Dawson v Victorian WorkCover Authority
[2021] VCC 867
•30 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05316
| LEIGH JAMES DAWSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2021 | |
DATE OF JUDGMENT: | 30 June 2021 | |
CASE MAY BE CITED AS: | Dawson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 867 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right knee – subsequent surgery – little treatment thereafter – some restriction in a range of recreational activities – plaintiff resumed full-time work – prospect of further surgery – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to bring proceedings for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C A Sidebottom | Slater and Gordon |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
Preliminary
1Mr Leigh Dawson is a young man of thirty-two years who, since leaving school, has worked mostly in the building and construction industry. He has had some mental health issues and has had periods of substance abuse.
2In October 2012, he started work as a labourer with a construction company, Winslow Constructions Pty Ltd (“Winslow”). Shortly after starting work, on 2 November 2012, he slipped on a wet and muddy floor of the Winslow’s site office and wrenched his right knee. After some initial treatment and medication, an MRI scan was taken and reported a large tear of the medial meniscus, a strain of the medial lateral ligament and a rupture of the anterior cruciate ligament.
3On 8 February 2013, Associate Professor Martin Richardson, orthopaedic surgeon, undertook surgery to re-sect the tear and perform an anterior cruciate ligament reconstruction. On review in April 2013, the graft was stable and Mr Dawson was said to have made a good recovery. He had a period of physiotherapy and was advised to continue a home exercise program.
4Mr Dawson returned to work prior to the surgery, with some restrictions. After surgery, around April 2013, he was certified as fit for normal work duties without restriction and started back with Winslow. Despite this, Mr Dawson said he has suffered ongoing pain and discomfort in the knee on most days, and in varying degrees.
5Mr Dawson remained in full-time employment, albeit with breaks from time to time, to the present. He obtained a job as leading hand with Grocon Construction earlier this year. He works full time on a large building site.
6Prior to his injury, he played football each season, was a keen snowboarder and recreational bushwalker. All these activities, he says, have been lost or curtailed. There is little restriction in his other domestic, recreational and social activities.
7More recent medical opinions suggest there is the prospect of development of arthritic changes to the knee which may require further treatment, including surgery. It is said he may require a total knee replacement in the future. He suffers from restrictions in the more physical aspects of his building work as a result of his knee problems.
The Application
8This is a serious injury application. Leave is sought to bring proceedings for pain and suffering only. There is no claim for loss of earning capacity, as Mr Dawson has resumed full-time employment. The body function said to be lost or impaired is the right knee.
9Mr Churilov, counsel for the defendant, identified the sole issue in the application as one of “range”. That is, whether the consequences to Mr Dawson of the right knee injury may, when judged by comparison with other cases, in a range of possible impairments of right knee function, may be fairly described as being “more than significant or marked, and as being at least very considerable”.
Evidence on behalf of the Plaintiff
10Following the injury on 2 November 2012, Mr Dawson said he suffered the immediate onset of severe pain in his right knee. He went to see his general practitioner and eventually to the Austin Hospital, where an MRI scan revealed:
“1. Large bucket-handle tear of the medial meniscus, with a large flipped fragment within the intercondylar notch, extending anterior to the anterior horn of the medial meniscus.
2. Complete tear of the anterior cruciate ligament.
3. Large knee joint effusion.
4. Grade 1/2 sprain of the medial collateral ligament.”[1]
[1]Plaintiff’s Court Book (“PCB”) 83
11He was prescribed pain-relieving medication and a splint was fitted to the knee. On 28 January 2013, he returned to work on restricted duties, although said he was still struggling with knee pain.[2]
[2] PCB 17 – part of exhibit A
12He came under the care of Associate Professor Richardson, who recommended surgery to the right knee. The WorkCover insurer approved and paid for that surgery.
13On 8 February 2013, Associate Professor Richardson performed a resection of the medial meniscus tear and a reconstruction of the ACL with bone graft. Mr Dawson said his recovery from surgery was slow and protracted and involved physiotherapy over a considerable period.
14On 6 April 2013, after surgery, he returned to light duties, and after a few months, was able to return to full duties. He said he found various of the heavier activities at work, including lifting, crouching, squatting and kneeling, to be uncomfortable. It was difficult to walk on uneven ground at constructions sites.[3]
[3] PCB 18 – part of exhibit A
15Physiotherapy treatment continued until early 2014 and was then terminated by the WorkCover insurer. There is a dispute as to whether that termination occurred because there was no further treatment the physiotherapist could offer. I do not find it necessary to decide the issue. Mr Dawson was given home and gym exercises by the physiotherapist, which he has continued to carry out through to the present time.
16Over the following years and through to the present time, Mr Dawson has had no treatment for his right knee. This is despite regularly attending his general practitioner for a range of other unrelated illnesses and issues on a regular basis. In cross-examination, he said he did not see the need to tell his general practitioner about his ongoing right knee problems.
17Over the years, Mr Dawson said that the pain in his knee has fluctuated. He said he had good and bad days. On the bad days he just tried to push on.
18Prior to the injury, he was a keen snowboarder. He and his family went to a lodge at Mount Hotham each winter. While he returned to the slopes on a number of occasions since surgery, he was never able to snowboard as freely as before. When he tried, he suffered pain in the knee afterwards. Eventually, he gave it up.
19He was also a keen footballer. He attempted to return to the sport and played a handful of games for North Heidelberg Football Club and Laurimar Football Club in 2016 and 2017. He said he could not enjoy the game as before, was restricted in how he was able to play, was constantly fearful of reaggravating his knee and doing further damage, and suffered pain and swelling afterwards. He gave up football as well.
20He remained working for Winslow until February 2019 on a full-time basis. As a result of unrelated mental health issues, he took time off and travelled around Australia with his girlfriend. Over five or six weeks of that trip, he regularly drove long distances, and for part of the journey climbed a ladder onto the top of the vehicle to gain access to sleeping accommodation.
21Prior to the injury, he enjoyed bushwalking and hiking. He attempted to return to it on a number of occasions, the last time around 2017. In October 2015, with a friend, he went to Mount Buffalo and stayed overnight on a rock ledge. The pair hiked to the top of a mountain which, according to Mr Dawson’s Facebook account, his friend who accompanied him on the hike described as “a killa (sic)”.[4] Mr Dawson gave evidence that it was a difficult hike and afterwards he was in extreme discomfort, with pain in his right knee. He was able to abseil down from the ledge a distance of 20 or so metres and walk out of the gorge to where his car was parked.[5]
[4] Defendant’s Court Book (“DCB”) 60 – part of exhibit 1
[5]See photographs at DCB 57-62, 66 – part of exhibit 1
22He returned to work in the construction industry in 2020 and became a foreman at a company, Eifers Civil Pty Ltd, in 2020.
23In January 2021, Mr Dawson started work with Grocon as a leading hand. He has worked on a large construction site in East Bentleigh. He said his role is largely supervisory, including ordering of materials and liaising with clients, but he is required to walk around the large site each day. He said prolonged standing and walking on uneven ground at work aggravates his knee pain. He said he finds it difficult to climb onto heavy machinery, undertake heavy lifting and crouching. His knee is stiff and sore at the end of a day’s work. Nonetheless, he works on a full-time basis and averages five or six hours’ overtime per week. In the first week of June, he undertook twenty-three hours of overtime.[6]
[6] Transcript 43, Lines 28-30
24In his most recent affidavit, Mr Dawson said that when he suffers knee pain, it is a dull throbbing ache. The knee tends to become stiff and swollen after prolonged walking or standing. If he is inactive, the knee pain is mild. However, activities such as walking up stairs and on inclines, or over uneven ground, causes a flare up of pain. Anything which places a significant load on the knee causes a worsening of his symptoms. Occasionally, he suffers a sharp stabbing pain.
25He does not take any prescription medication, but takes over-the-counter analgesia, such as Panadol or Nurofen, as needed. He has no other physical therapy.
26Some of his domestic chores are affected, especially in the garden. He has difficulty mowing the lawn.
27He is concerned about the prospect of further surgery to his knee, as has been suggested by a number of doctors.
28Over the course of his cross-examination, Mr Dawson responded appropriately to questions. I did not detect any exaggeration, nor untruthfulness in the course of his evidence. He appeared to me to be making a reasonable attempt to answer questions in a straightforward and frank manner. Apart from some minor issues, there were no major credit issues put to him.
29I accept him as a credible witness, giving a fair account of the injury he suffered and the consequences. I find I am able to rely in large part on his complaints of pain and ongoing restriction in the knee, and the restriction in the various activities which he refers to.
30Mr Dawson’s complaints of pain and restriction are supported by an affidavit of his mother, with whom he has lived more recently.
Medical evidence
31Associate Professor Richardson noted, upon review after surgery on 29 April 2013, that the cruciate ligament graft was stable, although there was some quadriceps wasting. He assumed Mr Dawson had made a good recovery. Mr Jono Stanley-Clarke, Mr Dawson’s treating physiotherapist, noted on 17 February 2014, that Mr Dawson had full function of the knee, with no pain.[7]
[7] PCB 48 – part of exhibit A
32In a report of 10 May 2012, Mr Thomas Kossmann, orthopaedic surgeon, said the prognosis for Mr Dawson’s right knee was guarded. He considered there would “most likely” be the development of osteoarthritic changes in the right knee, which may require further treatment.[8] He thought Mr Dawson may benefit from Platelet-Rich Plasma injections. He said:
“… however, he is at risk of potentially developing degenerative changes in his right knee, for which he may require further treatment. He may become a candidate for a total knee replacement at some stage in his life, however I cannot anticipate a timeframe for if and when this may occur.”[9]
[8] PCB 60 – part of exhibit A
[9]PCB 60 – part of exhibit A
33Mr Kossmann reported Mr Dawson appeared to be coping with work as a leading hand on a construction site. Depending on the progress of his right knee, he may be incapacitated in relation to those work tasks.
34Mr Dawson was examined by Dr Graeme Doig, orthopaedic surgeon, in March 2021 on behalf of the defendant. Upon clinical examination of the right knee, Mr Doig noted he was unable to fully extend the knee joint. He noted Grade 2 anterior cruciate ligament laxity. Mr Doig said:
“The worker is not capable of undertaking physically demanding work. He will have a 15 kg to 20 kg lifting, pushing, pulling restriction with limited bending, twisting and squatting through the right leg. He should try and avoid working at heights and on uneven ground as well as repetitive stair and hill climbing and kneeling.
…
The prognosis with respect of returning to pre-injury activity levels and employment must be guarded. He would require revision knee-reconstruction surgery in view of the loss of extension and on-going, antero-posterior instability noted at the time of my assessment. Otherwise, his knee will not improve in the future.”[10]
[10]PCB 79-80 – Part of exhibit A
35Mr Siva Chandrasekaran, orthopaedic surgeon, examined Mr Dawson in December 2019 on behalf of the defendant. He described Mr Dawson as having achieved a fair result from his surgery and noted he had been able to return to full-time work. He said there was ongoing instability and pain issues and that Mr Dawson had difficulty with activities such as bending, standing, kneeling and squatting. He thought that would persist into the foreseeable future.
Analysis
36Mr Churilov, counsel for the defendant, submitted that while Mr Dawson had suffered a significant injury which involved reconstructive surgery, nonetheless, Mr Dawson had made a good recovery to the point where he was able to return to work on construction sites. Of particular significance, said Mr Churilov, was that despite regularly attending his general practitioner over seven or more years since his surgery, there had not been one complaint of any problems with his right knee. It is reasonable to infer that any pain, discomfort or restriction to the knee could only be very modest.
37Mr Churilov said there was very little, if any, restriction in Mr Dawson’s domestic, recreational and social activities. While some activities such as football, snowboarding and hiking may have been affected, Mr Dawson had nonetheless returned to some of those activities, at least for a period.
38There was no evidence that the pain Mr Dawson was suffering was at the higher end of the range. It was not severe unrelenting pain. At best, it was an irregular ache, which required only occasional over-the-counter pain medication.
39He noted Mr Dawson was able to drive, including long distances. His work on a construction site was not a sedentary job and required him to walk each day and over uneven ground.
40Mr Churilov, while accepting there was some reference in the medical evidence to the prospect of further surgical intervention, said it was no more than a possibility, and even if undertaken, there was the real prospect that such surgery could improve Mr Dawson’s right knee condition. It was important to bear in mind, as referred to in the authorities, that in considering whether the consequences of an injury met the “very considerable” test, it was not only what had been lost which should be considered, but also what had been retained.
41He submitted that in these circumstances, the consequences of Mr Dawson’s right knee injury did not meet the statutory test.
42I accept that Mr Dawson suffered a significant injury to his right knee in the course of his employment on 2 November 2012. He was required to undertake major surgery and I accept that the result was technically successful, with a secure graft. He required a considerable period of rehabilitation and physiotherapy but returned to full-time employment duties in the construction industry, with no ongoing treatment and only modest medication for pain.
43However, there are a number of aspects of the right knee injury and its sequelae which persuade me that the consequences to Mr Dawson achieve the “very considerable” level the Act requires.
44I accept his evidence of ongoing regular aching pain in the knee, with sharp pain on occasions, and with resultant swelling and restriction. The fact that he has not mentioned it to his doctor and not sought further treatment is a measure of his stoicism and that there is little the doctors are presently able to offer, rather than an absence or paucity of symptoms.
45Mr Dawson is a young man, now only thirty-two years of age, who has worked all his life, more or less, in the construction and building industry, much of it as a labourer. I accept his evidence that he had a number of recreational and sporting activities which he enjoyed and are now lost to him. I accept that despite returning to football, he was unable to play as before and was left with a sore and swollen knee when he attempted a return. I accept that having been a regular snowboarder, that activity and the enjoyment it provided are lost to him. While he has resumed some hiking and bushwalking, he is not able to participate as before his injury.
46These are all significant consequences to a young man. There is no evidence to suggest he will be able to return to them.
47While he has been able to return to full-time work, including working overtime, I accept his evidence that the more demanding and physical aspects of his work cause pain, restriction and swelling to the knee. I do assess him as a stoic person prepared to put up with a good deal of discomfort and inconvenience in the knee in order to maintain his job with Grocon. The reports of Mr Kossmann and Dr Doig point to very significant restrictions in the work-related activities he is able to undertake. While at the present his work is more supervisory than “on the tools”, a return to pure labouring work would be difficult.
48Perhaps of most significance are the opinions of Mr Kossmann and Dr Doig that the prognosis for his knee injury is guarded. He is at risk of the development of osteoarthritic changes in the knee, of further treatment in the nature of platelet injections, and revision surgery because of instability in the knee. While no doctor is suggesting this is certain to occur, the fact that it is a prospect, along with deterioration of the knee, is a significant consequence in itself.
49Mr Dawson has employment in the building and construction industry. Were the knee to deteriorate and require further treatment, then he faces the risk of significant restriction in his work capacity.
50Balancing, on the one hand, those things which have been retained, and the restriction to and loss of the activities to which I have referred on the other, I am of the view the consequences meet “the very considerable” test.
51I shall grant leave to bring common law proceedings and make consequent orders.
- - -
0
0
0