Gerassimou v VWA

[2019] VCC 1587

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-01629

EMANUEL GERASSIMOU	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2019
DATE OF JUDGMENT:	11 October 2019
CASE MAY BE CITED AS:	Gerassimou v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 1587

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – injury to knee – pain and suffering – loss of earning capacity

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Judgment:                 Leave granted to the plaintiff to pursue damages for pain and suffering

Leave refused for loss of earning capacity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Ruddle	Arnold Thomas Becker
For the Defendant	Mr M. Clarke	Wisewould Mahony

HER HONOUR:

1 The 42 year-old plaintiff applies under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’) for leave to issue proceedings for pain and suffering and loss of earnings in relation to a work-related injury to the left knee suffered on 4 October 2015 when he was unloading coils from a shipping container.[1] There is no issue that as a result of that incident he suffered an aggravation of pre-existing but asymptomatic degenerative changes in the left knee. He had conservative treatment for some time, as well as aspiration of fluid from the knee in May 2016. He commenced a graduated partial return to work[2] in June 2016 but was told to sit around and was not given any duties. His employment ended when he was made redundant in October 2016.[3] He continued to suffer left knee symptoms and had surgery by way of arthroscopy, extensive medial menisectomy and chondroplasty on 30 January 2018. He has not worked since October 2016.

[1]The plaintiff’s application was brought solely under sub-paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act.

[2]Eventually reaching six hours per day, four days per week.

[3]T16.10.

2       He continues to suffer a range of symptoms in the left knee including pain requiring Voltaren most days. In his affidavits,[4] he deposes to being unable to walk for more than 20 minutes without rest, stand for more than 10 minutes, sit for long periods (needing to lie down and elevate his feet from time to time), or squat or kneel. He also deposes that he struggles to lift and carry, and to use ladders. He needs to take breaks when driving in order to stretch. He used to enjoy breeding and training dogs which he sold to the police and military, but can no longer do so because of the twisting involved. He can no longer play basketball with his teenage daughter. He does not garden anymore. He lives with his parents, who do most of the shopping, cooking and cleaning.

[4]Dated 16 November 2018 and 25 September 2019, and located in the Plaintiff’s Court Book (‘PCB’) at pages 11 and 27 respectively.

3       He finished Year 11 at school, then completed a five-year apprenticeship as a spray painter. He worked as a store manager, and part-time in security at night. He then worked for 10 years as a parking garage manager. After that, he worked as a driver and storeman for three years. He started working for Welch Auto Parts Pty Ltd[5] (‘Welch’) in June 2015 doing deliveries, stocking shelves, and picking and packing orders of car parts. It was heavy work.  

[5]The subject employer.

4       In his affidavits, the plaintiff says that he is not fit to do his pre-injury duties, nor to be a courier or delivery driver because of the need to repeatedly get in and out of a van. He has no experience in customer service. He has not had to use computers in his work to date. He does not think he could work in data entry because he cannot sit for long periods, and needs to lie down and elevate his feet from time to time. He applied for three jobs as a storeman manager in late 2017 but did not receive any offers of employment. In his second affidavit, he says that he has constant knee pain and cannot work because he cannot sit or stand for long. For this reason, he cannot work as a forklift driver or as a bus driver. He states that he “might be able to perform sedentary part-time security guard work, say 15 hours per week, if it was just surveillance and the driving involved in getting to a place of employment was not too far and didn’t aggravate [his] symptoms, however [he has] been unable to secure this work”.[6]

[6]PCB, p 29.

5       The defendant concedes serious injury consequences in terms of pain and suffering. In relation to pecuniary loss, the parties agree that the plaintiff’s pre-injury earnings were $798 per week and that a 40% loss would mean an income not exceeding $478 per week. In his affidavits, the plaintiff says that, at best, he can work 15 hours per week as a part time court security officer.[7] The defendant concedes that the plaintiff is permanently incapacitated for his pre-injury work but says that on the evidence he could retrain to work in data entry or customer service, and could renew or obtain a fresh security licence. In addition, the medical evidence is to the effect that, if he retrained, he could work full-time in those capacities or alternatively as a security concierge or as a bus driver or forklift driver. For these reasons, the defendant says that the plaintiff has not discharged the onus he bears to establish a permanent loss of earning capacity of 40% or more.

[7]Under the Security Services Industry Award, this would equate to a weekly income of $360.75.

6       At the hearing, the plaintiff gave evidence and was cross-examined. No other witnesses were called. The parties tendered court books. I have considered all of the evidence relied upon by the parties.

7       In cross-examination, in relation to pain and suffering consequences of his left knee injury, the plaintiff agreed that he had not seen his teenage daughter for two years as a result of an altercation between them a year or so after he injured his knee, in which he was verbally abusive to her. He said that if his knee injury had not occurred, he would not have had the altercation with his daughter. He agreed that in subsequent Family Court proceedings he agreed that she could arrange to see him whenever she felt so inclined.[8] To this extent he agreed that, contrary to what he told some doctors, not seeing his daughter had little to do with his left knee injury. He agreed that he if she was not seeing him, they would not be playing basketball together as they used to. He then said that when he injured his left knee, he was unable to do the usual activities with her that he had done in the past, and that, as a teenager, she wanted to do other things.[9]

[8]T34.9.

[9]T35.21 and T36.3.

8       In relation to the pecuniary loss limb of his application, the plaintiff said that his physiotherapist had told him to lie down and elevate his feet[10] to relieve his left knee pain and that he did this between 1 and 15 times per day.[11] He agreed that 15 times per day was an extreme example based on the extensive activities he undertook to prepare for Christmas celebrations. He then said he did not know how often per day he lies down and elevates his feet. He agreed that he has not told any of his doctors that he needs to do this or does it every day.

[10]T40.25.

[11]T42.14.

9       The plaintiff agreed that he had done security work for 15 years.[12] He said he had allowed his security licence to lapse and that when an inquiry was made on his behalf many years ago about the cost of renewal, he was told it would cost $1200 to undertake the relevant course.[13] He said that he did not have the money for this. In any event, he agreed that in fact he had not made any more recent inquiries about this type of work because he did not want to do this kind of work. This was because being indoors all the time made him anxious. It was also because he might need to elevate his left leg once a day at work at least. He agreed that he told Dr Wyatt in August 2019 that he did not want to do security work anymore because it was ‘not the most exciting job’.[14] He said he could probably do security work for between 15 and 20 hours per week, and then said he did not know how many hours he could manage.[15] He agreed that he has not tried to do this work. He said he did not have the money to obtain a security licence, but agreed that he had not made recent inquiries about the cost. He agreed that he had 10 vials of dog semen left from his dog breeding business which he could sell, and that he had arranged for the sale, in the near future, of one vial of the product for the sum of $3,000.[16] He agreed that if he sold the semen he could pay for a security licence course.

[12]T32.14.

[13]T28.6.

[14]T26.26.

[15]T27.7.

[16]T25.7 - T25.30.

10      He said that when working as a storeman he never did data entry. When working as a garage manager, he dealt with clients, moved cars, and processed payments.[17] He agreed that he uses the internet and Facebook on his laptop computer. He also uses Word but finds formatting difficult.[18] He agreed that when working at Welch he learned to scan barcodes but said he did not do any typing.[19] He agreed that he is able to use the self-service checkout at the supermarket.[20] He said that he had asked Recovre to find him a computer course a few weeks ago, and that he was willing to undertake such a course to improve his skills in order to obtain employment.[21]

[17]T13.16 and T44.15.

[18]T38.23.

[19]T15.6.

[20]T15.23.

[21]T39.19.

11 He said that in late 2017 he had submitted resumes to three workplaces asking that they contact him if they had work,[22] and the week prior to the hearing he had applied for a storeman driver’s job.[23] Apart from that, he had made no other efforts to obtain work.

[22]He applied to Blue Star Global Logistics where he had previously worked as a driver and storeman, to another business for a role delivering paper to fast food restaurants, and to a family friend for a role delivering Mediterranean food. 

[23]T23.3 - T23.17.

12      I turn briefly to the medical opinion in relation to work capacity.

13      The plaintiff’s treating doctor, Dr Sabir, provided two reports. In his first report, dated 9 February 2018,[24] Dr Sabir stated that the plaintiff required ongoing physiotherapy and needed to see a dietician for weight management. He was currently unfit for all work. In his second report dated 27 September 2019,[25] Dr Sabir noted that the plaintiff was unfit for work, that his aim was to “return to permanent alternative duties”, but that the plaintiff stated he was unable perform the alternative duties he had been offered such as bus driver, forklift driver or delivery driver. I note that as at 29 June 2019,[26] Dr Sabir was certifying the plaintiff unfit for all work based on the left knee injury and major depression secondary to that injury.

[24]PCB, p 59.

[25]PCB, p 64.

[26]PCB, p 111.

14      Mr Russell Miller, orthopaedic surgeon, reported on 29 April 2019[27] that the plaintiff complained of left knee pain and stiffness, that the left knee occasionally gives way, that he occasionally limps, and has trouble kneeling, squatting, using stairs, and walking on uneven ground. The symptoms interrupt his sleep and his activities of daily living. The plaintiff told him he has ‘some “very basic” computer skills’.[28] He concluded that the plaintiff will continue to require ongoing conservative treatment, but that he is likely to require a left total knee replacement in the medium term. There will be additional risks given his young age and elevated weight. The plaintiff might then require further surgery in his lifetime.

[27]PCB, p 68.

[28]PCB, p 72.

15      In relation to employment, Mr Miller considered that the plaintiff’s physical restrictions (inability to do prolonged standing, walking, twisting, turning, kneeling, squatting and walking on uneven ground) would prevent him working in his pre-injury job or as a spare parts interpreter, courier or delivery driver. He considered that the plaintiff was physically capable of working work full-time as a customer service operator provided that these were deemed suitable options for him having regard to his skills and work experience.

16      On 24 September 2019, Mr Miller provided a further report[29] in which he endorsed the job options proposed by Recovre and Dr Wyatt. He felt that the plaintiff could undertake those jobs full-time with the restrictions referred to in his earlier report.

[29]PCB, p 75.

17      Dr Joseph Slesenger, occupational physician, reported on 13 June 2019[30] that the plaintiff complained after surgery of residual left knee symptoms, of an ability to walk 200-300 metres and stand for five to 10 minutes, and of difficulty with descending stairs and walking on uneven ground. He was unable to squat. Dr Slesenger concluded that the plaintiff was permanently incapable of returning to his pre-injury duties. In addition, he considered that the proposed alternative duties of a spare parts interpreter, delivery driver and courier were beyond the plaintiff’s physical capacity. He considered that the plaintiff’s computer skills be formally assessed prior to the positions of customer service operator and data entry operator being considered suitable employment. He imposed the following restrictions: avoid push, pull, carry or lift over 5 kg; avoid squatting, bending, kneeling; avoid using stairs; avoid walking on uneven ground.

[30]PCB, p 77.

18      The Recovre report dated 6 June 2019[31] by Ms Janette Ash proposed three suitable job options for the plaintiff; forklift driver, security concierge, and bus driver and indicated that the physical tasks involved in each option could accommodate the restrictions imposed by specialists.

[31]DCB, p 45.

19      In his second report dated 11 September 2019,[32] Dr Slesenger considered the suitability of the positions of security concierge, bus driver and forklift driver. He considered that the roles of forklift driver and bus driver were beyond the plaintiff’s capabilities. He noted that the security concierge role permitted the employee to sit or stand at a work-station, and to stand when monitoring security camera footage or when greeting visitors. He considered that the plaintiff had the physical capacity to perform this role, provided he adhered to the restrictions referred to in the previous paragraph, and provided the position did not include other duties such as performing patrols or receiving incoming deliveries.

[32]PCB, p 89.

20      The plaintiff’s treating physiotherapist, Mr Khanh Ngo, reported on 21 March 2018[33] that the plaintiff first presented for treatment on 3 February 2016 in relation to his left knee injury. The plaintiff reported being a lot better, with less knee pain and a much greater ability to walk after surgery. He noted ongoing family issues which were causing the plaintiff difficulty sleeping, concentrating and functioning. He recommended treatment by a psychologist and referral to a dietician to help reduce his body weight, which was now an important contributing factor to his knee pain. The goals of physiotherapy were to reduce/eliminate his left knee pain when walking; to improve strength of both lower limbs, and to improve balance in standing and walking; and to re-introduce activities like slow jogging in the future. He noted that the plaintiff’s pain would worsen if he undertook work activities requiring him to walk or stand for long periods. He noted that the plaintiff was unable to run, could only squat to 90 degrees of knee flexion, could lift a maximum of 10 kgs but not regularly; could walk 30 minutes and stand 20-30 minutes. He indicated that frequent changes of direction could cause further damage to the knee. The plaintiff told him he wanted to resume training dogs, and to train to become a traffic controller.

[33]PCB, p 44.

21      The plaintiff’s treating orthopaedic surgeon, Mr Andrew McQueen, reported on 8 January 2018[34] that there was a reasonable chance after recovering from surgery that he would be able to return to work as a storeman but that he would have some ongoing symptoms related to his knee chondral pathology.

[34]PCB, p 50.

22      On 20 September 2019, Mr McQueen reported[35] that when seen on 17 September 2019 the plaintiff complained of tenderness in the medial aspect of his knee aggravated by weight bearing and some pain at night. He found the plaintiff to be morbidly obese. Mr McQueen diagnosed post traumatic arthritis in the medial aspect of the knee and recommended an injection of Synvisc. Mr McQueen considered that the plaintiff was capable of performing a sedentary job which did not involve excessive lifting, kneeling, squatting, prolonged standing or the use of ladders. He felt that the plaintiff could drive a truck provided that he did not do any loading or unloading.

[35]PCB, p 57.

23      Dr Mary Wyatt, occupational physician, provided two reports. In her first report dated 13 February 2019,[36] Dr Wyatt noted a history from the plaintiff of improvement of his constant pain and functional abilities after surgery. The plaintiff told her he had applied for jobs in stores but once he told prospective employers of his injury he was not given work. He had stopped applying for work but was still looking at what is available. He told her that his daughter was not visiting him because he could do less due to his injury. His weight had increased. He reported the following symptoms: knee stiffness in the morning;  general soreness in the left knee; soreness with prolonged standing; locking of the knee at times; inability to kneel or squat; difficulty with stairs; soreness in the knee after walking a few hundred metres. His knee became stiff if he sat in the car for too long. Dr Wyatt concluded that the plaintiff is fit to work full-time in alternate duties, with restrictions: no repeated kneeling, squatting, heavy lifting, climbing stairs or using ladders.

[36]DCB, p 10.

24      Dr Wyatt concluded that if the plaintiff regained his security licence (which involved undertaking a training program which is available through multiple providers), security work would be an “obvious option” for him, and that there are a range of security roles that do not required much walking, such as gate control duties or security guard at the front of a large office building.[37] Many security guards sit behind desks and patrol offices, locking and unlocking buildings. She felt that walking would be good for him. She considered that he was not fit for delivery driver work but is fit to drive a forklift.

[37]DCB, p 18.

25      In her second report dated 12 August 2019,[38] Dr Wyatt noted that the plaintiff told her he had once done a trial as a bus driver and did not like that role. He told her that his doctor told him working as a forklift driver was not suitable as he would have to get on and off the forklift. He told her that he did not want to do static security work as it was “boring as buggery”.[39]  He told her he had not been thinking about other work but had been thinking about doing a course as “he recognises he will need to work in the future”, even though his doctor continues to certify him unfit for work.[40]

[38]DCB, p 20.

[39]DCB, p 21.

[40]DCB, p 21.

26      Dr Wyatt considered the roles proposed in the Recovre report and concluded that the plaintiff is fit to work full-time as a forklift driver, as a security concierge (with no patrol duties) and as a bus driver but should avoid heavy lifting, constant standing, or repeated kneeling or deep squatting. She noted the plaintiff’s lack of interest in working as a security concierge or bus driving.

Pain and suffering

27      I have considered the whole of the evidence as well as the defendant’s concession. The plaintiff’s account of his pain and restrictions is largely consistent with what he has told doctors and I am satisfied that the pain and suffering consequences of the plaintiff’s left knee injury are more than considerable when compared with other cases in the range of permanent impairments of the limb. It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering.

Pecuniary loss

28      However, for the following reasons, I am not satisfied that the plaintiff has discharged the onus he bears to establish, after rehabilitation and retraining, a permanent loss of earning capacity of 40% or more.

29      First, I found the plaintiff’s oral evidence as to his work capacity unsatisfactory.  He agreed that he may be able to work 20 hours as a static security guard, even though he does not want to do this kind of work because he does not like it. On the agreed figures, if he can work 20 hours in such a role, the pecuniary loss limb of his application fails.

30      Second, I reject his complaint of an inability to sit for periods or a need to elevate his legs regularly. He did not raise this with any treating or examining doctor or his physiotherapist, and none of the reports of any practitioner refer to an inability to sit for periods or a need to lie down and elevate his legs. Even if I accept that he finds prolonged sitting difficult, I note that the specifications of the static security guard position make it clear that the employee is able to sit and stand at will.

31      Third, the weight of the expert evidence, apart from the opinion of the treating doctor, Dr Sabir, is to the effect and I therefore find, that the plaintiff retains a physical capacity to work full-time in suitable employment, at the very least, as a static security guard.

32      Dr Sabir’s continued certification of total incapacity for employment is based on the knee injury and a major depressive condition. To the extent that it is based on the left knee condition alone, I prefer the evidence of the treating and medico-legal specialists about the impact of his knee condition on his capacity for work.

33      Finally, I note the plaintiff’s concession that he is able to regain his security licence by doing a course, and his express willingness to undertake a computer course to improve his chances of securing employment. No expert has indicated that the plaintiff is unfit to undertake this kind of retraining. The plaintiff has therefore not demonstrated the permanency of any work incapacity after such retraining. 

34      It follows that the pecuniary loss limb of the plaintiff’s application is dismissed.

Conclusion

35      Leave is granted to issue proceedings for pain and suffering damages in relation to the left knee injury sustained on 4 October 2015 while working for Welch. The pecuniary loss limb of the application is dismissed.

36      I reserve the question of costs.