Gee v Victorian WorkCover Authority
[2021] VCC 119
•23 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01710
| ADAM GEE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 9 February 2021 | |
DATE OF JUDGMENT: | 23 February 2021 | |
CASE MAY BE CITED AS: | Gee v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 119 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – right knee
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; 14 VR 622; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Valiotis | Adviceline Injury Lawyers |
| For the Defendant | Mr S. Scully | Thomson Geer Lawyers |
HER HONOUR:
Background to injury
1The plaintiff, Mr Gee, is 44 years old and is married with seven-year-old twin daughters.
2He attended high school until the end of Year 11 and then completed an apprenticeship in refrigeration and -conditioning engineering in 1998. He held various jobs thereafter.
3In June 2013, he started working for Quirks Australia Pty Ltd (“Quirks”), servicing refrigerators and air-conditioning units. On 16 January 2014, he was sent to fix an air-conditioning unit on the roof of the Coles Service Station in Dingley Village. The air-conditioning unit on the roof was set into a recess with a cage on top, which he and a workmate removed in order to access the air-conditioning unit.
4The floor of the recess was corrugated, and he lowered himself into the air-conditioning recess without the aid of a ladder. As he landed on the floor of the recess his right foot became stuck under the air-conditioning unit, and his right knee rolled (“the incident”). He describes hearing a loud crack and feeling immediate pain. His workmate helped him out of the recess and down the ladder. That evening he iced his knee, and took Panadeine Forte and Celebrex to help with the pain.
5He returned to work the following day and continued working until Monday, 20 January 2014. His knee was painful but he was unable to find a substitute to work his shift. He thinks he had about one week off work following the injury, but it is not clear from his evidence exactly when this week off work occurred.
6In any event, his pain was not improving and, on 26 January 2014, he attended his general practitioner, Dr Seyed Soltani, who referred him for an x‑ray and an MRI. The MRI revealed a complex tear of the posterior horn of the meniscus. He was referred to Associate Professor Martin Richardson, who had previously treated him for shoulder injuries, and he underwent an arthroscopic lateral meniscectomy on his knee in March 2014.
7After the surgery, he had physiotherapy with Mr Danny Lowe for a period and worked on building up his wasted quadricep muscles, but has not had any particular medical or rehabilitative treatment for his knee since that time.
8His knee condition has stabilised. He describes a constant dull ache which occasionally becomes a sharp pain with exertion. He has been told there is not much he can do about his knee, unless it deteriorates significantly warranting a knee reconstruction.
Work history following incident
9After having about a week off work following the injury, he returned to Quirks, but was confined to office duties. He then worked with the “frozen coke” team until he stopped working with Quirks on 28 November 2014.
10He moved to Mitsubishi Heavy Industries on 1 December 2014. He says part of the reason he moved into that role was because he thought the job would be better for his knee, as it was largely desk-based. However, he found the commute was too long, and driving for long periods caused knee pain.
11Between February 2016 and December 2017, he had a number of jobs, including running his own business cleaning and servicing air-conditioners. He ceased operating his own business because of the pain he experienced in his knee, particularly when climbing ladders and kneeling – both essential parts of the job of servicing air-conditioners and refrigeration units.
12Between December 2017 and April 2019, he worked as a project engineer with Mitsubishi Electric. During this employment he would often wear knee-pads when kneeling, or a neoprene knee brace during the day for added support, but found that by the end of a long day his knee would swell up and cause him significant pain.
13He left that employment and commenced work with Plum Heating and Cooling as a sales engineer. This job was based in the office about three days a week. On the other two days, he visited clients to provide quotes.[1] He was made redundant from that position in February 2020, but obtained employment with Metrocool as a full-time service manager, where he continues to work.
[1]Plaintiff’s Court Book (“PCB”) 18
Statutory Scheme
14This is a serious injury application brought pursuant to s134AB(16) of the Accident Compensation Act 1985 (Vic) in respect to a workplace injury. The principles that apply to this application are well-known and are not in dispute. Mr Gee alleges that he has suffered a permanent serious impairment of a body function, namely injury to his right knee, and seeks leave to commence a proceeding for pain and suffering damages. Mr Gee must prove that he has suffered a compensable injury that arises out of his employment with the defendant on or after 16 January 2014. His injury or impairment must be permanent in the sense that it is likely to last for the foreseeable future. Mr Gee makes no claim for loss of earning capacity. Sub-section 38(c) provides that Mr Gee must establish that he has consequences in relation to his pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”. This case is what is often referred to as a “range” case.
15I am required to identify the injury and the impairments that are said to arise as a consequence of the injury, determine whether the impairment is permanent and decide whether the consequences for Mr Gee satisfy the “very considerable test” contained in sub-s38(c).[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; 14 VR 622
Evidence of treating practitioners
16Mr Gee saw his general practitioner on 22 January 2014, with gastrointestinal complaints. There is no record at this consultation of any knee complaint. I do not consider that the failure to record a knee complaint at this consultation casts any real doubt that the incident occurred.
17Mr Gee then attended on 26 January 2014, and the notes record:
“right knee trauma. Had injury to the right knee 2 weeks ago
Has had pain and swelling, not improving…”[3]
[3] Defendant’s Supplementary Court Book (“DSCB”) 35
18There was a further consultation record with Dr Seyed Soltani on 5 February 2014, which notes:
“Right knee pain has had right knee pain for 6 months will do MRI next week.”[4]
[4] DSCB 35
19In cross-examination, Mr Gee denied that he had been suffering right knee pain for six months prior to January 2014.
20On the MRI scan report dated 6 February 2014,[5] the clinical histories noted “1y months of right knee pain”. In cross-examination, it was put to Mr Gee that this indicated he had reported 18 months of knee pain. He denied that and said he had not given a history to the radiologist of knee pain for 18 months or one month. It is not clear from where the radiologist obtained this history.
[5]PCB 32
21Mr Gee was also taken to the clinical notes of his treating chiropractor, Dr Greg Hines, which recorded an attendance on 11 January 2014, five days prior to the incident, which appears to read: “R knee p”.[6] It is common ground that Mr Gee had seen Dr Hines for a considerable period of time before the incident for treatment of back and shoulder pain. It was put to Mr Gee that he had attended Dr Hines for knee pain prior to the incident.[7] Mr Gee denied that suggestion. Mr Gee accepted[8] that he more than likely saw Dr Hines on 11 January 2014, but not for knee pain.
[6]DSCB 12
[7]Transcript (“T”) 16
[8]T16, Lines (“L”) 30
22I am not satisfied that these apparent references to knee pain predating the incident significantly impact on Mr Gee’s credit, or the credibility of his account. It seems unlikely to me that within a period of less than two months Mr Gee would report right knee pain of variously 6 months, 1 month or 18 months. The accounts are inconsistent with each other, which suggests that they may be errors by the recording medical practitioner.
23On 29 October 2018, Mr Gee again attended his general practitioner and the clinical notes record:
“Reason for visit:
Chronic pain (multiple joints)”[9]
[9] DSCB 82 and T23, L13
24Mr Gee says that the reference to multiple joints would include his knee and possibly his shoulder, though he conceded he had no actual recollection of this attendance. He said that if his knee was an issue or aching at the time, he probably would have mentioned it.
25Mr Gee accepted in cross-examination[10] that he had not directly attended his general practitioner for knee pain since the attendances in 2014, but had attended periodically with aggravation of back or shoulder pain, and occasionally had been prescribed Mersyndol, Panadeine Forte and Celebrex. When taken to the records of these various appointments, Mr Gee could not remember exactly why he had attended on each occasion, but accepted that if shoulder or back pain was reported in the notes, that was likely the reason he had attended.
[10]T24, L25
26On 30 January 2019, Mr Gee attended his general practitioner for left gastrocnemius (calf muscle) rupture. He had ruptured his calf muscle sprinting on the beach when his daughter was hit by a wave and knocked over. He said he had sprinted about 2-3 metres. He did not complain at that attendance of any knee pain.[11]
[11]T28, L22 ꟷ T29, L5
27On 5 August 2019, Mr Gee attended his general practitioner, and the notes record:
“…
Musculo-skeletal:
No back pain. Left shoulder pain.”[12]
[12] DSCB 86
28In his affidavit material, Mr Gee said he continues to see his chiropractor on a regular basis. He does not specify that these attendances are for his knee, and accepted that in general his attendances on his chiropractor were for treatment for his back and shoulders.[13]
[13]T31, L15 ꟷ 24
29Mr Gee discussed the possibility of injections of gel into his knee with his chiropractor, but had not pursued this treatment as he did not consider there was a satisfactory understanding of the long-term effects of having the gel in the joint.[14]
[14]T31, L25 ꟷ 29
30In addition to the general practitioner and chiropractor records, the plaintiff relied on a number reports of his treating orthopaedic surgeon, Associate Professor Martin Richardson.[15] Associate Professor Richardson had treated Mr Gee for the right shoulder injury he sustained in a motor vehicle accident in 2008. His report of 25 June 2020,[16] noted that following arthroscopic surgery Mr Gee’s condition improved and by September 2010 he was progressing very well, had a full range of shoulder movement and his strength was almost normal.
[15]PCB 33 ꟷ42
[16]PCB 39
31He was not seen by Associate Professor Richardson again until November 2011, following a motorbike accident in which he sustained wedge fractures to T5ꟷT7 and injuries to both shoulders and left wrist. Associate Professor Richardson noted he had persistent left shoulder pain following the motorbike accident, which subsequently settled with a subacromial injection and anti-inflammatory medication. Mr Gee did not then see Associate Professor Richardson until after the incident.
32Associate Professor Richardson performed an arthroscopy on 25 March 2014, which involved trimming of the lateral meniscal tear and resecting the ligamentum mucosum. On post-surgical review in April 2014, he was noted to have wasting of the vastus medialis obliques and, at further review in June, was noted to be struggling with his knee. Ongoing physiotherapy exercises were recommended and Associate Professor Richardson discussed the possibility of a Durolane injection to the knee to minimise the knee pain. On further review in July 2014, Mr Gee was noted to have worked hard on his quadricep strengthening and had attained reasonable definition of the DFO, but still had some mal-tracking symptoms of the patellar, making kneeling difficult. In March 2015, Associate Professor Richardson noted that Mr Gee had lost 36 kilograms since a lap-banding procedure, and still reported irritation in his right knee. Further discussions regarding viscosupplementation injections were had. Associate Professor Richardson has not seen Mr Gee since that attendance.
The plaintiff’s medico-legal opinions
33There is only one medico-legal opinion relied on in this case, the opinion of orthopaedic surgeon Mr Stephen Doig, dated 21 April 2020.
34Mr Doig’s assessment is that the mechanism of injury is consistent with the history given by Mr Gee as to the circumstances of his injury. Mr Doig considers that there is now some mild clinical evidence he has lateral compartment degenerative change and that his prognosis is “somewhat guarded”. Mr Doig says:
“… it is likely that he is going to continue to have some ongoing problems with the knee. Knees which have had a lateral meniscectomy are more prone to degenerative change in the long term and I suspect that this is what is happening here … .”[17]
[17] PCB 48
35At the time of writing his report, Mr Doig considered that no specific further treatment was necessary at this stage and there were no recent x-rays to show whether there is a significant level of degenerative change, but from the clinical picture he suspected this is so. Mr Doig considered that Mr Gee’s work has been a significant contributing factor to his current situation. He noted that Mr Gee had been back working full-time and full duties, and considered him capable of doing so. Mr Doig suspects Mr Gee is going to continue to have some ongoing problems with the right knee no matter what else he has done.[18]
[18]PCB 47ꟷ49
Defendant’s medical material
36The defendant did not obtain any medico-legal opinion and relied on the plaintiff’s medical records as well as the Certificate of Capacity, dated 14 November 2014, signed by Dr Venkata Suman Musku, in which Dr Musku comments “tried phased return and currently fit for all duties”.[19] The defendant otherwise relied on the report of Dr Umberto Boffa, an occupational physician, who prepared a report dated 30 July 2014, in which he commented on Mr Gee’s capacity for pre-injury duties. Dr Boffa noted that, at the time of writing his report, Mr Gee could not return to pre-injury duties, but expected he would be able to do so in six weeks’ time. Dr Boffa’s report is of limited utility given how much time has passed since it was prepared.
[19]DCB 45
Consequences of the injury for the plaintiff
37Mr Gee says, at the time of the incident, he was working full-time plus plenty of overtime. His current job at Metrocool requires him to be on‑site servicing refrigeration and air-conditioner units about 10 per cent of the time.[20] This is more often than his previous job at Plum Heating. He says he is just “pushing through the workday and my pain until I go home in the evenings and can rest my knee”.[21] He says it is difficult for him to find an office job in his line of work. When he does have to attend a site he would usually have to take another technician with him as he is unable to “crawl around into awkward spaces”, or lift or move a unit. If he was required, as a supervisor, to be physically capable of performing technician work, he would be at risk of losing his job.[22]
[20] PSCB 4
[21]PCB 22
[22] PSCB 4
38Mr Gee says that although he had ongoing intermittent back and shoulder pain, pre-injury he was able to engage in mountain-bike riding approximately three times a week. He also maintained the garden and assisted around the house and with his daughters.
39Since his injury, Mr Gee says he has constant “modest” pain which on occasion becomes sharp. He describes the pain as a dull ache and that the sharper pain is generally induced by activity. He says his knee collapses spontaneously approximately once or twice a week, especially going downstairs, and that on one or two occasions it has given way causing him to collapse in the shower. He says his knee locks up quite often and he has to unlock it by kicking it, which is painful. He says he finds it difficult to sleep, especially if he rolls onto his knee during the night, and that he takes medication most nights. He describes a regimen of waking up and taking two Advil in the morning and two at night, and more on occasion as needed to a maximum of eight Advil per day. In his affidavit material he said he takes Mersyndol most nights[23] and Celebrex when needed. However, under cross-examination he said he no longer takes Celebrex[24] and takes Mersyndol occasionally and only when necessary.[25] He conceded that both Mersyndol and Celebrex were prescribed not for his knee pain but for his back and shoulder pain. He said that if he had Mersyndol on-hand and his knee was sore, he would take Mersyndol for knee pain.[26]
[23]PCB 22
[24] T20, L24
[25] T22, L22
[26] T66, L31 -T67, L2
40Mr Gee says he would now be unable to perform his pre-injury work duties. He estimated that pre-injury between 90 and 98 per cent of his job involved physical or manual labouring-type of work, which he described as day-to-day maintenance repairs of the air-conditioning units on various sites.[27] After his injury, for the remaining period of time that he worked for Quirks, he was never able to perform 100 per cent of his pre-injury duties, and the main difficulty he had was with ladders. He says working in refrigeration or air-conditioning repair and maintenance requires going up ladders or accessing platforms higher than ground level almost 100 per cent of the time, and on occasion where a unit is not on the roof or above ground level, it involves kneeling on the ground, fixing cabinets and other associated equipment. He says none of these types of tasks were impacted or restricted by his shoulder or back injuries. He says he would now be unable to perform the work of a refrigeration maintenance technician or engineer because he would not be able to access the equipment, as it requires climbing ladders or stairs, and kneeling. He said when he performs these tasks the pain in his knee increases significantly and can be as high as 8 or 9 on a pain scale of 10.
[27]T64, L23
41Since the injury, Mr Gee says he has been unable to engage in his preferred leisure activity of mountain-bike riding to the same extent that he enjoyed pre-injury. He now goes mountain-bike riding on average about once a week. He has purchased an electric mountain bike which assists with pedalling so that he is not required to use the same degree of force in order to pedal, and this alleviates the stress on his knee. The rides he does undertake are shorter and less adventurous than they were before his injury.
42Mr Gee says he is now restricted in his ability to get down on the floor and play with his children, to walk on a beach or uneven surface, to enjoy family picnics down on the ground, and to run after his daughters at the park or assist with bathing or getting them dressed. He is limited in the gardening he can do as he finds it difficult to kneel and helps out less in the house than he otherwise would like to. He gives evidence in his affidavit that he previously enjoyed motorcycle riding and had a Triumph motorcycle, but found riding it jarred his knee and has subsequently sold that motorcycle.[28]
[28] PCB 23
43Mr Gee’s evidence about his pre-injury mountain-bike riding, and general activities of daily living, were supported by affidavits of his wife dated 2 February 2021,[29] and neighbour, Jamie Templeton dated 22 January 2021,[30] neither of whom were called for cross-examination.
[29] PCB 25-29
[30] PCB 30-31
44Mr Gee says he can no longer walk on the beach. He accepted that, from time to time, he did go to the beach but denied that he walked on it. He said that most recently he took his daughters to Altona Beach but did not go onto the sand himself because it hurts when he does.[31]
[31] T 70, L29
45As outlined above, Mr Gee was involved in a car accident in Queensland on 12 July 2008. Though the medical notes record injuries to neck, back, knees and right shoulder, he says it was really only his right shoulder that required treatment.
46He had a further accident on his motorbike in July 2011, and sustained injuries to his left wrist, both shoulders and back.
47Mr Gee says he had not had any ongoing injury, impairment or pain in his knee prior to the incident, and that the injuries to his shoulders and back had not impaired his ability to work prior to the incident. He acknowledged that those injuries, particularly his left shoulder injury, caused him pain from time to time which required regular chiropractic sessions and occasional medication, including Mersyndol and Celebrex.
48Mr Gee was asked what brought on the left shoulder pain, or whether shoulder pain was ongoing this whole time. He said:
“It comes and goes. My left shoulder will drop out of socket … It can be anything from lifting my arm or sleeping on it incorrectly.” [32]
[32] T29, L29 ꟷ T30, L1
49Mr Gee acknowledged that the left shoulder occasionally affected his sleep, but did not usually affect his daily tasks, such as reaching or lifting things. He said if it did drop out of socket it would affect him at that particular time, but was unable to recall the last time this occurred.
50Mr Gee says his knee injury has reduced his activity causing him to gain weight. He underwent a lap band procedure and subsequently lost around 36 kilograms, but has since gained additional weight and is almost as heavy as he was prior to the procedure.
51Mr Gee was shown about an hour of video surveillance footage which showed him variously getting in and out of his car, washing his caravan with a high-pressure hose, driving his car (with a caravan attached) to Cobram, where he and his family went camping over the recent Australia Day weekend, which included a stop at Nagambie for petrol. Mr Gee accepted that he could undertake all the activities shown in the video surveillance, but did not accept that the video showed him moving or walking in an unimpeded fashion.
Findings
52It is not in dispute that Mr Gee suffered a tear of his right lateral meniscus. Mr Gee’s account of the incident is consistent with the medical findings, and I do not think there is any serious challenge to his claim that the meniscus was torn as a consequence of the incident. Mr Gee was a credible witness who did not seek to exaggerate his symptoms or the impact of the injury on his life, and made concessions where appropriate.
53I find that Mr Gee is in constant, albeit modest, pain in his knee, despite taking anti-inflammatory pain medication on a daily basis. I find that he is never without some degree of pain. Although the Mersyndol and Celebrex were prescribed for treatment of his intermittent back and shoulder pain, on occasion they have provided some alleviation of his knee pain. I am satisfied that when he has to undertake tasks that put additional load on his knee, such as climbing ladders and stairs or kneeling, his knee pain increases and can be severe. Based on his evidence and the medical material, I am satisfied that the knee pain arises from the incident and not the previous transport accidents.
54I accept that his knee does affect his sleep, but also that his shoulder and back pain affect his sleep from time to time.
55Given that working as an air-conditioning and refrigeration engineer requires climbing and kneeling at least 90 per cent of the time, and given that these specific activities increase his knee pain to a severe degree, I accept that Mr Gee is unfit for his pre-injury work.
56On the face of the medical evidence, the injuries to Mr Gee’s shoulders and back appear to be more severe than the injury to his knee. They also cause ongoing pain necessitating chiropractic treatment on a regular basis and occasional prescription medication. Nevertheless, it is clear that, notwithstanding these injuries, Mr Gee was able to work full-time as a refrigeration engineer in an unimpeded manner, prior to the incident. He did have a period “off the tools” for about 18 months following the 2008 accident,[33] but had resumed full-time “on the tools” duties prior to the incident.
[33] PCB 13
57I am therefore satisfied that it is the knee injury, and the consequent difficulties with kneeling and climbing, that has rendered Mr Gee unfit for his pre-injury work.
58I accept the evidence that Mr Gee gave and the evidence of his neighbour, Jamie Templeton,[34] who was not cross-examined on his affidavit, that he used to go mountain-bike riding with Mr Gee for up to four hours at a time, three times a week, but that since the injury, they are lucky to ride up to 45 minutes or so, until Mr Gee’s right knee “blows up”. I accept Mr Gee’s evidence, and the evidence of Mr Templeton, that those rides they do undertake are on easier trails and occur only about once a week.
[34]PCB 30-31
59Although there is some suggestion in the medical records that Mr Gee may have complained of pain in his knee shortly before the incident, it is not sufficient to persuade me that the substantial cause of his ongoing right knee pain was something other than the incident.
60I accept that the pain Mr Gee is in has an ongoing impact on his daily life, and while it does not prevent him from undertaking his activities of daily living, I accept that he has modified some of his behaviour, for example, sitting on the bed to put on his shoes and socks. I accept that it has limited, but not eliminated, his ability to participate as fully as he would like in the life of his family, including playing with his daughters in the park, doing heavy gardening and walking on the beach.
61Having viewed the video surveillance footage, which was not always in sharp focus, I consider there were times in the footage where it appeared to me that Mr Gee did walk with a limp, or at least a stiff and impeded gait, in particular the footage shown of him at a service station at Nagambie. This is consistent with his evidence that driving for long periods causes him knee pain and requires him to take a break in order to stretch his knee. The video footage was also supportive of Mr Gee’s evidence that his back and shoulder injuries were not the cause of any great hindrance in his activities of daily living – he was able to raise his arms over his head for extended periods while cleaning his caravan and operating a high-pressure hose.
62Whether the injury has caused Mr Gee’s weight gain is more difficult to assess. In his own words, Mr Gee is a “big boy”.[35] At the time of the lap band procedure in 2011 he weighed around 160 kilograms. In 2015, Associate Professor Richardson noted he had lost 36 kilograms since the procedure and weighed 130 kilograms on that occasion. Mr Gee agreed that at the time of seeing Associate Professor Richardson he was gradually losing weight. He has subsequently gained weight and currently weighs around 150 kilograms. He could not recall his exact weight at any particular time. His best recollection was that he got down to somewhere around 125 to 130 kilograms after the incident and then gained weight thereafter. He attributes this weight gain to his inactivity due to his knee injury. There is a lack of clarity about when he achieved his lowest weight. It seems likely that it was around the time of his attendance on Associate Professor Richardson in April 2015, more than a year after the incident. I accept that his knee injury has reduced his activity, both at work and during his leisure time, but cannot, on the basis of the material, be satisfied that the weight gain is solely or even primarily due to his knee injury, particularly as a substantial part of his weight loss occurred after the incident.
[35] T70, L21
63Based on the plaintiff’s evidence about his condition over the past six or so years since the incident and the medical material provided, in particular the opinion of Mr Doig,[36] I find that Mr Gee’s impairment is permanent, that is, it is likely to last for the foreseeable future, and there is unlikely to be any improvement.
[36]PCB 48
Does Mr Gee’s injury satisfy the test?
64I now turn to consider whether, in light of my findings, I can be satisfied that the impairment Mr Gee has sustained is such as to satisfy the “very considerable” test I am required to apply.
65This analysis requires a value judgement in which matters of fact and degree, and of impression are operative.[37] I must consider the consequences of Mr Gee’s impairment compared with the range of other possible impairments.[38]
[37] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 [41]
[38] Sabo v George Weston Foods [2009] VSCA 242, [66]
66When looking at what he has lost and what he has retained, I must also disentangle his claimed injury from his prior and supervening complaints of shoulder and back pain. The defendant rightly points out that the medical records show he had consultations and a need for prescription medication for injuries other than his knee injury. This is not inconsistent with Mr Gee’s evidence that, until and unless he needs a knee reconstruction, there is little to be done for his knee and therefore little utility in going to the doctor about it. It is also consistent with a person who does attend for treatment where such treatment (largely chiropractic treatment) can assist with the pain. The video footage shows that Mr Gee has maintained his back and shoulder function.
67Whilst gel injections as a possible treatment option have been discussed with Mr Gee, he has not been advised to have them, and I accept that he has not undertaken that treatment as he does not understand the long-term efficacy or consequences. In the absence of any doctor recommending that treatment as the most appropriate method for Mr Gee to manage his knee, I think it reasonable Mr Gee has not pursued it.
68His gait is affected. At times it is stiff and impeded. At times he limps. This was not present pre-injury.
69It is true that he retains the ability to work full time, and engage in his leisure and daily activities including mountain-bike riding. However, I am satisfied that what he has lost, as compared to what he has retained, does satisfy the test. He is in constant pain, and takes daily medication for that pain. This alone raises a real prospect of a “very considerable” consequence.[39] He has lost his ability to work “on the tools” in his chosen trade, and his employment is necessarily less secure as a result. When he does have to work on-site his pain can escalate to 8 or 9 out of 10. His sleep is affected, albeit not only by knee pain. His leisure activities, particularly mountain-bike riding which consumed a large part of his non-work life, have been severely curtailed.
[39] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199]
70Although he has pre-existing injuries which continue to cause him pain and require medication, I am satisfied that these pre-existing injuries did not impair his ability to work “on the tools”, and did not impair his leisure and daily activities. Although they cause him pain, his evidence, which I accept, is that that pain is not constant or daily and is eased by chiropractic treatment.
71I am satisfied that, in all the circumstances, his impairment can be described as being more than significant or marked, and is at least very considerable. Leave shall be granted to commence a common law proceeding for pain and suffering damages.
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