El Sayed v Victorian WorkCover Authority
[2024] VCC 218
•29 February 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00739
| OMAR EL SAYED | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 February 2024 | |
DATE OF JUDGMENT: | 29 February 2024 (ex tempore) | |
CASE MAY BE CITED AS: | El Sayed v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 218 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left ankle injury – pain and suffering – credit – disentanglement – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Johns v Oaktech Pty Ltd [2020] VSCA 10; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering in respect to a left ankle injury suffered in the course of his employment on 22 August 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer S.C. with Mr C O’Sullivan | Arnold Thomas & Becker |
| For the Defendant | Ms C Willshire | TG Legal + Technology |
HIS HONOUR:
1I now deliver my judgment in this matter.
The history of this application
2The plaintiff, Mr Omar El Sayed, is thirty-six years of age. Mr El Sayed said that he commenced work with One Stop Roofing Pty Ltd (“One Stop”) in early 2018.
3Initially, Mr El Sayed started on what he described as a “trial”. He was then employed on a permanent basis on or about 16 July 2018. Mr El Sayed was employed as a truck driver.
4Mr El Sayed had, over the years, prior to obtaining work with One Stop, suffered numerous injuries. These include:
(a) A left shoulder injury and depression as a consequence of a motor vehicle accident in 2009.
(b) A left knee injury in 2011. That was a significant injury which led to an ACL reconstruction in December 2014.
(c) A further injury to his left knee at work in April 2016, which led to surgery in May 2016. Indeed, that surgery was not the end of his problems. He underwent further surgery on his left knee in October 2016 and March 2017.
5At the time Mr El Sayed commenced work with One Stop, he was still having problems with his left knee. These problems are outlined in the affidavit which he swore on 6 August 2018[1]. That affidavit was prepared in the context of common law proceedings which he pursued in respect to the April 2016 work injury.
[1] Defendant’s Amended Court Book (“DACB”) 4.
6On 22 August 2018, in the course of his employment with One Stop, Mr El Sayed said he was required to make a delivery of building products to a construction site in Maribyrnong. The builder was Allandar Homes Pty Ltd.
7Mr El Sayed said that, in the course of carrying the 3-to-4-metre-long flashing with a co-worker, he stepped into a hole. He said the hole was about half-a-metre deep. Mr El Sayed thought that the hole was for a post, or had been used for a post. In any event, Mr El Sayed said his left ankle went sideways and his weight inverted on his left knee. While he did not fall, he said there was a lot of stress placed on his left ankle and foot (“the incident”).
8The mechanics of the incident became an issue in the course of the application. Mr El Sayed said that it involved extensive forces. The defendant, the Victorian WorkCover Authority (“VWA”), who is One Stop’s worker’s compensation insurer, said it was only minor. The VWA relied upon Dr Terence Saxby, orthopaedic surgeon, in this regard.
9Mr El Sayed said that he suffered immediate pain in both his left ankle and his left knee at the time of the incident. He said that his left ankle swelled. Mr El Sayed said that he went back to his employer’s factory and reported the incident. This was not challenged in the course of the application.
10Mr El Sayed said that he attended his longtime general practitioner, Dr Anthony Diamantaras, that day. Dr Diamantaras’s clinical records are in evidence. The consultation notes, dated 22 August 2018, said:
“History:
Patient (sic) has ongoing left knee pain
Was at work today doing a delivery
Delivery in Maribyrnong
Did not notice ditch in grass.
Was walking and left ankle inverted and left knee buckled laterally
Worsening pain since
Rates left knee pain 7/10
Left ankle pain 8/10
Notes left ankle throbbing and weak.”[2]
[2]DACB 253
11Dr Diamantaras went on to note his findings on examination.
12Mr El Sayed said that he was certified at work by Dr Diamantaras. A WorkCover claim was lodged by Mr El Sayed with One Stop.
13Particular 2 of the Worker’s Injury Claim Form variously records:
“INCIDENT & WORKER’S INJURY DETAILS
What is your injury/condition, and which parts of your body are affected?
Left ankle and aggravated knee.
What happened and how were you injured?
Stepped in ditch concealed by long grass whilst delivering goods. Left ankle rolled and knee inverted”[3]
[3]DACB 115
14The VWA accepted liability for the WorkCover claim.
15Mr El Sayed:
(a) received weekly payments of compensation for a period of time;
(b) continues to have an accepted claim for medical and like expenses in respect to his left ankle.
16I note for completeness that Mr El Sayed has returned to work. Since the incident, he has held various jobs. He is currently working full time as a truck driver for Monzas Waste.[4]
[4] Plaintiff’s Amended Court Book (“PACB”) 20
17Of the injuries which Mr El Sayed said he suffered on the day of the incident, he says:
(a) That the left knee aggravation has settled. While for a period of time he had increased problems, he said those left knee problems are now about the level of pain and functioning impairment as they were when he started with One Stop.
(b) That his left ankle problems have continued from the day of the incident and, indeed, over time, they have gotten worse.
18Mr El Sayed says that he continues to suffer pain and pain-related restriction due to his left ankle injury. He says this impacts him in many ways. Mr El Sayed said that his left ankle injury is a serious injury for pain and suffering purposes and the Court should grant him leave to pursue a common law claim.
19I will at this stage, note for completeness, that when I refer to Mr El Sayed’s left ankle injury, it includes the left ankle, the structures of the left foot, and the left calf.
What is the nature of Mr El Sayed’s application?
20This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013. Mr El Sayed relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his left ankle injury is a “permanent serious impairment or loss of a body function”.
21The relevant definition of “injury” is found in s3 of the Act. “Injury” includes:
“… a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;”
22For Mr El Sayed to be successful, he must establish that the consequences from his left ankle injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are “more than significant or marked” and “at least very considerable”, as per the narrative tests set out in s325(2)(b) and s325(2)(c) of the Act.
What are the issues for the Court’s determination?
23The VWA admitted that Mr El Sayed had suffered a compensable left ankle injury. However, that effectively represents all that was agreed to. The VWA said:
(a) That the injury which Mr El Sayed suffered to his left ankle was of a limited nature. It was only temporary. The effect of any injury has ceased.
(b) That any problems which Mr El Sayed has with his left ankle is due to either the underlying condition of flatfeet and/or the natural progression of degenerative change in the structures of his ankle/foot.
(c) In the alternative, if Mr El Sayed does suffer the ongoing effects of left ankle injury, then:
(i)Mr El Sayed has not disentangled, pursuant to his obligations set out in Peak Engineering & Anor v McKenzie.[5] In particular, it is his left knee which is the real cause of the various consequences which he relies upon in this application.
(ii)Mr El Sayed’s evidence was unreliable and that the Court ought not accept his assertions in respect to the consequences of his left ankle injury.
(iii)Under a proper analysis, the consequences are not serious: i.e., the test for serious injury is a high one, and, given what Mr El Sayed has retained, he does not meet the threshold.
[5][2014] VSCA 67
24That said, the issues for the Court’s determination include:
(a) As to Mr El Sayed’s credit and reliability and whether I can accept his evidence.
(b) The obligation of the Court to disentangle.
(c) The nature, extent, and consequences of Mr El Sayed’s left knee injury.
(d) What findings the Court makes in respect to the mechanics of the incident and what occurred on 22 August 2018.
(e) Which of the medical opinions should be accepted and what assistance that evidence provides to me.
(f) What was the nature and extent of the injuries sustained by Mr El Sayed to his left ankle on the day of the incident, and in particular:
(i)Is it a permanent injury? To put it in another way, does Mr El Sayed, at the time of this application, suffer any ongoing injury and consequences and will he do so into the foreseeable future?
(ii)Should the Court, for the purposes of this application, accept Mr El Sayed’s injuries as having stabilised?
(g) Assuming that the previous questions are answered in the affirmative to Mr El Sayed, are the consequences of the left ankle injury, for pain and suffering purposes, very considerable?
Do I accept the VWA attack on Mr El Sayed’s credit and reliability?
25Dealing now with the question of credit.
26As in a great number of applications of this kind, the credit and reliability of Mr El Sayed’s evidence is critically important.[6]
[6]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
27There are complex issues for determination in this application, and Mr El Sayed’s evidence is central to such issues.
28I do not accept the criticism made by the VWA of Mr El Sayed. I do not accept that his credit and reliability were impugned.
29I accept:
(a) That Mr El Sayed gave his oral evidence in a forthright and frank manner.
(b) That Mr El Sayed made appropriate concessions. He was not evasive. Mr El Sayed made admissions against interest.
30I do not accept that Mr El Sayed tried to rewrite history.
31I found Mr El Sayed’s evidence to be credible and of assistance to me in grappling with the complexities of this case.
32I accept that Mr El Sayed is a stoic man. I am not alone in that observation. Mr El Sayed’s general practitioner makes the same observation.
33It is through this lens that I have undertaken my analysis and reached my determinations.
What is my obligation to disentangle Mr El Sayed’s pre-existing left knee problems?
34Going to the question of disentanglement.
35Mr El Sayed has suffered various injuries, both before and after the incident on 22 August 2018. These include:
(a) a series of incidents resulting in an injury and the need for surgery on his left knee;
(b) the left shoulder injury and depression back in 2009;
(c) a neck and shoulder injury at work on 7 August 2023.
36In reality, it is the left knee injury which is of relevance.
37As I have previously noted, Mr El Sayed swore an affidavit on 6 August 2018, which sets out in great detail the impact of his left knee injury. While Mr El Sayed’s current application initially included an allegation of an aggravation to his left knee, that was not pursued in the course of this hearing. Ms Spencer, at the time of opening, made that clear on Mr El Sayed’s behalf.
38That concession was not surprising, given Mr El Sayed’s histories to various doctors in the period leading up to and, indeed, a number of years prior to this hearing, that his left knee had settled. It was his oral evidence (and these are my words) that his left knee is now more or less back to how it was prior to the 22 August 2018 incident and at the time of commencing work with One Stop.
39That being so, as the VWA quite rightly said the consequences flowing from the left knee injury must not form part of my assessment in this application.
40That the consequences of the other conditions must be disentangled from my analysis of the subject injury is clear.[7] Likewise, the process to be followed in disentanglement is well established.[8]
[7]Peak Engineering and Anor v McKenzie (supra)
[8]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; see the analysis in paragraphs [25]-[35].
What conclusions do I draw in respect to Mr El Sayed’s pre-existing left knee problems?
41Mr El Sayed has a very nasty left knee injury. That is evidenced by:
(a) the granting of the serious injury certificate by the VWA for the April 2016 injury;
(b) his affidavit, sworn 6 August 2018;
(c) the treating doctor’s medical evidence;
(d) the medico-legal evidence from the previous WorkCover claim;
(e) the medico-legal evidence obtained for the purposes of this application;
(f) Mr El Sayed’s own oral evidence.
42I do not propose to go through the medical evidence chapter and verse. It is clear that Mr El Sayed has ongoing:
(a) left knee pain;
(b) left knee dysfunction which impacts upon him.
43Indeed, a range of activities are affected.
44Again, I will not go through these activities chapter and verse, but they include:
(a) ongoing pain;
(b) limitation in walking;
(c) not being able to run;
(d) not being able to return to soccer;
(e) vocational restrictions;
(f) impact upon his ability to pray.
This list is not exhaustive.
45Mr El Sayed’s life is clearly impacted by his left knee. I must exercise care not to infect the current application with consequences flowing from his left knee injury.
What do I make of the mechanics of the incident?
46Moving now to the circumstances of the incident.
47The impact on Mr El Sayed’s left ankle in the incident became an issue in the course of the application. Mr El Sayed said it was significant; such as to cause an injury of a permanent nature. The VWA, relying upon Dr Saxby in particular, said it was minor and it only led to a temporary injury.
48I refer to Mr El Sayed’s affidavit evidence, and ,in particular, paragraph 24 of his affidavit of 31 October 2022.[9] Mr El Sayed outlined the circumstances of the incident. He said:
“… I took something like 15 to 20 steps and we were almost at the spot where we were going to put down the flashings when my left leg went into a ditch which was hidden by the grass approximately half a metre deep. It was not just a bump in the ground, it was a real hole. Either someone had previously dug a hole in order to put in a post or had removed a post. Either way, it was deep and obscured by the grass. My ankle went sideways and rolled with my weight and my left knee inverted although I did not fall, as the ditch itself stopped me from falling. I experienced instant pain in my left ankle and dropped the flashings.”[10]
[9]PACB 12
[10](Ibid), paragraph [24]
49That evidence was repeated in the course of Mr El Sayed giving his oral evidence.
50Mr El Sayed said he managed to drive back to his employer’s factory. Mr El Sayed said, in respect to the state of his left ankle injury when he returned to the factory:
“At the time I was experiencing a throbbing and heat type sensation in my left ankle in addition to a worsening of the pain in my left knee. When we got back to the factory, I reported the injury to the boss, William Rhodes. I told him that I was experiencing swelling in my left boot in addition to swelling in my left knee as well. … .”[11]
[11](Ibid), paragraph [26]
51That evidence was not challenged. No evidence was called from Mr William Rhodes that this was not correct. There was ample opportunity to do so. Given my findings as to credit, and given there is no evidence to the contrary, I accept Mr El Sayed’s version of events, and, in particular, I accept that within a short time of the incident there was:
(a) swelling of his left ankle within the confines of his left boot;
(b) a throbbing and heat sensation in the left ankle.
52As I have already outlined, Mr El Sayed then attended Dr Diamantaras. I have already quoted from his consultation notes.
53I accept that, on the day of the incident, there was significant pathology and that flowed directly from the incident.
54While I will review the medical evidence, in particular Dr Diamantaras’s evidence, in greater detail later in this judgment, it is appropriate to note, at this stage:
(a) that Mr El Sayed has regularly attended Dr Diamantaras since;
(b) the complaints of left ankle pain and dysfunction have been ongoing since the day of the incident. Indeed, they have been regular and consistent.
55For completeness, and I will deal with this in greater deal later in the judgment, I note that all the orthopaedic surgeons who have provided opinions either in a medico-legal or treating capacity, other than Dr Saxby, do not consider the incident so minor that it could not cause ongoing left ankle pathology.
56I do not accept that this was a minor incident and was unlikely to cause lasting problems to Mr El Sayed’s left ankle.
57I now move to the medical evidence.
Which of the medical opinions do I accept, and what assistance does that evidence provide me in my analysis?
Dr Diamantaras
58I start with Dr Diamantaras. There are six reports in evidence as well as his clinical notes. I make three preliminary comments in respect to Dr Diamantaras’s evidence:
(a) The quality of his medical notes. Unlike many of the medical records that are seen in this court in these type of applications, Dr Diamantaras’s clinical notes are very detailed.
(b) The quality of his reports. Again, they are detailed. They provide a great deal of insight in respect to his assessment, management, and treatment of Mr El Sayed.
(c) In his final report of 29 July 2023, he said he last reviewed Mr El Sayed on 24 July 2023. That was in accordance with Mr El Sayed’s evidence when he was cross-examined about his last attendance with Dr Diamantaras.
59The VWA said, in the course of the application, that there was no update from Dr Diamantaras. I do not give that any credence. I accept that the report most likely includes the final attendance, which is 24 July 2023.
60Dr Diamantaras, throughout, was consistent in recording Mr El Sayed’s complaints. There was ongoing complaint of left ankle pain and dysfunction. I will focus, in my analysis, on the left ankle injury rather than the progressive management and observations in respect to the left knee.
61In his final report, Dr Diamantaras said, in his opinion:
(a) Mr El Sayed was suffering fairly severe and debilitating left ankle pain. He said that pain varied between 5/10 to 9/10.
(b) The condition had stabilised.
(c) Mr El Sayed may require surgery in the future, but he was very reluctant to consider that surgery, given the poor outcome from the various operations he had on his left knee.
(d) The prognosis was poor.
(e) Mr El Sayed was a person of stoic disposition.
62Put simply, Dr Diamantaras’s evidence was supportive of Mr El Sayed.
The early VWA medico-legal reports
63I move now to a series of the early medico-legal opinions relied upon by the VWA. There are no updates from these various assessors which have been obtained for the purposes of this application. However, the histories and the opinions are relevant in respect to the issue of injury.
Dr Graham Long, consultant occupational physician
64Dr Long assessed Mr El Sayed on 26 October 2018. The purpose of this assessment was to assist the VWA to make a decision about Mr El Sayed’s WorkCover application.[12] The assessment was some two months post the incident.
[12]DACB 135
65On clinical examination, Dr Long found tenderness of Mr El Sayed’s left ankle. He also found that the left ankle movements were restricted, while the right ankle movements were normal. Dr Long said that Mr El Sayed had suffered a strain injury to his left ankle.[13]
[13]DACB 139 and 140
Dr Andrew Miller, occupational health consultant
66Mr El Sayed was examined by Dr Miller on 29 November 2018. Dr Miller concluded that the incident was a significant contributing factor to the incapacitating injury to Mr El Sayed’s left knee and left ankle. Dr Miller said there was a soft-tissue strain to the left ankle.[14]
[14]DACB 145
Mr Timothy Gale, orthopaedic surgeon
67Mr Gale assessed Mr El Sayed for the VWA on 15 October 2018. This assessment is some fourteen months post the incident. I note that Mr El Sayed told Mr Gale that he did not feel there had been any major change to his left knee problem as a result of the incident.[15] He said there had been a temporary aggravation. I pause to note that this accords with the evidence of Mr El Sayed given to this court yesterday.
[15]DACB 151
68At the time of this assessment the left ankle injury was in focus. Mr Gale provided a description of the ongoing symptoms. Mr Gale said:
“At the present time [Mr El Sayed] has ongoing symptoms in the left ankle and foot region with discomfort on prolonged walking particularly going up and down stairs, and when climbing a ladder, occasionally he has a tingling sensation involving the big toe and adjacent toe, and he is aware of restricted range of movement of the ankle joint. This causes him to intermittently limp. … .”[16]
[16]DACB 152
69Mr Gale obtained a history of Mr El Sayed using painkilling medications, and said that Mr El Sayed was awaiting a referral to an orthopaedic surgeon.
70On clinical examination of Mr El Sayed’s left ankle, Mr Gale found tenderness below the medial malleolus and the lateral malleolus and limited movement.
71Mr Gale, in respect to his diagnosis, said that he thought Mr El Sayed had suffered tendon damage in the left ankle joint, and said that Mr El Sayed had resultant ongoing symptoms.[17]
[17]DACB 153
72Mr Gale said the prognosis was uncertain.[18] Mr Gale said the management of Mr El Sayed’s left ankle had been suboptimal to date. Mr Gale importantly concluded that the clinical presentation was consistent with the effects of the described workplace injury.[19]
[18]DACB 154
[19]Ibid
Associate Professor Harvinder Bedi, orthopaedic surgeon
73It is within this context that Mr El Sayed consulted Associate Professor Bedi for the first time on 3 June 2020.
74I pause here to note that Associate Professor Bedi has specialist qualification. Associate Professor Bedi is said to:
(a) have obtained a Fellowship of foot and ankle surgery from Oxford;
(b) since 2004, practised in the sub-specialty of foot and ankle surgery.
75I have been provided with Associate Professor Bedi’s reporting letter to Dr Diamantaras of 3 June 2020.[20] Associate Professor Bedi:
(a) obtained a history in respect to the mechanics of the incident;
(b) said that Mr El Sayed had been hobbling, and that there had been some initial improvement but little change thereafter;
(c) said, at that time, he considered Mr El Sayed’s presentation to be consistent with anterolateral and sinus tarsi pain.[21]
[20]PACB 85
[21]PACB 85
76Associate Professor Bedi noted that, at times, Mr El Sayed found it difficult to walk by reason of his left ankle injury. Associate Professor Bedi said there were no features of “pain syndrome”.[22] Associate Bedi said his clinical impression at this time was sinus tarsi impingement and synovitis. He recommended a cortisone injection. Associate Professor Bedi said he would write to the VWA for approval for that injection.[23]
[22]Ibid
[23]PACB 86
77At the time of this initial consultation, Associate Professor Bedi did not think Mr El Sayed required surgery.
78The next consultation with Associate Professor Bedi was on 14 October 2020. By that time, Mr El Sayed had seemingly had the injection. It had been of no benefit. Associate Professor Bedi noted that other conservative treatment had not been of any help, and, at that time, Mr El Sayed was struggling to walk more than fifteen minutes (that in the context of his left ankle injury).
79At the time of the 14 October 2020 consultation, Associate Professor Bedi:
(a) recommended a reconstructive left ankle surgical procedure with calf lengthening;
(b) said he would write to the VWA for approval for such surgery.[24]
[24]PACB 89
80I pause to note that Associate Professor Bedi also said that Mr El Sayed had been diligent in his rehabilitation program, but that symptoms were deteriorating.
81The VWA approved the cost of the proposed surgery. However, Mr El Sayed did not wish to proceed.
82I pause here to note and make comment in respect to the decision by Mr El Sayed not to proceed with that surgery. I accept Mr El Sayed’s oral evidence in respect to the reasons why he did not want to undertake the surgery. I accept those reasons to be reasonable.
83In the course of the application, no criticism was made of Mr El Sayed. Nor should there have been. Nor could it have been maintained. Such surgery was clearly not without risk. Associate Professor Bedi said so.
84It was reasonable, I accept, for Mr El Sayed to have reservations, given that he had what he considered to be less than optimal outcomes from his left knee surgical procedures.
85I also note, from the clinical notes in evidence of Dr Diamantaras, that the risks associated with the proposed surgery had caused Mr El Sayed psychological distress.
Mr William Edwards, orthopaedic surgeon
86That then takes me to the opinion of Mr Edwards, who assessed Mr El Sayed for the VWA on 12 January 2021. Mr Edwards, it is said in his report, is a foot and ankle orthopaedic surgeon. Mr Edwards’ report is on letterhead from the Orthopaedic Foot & Ankle Centre of Victoria.
87Mr Edwards was provided with a great deal of background material, including the reports of Associate Professor Bedi and Mr Gale, to which I have already referred.
88Mr Edwards’ report is a detailed report. I found Mr Edwards’ analysis to be very helpful. I do not propose to quote large slabs from that report, but I will make some specific references.
89Mr Edwards took a detailed history of the incident, and in particular noted the pain and swelling that Mr El Sayed suffered on the day of the incident. Mr Edwards made reference to the ongoing treatment and Mr El Sayed’s return to work. Mr Edwards made a very detailed notation of the current symptoms which Mr El Sayed was suffering, and recorded his physical examination findings again in great detail.
90Mr Edwards was asked to answer specific questions posed by the VWA. Mr Edwards, in Question 1, was asked:
“… ‘What injury or medical condition does the worker have?’”[25]
[25]DACB 162
91Mr Edwards said there were clinical signs consistent with tibialis posterior dysfunction and a sinus tarsi impingement. Mr Edwards said these findings were clinically linked. He said this was on a background of pes planus: that is, flatfeet.[26]
[26]Ibid
92In Question 2, Mr Edwards was asked:
“… ‘What is the diagnosis of the compensable injury for the left ankle?’”[27]
[27]Ibid
93Mr Edwards said that Mr El Sayed was suffering a soft-tissue injury causing dysfunction of the tibialis posterior, which caused impingement of the subtalar joint.[28]
[28]Ibid
94I pause here to make specific reference to Mr Edwards’ observation that:
“… I wonder that he may not be developing subtalar degeneration. … .”[29]
[29](Ibid), Question 2
95This observation by Mr Edwards is important in the context of the debate later in this judgment involving Dr Saxby, Associate Professor Bedi and Dr Anna Manolopoulos, orthopaedic surgeon. As Ms Spencer said, it is as if Mr Edwards “almost had an (sic) crystal ball”.[30]
[30]Transcript (T”) 76, Lines (“L”) 4-5
96Now, returning back to the questions which Mr Edwards had been asked by the VWA. In Question 3, Mr Edwards was asked:
“… ‘In your clinical opinion, is [Mr El Sayed’s] current injury and need for treatment still materially contributed to by the claimed injury of 22/08/1918 (sic)?’”[31]
[31]DACB 162
97Presumably the reference ought be to 2018. In answer, Mr Edwards said bluntly “yes”.[32]
[32](Ibid), Question 3
98There was no qualification to Mr Edwards’ opinion that the current presentation was related to the work incident.
99When asked about the timeframe for resolution of this condition, Mr Edwards said:
“… I do not believe this man will improve with current non-operative treatment. … .”[33]
[33]Ibid
100When asked in Question 4 to identify what the appropriate surgery may be, Mr Edwards went on to detail the nature of the proposed reconstructive surgery. Specifically, Mr Edwards, when addressing the proposed surgery, made the following observation which, again in the context of the debate that I will come to later in this judgment involving Dr Saxby, Associate Professor Bedi, and, to a lesser extent, Dr Manolopoulos, becomes important. Mr Edwards said:
“… I wonder that in the long term he may end up requiring a subtalar fusion as this is a more powerful but destructive procedure. I would not proceed to subtalar fusion in this man now without trying a reconstructive procedure unless there were a grossly degenerate or pathological subtalar joint.”[34]
[34]DACB 163, Question 6
101Mr Edwards then went on to say, later in his report, that without the incident of 22 August 2018, Mr El Sayed would most likely not require the suggested surgery. Again, an important observation in the context of my assessment and determination of this matter.
The recent medico-legal reports
102I now move to more recent reports obtained in the context of this application. For the VWA: Dr Saxby and Dr Joseph Slesenger, specialist occupational physician. For Mr El Sayed: Dr Manolopoulos and Associate Professor Bedi.
103These reports were obtained in the context of what seems to me to be the real dispute here: Does Mr El Sayed continue to suffer a work-related injury or not?
104In my assessment, there are complex and specialist orthopaedic issues which are at play.
105Ms Spencer said that I should not accept the opinion of Dr Slesenger. I agree. Ms Spencer took me to Defendant’s Amended Court Book 203 and 217, where Dr Slesenger made concessions in respect to his capacity to provide expert opinion on orthopaedic matters. I do not accept that Dr Slesenger, who is not an orthopaedic surgeon, is best placed to assist the Court in respect to the issues that I have to grapple with.
Dr Terence Saxby
106I go firstly to Dr Saxby. Dr Saxby provided three reports. He had the benefit of the MRI scan taken 27 June 2023. Dr Saxby said the diagnosis in regard to the left ankle and hind foot would be consistent with arthritic degenerative change, mainly in the subtalar and the talonavicular joints and, to a lesser extent, the ankle joint.[35] Dr Saxby also agreed that Mr El Sayed suffered from flatfoot deformity.
[35]DACB 224
107Dr Saxby said it was the degenerative changes which were significant. Dr Saxby said they were due to the degenerative process and constitutional factors, rather than any injury. Dr Saxby said the 22 August 2018 incident no longer contributed to Mr El Sayed’s left ankle condition.[36]
[36]DACB 225
108I also note, for completeness, that Dr Saxby:
(a) was very critical of the opinions expressed by Dr Manolopoulos;
(b) said that he disagreed with Associate Professor Bedi that the incident was a significant contributing factor to the development of degenerative change.
Associate Professor Harvinder Bedi
109I now turn to the further opinion of Associate Professor Bedi. I had a series of updated reports from him. I will go firstly to the report of 30 August 2023.[37] At that time, Associate Bedi had the benefit of the 4 July 2023 MRI scan report. Associate Professor Bedi said that:
(a) prior to the incident, Mr El Sayed had normal function of his left ankle and foot;
(b) following the injury, the pain has persisted and was related to the anterior lateral ankle and sinus tarsi regions;
(c) the MRI scan showed degenerative subtalar and talonavicular joint degeneration;
(d) Mr El Sayed has flatfoot posture and a tendency to degenerative change;
(e) the degenerative change became more symptomatic or developed faster as a result of the subject injury;
(f) the initial reconstructive surgery recommendation ought be replaced by a recommendation for a fusion procedure.[38]
[37]PACB 95
[38]Ibid
110In his subsequent reports of 7 February 2024[39] and 27 February 2024,[40] Associate Professor Bedi maintained that:
(a) the 22 August 2018 incident accelerated the degenerative change in Mr El Sayed’s left ankle;[41]
(b) the 22 August 2018 incident contributed to the need for the proposed fusion procedure;[42]
(c) if there had not been a contribution by the 22 August 2018 incident, Mr El Sayed’s left ankle problems would have occurred at roughly the same rate as his right.[43]
[39]DACB 97
[40]DACB 162
[41]DACB 97 and 163
[42]DACB 98 and 163
[43]DACB 163
The right ankle
111I pause to note that there is no suggestion, and there is no evidence, that Mr El Sayed has any problems with his right ankle. It remains asymptomatic.
Dr Anna Manolopoulos
112I move now to the reports of Dr Manolopoulos. I go straight to her most recent report of 27 February 2024. Dr Manolopoulos was asked to respond to the various opinions of Dr Saxby and Associate Professor Bedi, and, in particular, the criticism of her which had been made by Dr Saxby. I do not wish to drill into the various criticisms that were made by either Dr Saxby or Dr Manolopoulos of each other, which tended to become somewhat personal. I am more interested in getting to the bottom of the real issues in this case.
113In summary, Dr Manolopolous supports the relationship between the incident and Mr El Sayed’s ongoing left ankle problems. She disagrees with Dr Saxby, particularly in respect to the nature of the incident, and she expresses her support in respect to the opinion expressed by Associate Professor Bedi.
What conclusions do I draw from the medical evidence?
114I accept:
(a) Mr El Sayed had no problems with either his left or right ankle (and I include the foot) prior to the incident.
(b) Mr El Sayed has no current problems with his right ankle.
(c) Mr El Sayed has complained of, and has had ongoing problems with, his left ankle since the incident.
(d) The opinion of Dr Diamantaras. Dr Diamantaras has the benefit of continuity and regular assessments of Mr El Sayed, and his observations were generally corroborated by the VWA’s early assessments by Dr Long, Dr Miller and Mr Edwards.
(e) The opinion of Mr Edwards. It is of great assistance to me. It is a very detailed and considered analysis. It sets out why Mr El Sayed is having the pain and dysfunction complained of, and, importantly, Mr Edwards postulates the degenerative process which was ultimately revealed in the July 2023 MRI scan. I consider that Mr Edwards’ opinion puts Mr El Sayed’s condition and the impact of the 22 August 2018 incident into context, and I note what I consider to be his insight in identifying the progression of the work-related injury.
(f) The evidence of Associate Professor Bedi. In particular, I note the definition of injury contained in the Act to which I have already referred, and I accept his opinion that the 22 August 2018 incident is a contributing factor to the degenerative change and the need for the recommended fusion procedure. Particularly, I note that, but for the 22 August 2018 incident, Associate Professor Bedi considers the left ankle would be in the same state as the right ankle, which I have already accepted as being asymptomatic.
115I do not accept the opinion of Dr Saxby.
116There are a number of reasons why I prefer the other medical opinions over Dr Saxby.
117Firstly, his opinion is against the weight of the medical evidence. While medical evidence in such applications cannot, and should not ever, become an accounting exercise where the greater number of supportive opinions wins the day, it is necessary for me to put Dr Saxby’s evidence into the context of:
(a) Mr Edwards’ specialist foot surgeon’s opinion;
(b) Associate Professor Bedi’s specialist foot surgeon’s opinion;
(c) the opinion of Dr Manolopolous, an orthopaedic surgeon;
(d) the opinion of Mr Gale, an orthopaedic surgeon who assessed Mr El Sayed on behalf of the VWA;
(e) the general practitioner evidence. While Dr Diamantaras is not an orthopaedic surgeon, he has had the benefit of assessing Mr El Sayed over many years.
118Secondly, Dr Saxby, as Ms Spencer pointed out, did not address the accepted fact that Mr El Sayed’s right ankle remains asymptomatic. There was no explanation as to the difference to the left ankle.
119Thirdly, Dr Saxby’s opinion was predicated on the incident of 22 August 2018 being a low-impact and low-force incident. I do not accept that to be the case. It was of sufficient force that Mr El Sayed suffered immediate pain and within a very short time there was swelling to his left ankle. Indeed, I accept that he has had ongoing pain and dysfunction ever since.
120Finally, in respect to Dr Saxby’s assertion that the injury has “resolved”. I do not accept that there is an adequate pathway of reasoning to that conclusion. There is no statement of when, why, or in what circumstances, the condition resolved.
121To conclude, I accept that the incident of 22 August 2018 continues to contribute in a material way to Mr El Sayed’s general left ankle pain and dysfunction. I accept that he suffers an ongoing injury within the definition of s3 of the Act that has not resolved but, rather, has progressively gotten worse.
Stabilisation and permanency
122I now move to the issues of stabilisation and permanency. For completeness, I make the following findings (if indeed they are not already clear).
123I accept that:
(a) In the absence of Mr El Sayed undergoing surgery to his left ankle, that condition will continue into the foreseeable future, at least at the current state. Indeed, it may deteriorate.
(b) Mr El Sayed will not undergo surgery now or into the foreseeable future. That decision is a reasonable decision, and one for which there was no criticism, either by the VWA, nor indeed by the Court.
(c) The left ankle injury is, for the purposes of this application, stabilised and permanent.
What do I make of the VWA’s ongoing payment of Mr El Sayed’s left ankle medical expenses?
124I will now address what I will loosely call the Sepe[44] issue.
[44]Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191
125Ms Spencer relied upon an admission against interest by the VWA. That is, they have accepted the no-fault claim in respect to the left ankle injury, and that continues to be an accepted claim for medical and like expenses. Ms Spencer said that this is a factor I should take into account.
126I accept this is a rebuttable admission against interest. I take Ms Spencer’s point. However, I do not place great weight on that admission. I am much more persuaded by the evidence of Mr El Sayed and the medical evidence which I have already referred to.
Is Mr El Sayed’s left ankle injury a serious injury?
127It is Mr El Sayed who has the onus of proof.
128To establish serious injury, the threshold is high.
129As set out in Stijepic v One Force Group,[45] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Mr El Sayed to be successful, I have to be persuaded that the consequences due to the left ankle injury can be fairly described as being “more than significant and marked” and as being “at least very considerable”.
[45][2009] VSCA 181
130I am conscious, as set out earlier in this judgment, to assess only those consequences flowing from the subject injury.
131In assessing Mr El Sayed’s pain and suffering consequences, I am assisted in my analysis by the observations made by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[46]
[46](2010) 31 VR 1 (“Haden Engineering”)
132Referring firstly to pain.
133I accept that:
(a) Mr El Sayed, by reason of his left ankle injury, has suffered and continues to suffer, pain which is organically based. There is significant pathology which explains Mr El Sayed’s complaints of pain. That is accepted by a multitude of doctors.
(b) Mr El Sayed has, since 22 August 2018, suffered chronic pain. This pain is variable. There is a baseline of 3/10 to 5/10, and that varies from time to time up to 9/10. I make this finding in the context of a man who I accept to be honest in his complaints and stoic in nature.
(c) Mr El Sayed will suffer this pain for the rest of his life. He is aged thirty-six. He was aged thirty at the time of the incident. He has suffered six years of pain to date. I accept that Mr El Sayed will take his ongoing pain and pain-related dysfunction to his grave. Indeed, I accept it is likely to deteriorate.
134I note that major surgery has been recommended. As I have previously noted, Mr El Sayed has said he is not going to have this surgery. I accept that decision to be reasonable.
135The pain which Mr El Sayed suffers is of itself a very significant consequence.
136I now move to pain-related restriction.
137Firstly, in respect to work.
138Mr El Sayed’s endeavours to get back to work should be congratulated. He is currently undertaking demanding work, starting at 4.00am and working through to approximately 1.00pm.
139Mr El Sayed, in the course of his oral evidence, set out the ways he tries to accommodate his pain at work. I accept, by reason of Mr El Sayed’s left ankle injury alone in respect to work, that:
(a) There is a further limitation to his vocational options over and above those created or imposed by his left knee injury.
(b) In the course of his current employment, he has to manage his pain. For example, he has to stop and take breaks. Indeed, and I will come back to this, the fact that Mr El Sayed is at all times conscious of and managing pain this is, in and of itself, a significant consequence.
140While this case is not about loss of earnings and loss of earning capacity, and it would be wrong of me to inappropriately take that into account, I do give appropriate consideration to the work impact in accordance with the principles set out in Haden Engineering.[47]
[47] (Ibid) at paragraph [15]
141I now move to sleep.
142I note the comments made by the Court in Haden Engineering in respect to the importance of sleep and the significance of impaired sleep.[48]
[48] (Ibid) at paragraph[16]
143Mr El Sayed set out in his affidavit evidence the impact which his left ankle injury alone has on his sleep. I accept that to be so.
144Moving now to the question of mobility.
145Care must be taken to factor out the consequences of the left knee. I accept, however, that the left ankle injury, in its own right, has impacted Mr El Sayed’s mobility. He said in his oral evidence that his capacity to walk has been “shrunk dramatically”.[49]
[49]T35, L4-10
146I pause here to note that such assertions in respect to walking are of the type that are often, in such applications, challenged. Evidence is produced to the contrary. That did not occur in this case. Again, given my findings in respect to credit and the way Mr El Sayed’s oral evidence unfolded, I accept this aspect of his complaints.
147Moving now to what I will lump together as activities of daily living. This includes recreation, sports, social life and the like.
148Mr El Sayed set out in his affidavit evidence[50] the impact his left ankle injury, alone, has had. Mr El Sayed outlined there, and I will not repeat the details, the impact of his left ankle injury, alone, on activities of daily living, recreation, domestic activities and the like. It was not a long list, but I accept it still impacts him on a daily basis. Again, there was no real challenge to this evidence, and given my findings in respect to credit, I accept Mr El Sayed’s evidence in respect to such impact upon him.
[50]I refer now to paragraphs [10]-[12] of Mr El Sayed’s affidavit, affirmed 26 February 2024, PACB 22.
149I am conscious of my obligation to take into account, not only what Mr El Sayed says that he has lost, but also that which he has retained.[51] In that regard, for example, I note Mr El Sayed:
(a) continues in full-time employment;
(b) generally undertakes most of his activities of daily living;
(c) is able to live independently and care for himself.
[51]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
150I am also conscious that there are a range of activities that are impacted by his left knee injury.
151I move now to what might be said to be general loss of enjoyment of life.
152I accept that, by reason of the left ankle injury alone, Mr El Sayed’s general enjoyment of life is significantly impacted by reason of:
(a) pain;
(b) loss of mobility;
(c) loss of opportunities and options.
153Very importantly, I accept that Mr El Sayed is constantly having to structure his life around his pain and pain-related restrictions. The ongoing burden of having to do so, I accept, is a very significant imposition.
154Having been in the unique position of observing Mr El Sayed in the witness box and considering all of the evidence, I accept that the consequences arising out of his left ankle injury are “at least very considerable”.
155Leave will be granted to Mr El Sayed to pursue common law personal injuries in respect to the injuries sustained on 22 August 2018.
Consequential orders
156I will now hear the parties in respect to consequential orders arising out of life-long management.
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