Gratten v Church Agencies Pty Ltd
[2010] VCC 1824
•23 November 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE DAMAGES LIST GENERAL DIVISION
Case No. CI-
| MATTHEW EDWARD GRATTEN | Plaintiff |
| v | |
| CHURCH AGENCIES PTY LTD & ANOR | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 November 2010 |
| DATE OF JUDGMENT: | 23 November 2010 |
| CASE MAY BE CITED AS: | Gratten v Church Agencies Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1824 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s right knee – whether the pain and suffering consequence was more than significant or marked or at least “very considerable”
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | ||
| For the Defendant |
| COUNTY COURT OF VICTORIA | !Undefined Bookmark, I |
| 250 William Street, Melbourne |
DRAFT
HER HONOUR:
Introduction
1 The plaintiff is 33 years of age. He has two school aged children. His wife currently holds two teaching jobs to support their family.
2 The plaintiff was schooled to year eight level. In the years since he left school he worked for approximately 3 years as an upholsterer and for about 18 months making garlic bread for pizza shops and, apart from long periods of unemployment, he has also worked for comparatively short periods in labouring, factory, processing or shop work. On 29 August 2006 the plaintiff commenced employment with the defendant as a dock hand/warehouse worker.
3 The plaintiff has, as he conceded during cross-examination, a "slightly" poor memory.[1] Notwithstanding the assertion in paragraph 3 of the plaintiff's first affidavit that he earned an average gross weekly wage of approximately $850
[1] Transcript ("TN") 21.
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working between 2pm to 11pm, I could not be satisfied that the plaintiff had Deleted: any reliable recollection of the average number of hours he worked each week or his average gross weekly wage for the 23 weeks he worked with the Deleted: and defendant between 29 August 2006 and 31 January 2007. Indeed, I formed the view that, as suggested to the plaintiff by the defendant's counsel, with adjustment for annual leave in this period, the plaintiff probably only averaged 26 hours at $500 per week, inclusive of any overtime worked.[2] [2] TN 19-20.
4 It was common ground that whilst employed by the defendant on 31 January 2007 the plaintiff injured his right knee in the course of his employment.
Deleted: [date]
5 By originating motion filed on 4 October 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring
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proceedings for the recovery of pain and suffering damages only.
6 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's right knee by reason of patella-femoral joint chondromalacia involving the articular surface of the joint. In his final submission the plaintiff's counsel abandoned
Deleted: or
an earlier claim that the injury also involved a tear of the lateral collateral
ligament.7 The circumstances giving rise to his injury were described by the plaintiff in paragraph 4 of his first affidavit sworn on 3 July 2009 in the following words:
“…. at about 7:30 pm I was cleaning the loading dock up as there had Formatted: Font: 12 pt been a lull in deliveries. On the dock steel cages were often positioned holding boxes and other freight which cages would be loaded onto the Deleted: could trucks. These cages were used mainly for depot to depot delivery. They were about 2 meters x 2 meters x 1.3 meters and made up of vertical and horizontal steel bars about 1-2 mm in diameter. They were usually moved by forklift. They were usually moved by forklift. There was an empty cage on the dock and I asked Christian a forklift driver to move it. He put the forks in the cage and then I believe put the forklift in the Deleted: that wrong gear as instead of reversing the cage moved forward towards me and part of the cage struck the outside of my right knee pushing me Deleted: ts sideways against a production line which I hit with my left thigh. The
forklift then reversed back and I fell to the floor." [3] ("the incident")[3]
8 Following the incident the plaintiff was taken by ambulance to hospital where
Deleted: ,
he was examined and x-rayed (it appears that the reported results were
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normal). He was discharged the same evening with painkillers, a Zimmer splint and crutches.[4] After consulting a general practitioner, Dr Slesenger an ultrasound was arranged for 7 February 2007 which relevantly reported, amongst other things, an appearance in keeping with a partial tear of the proximal lateral collateral ligament.[5]
Deleted: did not
[4] PCB 67.
[5] PCB 85.
9 The plaintiff also commenced having physiotherapy which, he said, did not
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improve his symptoms. The general practitioner next referred the plaintiff to
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Specialist Occupational Physician, Dr Yong who has treated the plaintiff since
Deleted: th
[6] PCB 86.
16 February 2007 and provided numerous and detailed reports. This doctor Deleted: as well as apparently arranged for an MRI scan on 30 March 2007 which other than Deleted: ing finding mild fibrillation at the patella articular surface was normal.[6] 10 There followed a period off work and in about April 2007 the plaintiff returned to work four hours a day five days per week doing what he described in his first affidavit as "sorting work sitting down". At the time, the plaintiff said that he could not weight-bear on his right knee and that he was taking Panadeine Forte, using crutches and wearing a knee brace provided by his physiotherapist.
11 The plaintiff continued working. He was referred to orthopaedic surgeon, Mr Lynch who on 29 June 2007 performed a right knee arthroscopy as a result of which he noted: "scattered changes of early to moderate degeneration
Deleted: a
effecting the patellofemoral joint and the lateral compartment. A plica was
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resected from the patellofemoral joint medially. A number of loose chondral fragments were removed from the joint. The menisci and cruciate ligaments were normal."[7]
[7] PCB 68.
12 Based then on these arthroscopic findings there was not as first believed any evidence of a partial tear of the lateral collateral ligament.
13 Mr Lynch reviewed the plaintiff's knee condition twice. The first occasion was on 13 July 2007 at which stage following further physiotherapy he expected the plaintiff’s symptoms to settle over the next couple of weeks. However, when on 18 July 2008 the treating surgeon examined the plaintiff for the final time the plaintiff apparently told him that his knee had not improved and that he continued to suffer episodic anterior right knee pain, giving way and locking. This was the last time the plaintiff consulted any orthopaedic specialist for treatment of his right knee symptoms. For reasons not explained
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by the plaintiff, other than providing his report in August 2009, Mr Lynch was
not asked to review the plaintiff's condition.
Deleted: to strengthen his
14 It seems that in 2008 the plaintiff was given a three-month gym membership to knee strengthen his knee, most of which he said was devoted to walking exercises in the pool because the gym work caused pain in the back of his neck. For reasons not further explained, in his oral evidence the plaintiff also attributed this problem to the incident. Moreover, the plaintiff said that neither this gym work nor physiotherapy undertaken weekly until mid-2008, fortnightly between the end of 2008 and March 2009 and most recently on six occasions between September 2009 and August 2010 had helped him.
Deleted: , 15
Unfortunately, having returned to light duties and working four hours a day five days a week,[8] the plaintiff lost his job in September 2007 because the defendant ceased trading. According to the plaintiff in about late 2007 anxiety due to concerns about his future and ongoing pain led to a number of sessions with a psychologist, Mr Lowe, who he stopped seeing because he did not find the counselling helpful.
16
By the time Mr Lynch reviewed the plaintiff in July 2008 he had successfully completed a seven week TAFE course in security work. On review Mr Lynch also had the benefit of an MRI study performed on 13 December 2007 which, as he noted, showed only minor post-arthroscopy changes in the Hoffa's fat pad.[9] In other words, following the specialist's examination apart from clinical evidence of patellofemoral joint irritability, as was conceded by the plaintiff's counsel there was little in the way of pathology to account for the plaintiff's symptoms.
17
In any event, following his final examination and without linking this to the plaintiff's employment, Mr Lynch concluded that the plaintiff's "ongoing
[8] Indeed I note that in his report dated 10 December 2007 Dr Yong said that on 13 September 2007 he
[9] PCB 70 and 87.
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problem was patellofemoral joint chondromalacia with a reduced ability to absorb load through that joint when the knee was in the flexed and loaded
position," a vulnerability he said was best managed by the plaintiff through behavioural modifications such as using his arms to support his knee when performing certain activities.
18 The surgeon also formed the view that the plaintiff was fit to work in situations where he did not perform duties requiring repetitive kneeling, squatting and lifting loads from a low position.
Deleted: on the
19 Accordingly, relying firstly on the the MRI evidence of mild fibrillation of the Deleted: , patellar cartridge and secondly on Mr Lynch's clinical findings of irritability and
Deleted: , Deleted: ,
crepitus at the patellofemoral joint and his diagnosis in which he did not specifically mention any aggravation injury, the plaintiff submitted that this was consistent with the finding of entry to the articular surface of the joint. In this regard the plaintiff also relied on the evidence of one of his medico-legal specialist, orthopaedic surgeon, Mr Doig who opined that there had been injury to the articular surface.
20
Clearly the plaintiff's training for security work in early 2008 was compatible with the limitations imposed by the treating surgeon and with assistance from
Deleted: in Recourve, a rehabilitation agency arranged by WorkCover. In about March 2008 the plaintiff commenced working in crowd control at a hotel in Essendon
Deleted: on Friday and Saturday evenings between 7pm and midnight. Relevantly, in his various reports Dr Yong appears to have understood that the plaintiff was
Deleted: , working as a security guard in September 2008 for 12 to 18 hours per week, Deleted: he was in October 2008 for 12 to 30 hours per week and in December 2008 averaging 20 to 30 hours per week.[10] In these circumstances I was not persuaded by the plaintiff's evidence alone that he had, as claimed in his first affidavit, only worked 10 hours per week.
[10] This evidence is summarised at DCB 47-58.
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21 Nevertheless, the plaintiff said that this security guard job required him to be at
Deleted: to
the door of the live band area and walk around all areas to ensure there was no trouble. However, as his employer was aware of his knee injury the plaintiff's standing time was limited to about 30 minutes and he could sit when needed.
22 In his report dated 19 March 2009 Dr Yong relevantly noted, amongst other things, that:
•
in October 2008 the plaintiff reported taking painkilling medication intermittently;
•
in November 2008 the plaintiff reported occasional pain despite his exercise program and that he still had some trouble sleeping;
• in December 2008 the plaintiff reported that he continued to work in security tasks for 20 to 30 hours per week and that he was able to meet
Deleted: do
the requirements of standing, walking and occasional sitting;
[11] PCB 48-59.
• in January 2009 the plaintiff reported that he was still doing swimming and walking programs and taking medications intermittently; and • in February 2009 he reported that he was still having the same aches and pains in his right knee, neck and back and working reduced hours as a security guard.[11] 23 The reference to the plaintiff's neck and back appears to be related to the onset of neck and back pain in association with pushing freight as part of the plaintiff's light work duties in or about May 2007. In any event, it appears from this treating doctor's report that in the period between March 2008 and early 2009 the plaintiff was managing his security guard work, possibly for longer hours than stated in his evidence, and that any pain in his right knee only required intermittent use of painkilling medication.
24 Within some 14 months of obtaining employment as a security guard the plaintiff was assaulted by a drunken patron who broke his nose and both cheekbones, for the treatment of which the plaintiff required surgery.[12] Whilst in his first affidavit the plaintiff deposed that shortly prior to this assault he had
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[12] DCB 41.
been referred back to his psychologist to treat stress associated with continuing pain in his right knee and his inability to do more work, I note that his counsel opened his case on the basis that the plaintiff had returned to the psychologist as a result of the trauma suffered in the assault.
25 Nevertheless, I think it clear from Dr Yong's reports that in the period preceding the assault from time to time the plaintiff was also prescribed antidepressant medication for treatment of depression and on 24 March 2009, some months prior to the assault, the plaintiff reported to him that his mood was still an issue and that he was due to see his psychiatrist again.[13]
[13] PCB 60.
26 According to the plaintiff the assault worsened his depressive condition and it led to an increase in his medication, although the plaintiff believes that his knee injury remains his most significant problem. Whilst he would like to return to work in the future, during cross-examination the plaintiff conceded that he is currently emotionally incapable of looking for work. This is an admission that accords with the opinion of Dr Nathar who examined the plaintiff at the request of his solicitors in May 2010.
27 The plaintiff remains on compensation payments for total incapacity for injury suffered as a result of the assault. Indeed the plaintiff accepted that he currently presents to the world as not being capable of working due to the assault.
28 Apart from ongoing physiotherapy the plaintiff said that he continued to consult his psychologist about every six weeks and Dr Yong about once a month, the latter for prescription of his various medications. During cross-examination the plaintiff said that he has taken medication since 2007 which currently comprises over-the-counter Panadol and Nurofen, taken on the days his knee hurts as well as at least two tablets daily (or up to 4 to 6) of Prodeine, a medication to wean him off his use of Panadeine Forte. In addition to this
DRAFT
medication the plaintiff takes Nexium once-a-day prescribed by his doctor for stomach problems, although he has not been referred for specialist treatment
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relating to any gastric issues. He also takes Stilnox at night if pain in his knee
keeps him awake and antidepressant medication, Cymbatla, 40 mls per day.29 Currently the plaintiff says that he suffers from aches and pains in his right knee with locking and collapsing. He described sharp pain and pins and needles particularly if he puts too much pressure on his knee and if he sits for too long his leg swells and changes colour. It also swells if he pushes himself, as for instance with housework. As to the frequency of his leg locking or collapsing the plaintiff said that this occurred "once in a blue moon", the last time being about six months prior to the hearing, although if it collapses whilst he is walking he can fall to the ground.[14]
[14] TN 39.
The Legal Requirements (in summary)
30 The plaintiff is not permitted to aggregate or combine the effect of various injuries and impairments caused by discrete incidents. He must identify and prove that any impairment resulting from his right knee injury is serious by reference to its consequences.[15]
[15] Humphries v Poljak [1992] 2 VR 129….. and Lu….
31 To succeed, the plaintiff must prove a compensable injury and that the pain
and suffering consequence of injury-related impairment, when judged by
comparison with other cases in the range of possible impairments of the right Deleted: are knee is more than "significant" or "marked" and at least "very considerable".
32 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences of the physical injury (that requires that I put to one side any physical consequences of the assault) as at the date of hearing, in
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this case only the pain and suffering consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
33 For reasons which I will address more fully in due course this is an application
Deleted: there
in which non-organic factors probably make a significant contribution to the complaints of pain and disability. Nevertheless, to the extent that these factors are psychological or psychiatric consequences of the plaintiff's physical injury or of the assault in May 2009 they cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
The Areas of Contest
34 The defendant did not contest the incident arguing that the plaintiff suffered soft tissue injury to the patellofemoral joint without pathology and, whilst there is evidence of bilateral chondomalacia, any injury as a consequence of the incident has ceased. Accordingly, the defendant put in issue:
• the nature and the extent of injury to the right knee on or after 31 January
2007. In this case the defendant has accepted that the incident probably Deleted: symptomatic temporarily made the plaintiff's underlying condition symptomatic; • whether, where there is opinion from one medico-legal specialist that the plaintiff suffers from bilateral patellofemoral wear, any ongoing symptoms are constitutionally based; •
whether the consequences of any compensable injury to the plaintiff's right Deleted: s knee meet the "very considerable" test;
• the reliability of the plaintiff's account of the level of his pain and disability.
The Evidence Called and Tendered
35 The plaintiff deposed to the accuracy of his affidavit sworn on 3 July 2009 and his further affidavit sworn on 22 November 2010. He was cross-examined at length.
36 The material tendered by the plaintiff consisted of his Court Book from which a
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number of documents had been removed and to which his further affidavit
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Deleted: ,
was added. For the purpose of limiting tender and without admitting the
Deleted: admitted
accuracy of the facts reported in these, the defendant also submitted pages 3 and 4 respectively of the reports of orthopaedic surgeons, Mr O'Brien and Mr Shannon who examined the plaintiff in April 2008 and in June 2008 respectively at the request of the claims agent.
37 The defendant tendered its Court Book from which a number of documents had been removed, the video surveillance film taken on 16 April 2010 and shown at hearing and the report of consultant psychiatrist, Dr Nathar who examined the plaintiff at the request of his solicitors on 4 May 2010.
The film
38 The plaintiff has never held a driver's licence. Relevantly, during cross- examination the plaintiff said that he spent most of his time at home because
Formatted: Font: Italic
his wife works more than 40 hours a week and he spends "a fair bit" of his time looking after their children. Nevertheless, he agreed that when his family
Deleted: were
was at school or at work he tried to exercise and to lose weight by going for a
walk.39 The plaintiff at first appeared reluctant to accept that he could walk for more than about half an hour and he was unsure whether in July 2010, as recorded by the specialist, he had told consultant physician Mr Stevenson that he could walk up to three quarters of an hour. However, he eventually conceded that he can walk until he actually feels pain "or collapsing of the knee or something like that happens. "[16]
[16] TN 33.
40 The film of some 18 1/2 minutes duration shows that on Friday, 16 April 2010 the plaintiff was dropped off at his mother-in-law's home where for some time
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he watered the garden. At about 11am the plaintiff set out from his home and walked some 10 or 11 minutes to the Coolaroo Medical Centre. The plaintiff walked at a brisk and even pace and he reached his destination without any
DRAFT
apparent restriction. He also walked the return journey and whilst the plaintiff was not certain of this he did not balk at the suggestion that the return trip was about 4 km.
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41 As my discussion of the medical evidence reveals in due course, there is some inconsistency between the plaintiff's presentation in the film and his presentation during a number of the medical examinations.
The treatment received
42 I have already summarised the treatment received in the period until the assault.
43 In his report to the Accident Compensation Conciliation Service on 10 August 2009 and in his final report submitted to the plaintiff's solicitors on 23 July 2010, Dr Yong variously diagnosed right knee cartilage injury and depression relating to the incident or chronic right knee pain and depression also relating to the incident. Essentially, the diagnosis of chronic right knee pain amounts to a report of the plaintiff's complaint rather than a diagnosis.
44 As his various reports confirm the plaintiff continues to be disabled by ongoing neck and back pain which, as I have already mentioned, had its onset at work in the period prior to his first consultation with Mr Lynch in May 2007. According to his doctor the depression suffered by the plaintiff occurred as a consequence of the chronicity of his knee, back and neck problems. In his view subject to avoiding squatting and kneeling none of these conditions prevent the plaintiff from working in modified duties.[17]
[17] PCB 60 and DCB 47.
45 The physiotherapist who submitted a report dated 15 October 2010 also spoke of restrictions on standing and walking, on using stairs and the need to sit when necessary.
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The Pain and Suffering Consequences Alleged
46 According to the plaintiff whilst she suffers similar but less severe symptoms in her right knee, since July 2003 she has suffered pain, stiffness and limitation of movement in her left knee which worsened after she stopped working in September 2007. However, having following her most recent surgery noted some initial improvement in pain at the front of her knee this had deteriorated again whilst pain at the back of her knee has continued.[18]
[18] TN 33 and PCB 36b.
47 The pain and suffering consequences were generally described in paragraphs 13 to 17 inclusive of the plaintiff's first affidavit and paragraphs 3 to 5 of her further affidavit, with some explanation provided through cross-examination and re-examination. In cross-examination the plaintiff agreed that after her right knee injury she had not played volleyball, waltzed at family functions, jogged, been to the movies or been able to take long walks. She also agreed that she still attends to all of her personal health and hygiene activities and, in effect, she agreed that subject to some limitations she performs her domestic tasks.
48 In summary the pain and suffering consequences to which she alluded involved:
•
difficulty with prolonged sitting or standing, walking longer distances, performing work requiring lifting, repeated bending, kneeling or squatting. In cross-examination the plaintiff acknowledged that accordance with her doctors' advice she did "a bit of walking", her tolerance being 20 minutes to half an hour walking her dog around the block before her left knee hurts. In re-examination the plaintiff explained that in the period between injuring her right knee and prior to her left knee condition developing her walking tolerance was an hour.
•
an inability to climb stairs and ladders. In re-examination the plaintiff said that prior to injuring her left knee as part of her duties she still climbed stairs and ladders. However, following this injury she found it more difficult to climb stairs, particularly going upstairs due to pain and numbness in her left knee;[19]
• the need to attend her general practitioner for the prescription of painkilling [19] TN 31 and 37.
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and anti-inflammatory medication. At hearing the plaintiff said that she takes 2 to 3 over-the-counter panadol and 2 to 3 digesic (Mobic) per week for pain in her right knee. However, she currently takes painkilling and anti-inflammatory medication to treat her left knee symptoms, on average six of each daily. In cross-examination the plaintiff agreed that the Mobic helped "a little." Following her most recent surgery that plaintiff said that she had weekly physiotherapy which ceased a couple of months prior to the hearing, although she continues to perform the daily exercises shown to her by the physiotherapist;
• an inability to drive more than short distances, although the plaintiff agreed that she drives to her local shops and continues to do her own shopping without overloading the trolley, on which she sometimes leans, presumably to ease the stress on her leg; • an inability to perform the manual duties to which she was previously suited by reason of her background, education and experience; • difficulty sleeping and getting out of bed in the morning; • a worsening of her ability to play vigorous games with her nephews and nieces; • difficulty with domestic activities such as vacuuming and mopping and any activities requiring squatting or kneeling. In cross-examination the plaintiff also said that whilst she might pull a weed she needed a gardener to do the gardening and mow her lawn; and • the prospect of increased left leg pain until the plaintiff undergoes knee replacement. 49 ….
50
51 …
The Medico-Legal Evidence
52 The plaintiff tendered reports from general surgeon, Associate Prof Hadj, dated 15 July 2009, orthopaedic surgeons, Mr Doig dated 21 April 2010 and Mr Hunt dated 25 October 2010, vascular and general surgeon, Mr Flanc dated 13 April 2010 and consultant physician, Dr Blombery dated 5 April 2010. He also relied on the extracts tendered from reports submitted by two of the defendants medico-legal experts, Mr O'Brien on 9 May 2008 and Mr Shannon on 25 June 2008, the former because he described the plaintiff's
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injury as a persistent disability and the latter because of his comments on the
plaintiff's reduced work capacity.53 Dealing with these in chronological order Mr O'Brien noted and appears to have accepted the treating surgeon's diagnosis of chondromalacia in the patellofemoral compartment and on examination found:
[20] DCB 24.
• no obvious signs of quadriceps wasting; • the plaintiff's report of local tenderness around the knee "rather diffuse". This was something that in the absence of intra-articular pathology, he felt was difficult to explain; • crepitus in the patellofemoral compartment on flexion which appeared slightly limited by apparent diffuse pain.[20] 54 Whilst Mr O'Brien was prepared to entertain the possibility that the collapsing problem reported by the plaintiff was related to the patellofemoral pathology, he nevertheless felt that this could be readily controlled by an appropriate exercise program and physiotherapy.
55 It seems that all of the specialist including Mr O'Brien warned against the plaintiff returning to unrestricted or heavy physical duties and to that extent the condition of the plaintiff's right knee permanently precludes a return to his pre- injury labouring duties or unrestricted duties which place stresses and strains on this knee. However, in May 2008 Mr O'Brien was of the view that so long as the plaintiff avoided heavy lifting and prolonged periods of weight-bearing he was capable of full-time employment as a security guard.
56 The extract from Mr Shannon's report similarly recommended an ongoing exercise program and that the plaintiff seek sedentary duties rather than his pre-injury work or duties which place stresses on his right knee.[21]
[21] DCB 37.
57 Following his examination in July 2009 Prof Haj diagnosed patellofemoral irregularity and chondomalacia patellae. Despite there being very little in the
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way of organic cause for the disabling pain and discomfort to which the plaintiff referred for reasons that are not properly explained in his report this specialist has accepted that this was caused by the incident and it represents a major and long-term disability.[22]
[22] PCB 105.
58 In this application, in the absence of any significant pathology the plaintiff also relies on the diagnosis of an organically mediated pain syndrome. Dr Blombery is a well-known specialist in the diagnosis and treatment of pain syndromes.
59 He summarised his findings on examination to include:
• tenderness on pressure around all borders of the right knee and in the distal thigh; • extension to 20° and flexion to 90°; • no difference in temperature or colour, although the plaintiff’s right knee was a little shiny compared to use left knee; and • a difference of 2 cm in the circumference of the right thigh versus the left side. 60 Whilst excluding complex regional pain syndrome type I, and in the absence of significant pathology Dr Blombery nevertheless felt that the plaintiff's ongoing pain could be explained by "a pain syndrome where there is non-
specific sensitisation of pain nerves pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted
by the cerebral cortex as being painful." This is a condition Dr Blombery identified as an organic disorder of pain nerves pathways. He said that the prognosis for recovery in the foreseeable future was poor and he envisaged a significant impact on the plaintiff's employability due to both his physical disability and the effects of the potent medication used by the plaintiff to control pain.[23]
[23] PCB 114.
61 When Dr Blombery examined the plaintiff in April this year he was apparently
DRAFTadvised that the plaintiff took Panadeine Forte 4 to 5 tablets per day, Nurofen three tablets per day and two tablets of Panadol at night. As with most of the specialist who examined the plaintiff, whilst considering the amount of this, and in the case of Dr Blombery also focusing on the effect of this medication on the plaintiff, none appear to have considered any increase in the plaintiff's consumption of medication since the assault in May 2009 or the extent to which medication was taken by the plaintiff to control pain in his right knee in addition to controlling any pain from injuries suffered in the assault.
62 As far as I can tell from the evidence Dr Blombery's recommendations that the plaintiff undertake multidisciplinary therapy in a pain management clinic and consider other techniques such as epidural or intravenous infusion of strong painkilling drugs to help manage his pain levels have not been pursued.
63 Apart from reviewing the plaintiff's condition, Mr Flanc also had the opportunity to consider a number of medical reports including the report submitted by Dr Blombery. Given the apparent ease with which the plaintiff walked when filmed on 16 April 2010, albeit over a limited period I was surprised by the extent to which in April 2010 when he was examined by firstly Dr Blombery, Mr Flanc and then Mr Doig the plaintiff had difficulty straightening his right leg or moving it due to pain.
64 It appears that having previously examined the plaintiff in 2009 Mr Flanc determined that the incident had involved an aggravation injury, in that it had aggravated pre-existing asymptomatic cartilage degeneration of the right knee, that this condition remained symptomatic and, no doubt due in part to the results of his clinical examination, Mr Flanc opined that the injury continued to make a significant contribution to the plaintiffs ongoing symptoms.
65 In reaching this conclusion, Mr Flanc acknowledged that the pain reported by the plaintiff was disproportionate to the pathological findings. However, he
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also relied on Dr Blombery's expertise in identifying pain syndromes, although Mr Flanc appears to have assumed that the condition Dr Blombery said was a pain syndrome, was the same as a Chronic Pain Syndrome. Having heard Dr Blombery's evidence on this subject in other cases I believe I am safe in saying that when he described the non-specific sensitisation of pain pathways as a pain syndrome he was not intending to suggest that this was what is commonly described as a Chronic Pain Syndrome.
66 These matters aside, Mr Flanc was clearly influenced by Dr Blombery’s diagnosis when he accepted that in addition to the physical contribution to the plaintiff's symptoms made by the aggravation of the underlying condition there was a pain syndrome which was also related to the plaintiff psychiatric state.[24]
[24] PCB 96-104.
67 As I have already mentioned Mr Doig is another specialist who examined the plaintiff in April 2010, although he did not refer to any report from Dr Blombery.
68 Relevantly, in amongst the many matters mentioned in his report, Mr Doig noted the following:
• that the plaintiff was not on any current medication regularly; •
that the plaintiff now has an occasional ache in the lower back and neck which was intermittent, not present all the time which did not stop him from doing anything. If this is an accurate reflection of the plaintiff's advice to this surgeon it is at odds with Dr Yong's report in July 2010 that the plaintiff continued to suffer from and was being treated for chronic neck and back pain;
•
that on examination, unexpectedly, he had found wasting of the plaintiff's left calf and thigh when compared to the right thigh. This finding is in contrast to Dr Blombery's report some weeks earlier that there was a 2 cm differential in the plaintiff's right thigh versus his left and having measured 10 cm above the patella, Mr Flanc's finding of a negligible differential of .5 cm. However, it is in keeping with consultant physician, Dr Stevenson's findings reported to the defendant solicitors in July 2010 to the effect that having measured the right leg at two levels, 15 cm and 18 cm above the knee he found the right thigh to be 1-1 1/2 cm greater than the left;
• that when supine the flexion in the plaintiff's right knee was 20° but when DRAFT
he stood the plaintiff straightened his knee considerably to 12°. As I have already said the film obtained during the same period would suggest that the discrepancy observed by Mr Doig was due to factors other than any physical limitation on straightening the plaintiff's right knee.
69 The plaintiff specifically relied on Mr Doig's opinion that, apart from considerable chondral debris within the joint as well as some wear and tear on the joint surfaces the findings at arthroscopy had also shown damaged to be joint surface but not to any of the menisci. However, Mr Doig offered no specific diagnosis -- ongoing right knee dysfunction post-arthroscopy.[25]
[25] PCB 110.
70 Due to the plaintiff's reports of colour and temperature changes (symptoms which have not been verified in any of the specialist medical examinations), had it not been for the absence of evidence of wasting, it appears that Mr Doig would have also entertain the possibility of a regional pain syndrome.
71 In Mr Doig's opinion the right knee injury has not significantly affected the plaintiff's ability to perform alternative suitable employment. As was submitted on behalf or the plaintiff, all of the doctors have accepted that the plaintiff is unfit for his pre-injury labouring work, although as we know from particularly Dr Yong's detailed reports the plaintiff appears to have coped well with his security guard duties at least until the assault.
72 Mr Doig also concluded that the majority of the plaintiff's pain, restriction and disability derived from injury-related damage to the joint surface, without offering any explanation for the reports of ongoing collapsing and locking of the right knee nearly 3 years after arthroscopy.
73 A similar comment can be made in respect to Mr Hunt's report following his examination of the plaintiff some six months later. At the time he clearly felt that a further MRI investigation was warranted, as he said hoping that it might disclose further chondral pathology to explain the plaintiff's ongoing symptoms.
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74 The MRI study on 29 October 2010 was obviously ordered by Mr Hunt subsequent to submitting his report. In any event, as the defendant's counsel submitted, the findings do not assist the plaintiff in establishing an ongoing organic basis for his reported symptoms as this investigation reported; "No
definite meniscal, chondral or ligamentous injury is identified. There is minor
thickening of the medial plica."[26]
[26] PCB 88.
75 Mr Hunt also had a selection of earlier reports from other specialists including Dr Blombery's report. Somewhat surprisingly, in the course of his examination Mr Hunt noted an antalgic gait. He was the first and only medico-legal specialist to make this observation. The impression I gained from reading Mr Hunt's report is that when he recently examined the him, the plaintiff presented with even greater restrictions affecting the function of his right leg. For instance, Mr Hunt reported finding that:
• the plaintiff could not fully extend his right knee on standing; • there was exquisite tenderness on palpitation over the medial and lateral joint lines; • the plaintiff could actively flex in his knee up to 60° and extended only to 30°; • he could not do a ligament test due to the aggravation and pain in the plaintiff's right knee.[27] [27] PCB 146.
76 Mr Hunt diagnosed symptomatic chondral pathology in the plaintiff's right knee related to his work injury. This is not a diagnosis that necessarily suggests an injury that also involved ongoing damage to the joint surface. He also diagnosed facial fractures suffered during the assault which were the cause of the plaintiff's current symptoms of facial pain and headaches. According to Mr Hunt given the ongoing nature of the plaintiff's pain symptoms (presumably relating to both his knee and facial injuries) and loss of function the plaintiff is unfit for any alternative duties.
DRAFT
77 This report and the reports submitted by the plaintiff's other medico-legal specialists fail to address the following questions:
• to what extent is any increase in painkilling medication or other medication due to the injury suffered as a result of the assault; and • if there is no organic pain syndrome why, in the absence of any significant pathology the plaintiff's reported right knee symptoms and particularly his pain levels appear to have increased since the assault, such that he presents as more disabled by his right knee injury than he probably was during the period he had settled into employment as a security guard, albeit on reduced hours and with restrictions on his duties to accommodate his knee problems? 78 In my view, the findings of the specialists who comment on any evidence of wasting are at best equivocal and, absent this evidence, there are no specific or reliable clinical signs to sustain a finding of any organic pain syndrome.
79 Turning next to the reports on which the defendant relied, in addition to a report from an eye nose and throat specialist who treated the plaintiff's facial injuries and a report from Dr Yong to the content of which I have already referred, the defendant tendered reports from orthopaedic surgeon, Mr Ian Jones dated 28 September 2009, from consultant physician, Dr Stevenson dated 14 May 2010 and 15 July 2010, from consultant psychiatrist, Dr Duke dated 28 July 2010 and from a psychiatrist, Dr Nathar who examined the plaintiff at the request of his solicitors on 4 May 2010.
80 Mr Jones examined the plaintiff some months after the assault. On examination he found:
• Alignment of both knees on standing was normal; •
pain distributed diffusely from the back of the knee around both sides of the joint to the front of the joint;
• from casual observation a range of movement from 0 to 90° when the DRAFT
plaintiff was sitting on a chair and climbed up two steps to the examination couch. As Mr Doig subsequently also found there was a discrepancy between the plaintiff's actual range of movement and the limitations demonstrated on formal testing;
• no demonstrable swelling;
[28] DCB 44.
• the knee was clinically stable within the limits of testing; • some mild patellofemoral crepitus on the right side with a similar degree of patellofemoral crepitus on the left.[28] 81 Having also reviewed the relevant available radiology, Mr Jones diagnosed a mild degree of patellofemoral wear affecting the plaintiff's right knee and whilst there is no radiology to confirm this, based on his clinical findings he also concluded that a similar but asymptomatic condition affected the plaintiff’s left knee.
82 He attributed the plaintiff's condition to mild constitutional wear involving the patellofemoral joints of both knees, whilst also acknowledging that the incident may have transiently aggravated the condition of the plaintiff's right knee. He thought the plaintiff's prognosis was good with the likelihood of mild intermittent aching symptoms in the region of the kneecap depending on the degree of squatting, kneeling, stair or ladder climbing attempted. In this regard Mr Jones also appears to have accepted that the plaintiff should restrict the extent to which he performs work involving squatting, kneeling, stair or ladder climbing which may aggravate the plaintiff's knee condition.
83 Accordingly, so the defendant submitted, even were any work-related injury continuing to make a contribution to the plaintiff’s symptoms and disability, the likely consequences of any injury-related impairment are not such as to meet the test of at least very considerable.
84 Dr Stevenson was apparently asked by the defendant in May 2010 to comment on Dr Blombery's diagnosis. In summary, Dr Stevenson also concluded that the changes that may be expected to accompany complex
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regional pain syndrome were not present in the plaintiff's case. However, absent evidence of objective nerve injury or other objective signs or symptoms he argued, in all the circumstances I think persuasively, that in this case the diagnosis of sensitisation of the pain nerve pathways was speculative.[29]
[29] DCB 59-63.
85 Even without Dr Stevenson's analysis of this complex issue I was not persuaded that following a single examination Dr Blombery's diagnosis was a reliable basis for determining that in this application the plaintiff suffers from an organically mediated pain syndrome. Dr Blombery's clinical findings which might point to an organic cause were modest and as I have already said any evidence of wasting of the right limb is at best equivocal.
86 Accordingly, if Dr Blombery's diagnosis is not accepted the plaintiff is less able to offer an organic cause for the level of his alleged pain and disability.
87 Whilst apparently accepting Mr Lynch's diagnosis of chondromalacia Dr Stevenson concluded that there was no evidence of substantive organic pathology to explain the complaints of non-specific knee pain.[30] Nevertheless, a lingering concern that there may still be something "modest going on" in the plaintiff's knee persuaded him that the plaintiff was not yet ready to perform unrestricted duties standing.
[30] DCB 64-71.
88 There are two detailed psychiatric reports on which the defendant relies. The first in time was that prepared by Dr Nathar in May 2010 at the request of the plaintiff's solicitors. As is evident from this report the plaintiff attributed the onset of any changes in his mood and depression to the knee injury and the frustration he experienced as a result of pain and incapacity.
89 In summary, Dr Nathar found that:
•
the plaintiff was pathologically pain preoccupied and described intermittent flashbacks of both the incident and the assault;
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• the incident had caused a secondary anxiety depressive reaction and symptoms of Post-Traumatic Stress Disorder, which were worsened by the assault; • the plaintiff was suffering from Chronic Adjustment Disorder with Anxious and Depressed Mood, that he would probably also met the criteria for a Major Depressive Reaction and he has a Chronic Pain Disorder involving psychological factors; • the plaintiff has significant psychological pain amplification and as a result of the incident he has a significant partial psychiatric work incapacity, although on psychiatric grounds alone the assault totally incapacitated the plaintiff for security crowd control type work; and • the plaintiff psychiatric injuries are such that they adversely affect his capacity to do his activities of daily living and reduce significantly his capacity to enjoy his useful range of social and recreational life.[31] [31] Exhibit D3.
90 Dr Duke's report in July 2010 notes a diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct and an alcohol abuse disorder. I have not placed any weight on the latter condition which was not the subject of any specific evidence or cross-examination.[32]
[32] DCB 73g-73n.
The Compensable Injury
91 In this application, the plaintiff sought to establish a likely injury by way of damage to the patellofemoral joint with consequences that are both permanent and serious.
92 The incident clearly involved significant direct trauma to the plaintiff's right knee with radiological evidence of some mild fibrillation to the patella articular surface. However, from the evidence before me I could not be satisfied that the incident had caused this or any damage to the joint other than aggravation of patellofemoral joint chondromalacia diagnosed by the treating surgeon. This of course amounts to compensable injury.
93 One of the matters I took into account in reaching this conclusion was the fact that when asked in August 2009 the treating surgeon specifically reported patellofemoral joint chondromalacia (and chondral loose bodies), a problem
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he said was ongoing. Any condition affecting the patellofemoral joint prior to
the incident was asymptomatic.94 I have however determined that Mr Jones opinion that any aggravation injury was temporary was against the weight of all of the evidence, much of which suggests that the plaintiff's condition has remained symptomatic, but not necessarily to the degree reported by him.
95 If I'm wrong in my rejection of the plaintiff's submission as to the nature of the injury suffered it remains the case that I have not been satisfied that his entry- related impairment is as extensive and debilitating as claimed or that there is an apparent organic cause for the signs and symptoms reported.
96
Findings
97 In this application there is evidence of pre-existing degenerative changes in the plaintiff's lumbar spine. To the extent that this is directly addressed, or can be inferred from the reports made, the evidence of the treating and medico-legal specialists (including the general practitioner) has satisfied me that the plaintiff suffered compensable injury as a result of the incident on [date]; that is aggravation of pre-existing asymptomatic degenerative changes [(spondylosis) in his lumbar spine]. His/Her employment with the defendant was a significant contributing factor to this injury and injury-related impairment continues to make a material contribution to the pain and suffering consequence I have already summarised. This consequence is serious because it is permanent (that is it is likely to last into the foreseeable future) and when judged by comparison with other cases in the range of possible impairments of the lumbar spine it is "very considerable".
Orders 98 In these circumstances, I propose to make an order granting leave to the
DRAFTplaintiff to commence proceedings against the defendant in respect of pain and suffering damages only. I will hear from the parties as to the making of appropriate orders.
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certified the plaintiff to participate in a graduated return to work program with the aim of increasing his Deleted: has light work duties to 7 hour shifts five days per week - PCB 44. Deleted: a
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