well healed surgical scars. He noted the right knee moved just short of full flexion through to one hundred and thirty degrees of flexion. Mr Dooley noted no local tenderness, that the knee was stable and on inspection there was slight wasting of the quadriceps and calf musculature when compared to the other side.
28Mr Dooley considered that Mr Cormack has made a good recovery from the ACL reconstruction surgery and from an orthopaedic point of view he does not require any specific treatment. He noted all patients who sustain a ruptured ACL are at risk of developing progressive post traumatic degenerative changes within their knee joint over time.
Consequences for the Plaintiff
29Mr Cormack says he has significant ongoing knee pain and instability. He says despite ‘surgery, subsequent considerable physiotherapy treatment after that surgery and the passage of some time now, the knee simply hasn’t come good’.
30He finds that even light activity will increase his pain. He uses Panadol throughout the day to manage his pain and keeps a tube of Voltaren cream to rub onto the knee whilst he is working. He says he tried not to rely on painkillers but ‘the reality is that the pain becomes too much, and I eventually don’t have a lot of choice about taking tablets or not’. He says he would usually take two Pandadol three times a day. He says he is limited as to the medication he can take, as he works at heights and cannot take a risk of falling if he is ‘overly medicated’.
31Sometimes the pain is not easy to relieve. Sitting or standing can also cause pain and he needs to move around frequently to try to keep the pain under control.
32At the end of a working day, he has increased pain in his knee and this restricts his activities, in particular his ability to play sports with his two sons, aged 13 and 14. Previously he would have a kick of the footy or play cricket with them for hours on end. He now can last about thirty minutes to an hour and a half, depending on how his knee is that day. His activity in this regard is ‘not 100 per cent’ and not how he would have played prior to his surgery.
33In the past he competed professionally as a boxer and kick boxer. He maintains a strict regimen of fitness and still attends the gym regularly, but his ‘elite’ level of fitness has gone. His fitness is now aimed at strengthening the knee. His physical appearance is important to him.
34Prior to his injury he surfed. He has tried to resume but the pain made it impossible. He still goes fishing, usually on the banks of the Werribee River, about once every fortnight. He probably fishes for shorter periods than he did before his injury and takes his boat out less. He now probably only takes his boat out a few times a year. His sons assist with unloading and loading the boat, under his supervision.
35He used to ride motorcycles and had two dirt bikes and a road bike. He describes riding bikes as ‘more than a hobby’ and a means of relaxation. He says his knee problems made it difficult to ride his bikes and he has now sold all of them. This is something that still upsets him to think about. His wife, in her affidavit, says his bikes were very important to him and he would frequently ride them. She describes having to sell them as ‘a real blow’ to him.
36The most significant aspect of his knee injury is the ongoing instability and the limitations this presents for his work. Whilst working at Steelcon he says he had to work very carefully and was very conscious to guard his right knee. He says he was ‘acutely aware that I cannot rely on the knee as I once could and this means that I have to be extra careful when carrying out the type of work at heights that I do’. He says the injury means that he is no longer suitable for scaffolding work, but the ‘reality is that I have to earn a living and there are limited options for me with my work history’. Whilst at Steelcon, he was worried about how long he could continue in the employment and was not sure what else he would be able to do.
37Since moving to work with GGC he is able to cope better, as he has more of a supervisory role. He says ‘It’s clear that I am never again going to be able to carry out major scaffolding and rigging work on a full-time basis and that supervising/management will need to be my future. Having said that, I am still working with pain and restriction every day.’
38He says the knee injury ‘has been quite devastating to me. It has changed my life and has very much compromised how I do my job’.
Defendant’s submissions
39The defendant submits that the plaintiff does not meet the test when considering what has been lost as against what has been retained. The defendant notes that Mr Cormack can still undertake daily activities of living, including attending to most household tasks, he still plays sport with his children, goes fishing and camping and derives pleasure from these events. The defendant submits that the impact of the injury on his domestic life is minimal.
40The defendant says that Mr Cormack has had a good result from surgery and any risk to his knee in the future is speculative only. He is able to work fulltime in the same industry he worked prior to his injury and has no ongoing medical treatment. His use of medication is confined to over-the-counter analgesia.
41The defendant also raised an issue with Mr Cormack’s credibility. It points to inconsistencies in Mr Cormack’s affidavit material, in which he describes constant pain in the knee and his reports to doctors that his knee is ‘quite good’, ‘pain free’, has only ‘ongoing intermittent pain’ , and that it ‘feels okay’.
42When asked to account for these discrepancies, Mr Cormack rejected an assertion that he had exaggerated his symptoms in his affidavit material, but could not account for the reports to the doctors, other than to say that he gets ‘real anxiety, bad anxiety’ when he sees doctors and does ‘not know what I’m saying sometimes’.
43The defendant relied on video footage and showed to the court about 45 minutes of footage showing Mr Cormack bowling to his son and about 15 minutes of footage showing Mr Cormack walking around a shopping centre. The defendant submits that this footage, extracted from a total of about 72 minutes of footage after some 50 hours of surveillance, showed Mr Cormack moving in an unencumbered fashion, without impediment. The defendant submits that this undermines Mr Cormack’s evidence that he is in pain most or all of the time and calls into doubt the reliability of his evidence in this regard.
44The defendant also notes that Mr Cormack swore in his affidavits that he was no longer able to fish in the same way he had prior to the injury, and that though he corrected this in his oral evidence in chief, this supports its submission that the affidavit evidence is exaggerated and unreliable.
Findings
45A great deal turns on the credibility of the plaintiff in a serious injury application. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[1] “the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility”. This is particularly so in cases where there is no pathological or radiological support for the pain and restriction that a plaintiff claims to suffer. However, that is not this case. In this case, there is clear medical evidence that the plaintiff suffers an injury. The question is the extent of the consequences of that injury.
[1](2010) 31 VR 1 at paragraph [12]
46The pain consequences of an injury can affect a broad range of activities, including the plaintiff’s sleep, recreational activities, social activities, mobility, and enjoyment of life.[2] While pain consequences can be considered individually, the combined impact of those consequences must also be considered.[3]
[2]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [16] per Maxwell P. See also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
[3]Randhawa v Transport Accident Commission [2021] VSCA 135 at paragraph [72]; Sutton v Laminex Group Pty Ltd (supra) at paragraphs [112]-[114]
47Mr Cormack made appropriate concessions and I found him to be a straightforward witness. I did not consider that he exaggerated or embellished his symptoms in Court. To the extent that his description of his symptoms in his affidavit material differed from his evidence in Court, and the instructions he gave to doctors, I accept that his evidence in Court was truthful and his affidavit material may have exaggerated the severity or frequency of his pain to some degree. In particular I find that his pain is intermittent in that it comes and goes, but accept that he is always aware of his knee and its limitations.
48It is true that Mr Cormack has retained a number of activities which he enjoyed prior to his injury, and he can continue to engage in domestic life with his family and undertake household tasks.
49The video footage I viewed supported Mr Cormack’s evidence that, at least when it comes to playing sport with his sons, he does not engage at a level consistent with the ‘elite fitness’ which he had prior to the injury. The video surveillance footage dated 19 December 2018 showed him clearly limping at times, avoiding bending from the knee, and taking a run up that he described as looking ‘like I was 80 years old’. In my view he was careful in his movements, avoided movements that would be likely to hurt his knee and ran at what could best be described as a very slow job, slightly above walking pace.
50The video surveillance footage dated 23 October 2021of Mr Cormack moving through the shopping centre similarly did not damage his credibility. On this occasion he was walking without difficulty, but the footage did not show him doing any of the activities which he describes as exacerbating his pain, for example squatting, lunging or twisting.
51I am satisfied that Mr Cormack does experience pain and discomfort from his knee, and that this varies in degree and can be intermittent. On his own evidence in cross examination, this is not unrelenting pain, but rather it comes and goes.
52On its own, the degree of pain he experiences might be insufficient to meet the threshold. However, of great significance is the fact that Mr Cormack has been left with a markedly unstable knee. This has already caused him to change his employment twice and his current employment is suitable only because he is able to delegate the work that would be unsuitable with an unstable knee. Whilst the requirement for future intervention in the form of a knee replacement is speculative at this stage, what is certain is that his knee will not improve. Were he to lose his current employment, his limitations would undoubtedly impact on the sort of jobs that would be available to him. Given his history and experience, he is likely confined to obtaining employment within the scaffolding and rigging sector.
53I am satisfied that his injury has reduced his ability to engage in his pre-injury activities, including motorcycle riding, surfing and fitness training and that these are of great significance to him, given his pre-injury level of fitness and activity.
54Considering his pain, reduction in activities he formerly undertook, ongoing knee instability and the consequent employment limitations that presents, I am satisfied that the consequences of his injury are more than significant or marked and are at least very considerable.
55Accordingly, the plaintiff will be granted leave to commence a common law proceeding for pain and suffering damages.
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