Fisher v GTS Freight Management Pty Ltd
[2014] VCC 1415
•16 September 2014
.
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06119
| GRAHAM LESLIE FISHER | Plaintiff |
| v | |
| GTS FREIGHT MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 27 and 28 August 2014 | |
DATE OF JUDGMENT: | 16 September 2014 | |
CASE MAY BE CITED AS: | Fisher v GTS Freight Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1415 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment of the right knee – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr R Ajzensztat | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr W R Middleton QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on or about 24 February 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right knee.
5 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is presently aged forty four, having been born in October 1969. He single with no dependents.
9 Having finished Year 11, the plaintiff worked in a variety of unskilled manual work and he began driving trucks about twenty years ago. He started work with the defendant in 2002 as an interstate truck driver.
10 The plaintiff agreed with the history given to Dr Kornan that prior to the said date he had “tune-ups” at a chiropractor. Immediately prior to the incident, he was seeing a chiropractor every four weeks for treatment of the whole of his spine.[3]
[3]Transcript “T”37
11 In cross-examination, the plaintiff initially denied having suffered an injury to his back at any stage. He then mentioned problems with a collapsed truck seat at work in the past and that he had had some chiropractic treatment well before he started work with the defendant. He agreed that prior to injury he had suffered a back injury at work at GTS Freight. He was off work not for very long and had chiropractic treatment only.[4]
[4]T38
12 The plaintiff was asked about a CRS report assessment carried out on 23 June 2006 at his former workplace in relation to a back injury which occurred in February 2006. The plaintiff was then taking Naprosyn and he was undergoing chiropractic treatment.
13 The plaintiff agreed he described significant limitations on standing, walking, sitting and other movements.
14 The plaintiff also agreed he reported he had been unable to ride his motorbike since December 2005 due to back pain and he was presently selling his bike. He was selling the road bike and kept his dirt bike and quad bike to ride when his back settled down.[5] He sold the road bike in about 2006 because he could not stand up to ride it like the other bikes.
[5]T43
15 The plaintiff did not mention this situation in his affidavit because his back injury was “past tense”. He forgot to mention it. He agreed what he had deposed to could not be true.[6] He had never got on the quad or dirt bike since 2006. He sold the dirt bike in 2010.
[6]T45
16 The plaintiff was unable to drive long hauls during 2006 because of his back but returned to this type of work by August that year when he last saw Dr Murphy about his back, although his back was then still fairly sore. The plaintiff was then having regular chiropractic treatment which continues to the present time.[7]
[7]T47
17 By February 2008, the plaintiff’s back was having no effect on his ability to drive long hauls. His back then did not stop him from riding his bikes. He was working five to six days a week and rested on the seventh so he did not have time to ride the bikes.[8]
[8]T58
18 On the said date, when travelling in regional New South Wales, when stepping down from the driver’s cabin, the plaintiff lost his footing and fell, landing awkwardly on his right leg, straining and injuring his right knee (“the incident”).
19 The plaintiff experienced immediate severe pain but kept working over the next couple of days as he had a number of further trips to complete.
20 After about four days on the road, the plaintiff attended Deakin Medical Centre where he was certified unfit for work. He lodged a WorkCover claim which was accepted.
21 The plaintiff was initially referred to an orthopaedic surgeon, Mr Mills, who recommended conservative treatment. He was later referred to Dr Spriggins, orthopaedic surgeon in Adelaide, as he was experiencing severe ongoing swelling, stiffness and locking of his right knee and episodes of giving way and instability.
22 Dr Spriggins recommended surgery and the plaintiff underwent an arthroscopy on 21 May 2008 (“the first operation”). Initially the plaintiff gained significant improvement in his symptoms and pain and his movement improved but that improvement was short lived.
23 The plaintiff began experiencing frequent episodes of swelling and cracking sensations and pain in his right knee. He had physiotherapy which seemed to make things worse and he was reviewed by Dr Spriggins, who told him that further surgery would not help.
24 The plaintiff went back to work initially part time on restricted duties and hours and later full time doing office based administrative tasks. He continued in this role until being made redundant in October 2010 and he has never returned to work as a truck driver.
25 The plaintiff was just told he was made redundant.[9]
[9]T10
26 The plaintiff continued to experience ongoing symptoms and pain with recurring episodes of swelling, instability and fluctuating pain and at times his right knee locked for no apparent reason. Despite the first operation, there was little improvement in the symptoms, movement and use of his leg.
27 The plaintiff was experiencing persistent chronic problems and was not able to kneel, squat or crouch. He was not able to make his knee comfortable to control ongoing fluctuating pain.
28 Eventually the plaintiff saw Dr Spriggins again and he recommended surgery and performed a second arthroscopy in October 2008 (“the second operation”).
29 The second operation failed to relieve the plaintiff’s symptoms or improve his knee function and reliability. His knee continued to be painful with recurring episodes of swelling and instability and he struggled to continue at work on return to work programs.
30 Another surgeon, Dr Menz, recommended further surgery, and on 12 October 2009, the plaintiff underwent a third arthroscopy (“the third operation”). This procedure, however, failed to provide any improvement in the symptoms and problems the plaintiff was experiencing.
31 The plaintiff could not recall Dr Menz placing any restrictions on his activities.[10]
[10]T55
32 The plaintiff was then referred to Mr McQueen, orthopaedic surgeon in Melbourne, who arranged for an MRI scan. He doubted the plaintiff would benefit from further surgery and treated him with a Syndic injection which made his symptoms much worse.
33 The plaintiff was prescribed Norspan patches that caused severe nausea and he tried to get by using Panadeine Forte, up to four to six tablets a day. He continued regular physiotherapy but that only provided temporary improvement.
34 Following redundancy, the plaintiff was struggling to find work suitable for him as he could not return to his old job. He had not been able to return to work as a truck driver and was no longer capable of doing the type of work he did with the defendant, which required him to place weight and undue strain on his right knee and leg; climb; squat; lift and carry; and manhandle moderate to heavy weights. Because of his limited education and work history in unskilled physical manual labouring type work, the plaintiff was not able to find suitable work.
35 In early 2011, the plaintiff completed a course as a truck driver teacher/trainer, a field in which he anticipated being able to work but even that was difficult because he had to get up and down from cabins and onto trailers and rigs.
36 In about September 2011, the plaintiff started working with Ron Finemore’s Transport as a truck driver, trainer, instructor and assessor, working full time training truck drivers on a 5-acre site. He struggled with the work that involved practical vehicle driving instruction and classroom teaching and training.
37 The job also involved standing and walking for prolonged periods and frequently getting in and out of cabins and up and down stairs. The plaintiff was not able to tolerate the stress placed on his knee and he was experiencing frequent acute flare ups which he struggled to tolerate.
38 The plaintiff resigned on 30 November 2011 because he could no longer tolerate the difficulties with his right leg.
39 It was about twelve months before the plaintiff found the job with Ron Finemore. He moved to Orange and worked there for about five weeks. He could not cope physically with the capabilities of the job. He told that employer he could not do the job because he could not physically do what was required of him.[11]
[11]T12
40 The plaintiff agreed that he told his supervisor, Darren Wood at Ron Finemores, that he wanted to go back to Mildura and that was why he was quitting. He told him that he physically could not do the position that was required of him, having to walk up and down stairs, climb into vehicles and prolonged standing.[12]
[12]T13
41 Despite treatment, the plaintiff continued to experience constant right knee pain which varied, fluctuating significantly and was unpredictable. He had difficulty standing and walking for moderate prolonged periods without experiencing marked increases in pain.
42 Also, the plaintiff experienced episodes of weakness and instability and episodes of giving way. Further, at times his knee joint locked. These episodes were unpredictable, painful and distressing.
43 The plaintiff’s ability to walk and negotiate steps, stairways, sloping or uneven surfaces or rough and undulating ground was very limited. He could not run, squat, kneel or jump and was not able to climb and remain on ladders.
44 The plaintiff required regular medication to control his pain, using Panadeine Forte four to six tablets a day. He used heat and ice packs to control swelling and relieve pain. He was not able to get by without those treatments.
45 The plaintiff’s sleep was affected by the severe and fluctuating symptoms he continued to experience in his right knee and he frequently struggled to get a good night’s sleep, with his sleep pattern being broken by pain.
46 The plaintiff could no longer work as an interstate truck driver and enjoy his previous level of earnings which ranged from $60,000 to $73,000 between 2005 and 2008.
47 When he swore his first affidavit in August 2012, the plaintiff did not know what type of work he was capable of doing but hoped to pursue work in the area where he had training. He had no experience in a classroom situation and he did not know if he could do that type of work.
48 The plaintiff deposed his recreational hobbies and activities had been markedly affected. He previously enjoyed riding motorcycles and at one time owned three bikes, including a road bike, dirt bike and quad bike, having ridden bikes since first getting his licence at eighteen.
49 The plaintiff previously rode regularly but was no longer capable of riding a motorcycle because of the chronic instability and symptoms in his right knee.
50 For a long time, the plaintiff had been interested in sports photography and enjoyed attending motor sports events and taking photographs but his ability to do so was limited because of his difficulties standing and walking, negotiating steps, stairways and on uneven ground.
51 The plaintiff does not do photography that often because he cannot get out in the middle of the track and it was not safe enough to be out there.[13]
[13]T15, T58
52 The plaintiff agreed that he had taken shots under the cover of his work name “Ghost Rider” on 28 January 2014 which was published in the Sunraysia Daily on 14 June.[14] He did not get paid for the photograph. Another photograph on 29 December 2013 at Olympic Park Speedway was posted on Facebook, as were 103 photographs taken on 28 November 2013 at the 2013 Oceania Sidecar Championships.
[14]T50
53 This photography is still a hobby for the plaintiff. He takes photographs at Olympic Park and shots around Mildura. He made a couple of hundred dollars at most selling his photographs and declared that income.[15]
[15]T52
54 The plaintiff now takes a lot less photographs than he did before the incident. He does not attend meetings because he does not feel safe and he does not enjoy this activity anymore because he cannot do it like he used to. He now takes 60 per cent less photographs than before injury as he cannot go to where he wants to to take the photographs. It was a hobby that he loved and he got a lot of enjoyment doing it.[16]
[16]T59
55 The plaintiff swore a further affidavit in April 2014.
56 On 22 April 2013, the plaintiff started work with Australian Garlic Producers as a line leader working full time (“the current job”).
57 Recently, in March 2014, the plaintiff was promoted to co-production coordinator full time, overseeing a team of fifteen to twenty full-time workers. Also during harvesting and process season, he supervised a casual workforce of up to sixty employees.
58 The plaintiff works from a workstation within the processing shed where he writes up and maintains a variety of records. His duties are to supervise workers on site and ensure day-to-day operations run smoothly. Because of the nature of his work, he can perform it at will, walking around as needed, changing his posture when required and avoiding placing undue stress on his leg. His employer is aware of his knee injury.
59 The plaintiff remains incapable of returning to work as an interstate truck driver and his difficulties have persisted as described in his first affidavit.
60 In particular, the plaintiff is unable to work as a large long haul interstate driver. He is no longer capable of controlling and manoeuvring a long haul truck. He is no longer capable of climbing in and out of the truck, changing tyres when required, operating Tautliner curtains or climbing onto loaded semitrailers to secure or to release loads tied down with straps and ropes.
61 The plaintiff continues to see Dr Murphy who has told him there is nothing further to be done. The plaintiff has not had any further investigations or referrals to specialists since seeing Mr McQueen in 2010.
62 The plaintiff has been advised to use medications to control pain and symptoms and as much as possible avoid activities which are likely to provoke or stir up pain and symptoms in his right knee.
63 There is always a level of pain and symptoms in the right knee. The plaintiff is never free of discomfort and pain and his situation is made worse by physical activity.
64 The plaintiff can cope with physical work but only for short periods. He can cope with a variety of physical tasks and activities but only if he is able to pace himself and alter his posture and avoid placing strain on his knee.
65 The plaintiff’s standing tolerance is 50 minutes before his knee pain gets too bad. It could be a bit more.[17] He can walk up to 100 to 200 metres before he starts getting any severe pain, then his knee starts to get really sore. He just has to keep on going.[18]
[17]T39
[18]T39
66 The plaintiff can sit for about an hour-and-a-half without feeling pain. Bending over is not too much of a problem. He has a lot of problems squatting. When he squats, his right leg has to be pretty much straight out and all the weight has to be placed on his left leg. He gives kneeling a miss altogether. If he has to kneel, he will sit down. He drives a manual care using both feet.
67 The plaintiff’s brother, David, owns a fruit block on which he grows mangoes. When the plaintiff was unemployed, he helped him for two to four hours at a time doing various tasks such as installing steel star pickets. The plaintiff can walk on flat even surfaces but could not cope with the hilly rough and undulating ground. He continues to have difficulty with steps and stairways and as much as possible avoids those conditions.
68 The plaintiff did not mention this work in his first affidavit as he had forgotten about it. He worked for his brother for a couple of days in 2011 and 2012.[19]
[19]T19
69 The plaintiff agreed he was shown working on his brother’s property for about two hours on the morning of 4 October 2012.
70 The plaintiff agreed he saw someone standing on the top of the hill when the film was taken but he did not know whether he was under surveillance.[20]
[20]T23
71 The plaintiff was picking up star pickets, weighing 2.5 kilograms, which were being used at that stage as stays for mango trees.[21] He loaded the pickets in a cradle on the front of the tractor and he drove from spot to spot to put them on the ground for his brother’s children to put them in the ground.[22]
[21]T24
[22]T25
72 There was much less of an issue with steps on the tractor than getting into the cabin of a truck, which is very high, the floor of which is almost at the plaintiff’s eye level. Over a certain amount of time, getting in and out of the tractor was starting to affect the plaintiff a little bit.[23]
[23]T21
73 When asked whether he had seen himself limping in the film, he said, “Well not obviously in that, but I was limping at that stage”. As a rule he does limp but not all the time, depending on his level of leg pain.[24]
[24]T26
74 The plaintiff disagreed the paddock was undulating but it was uneven.[25] It was not overly even. He then agreed the farm paddock fitted the bill to a degree, of sloping, uneven or rough undulating ground.[26]
[25]T26
[26]T27
75 The plaintiff was taken to a history given by him to Dr Sillcock on 11 December 2012, about two months after the video, where he agreed that he had told her of his limitations.
76 The plaintiff denied that he really walked that far in the film or was walking 150 to 200 metres; the distance he told Dr Sillcock gave him problems. He was not sitting the whole time because he was driving in between and climbing in and out of the tractor. When he climbed up the steps of the tractor, he had knee pain. He agreed he managed to do the work shown on the video.[27]
[27]T28
77 The plaintiff disagreed that his legs were at 90 degrees when driving the tractor. They were pretty much in the same position as he was sitting in court watching the film – at about 125 degrees with his right leg straight out.[28] He then agreed was shown sitting on the tractor with his knees bent at 90 degrees. He could remember being sore by the end of that day.[29]
[28]T29
[29]T34
78 After working on the tractor until a bit after 11.00am, the plaintiff went home and later went to a computer shop in Mildura. He also attended JADS Driver Training, where had done a little bit of contract work as a trainer and assessor.
79 The plaintiff did contract work at JADS when he could get it, selling teaching modules for drivers seeking licences. He earned sometimes $300 or $400 a week.[30] On any given day, he spent two or three hours at JADS and charged roughly $500 a client; earnings he declared.[31]
[30]T33
[31]T34
80 The plaintiff did the JADS’ work on and off in 2012. He did not do it at all last year, working full time with Australian Garlic. He did not have much luck doing the cold canvassing, trying to find clients for him.[32] His success rate was very little and after a while he just gave up on it.[33] He earned about $2,500 over twelve months.[34]
[32]T35
[33]T56
[34]T57
81 Until June 2014, the plaintiff was the secretary of the Mildura Motorcycle Club of which he has been a member for at least ten years. He ceased in that role to give someone else a go. He was going to fewer meetings because of other commitments.
82 The Club has about 200 to 300 members. In his role as secretary, together with the committee, he helped organise regular motorcycle meets at Olympic Park Speedway, Mildura, and other motor cross events.
83 The plaintiff deposed that he has difficulty riding and controlling a motorbike. He can no longer ride a motorcycle off road or for prolonged periods of time. The jolting, jarring and bumping stirs up his right knee symptoms and pain. At one stage he owned three bikes but since the injury he had disposed of all of them.
84 The plaintiff confirmed his affidavit evidence that he avoids activities which caused him knee problems. He has not ridden a motorbike since the incident. He agreed he had sold three motorbikes.[35] He confirmed he was no longer capable of riding because of his knee.[36]
[35]T13
[36]T14
85 The plaintiff ceased being the secretary of the Motorcycle Association in June 2014 to give someone else a go. His decrease in attendance at meetings was because of other commitments.
86 The plaintiff does not ride motorbikes anymore and it is because the riding position, even on bitumen, that he could not ride a bike.[37] He disposed of the bikes in 2008 and has not been on a bike since.[38]
[37]T18
[38]T18
87 Later in cross examination, the plaintiff was taken to the June 2006 CRS report which I have previously mentioned in paragraphs 14 and 15 herein.
88 The main problem with the plaintiff’s right knee is pain, the onset and severity of which is unpredictable. He is unable to get by without using medication, mainly Panadeine Forte. He takes four to six Panadeine Forte a day and obtains prescriptions with five repeats every three or four weeks.[39]
[39]T9
89 The plaintiff has tried to cope without that medication and other medications but he is unable to tolerate the worsening soreness and pain in his right knee.
90 Frequently the plaintiff has acute episodes of pain which he struggles to tolerate. At other times, the pain and symptoms are not too bad and he can get through a day’s work. The unpredictability of the pain and symptoms in his right knee really gets the plaintiff down.
91 Since the third operation, the longest drive would have been to Swan Hill – about two-and-a-half hours.
92 The plaintiff agreed he had no problems with self care but he had to sit on the bed to get dressed. He had difficulty lifting heavy things but he had people to help.
93 The plaintiff just tries to avoid shopping because he does not like it; it is nothing to do with his knee. He mows the lawn but has a problem with constant vibration when on the ride-on mower. He had problems using an exercise bike as part of his physiotherapy.[40]
[40]T30
Investigations
94 Dr Murphy organised an x‑ray of the plaintiff’s right knee on 23 December 2009.
95 It was reported that no focal bony lesion or fracture was identified. There was no joint effusion or intra articular lose body. Alignment was normal and no significant degenerative change was identified.
96 There was a bone scan of the knee on that date, after which it was reported there were findings of some mild increase in uptake at the level of the right patella in comparison to the left. It was noted there was a history of previous surgery. No focal but prominent bony uptake was identified and thought to suggest bony injury or infection.
Treaters
97 The plaintiff saw Dr Murphy’s colleague, Dr Jirjis, following his knee injury. Dr Jirjis referred the plaintiff initially to Mr Mills, who supported conservative treatment, and the plaintiff was later referred to Jeff Berrall, a sports medicine physician.
98 As of December 2010, Dr Murphy noted the plaintiff certainly may have injured his patellofemoral joint when stepping out of his truck, and twisting his knee but his symptoms had consistently seemed to be much greater than would be expected by any of the orthopaedic specialists who had seen him so far. They had all reported no major damage to the joint and had expected it to resolve with conservative treatment, which unfortunately it had not.
99 Dr Murphy noted the restrictions imposed were that the plaintiff was no longer able to take any great weight on his knee and found he could not load trucks. He had problems bending and twisting and had discomfort from prolonged sitting.
100 Dr Murphy was certifying that the plaintiff could not climb so he was not able to drive trucks. He could not carry weights above 10 kilograms, could not sit for prolonged periods and he possibly needed to change his posture regularly. He did not know whether the restrictions were permanent, as it was not clear that the plaintiff’s current symptoms were attributable to the clinical findings.
101 Dr Murphy then thought the prognosis for the future must be guarded. He noted at that stage, the plaintiff certainly was not enjoying his life as much as previously. He felt he could not undertake his normal hobbies, including working at the speedway, and also he was not working in his usual employment.
102 As at February 2012, Dr Murphy reported the plaintiff had persistent pain and a feeling of weakness in his knee and there was basically no current treatment plan except for the plaintiff to live within his limitations and be as active as he could.
103 Dr Murphy noted the plaintiff had tried several times to return to work and felt he was best working and training in administration in the driver field. He did not feel that his knee allowed him to climb regularly into trucks or to load them. He had undertaken a return to work rehabilitation program.
104 As of January 2014, Dr Murphy reported the plaintiff had been seen only for routine appointments. His knee condition had remained stable and he was seen for an employment medical to return to work with his current employer. He reported at that time, his right knee flexion was still reduced by pain and he had continued to require prescriptions for Panadeine Forte for pain relief.
105 As of August 2014, Dr Murphy reported the plaintiff continued to have discomfort with his knee. That had now been in a steady state for a couple of years and there had been no major change. He still required taking medication for pain on a daily basis and was prescribed six Panadeine Forte tablets daily continuously.
106 Dr Spriggins reported to QBE in May 2008 that he suspected a medial meniscal tear and he would keep it informed of the operative report.
107 Dr Spriggins thought the plaintiff was suffering from a compensable condition of lateral meniscal tear and chondral damage at the medial femoral condyle consistent with the stated cause.
108 On last review in August 2008 (before the second operation), the plaintiff was still suffering from some pain over the medial side of the joint and that was still connected with the medial compartment arthritis of the right knee, which was visualised in the first operation.
109 Dr Spriggins had put the plaintiff on anti-inflammatory medication for that. At that stage, no specific other further treatment was required.
110 The plaintiff was referred to Mr McQueen by Dr Murphy and saw him in March 2010.
111 At that stage, the plaintiff was experiencing intermittent pain on the medial aspect, with occasional giving way episodes with effusions. Examination revealed a very tender medial joint line. However, there was no ligament abnormality.
112 Mr McQueen explained to the plaintiff he did not have Regional Pain Syndrome. However, he was more likely to have sustained a further meniscal tear and he arranged an MRI scan.
113 That MRI scan was carried out on 6 April 2010. It was reported there was a partial thickness chondral fibrillation of the patellar articular cartilage without full thickness chondral defect. There was mild oedema at the superolateral aspect of Hoffa’s fat pad. It was noted that was most commonly due to either fat pad impingement or patellar maltracking. The menisci and ligaments were intact.
The Plaintiff’s medico-legal evidence
114 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in April 2014.
115 The plaintiff then complained of persistent and deteriorating right knee pain, worse with weight bearing and, towards the end of the day, activity related.
116 Mr Kossmann noted the plaintiff was managing well with his current job which was sedentary in nature.
117 On examination, there was medial lateral joint line tenderness, retropatellar tenderness and tenderness to palpation over the medial femoral condyle. There was some restriction of movement and a small Baker’s cyst. There was no quadriceps wasting.
118 Mr Kossmann diagnosed osteoarthritis of the right knee. He noted that despite three arthroscopies, a corticosteroid injection and a Synvisc injection, the plaintiff’s knee had continued to deteriorate and there had been minimal improvement with physiotherapy from 2008 until August 2013, noting the plaintiff was currently reliant on Panadeine Forte.
119 Mr Kossmann thought the prognosis was poor and the plaintiff seemed to develop post-traumatic degenerative osteoarthritis of his right knee. He had a limited walking tolerance, could not climb stairs, kneel, squat or carry heavy items.
120 Mr Kossmann thought the plaintiff may be a candidate for total knee replacement some time in the future. He noted the plaintiff was currently managing his sedentary employment.
121 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in April 2014.
122 The plaintiff told her that he continues to experience constant pain in the right knee anteriorly and under the patella and also distally and proximally in the right leg.
123 On examination, there were findings of change in sensation and colour in the right knee and there was some swelling. The ligaments were stable and there was an onset of sharp pain in the posterior aspect of the right knee when testing the stability of the ACL. Rotation in mid extension was painful. There was two centimetres wasting of the right thigh.
124 Dr Sutcliffe believed, in addition to chondral injury at the patellar articular cartilage, the plaintiff also sustained onset of neuropathic or Complex Regional Pain Syndrome with change in temperature, appearance and sweatiness, with acute pain on palpation.
125 Dr Sutcliffe believed the plaintiff had no capacity to work as truck driver. He had tried to work as a trainer but could not cope. She noted he found new employment, which she supported.
126 Dr Sutcliffe thought the plaintiff could not do work involving manual handling lifting, bending, twisting or turning in the course of his occupation, now or in the foreseeable future. She noted he had been fortunate to find a job where he could vary his posture. She considered there were a wide range of occupations beyond his capacity, including truck driving, training, shop assistant and clerk work. If his current job was not available to him, she believed he could not persist in employment.
The Defendant’s medico-legal evidence
127 Dr Menz, orthopaedic surgeon, reported in December 2010 to the plaintiff’s solicitors.
128 Dr Menz diagnosed mild chondral damage to the patellar and suprapatellar plica. He believed the plaintiff’s symptoms were excessive compared with the degree of pathology found within the knee joint. He noted from the physical point of view, there were no restrictions that he would impose on the plaintiff.
129 Dr Menz believed the plaintiff was fit for unrestricted duties.
130 From the physical point of view with regard to the minor degree of pathology within the knee joint, Dr Menz believed the prognosis was excellent and the plaintiff should not require any further medical or surgical treatment to his right knee.
131 Dr Menz did not believe the injuries would have any adverse effect on the plaintiff’s future enjoyment of life, and he thought the plaintiff had received the appropriate treatment in the past and he did not believe he required any further management of this minor knee injury.
132 Dr Menz performed an arthroscopy of the plaintiff’s right knee on 12 October 2009.
133 The main pathology found was some minor central chondral damage on the patella. A superficial chondroplasty was undertaken. Close inspection of the patella revealed that the articular surfaces on the medial and lateral facets were quite intact, and certainly, there was no evidence of full-thickness articular cartilage loss. There were a few small chondral loose bodies within the knee joint, and these were removed and a suprapatellar membrane, and this was resected.
134 Dr Menz last saw the plaintiff on 30 October 2009.
135 Dr George Wilson, occupational physician, reported to QBE following examination of the plaintiff in October 2008. This examination pre-dates the second operation so it is of little assistance and was not referred to by counsel in addresses.
136 Mr Shannon, orthopaedic surgeon, examined the plaintiff on behalf of QBE in March 2010.
137 Following the three procedures, the plaintiff described constant throbbing pain over the anterior and medial aspect of his right knee.
138 On examination, there was two centimetres wasting of the right thigh. The collateral ligaments were intact but the plaintiff had mild anteroposterior laxity which appeared to represent the posterior cruciate ligament. There was no significant crepitus.
139 Mr Shannon thought, as a result of work, the plaintiff sustained a hyperextension injury. That may have resulted in a small lateral meniscus tear and clinically he thought the plaintiff had some mild poster cruciate ligament laxity which would be consistent with the nature of the injury.
140 Mr Shannon thought the arthroscopies had shown quite minor damage to the articular cartilage of the patella and the plaintiff did not have significant patellofemoral crepitus. In his view, the plaintiff’s ongoing pain was not adequately explained by the arthroscopic finding and he did not think him a suitable candidate for further surgery.
141 Mr Shannon found the plaintiff had a near normal range of movement. He thought the plaintiff had an increased risk of development of degenerative change in the long term.
142 Mr Peter Scott first examined the plaintiff in September 2011.
143 The plaintiff then complained of persistent pain in the anterior aspect of the right knee, worse if he tended to kneel, squat or negotiate ladders, together with occasional swelling and a clicking sensation and very occasionally, his knee tending to give way.
144 On examination, there was a full range of movement but the plaintiff complained of some discomfort at the extreme of flexion of the right knee. There was pain when the right patella was rubbed across the femoral condyles but there was no crepitus or any evidence of ligament laxity or swelling.
145 Mr Scott thought the plaintiff would appear to have sustained injury to the right patellofemoral joint with some evidence over the articular surface of the knee cap.
146 Mr Scott considered the plaintiff was unfit for pre-injury duties as he found sitting and driving a vehicle for any length of time caused pain and discomfort in the region of the right patellofemoral joint. He thought the plaintiff was fit to do work that did not require him to kneel or squat or twist or turn or sit, or drive a vehicle for longer than an hour.
147 Mr Scott thought current treatment had been of no value and consideration may be given for the plaintiff to undergo a patellectomy.
148 Mr Scott concluded the plaintiff suffered from chronic patellofemoral pain in the right leg initiated under compensable circumstances and it had not resolved with a lot of treatment.
149 Mr Scott was not able to detect any evidence of any anxious, nervous, depressive or emotional response, which otherwise be magnifying the situation.
150 Mr Scott re-examined the plaintiff in March 2014. The plaintiff then said he had had no real change and he complained of anterior knee pain with kneeling, squatting, twisting and turning. There remained a tendency for the knee to give way and occasionally it was noisy.
151 On examination, there was one centimetre of wasting above the right knee compared to the left. There was full range of right knee movement. The plaintiff complained of some minor discomfort when the right patella was rubbed across the femoral condyle and some early patellofemoral crepitus was elicited. There was no evidence of laxity or swelling or other abnormality in the lower limb in terms of power, tone, sensation or circulation.
152 Mr Scott noted the plaintiff complained of anterior knee joint pain and some features suggestive of some early patellofemoral changes with a positive patellar rub. He thought the MRI scan study of October 2010 showed some partial thickness defect of the patella. He noted there were minor symptoms of patellofemoral pathology and the diagnosis was one of patellofemoral pathology of a mild degree.
153 Dr Paul Kornan, psychiatrist, examined the plaintiff in September 2011, following which he diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
154 The plaintiff told Dr Kornan his ongoing symptoms were of chronic pain in his knee and a lack of movement. He felt restricted. His pain was 24/7 and he was on painkillers – Panadeine Forte – usually between four to six a day. He felt his back was thrown out and he was now attending the chiropractor every day or two, weeks or every month. He had previously gone to the chiropractor, he felt, just for tune-ups.
155 A lot of the plaintiff’s hobbies had ceased. He had had to give up his motorbikes and had problems now in walking his dog.
156 Dr Sillcock, occupational physician, examined the plaintiff at her solicitor’s request in November 2012. He described pain in the patellofemoral region and swelling when he did anything.
157 The plaintiff walked with a limp and could not stand on his tiptoes on his right leg and he could not squat. His right knee was tender around the patella, especially on the medial side, and he had limited movement. There was no quadriceps wasting and ligaments were stable.
158 The plaintiff told Dr Sillcock that he could only stand for 10 to 15 minutes and then had to sit or walk. He could only walk for 150 to 200 metres before having to sit and he has to go upstairs sideways. He is unable to climb ladders and has to be careful on uneven grounds. He has to have his leg stretched out when he sits and he is very stiff when he stands up again. He has to stop every 45 to 60 minutes when driving to walk around.
159 Dr Sillcock diagnosed arthritis of the right knee, primarily affecting the patellofemoral joint.
160 There were various photographs on the plaintiff’s Facebook page that he had taken at motorbike venues in the last twelve months.
Vocational assessment
161 CRS carried out a vocational assessment in the workplace of the plaintiff in relation to a lower back injury on 23 June 2006.
162 The plaintiff agreed that he reported at that time, he could sit for 50 minutes before pain increased in his lower back. He could manage 30 minutes of walking prior to back pain increasing and 10 to 15 minutes sitting comfortably. He could semi-squat only due to pain in his lower back and he required assistance from furniture to return to standing. He usually drove a manual car, managing 15 minutes comfortably.
163 It was noted the plaintiff enjoyed motorbike riding prior to his low back injury but reported he was unable to participate in this now due to lower back pain. The plaintiff reported to be presently selling his motorbike due to irritability to drive uncomfortably (ceased December 2005).
164 The plaintiff had a self-employment venture taking photographs at motorbike events. He reported that involved taking photographs at speedways, Stadium Cross, where he stood in the middle of the track, and natural terrain up to 30 kilometres, where he generally took photographs on foot and travelled between sites on a four-wheel motorbike.
165 The plaintiff advised that he had ceased long-haul driving, which he had been doing for nine years, in January 2006, as he felt the truck he had been driving was in need of repair due to kicking from the truck when hitting bumps.
Overview
166 There is no dispute that the plaintiff suffered injury to his right knee during the course of his employment.
167 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[41] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[41][2006] VSCA 171
168 There is no real dispute on the medical evidence, with examiners describing the plaintiff’s right knee condition as articular damage or osteoarthritis. Wasting of the right thigh was found by some examiners.
169 Dr Sutcliffe was the only examiner who found the plaintiff also sustained onset of neuropathic or Complex Regional Pain Syndrome with change in temperature, appearance and sweatiness with acute pain on palpation.
170 There was no suggestion on the medical evidence that the plaintiff’s right knee condition is not substantially organically based.
171 There is no evidence of any right knee problems prior to the incident.
Credit
172 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[42]
“… 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.”
[42](2010) 31 VR 1 at paragraph [12]
173 The plaintiff’s credit was put squarely in issue by the counsel for the defendant in this case.
174 In particular, as the plaintiff admitted, his affidavits were false insofar as they referred to the consequences of his knee injury in relation to his motorbike riding. It was clearly incorrect, as he acknowledged when the CRS report was put to him that he stopped riding his bikes and sold them because of his knee injury.
175 As of the June 2006 CRS report, the plaintiff had not ridden his three bikes since December 2005 because of his back injury and he sold his road bike the following year. Further, the plaintiff admitted he had not ridden the other two bikes since June 2006. He later sold the dirt bike in 2010.
176 On the basis of this incorrect history, it was submitted by counsel for the defendant that the plaintiff’s evidence as to other consequences, such as those described to Dr Sillcock, be treated with “a grain of salt”.[43]
[43]T67
177 It was submitted this approach was also appropriate in circumstances where there is clear evidence from orthopaedic surgeons that the plaintiff’s knee problem is minor in nature, as Dr Murphy confirmed.[44]
[44]T73
178 In reply, counsel for the plaintiff submitted that the plaintiff’s return to work after his back injury showed he is not a malingerer and was “utterly inconsistent with someone who seizes upon an opportunity to try and use the system and misrepresent the situation and drop his bundle”.[45]
[45]T74
179 The plaintiff made errors about the dates of the three operations in his affidavits and it was submitted he is not a completely accurate historian.[46]
[46]T74
180 I do not accept the plaintiff’s affidavit evidence about his motorbike riding is just an inaccuracy, as was the situation with the dates of the three operations. This is a positive statement made by him that led the reader to conclude the knee injury interrupted his bike riding and caused him to sell his bikes which clearly was not the case.
181 In these circumstances, the plaintiff’s evidence as to other claimed consequences must be given careful consideration.
182 Further, I do not accept the plaintiff’s explanation that he could have ridden the two bikes in the period prior to the incident had he had time, when his evidence was of his passion for bikes.
183 Whilst there was 22 hours of surveillance investigation over three days and only 46 minutes of film, the film taken did show a level of activity somewhat inconsistent with plaintiff’s claimed level of disability – walking, albeit not long distances, over uneven rough ground, getting on and off the tractor over two hours whilst he worked on his brother’s property – all situations which he says he tried to avoid as he described in detail to Dr Sillcock on examination the following month.
184 Further, the plaintiff made no mention of his work on his brother’s farm until after the surveillance film was shown to him.
185 However, I accept the film was not a “forensic knockout” as the plaintiff appeared to be limping at 10.25.[47] Further, he described how, when he went home after 11+.00am, he rested before undertaking other activities later that day, attending his former workplace and a computer shop in Mildura.
[47]T78
Pain
186 Maxwell P in Haden Engineering Pty Ltd v McKinnon[48] stated that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors);
[48]Supra
187 I accept that the plaintiff has some ongoing right knee pain and restriction but not of the severity he describes. From his very limited reports, it is not clear why Dr Murphy continues to prescribe such a high level of medication given his views that the plaintiff’s complaints of pain are disproportionate to the pathology.
188 The plaintiff has undergone a range of treatment for his knee, including physiotherapy, three arthroscopic procedures and three injections, the last from Mr McQueen in 2010.
189 There is a paucity of evidence from these treating orthopaedic surgeons as to the plaintiff’s present condition and prognosis. Dr Spriggins has reported only briefly and his last report predated the second arthroscopy. There is no report from Mr Mills. Mr McQueen last reported in 2010 and there is no mention in that report of the injection he gave the plaintiff or the plaintiff’s response to it.
190 The defendant relied upon Dr Menz’s report which just post-dated the third operation. He thought there was no specific abnormality, noting that the plaintiff complained of intermittent pain on the medial aspect with occasional giving way.[49] He believed the plaintiff’s symptoms were excessive compared to the degree of pathology found within the knee joint.
[49]T63
191 Medico-legal orthopaedic surgeon, Mr Shannon, thought there was not much shown on the arthroscopies and that the plaintiff’s ongoing pain was not adequately explained by those arthroscopic findings.
192 On re-examination in 2014, Mr Scott noted there were minor symptoms of patellofemoral pathology and the diagnosis was one of patellofemoral pathology of a mild degree.
193 The plaintiff’s claimed level of disability is at odds with this medical opinion. Further, the functional compromises reported to Mr Kossmann and Dr Sillcock are not borne out by the video surveillance.[50]
[50]T69
194 There is no objective evidence of a continuing deterioration in the plaintiff’s condition, as he reported to Mr Kossmann, nor support for Mr Scott’s prognosis of worsening pain. Dr Murphy, in his most recent report, confirmed the plaintiff’s knee condition is stable and he is seen only for routine appointments.
195 Further, Mr Kossmann is alone in his view as to the possibility of future surgery and he does not give any explanation why the plaintiff may be a candidate for a total knee replacement.
Activities
196 Whilst the plaintiff may experience some difficulty with prolonged standing and walking for extended periods over rough ground, in my view, he is capable of most activities.
197 I do not accept the plaintiff stopped riding motorbikes because of his knee condition for the reasons I have outlined when considering his credit.
198 The plaintiff may say he has difficulty operating a ride-on mower but he is able to do so and he is capable of operating a tractor over bumpy ground.
199 Although he spends less time on it, the plaintiff is still able to engage in his hobby of photography, attending motorcycle meets and taking photographs which he then posts on Facebook.
200 There are a range of medical views as to the plaintiff’s work capacity.
201 When he last saw the plaintiff in late 2009, treating orthopaedic surgeon, Dr Menz, thought the plaintiff was fit for unrestricted duties. Dr Sillcock and Dr Sutcliffe considered the plaintiff could not return to work as a truck driver.
202 When he last commented on the plaintiff’s work capacity in December 2010, Dr Murphy thought the plaintiff was not able to drive trucks as he could not climb or carry weights in excess of 10 kilograms. In more recent reports, Dr Murphy has not commented on the plaintiff’s capacity to work as a truck driver.
203 I do accept the plaintiff would have difficulty with some of the tasks involved in long-haul truck driving such as prolonged sitting, getting in and out of the cabin and at times having to lift heavy loads. He would however be able to carry out a teaching role where these activities were not required
204 The plaintiff is working full time in remunerative employment. He was cleared for that role by Dr Murphy and no restrictions are placed on the duties he can perform.
205 Whilst it was submitted there was a loss of income in this regard, with the plaintiff having earned nearly $75,000 when last working for the defendant, there was no evidence of the plaintiff’s current earnings of $53,000.[51]
[51]T80
206 Taking into account all the evidence, I am not satisfied the consequences of the plaintiff’s right knee condition, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
207 Accordingly, the plaintiff’s application is dismissed.
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