Ivanoski v Easiformds Pty Ltd
[2012] VCC 1213
•26 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05262
CI-11-01610
| ILIJA IVANOSKI |
| v |
| EASIFORMDS PTY LTD |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 August 2012 | |
DATE OF JUDGMENT: | 26 October 2012 | |
CASE MAY BE CITED AS: | Ivanoski v Easiformds Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1213 | |
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – two separate injuries: back and knee – pain and suffering and loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Angelatos v Museum of Victoria [1999] 3 VR 157; Altona Bus Lines v Lococo [2002] VSCA 159; Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell | Maurice Blackburn |
| For the Defendant | Mr B Mackenzie | Hall & Wilcox |
HIS HONOUR:
1 These are two Originating Motions ordered and agreed to be heard together wherein the plaintiff, Ilija Ivanoski, seeks leave to commence common law proceedings against the defendant, his former employer, Easiformds Pty Ltd, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) and are in respect of both pain and suffering and loss of earning capacity damages.
2 The first application in time relates to an injury to the plaintiff’s low back which he claimed he sustained on or about 25 February 2004 whilst performing his duties as a labourer, which he alleges consisted of heavy work without any rotation or respite and which involved a lot of bending, heavy lifting and working below knee height, as well as stacking completed pallets.[1]
[1]Plaintiff’s affidavit sworn 5 August 2008 (Exhibit A)
3 The second application in time relates to a right knee injury which the plaintiff claimed he sustained on 8 February 2008 when his workmates hit his knee with a door they were moving.[2]
[2]Plaintiff’s affidavit sworn 5 August 2008, paragraph 9 (Exhibit A)
4 At the trial, it was not in dispute that the plaintiff suffered compensable injuries in the course of his employment with the defendant on or about the dates alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of either of those compensable injuries. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
5 As it is common ground that the plaintiff has suffered two separate compensable injuries, I am required to determine the applications in the following manner:
· First, I am required to identify each injury;[3]
[3]Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 (20 November 2003)
· Secondly, I should alienate the impairment consequences of each injury;[4]
· Thirdly, as the two injuries arose from separate incidents, the consequences cannot be accumulated. Each injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the other injury.[5]
[4]Dalton v Dandenong Scaffolding Hire Co Pty Ltd (ibid) at paragraphs [14], [39], [47] and [49]
[5]Angelatos v Museum of Victoria [1999] 3 VR 157, 168; Altona Bus Lines v Lococo [2002] VSCA 159 (30 September 2002)
The Low Back: Facts
6 The plaintiff was born on 7 February 1949 and migrated to Australia in 1970. He commenced work with the defendant in June 1988 as a labourer and was employed full-time.
7 The plaintiff deposed that his work involved a lot of bending, heavy lifting and working below knee height, as well as stacking completed pallets. Further, in early 2004, he started getting pain in his back when he was doing heavy work without any rotation or respite. The back became very painful on or about 25 February 2004 and he attended the Broadway Medical Clinic the following day. He was put off work and referred to an orthopaedic surgeon, Mr Gary Grossbard, on 14 April 2004.
8 Mr Grossbard took a history of the gradual onset of low-back pain whilst at work, until it became really severe on or about 26 February 2004. The plaintiff complained of persisting pain radiating into his right leg down to the level of his knee. By that time, he had had ten sessions of physiotherapy and was attending a hydrotherapy pool. He had returned to work for three hours a day on lighter duties. His hours had been increased to four hours each day and the plaintiff was having difficulty coping with that. Although x-rays were unremarkable, a CT scan did confirm some disc bulging at the lumbosacral level with some impingement of the L5 nerve root on the right side. Mr Grossbard felt that, clinically, the plaintiff may have suffered a tear to the annulus of one of his discs and he arranged for an MRI scan of the low back. This scan, performed on 23 April 2004, confirmed a small annular tear of the lumbosacral disc. Further, there was no major disc protrusion but there was some contact with the S1 nerve root on the right side. Mr Grossbard prescribed a lumbosacral Cinch brace for work.
9 Mr Grossbard reviewed the plaintiff again on 9 June 2004, at which time the plaintiff was working seven hours each day in lighter duties. Mr Grossbard thought he would be able to continue with simple bench work at that stage but would have difficulty working in a position where lifting or bending was required. He noted the plaintiff was concerned that he may lose his job.
10 On 1 September 2004, Mr Grossbard took a history that on 2 August 2004, there had been an increase in low-back pain which once again radiated to the back of the plaintiff’s right thigh, which in turn was sufficient to stop him from working. At that stage, Mr Grossbard was hopeful the plaintiff would at least be able to return to lighter duties in the longer term. At that time, the diagnosis was one of annular disc disruption with ongoing back pain and referred pain into the back of the right thigh. He also believed that work may well have contributed to the onset of “his problem”.
11 Thereafter, the plaintiff returned to work on lighter duties “after a while”, eventually building up to eight hours per day, five days a week.[6] He continued to be certified by his general practitioner as fit for alternative duties on account of the back injury. On occasions he had time off from work because of back and leg pain, and he no longer worked overtime.
[6]Affidavit sworn 5 August 2008, paragraph 8 (Exhibit A)
12 The plaintiff’s duties were such that he no longer made pallets but operated a machine which cut chipboard. He was also doing some work on an edge bender. Despite his restrictions, there was still some lifting involved, which he stated aggravated his back pain.[7]
[7]Affidavit sworn 5 August 2008, paragraph 8 (Exhibit 8)
13 At the time of swearing his first affidavit on 5 August 2008, the plaintiff deposed that he continued to have pain in his back and referred leg pain. He stated that before his injury, he enjoyed trout fishing and camping, which he had since given up. He further stated he had difficulty sitting, standing or walking for too long. Longer car trips were uncomfortable and he usually had to break them up. On advice from his doctor, he tried to walk for twenty or thirty minutes each day. Further, he stated that before he hurt his back, he enjoyed keeping fit and he was playing indoor soccer. He had now had to give that up. He did not now enjoy going to his Macedonian Club because sitting for too long had aggravated his pain. At that stage, although he enjoyed work, he was losing considerable income as a result of his back injury because he could not do overtime or Saturday work. At that stage, he was still being certified for light duties as a result of the back injury.
14 Up until this stage (September 2008), the defendant had the plaintiff examined by a number of doctors.
15 Mr Peter Nelson, surgeon, saw the plaintiff on 18 March 2004.[8] He stated that x-rays of the lumbar spine dated 26 February 2004 showed degenerative changes at the L4-5 level and osteoarthritis in the L5-S1 facet joints and the sacroiliac joints. Further, a CT scan of the lumbar spine dated 15 March 2004 showed diffused degenerative bulging at all disc levels, most marked at the L5-S1 where the bulging extends in the L5 nerve roots bilaterally but there is no significant focal disc herniation or prolapse. He further stated the plaintiff had degenerative bulging of all discs, particularly L5-S1, which extended into both L5 nerve root foraminae which accounts for his leg pain and pins and needles. Employment had been a significant contributing factor to his current state. His incapacity had been materially contributed to by employment. Further, because of his degenerative change and the continuing effect of musculoligamentous strain, he was not capable of unrestricted work but could work doing effectively light duties. There was no allegation of exaggerated behaviour.
[8]Exhibit 4
16 The plaintiff was next seen by Mr Chris Baker, occupational physician, on 3 February 2005.[9] The history taken was that the plaintiff thought his condition was about the same as it had been for some time. He continued to have right-sided lower back pain with referred symptoms into the right leg. He noted similar findings on x-ray and CT scan but also added the results of an MRI scan taken on 23 April 2004, to the extent that the radiologist concluded there was disc desiccation at L5-S1 with preservation of disc height. There was a minor broad-based disc bulging eccentric to the right effacing the epidural fat around the right S1 nerve root without evidence of displacement or nerve root enlargement. There were also findings consistent with a small annular tear at L5-S1.
[9]Exhibit 4
17 Dr Baker considered the plaintiff had sustained an injury “as defined under the Act”. He considered that the plaintiff had an asymptomatic degenerate disc at the L5-S1 level which was aggravated through employment, resulting in the disc becoming symptomatic and the plaintiff suffering right-sided lower back and right-sided leg symptoms. Employment had been a significant contributing factor and there was an incapacity for employment, whereupon the plaintiff was capable of undertaking “suitable employment”. He also noted that since there had been no improvement in nearly twelve months, he anticipated there would be some degree of permanent impairment of the lower back. He was also not aware of any other non work-related factors.
18 The plaintiff was then seen by Associate Professor John Hart, Clinical Associate Professor of Surgery, on 14 November 2005.[10] He took a history that the plaintiff’s work with the defendant involved considerable lifting and bending. Further, on 26 February 2004, the plaintiff was lifting a pallet at work when he developed back pain in the region of the right sacroiliac joint and the pain radiated down the right lower limb to the knee. He noted imaging results consistent with those referred to above. Professor Hart noted that his examination was “characterized by markedly abnormal illness behaviour which made it difficult to carry out an objective physical assessment”.[11] Nonetheless, Professor Hart considered the plaintiff was not fit for his pre-injury duties and he was much better suited to his current occupation which had been described as “light duties”. Apart from remarking about the abnormal illness behaviour, Professor Hart considered that appropriate modifications had been made to the plaintiff’s workplace and it would seem preferable for him to continue in the current position indefinitely if that is compatible with his place of employment. He noted that the plaintiff was conducting a self-managed exercise program and taking Panadol intermittently, and in his view, this was an appropriate treatment program.
[10]Exhibit 4
[11]Defendant’s Court Book (“DCB”) page 14 (Exhibit 4)
19 In my view, the thrust of Professor Hart’s report was that the plaintiff had suffered a physical injury, the effects of which were still subsisting and requiring treatment for physical injury but which were also being exaggerated by abnormal illness behaviour.
20 The plaintiff was next examined on behalf of the defendant by Dr Graham Boothby, occupational physician, on 15 November 2005.[12] He took a consistent history of injury and consequences relating to personal care activities and recreational activities. It was Dr Boothby’s impression that the physical examination was characterised by the presence of some degree of functional overlay and fear avoidance behaviour. However, after reviewing the special investigations consisting of the x-rays, CT scan and MRI scan referred to above, he considered that the plaintiff had –
“… clear evidence of a degree of degenerative change in his lumbar spine and there is also evidence of L5/S1 disc damage with some evidence of interference of the right S1 nerve root.”[13]
[12]Exhibit 4
[13]DCB 22 (Exhibit 4)
21 In Dr Boothby’s opinion, the plaintiff was not fit for full pre-injury duties. He was fit for light duties as specified in the report. He considered that the main contributor to these work restrictions was the presence of underlying degenerative change in his lumbar spine with chronic back pain. He considered that the plaintiff had not sustained any particular injury to his lower back but rather experienced the onset of pain while performing his normal duties. He considered the injury was therefore probably –
“… a minor strain, an aggravation of this underlying degenerative change.”[14]
[14]DCB 23 (Exhibit 4)
22 He did not identify a time or a point at which the effects of the aggravation had ceased.
23 Once again, I consider the thrust of Dr Boothby’s report is that the plaintiff has a physical basis for ongoing pain and limitations, the effects of which are amplified by either a functional overlay and/or fear avoidance behaviour.
24 In a supplementary report dated 5 January 2006, Dr Boothby opined that the aggravation caused by the employment had now ceased. The reported slow deterioration in the plaintiff’s condition, he thought, was consistent with a natural history of progression of the underlying degenerative condition. He therefore considered that the plaintiff’s employment is no longer materially contributing to his current physical condition.
25 Once again, I note Dr Boothby does not identify a time or a manner in which the effects of the aggravation ceased and the effects of the pre-existing degenerative change took full effect.
26 Professor Hart was also asked to provide a supplementary report on 20 March 2006. He noted the correlation between himself and Dr Boothby about the evidence of abnormal illness behaviour on examination. Significantly, he recites that Dr Boothby –
“… specified this as fear avoidance behaviour … .”.[15]
[15]Report of 20 March 2006, DCB 16 (Exhibit 4)
Professor Hart thought that this was:
“… certainly … quite a possibility as I did not have the impression that he was deliberately over exaggerating his signs.”[16]
[16]Report of 20 March 2006, DCB 16 (Exhibit 4)
27 He further agreed with Dr Boothby that the plaintiff had recovered from the effects of the injury and that any continuing symptoms were due to the (pre-existing) degenerative changes. Once again, he has not identified the time or circumstances as to when the recovery took effect.
28 The next examination of the plaintiff on behalf of the defendant was by Mr Anthony Buzzard, general surgeon, on 31 October 2006. His assessment was that the plaintiff did have physically-based low-back pain but that there was a substantial functional overlay associated with it, and some of which he considered was at a deliberate level.
29 In terms of physical injury, I note the history taken as being one of pain in the “low lumbar” part of the plaintiff’s back which has “been so since 26 February 2004”.[17] Further, Mr Buzzard stated the plaintiff –
“… had never had any pain in that area before then. The pain came on gradually. The pain now is worsening. He takes Panadeine or Panamax at the rate of 6 tablets per day.”[18]
[17]Report of 1 November 2006, page 2, DCB 27 (Exhibit 4)
[18]Report of 1 November 2006, page 2, DCB 27 (Exhibit 4)
30 In his assessment section,[19] Mr Buzzard reports that:
“… Mr Ivanoski does have some degree of discogenic pain in the low back region. This has been investigated and MRI scanning has demonstrated degenerative disc disease. The involvement of his right leg with pain does raise the issue of whether or not there is a disc prolapse with sciatica. However, the fact that the pain involves the whole of the right lower extremity is non-anatomical and is, in its own right, suggestive of functional overlay. … .”[20]
[19]Report of 1 November 2006, page 4, DCB 29 (Exhibit 4)
[20]Report of 1 November 2006, page 4, DCB 29 (Exhibit 4)
31 The plaintiff was next examined by Mr Michael Shannon, orthopaedic surgeon, on 27 October 2008.[21] I consider the relevant history to be as follows.
[21]Exhibit 4
32 The plaintiff stated that he first had trouble with his back in 2004 when he was making pallets and he lifted a pallet and noticed soreness in the low back. The pain was particularly in the right side of the low back. He continued to work but the symptoms did not improve. Thereafter, he went to full-time employment but not to his normal duties, and there were restrictions on bending and lifting. Significantly, his back has continued to trouble him and he has pain in the right side of the low back extending into the right buttock. He gets numbness and stiffness in the right leg and he cannot sit or stand in the one position for longer than fifteen or twenty minutes.
33 On examination, Mr Shannon found thoracolumbar movements were limited by about two-thirds and there was some spasm on lateral flexion. I am prepared to infer that the spasm was an objective sign of injury. Mr Shannon found however, that there were signs suggesting a non-organic component.
34 Mr Shannon reviewed the x-rays, CT scan and MRI scan and considered that the plaintiff was suffering from degenerative change in the lumbar spine with an annular tear. He also thought that the degenerative change had probably been aggravated by a lifting injury at work in 2004. Thereafter, Mr Shannon said the plaintiff had described ongoing problems in his back since then with the inability to perform his normal duties, although he has worked on light duties for much of the time. Significantly, Mr Shannon thought there were a number of non-organic features to his presentation:
“.. [but] there is probably a genuine component to his back condition and I think that he is permanently limited in the performance of work involving prolonged or repetitive bending or heavy lifting.”[22]
[22]Report of 30 October 2008, page 3, DCB 42 (Exhibit 4)
35 Once again, I am willing to infer that where Mr Shannon said that there is a “genuine” component to the plaintiff’s back condition, that he is referring to an organic work-related aggravation. Mr Shannon thought at that stage, that the plaintiff was “struggling on at work at present”. Ultimately, his diagnosis was one of “aggravated lumbar disc degeneration”. He thought that –
“The compensable injury has limited his capacity to perform work involving prolonged or repetitive bending or heavy lifting.”[23]
[23]Report of 30 October 2008, page 4, DCB 43 (Exhibit 4)
36 At that stage, the prognosis was uncertain and his back was vulnerable to further injury. His partial capacity for employment was likely to persist “indefinitely”.
37 Thereafter, the defendant chose to have the plaintiff examined by Dr Peter Stevenson, consultant physician, on 2 February 2009.[24]
[24]Exhibit 4
38 Dr Stevenson considers the plaintiff had “an episode of non-specific back pain”. The plaintiff gave a history that the back problem went back to 26 February 2004.
“… the back became sore (… [on] the lumbosacral area on the right-hand side) slowly over a few days, when he said he was lifting pallets all the time. There was no specific incident but the weights he said were fairly substantial.
[Thereafter] the pain persisted and increased.
[Thereafter] After some months off work there was a graduated return to work two or three hours a day about three days a week, eventually until he was back to his normal hours. He was certified not fit for lifting or bending but the work required lifting and bending.
…
He reported ongoing symptoms and no days without pain.”[25]
[25]Report of 2 February 2009, page 2, DCB 55 (Exhibit 4)
39 As to his current status, the plaintiff described continuing pain in the back with consequences that included a stiff back in the morning and some difficulty getting out of bed, an inability to do any gardening or enjoying fishing in the High Country. Current medication was said to be mostly Panadol, six a day.
40 On physical examination, there were unfortunately “numerous fairly marked behavioural signs”.
41 Dr Stevenson noted the opinions of Mr Gary Grossbard concerning discogenic lower back pain and its connection with the plaintiff’s work. Dr Stevenson considered that the CT scan certainly showed age-related degenerative change and he noted “commendably, he continues normal work”.
42 Dr Stevenson considers that the investigations show:
“… only normal age-related change. This is known to be predominantly genetic and constitutional.”[26]
[26]Report of 2 February 2009, page 6, DCB 59 (Exhibit 4)
43 Assuming this to be the case, it still begs the question whether predominantly genetic and constitutional change can be aggravated and rendered symptomatic by external forces. Once again, considering that it was likely that there was an original episode in the plaintiff’s work, Dr Stevenson does not stipulate when and under what circumstances there was recovery from this episode. Further, Dr Stevenson appears not to endorse a requirement for lifting restrictions because he states:
“It has been found that the imposition of lifting restrictions is generally a negative for recovery. Persons encouraged to return to work unrestricted do rather better.”[27]
[27]Report of 2 February 2009, page 9, DCB 62 (Exhibit 4)
44 In his footnote to this proposition, Dr Stevenson appears to be recommending an alternative to treatment within a conventional medical system. In any event, he is certainly on his own in not recommending any restrictions at work in the face of complaints of ongoing pain.
45 The plaintiff was next examined by Mr Michael Shannon on 8 March 2011. The history related in this report is that in October 2008, the plaintiff had been working on alternate duties which were mainly sedentary and he seemed to be coping. Further, the history recorded is that the plaintiff continued working in this capacity until 4 May 2010, when he was told that there were no further light duties available. Allegedly he was therefore asked to perform his normal job which involved bending and lifting. He suffered increasing pain in his back and he eventually ceased work and went onto WorkCover payments. It is to be noted that this history is contradicted by the plaintiff in his evidence to the effect that the job in this period was not sedentary but involved harder tasks of bending and lifting and that he had complained to his general practitioner to this effect. The plaintiff further swore that it was his inability to carry on the work as he described it which led to him being incapacitated. It was only subsequent to this that the defendant advised him that alternate duties were no longer available.
46 I will return to these variant histories later. In any event, the plaintiff told Mr Shannon that exercises for his back make him worse and he was taking Mobic medication. On physical examination, Mr Shannon considered there were signs strongly suggesting a non-organic component. However, his opinion is recorded as follows:
(i) There had been little change in the plaintiff’s physical organic condition since his previous examination;
(ii) If anything, his non-organic features had increased;
(iii) In regard to the back, he had mechanical back pain associated with lumbar disc degeneration and an annular tear, but he did not have evidence of radiculopathy. I interpret this latter finding as being organically-based;
(iv) It was consistent with the back injury that it would limit his capacity to perform heavy lifting because, with respect to same, he probably had some genuine restriction of flexion and some minor spasm;
(v) The plaintiff was capable of alternative employment and not totally incapacitated from the physical point of view;
(vi) However, “his age, lack of qualification and the loss of his job would make it unlikely that he would be able to … obtain employment”.[28]
[28]Report of 11 March 2011, page 4, DCB 48 (Exhibit 4)
(vii) The ultimate diagnosis was one of mechanical back pain associated with lumbar disc degeneration;
(viii) He was permanently impaired in the performance of activities involving prolonged or repetitive bending, heavy lifting (with respect to his back);
(ix) The prognosis for his back condition was for it to remain unchanged;
(x) He was capable of office work, which Mr Shannon states he was performing until he ceased work.
47 Treating Mr Shannon’s report at face value, it would appear that he considered the plaintiff was capable of sedentary office work but because of his age and lack of qualifications, it would be unlikely he would be able to obtain employment. Further, there was an underlying physical condition to his back which made him only fit for suitable light duties if they existed, but superimposed upon this physical condition was an exaggerated response as Mr Shannon described.
48 Thereafter, the defendant had the plaintiff reviewed by Dr Peter Stevenson on 30 April 2012. The tenor of his report was similar to his previous one. In essence, he considered that the plaintiff could do any work for which he chose and he considered there was no scientific basis for any restriction to be placed upon him. The compensable injury to his back appeared to be “speculative and resolved”. Dr Stevenson considered that the ordinary duties of his work will not cause injury to the lumbar spine.
49 Suffice to say, that counsel for the defendant reasonably conceded that there had been a compensable injury caused to the plaintiff’s spine but what was in contention was the “seriousness” of the injury. Dr Stevenson’s diagnosis was one of “non-specific intermittent remittent back pain, which is a ubiquitous human problem”. The medical prognosis appeared “benign”. On balance, I would prefer the reasoning of the defendant’s other medico-legal examiners as set out above.
50 Finally, the defendant had the plaintiff re-assessed by Mr Michael Shannon on 4 June 2012.[29]
[29]Exhibit 4
51 There was material provided to Mr Shannon which included a document concerning cervical spine injury and referred pain into the upper limbs. Tendered in evidence[30] was a document prepared by the plaintiff’s solicitors dated 24 April 2009, headed “Particulars of Injury” which concluded with a reference to the cervical spine. There is no claim before me for impairment to the cervical spine. On direct questioning by Mr Shannon, the plaintiff stated that he was not claiming any injury to his neck and although he did have a minor strain to the neck when he was hit by a forklift, he suffers no ongoing pain in the neck or problems and no loss of time from work. I note that the absence of symptoms in the neck was consistent with the findings by Mr Buzzard back in 2006.
[30]Exhibit 3
52 The history of back pain to Mr Shannon was that it was getting worse. It was pain in the low back on the right side and numbness in the right leg and big toe. The plaintiff was unable to bend to pick up things. He walks for a maximum of fifteen to twenty minutes and was limited by back pain. He was taking anti-inflammatory medication and Panadol. Physical examination revealed signs suggesting a non-organic component.
53 In his opinion section, Mr Shannon stated there has been –
“… apparent deterioration in Mr Ivanoski’s physical signs since his previous examination and he described deterioration in his symptoms.”[31]
[31]Report of 7 June 2012, page 3, DCB 51 (Exhibit 4)
54 However, Mr Shannon noted numerous discrepancies and non-organic features to the presentation. However, it is significant that he stated:
“It is acknowledged that he has sustained injuries to his low back and …
[in this regard] … he has degenerative change with some minor disc bulging, but no major pathology has been identified.
The back condition would be regarded as an aggravation of pre-existing degenerative change, but instead of resolving, there has been apparent progressive deterioration in his back ever since he ceased work.”[32]
[32]Report of 7 June 2012, page 3, DCB 51 (Exhibit 4)
55 Mr Shannon has cast doubt on the physical findings as not being genuine and he was unable to identify any specific objective abnormal physical findings. Significantly, he states:
“From the physical organic point of view, I think that he is nevertheless capable of light work, but he has not worked now for two years when he lost his job because there were no light duties available.
At the age of 63 he is unlikely to seek or obtain employment.
His condition has stabilised.”[33]
[33]Report of 7 June 2012, page 4, DCB 52 (Exhibit 4)
56 Despite the exaggeration as recorded, Mr Shannon’s diagnosis was one of “aggravation of pre-existing lumbar disc degeneration”. He considered the plaintiff was limited in the performance of work involving prolonged or repetitive bending or heavy lifting and that these limitations will continue indefinitely.
57 In summary, I consider that the thrust of the medical evidence adduced on behalf of the defendant, apart from Dr Stevenson, is to the effect that the plaintiff has suffered an aggravation injury to his lumbar spine which has rendered symptomatic underlying but asymptomatic degenerative change in the spine and there has been no real abatement in those symptoms such that it can be said that the effects of the aggravation are still subsisting. It is significant, in my opinion, that none of the said medico-legal examiners allege that the exaggeration of the signs and symptoms would mean that the underlying organic condition would render the plaintiff fit for his usual work.
58 With respect to the reason for, and the sequence of events of relating to, the plaintiff’s cessation of work in 2010, the defendant tendered a copy of the clinical notes of the general practitioner, Dr George Gescheit, for the relevant period.[34] The handwriting is not easy to decipher but I believe the record is as follows:
[34]Exhibit 2
“9 March 2010 – Coping at present – but employer not co-operating with light duties. Will attempt to negotiate … (illegible) himself. Further certificate 10 March 2010 to 6 April 2010. Review then. Repeat Panamax.
6 April 2010 – Hasn’t been at work because of flare-up of back injury. Otherwise condition ISQ and was coping as before. Re-tender certificate as before. Further certificate 7 April 2010 to 4 May 2010 and review then.
4 May 2010 – Condition ISQ – hasn’t been at work because of back injury. Same symptoms, pain every day – suitable duties not available! Certificate 5 May 2010 to 1 June 2010 and review then.
1 June 1010 – Suitable duties for both back and knee injuries unavailable – see recurrence of back injury. Further certificate 2 June 10 to 29 June 10 – unfit for work. Saw insurance doctor re knee injury on 31 May 2010. Complained of pain ++. Difficulty walking properly and swollen a little. No change – condition ISQ. Further certificate 30 June 10 to 3 August 20 and review then.
3 August 2010 – Error in certificates – has been fit for all duties with knee – not unfit (because of being dismissed). Hence future certificates re knee will be as before with modified duties. No excessive walking around factory, long periods of standing. Certificate issued 4 August 10 to 31 August 10. Review 31 August 10.
31 August 2010 – Condition ISQ. Further certificate 1 September 10 to 28 September 10. Review then. Examined knee. A bit swollen – uses Panamax daily. Repeat Panamax.”
59 The plaintiff, in cross-examination, denied emphatically that he stopped work because of the withdrawal of light duties. This is consistent with the records of the general practitioner, Dr Gescheit, on 6 April 2010, that the plaintiff had not been at work because of a flare-up of his back injury. It was not until 4 May 2010 that Dr Gescheit recorded that light duties were not available. Neither Dr Gescheit nor Mr Shannon were cross-examined as to potential errors in the histories taken. The plaintiff was subjected to fair and sustained cross-examination on the matter but, in my view, held up well in this regard and I find that his credit was not impeached. I accept his evidence on this point, that he was unable to continue with the work because of his back and knee injuries and it was only thereafter that suitable duties were no longer available.
60 Further, I believe the plaintiff, when giving evidence that the alternative duties that he was performing up until April 2010 involved a degree of bending and lifting and strain on his back which were in excess of the limitations stipulated by his treating doctors, this was not the light office work as postulated by Mr Shannon.
61 I accept the plaintiff’s evidence that he loved working and wanted to remain at work for as long as he could. The defendant’s counsel pressed the point that he was not really motivated to work because he was largely free of debt and owned his own home plus a holiday property in Rye. Suffice to say, that whilst admitting the facts as put to him by counsel, the plaintiff resisted any suggestion that he no longer wished to work or was not motivated to do so. I accept his evidence in this regard.
62 It appears common ground that the job performed by the plaintiff up until April of 2010 was a “real job” and represented “suitable employment” within the meaning of s134AB(38)(f)(i) up until that time. I accept that he was no longer able to do that work after 6 April 2010 and that that situation pertains until the date of hearing. I further accept that the prognosis is one that there is unlikely to be any improvement in his lumbar spine condition in the future. I further accept that the plaintiff has proved on the balance of probabilities that the aggravation injury to his spine suffered in 2004 is still a cause of his back pain impairment and inability to perform the work he was doing in April of 2010.
63 In making the finding referred to above, I apply the principles of Petkovski v Galletti[35] which stipulates that I must make a comparison of the plaintiff’s back impairment prior to the aggravation injury with that as it exists at the present time. It would appear uncontradicted from the evidence that the plaintiff was performing his normal heavy job prior to the back injury of 2004 and was engaging in a full range of activities, including indoor soccer, High Plains fishing and gardening. At no time after suffering that injury has he returned to these activities in any meaningful way and in particular, has been unable to perform the usual duties he was performing prior to the aggravation injury.
[35][1994] 1 VR 436
64 The defendant has further adduced evidence to the effect that there are a number of jobs that are suitable for the plaintiff irrespective of their availability.
65 Healthe.work, in its report dated 7 December 2011,[36] identified suitable employment options which were:
[36]DCB 116 (Exhibit 6)
(i) Light product assembler
(ii) Car park attendant
(iii) Light packer
(iv) Pathology courier.
66 It is common ground that should the plaintiff be fit for any of these jobs on a full-time basis, he would not succeed in obtaining leave to proceed for economic loss.
67 In a follow-up report from Healthe.work dated 14 August 2012,[37] the author reports that she has met on a regular basis with the plaintiff to assist with his job seeking. Healthe.work had been job seeking via major employment websites, however, they reported:
“… no suitable positions have been identified due to Mr Ivanoski’s lack of transferrable skills and medical restrictions.”[38]
[37]Exhibit 6
[38]Exhibit 6
68 It is significant that it is not alleged that no suitable position was identified due to lack of availability. Further, the author states that although the plaintiff had a medical capacity in regard to the claim for the knee there was, however, another claim relating to a back injury, and that the general practitioner, Dr Gescheit, had certified him as unfit for all duties. The author further reports that the plaintiff –
“… has the added barrier of being unable to read & write in English, therefore limiting his capacity to undertake individual job seeking.”[39]
[39]Exhibit 6
69 On balance, I accept that the plaintiff is totally incapacitated for suitable work and a cause of that total incapacity is the aggravation injury to his lumbar spine.
70 It follows that having so found, he is also entitled to a certificate for pain and suffering damages in accordance with the principles of Advanced Wire & Cable Pty Ltd v Abdulle.[40]
[40][2009] VSCA 170
Facts: Knee Injury
71 The plaintiff has deposed that on or about 8 February 2008, he injured his right knee when his workmates hit the knee with a door they were moving. He was off work for about one week and then returned to work with a certificate stating that he had to perform his duties in a seated position. After a period he was instructed he could not perform his duties sitting down and was told to go home for one month to rest. At the time of swearing his first affidavit, the plaintiff states that in the past he had taken Panadeine Forte but was now taking Panamax because of stomach problems.
72 The plaintiff was referred back to Mr Gary Grossbard, orthopaedic surgeon, on 26 March 2008 with respect to the right knee injury.[41] Mr Grossbard took a history that the plaintiff was struck on the medial side of the knee whilst at work on 8 February 2008. The plaintiff complained of immediate pain and was not able to stand on the knee, which had become swollen. He also had difficulty bending the knee and he sought his general practitioner’s advice. X‑rays were undertaken but failed to reveal any fracture. The plaintiff also described a locking sensation in the knee, as well as difficulty bending. On examination, there was a knee joint effusion and tenderness around the medial joint line and over the medial femoral condyle. Mr Grossbard arranged for an MRI scan of the knee, which he reviewed on 9 April 2008. The scan revealed bone bruising with a subchondral insufficiency fracture of the medial femoral condyle. Treatment consisted of weight relief on the right knee and the use of a walking stick, together with the commencement of a low load exercise program under the supervision of a physiotherapist. Mr Grossbard had a concern that the condyle may go on to develop significant avascular necrosis, leading to a considerable collapse of the articular surface.
[41]PCB 59 et seq (Exhibit C)
73 At review on 7 May 2008, there was minimal improvement. There was a finding of tenderness over both the medial and lateral femoral condyles. The plaintiff, however, was able to walk reasonably well without support. An x-ray had failed to show any significant condyle collapse although there was a subchondral lucency in a portion of the medial femoral condyle. Conservative treatment remained. Arthroscopy was discussed.
74 At review on 4 June 2008, there was clinical improvement.
75 At review on 2 July 2008, the pain was now intermittent and the plaintiff was able to walk for ten to twenty minutes. Once again, the x-rays confirmed the presence of subchondral lucency and Mr Grossbard felt that ongoing mobilisation was essential.
76 On 17 December 2008, the symptoms were not changing. The plaintiff was waking at night, particularly if he had been standing all day. Although the x‑ray suggested the bone injury was recovering, an MRI scan, which was reviewed on 25 December 2008, revealed a localised area of oedema and collapse of the medial femoral condyle. Options were discussed, including an operation, but this was resisted by the plaintiff.
77 On 15 April 2009, the clinical presentation was that the knee had not changed significantly. The history taken was that the plaintiff was working normally, although he found it difficult, and the defendant was not keen to provide alternate duties. The plaintiff stated he was reasonably comfortable but had pain, particularly if he walked for any distance. There was a finding of some mild medial joint line laxity and surgery was once again discussed.
78 Mr Grossbard last saw the plaintiff on 17 February 2010. The knee remained painful and the plaintiff was still using Panamax for relief. He was having physiotherapy each few weeks. The knee tended to swell and tended to click. He had pain on going up and down steps and the history was there were nine steps at home. Once again, the plaintiff was not keen on any surgical intervention. In Mr Grossbard’s opinion, the direct blow to the knee on 8 February 2008 resulted in the development of significant bone oedema and subsequent subchondral lucency, with an area of subchondral collapse on MRI scanning. The acute symptoms had settled by February 2010 but the plaintiff continued to have pain, particularly with activity. He had been working in a normal capacity but was finding it increasingly difficult. It was the plaintiff’s choice to manage the situation conservatively. It would appear that Mr Grossbard thought this reasonable, because he stated that he suspected an arthroscopy would be unlikely to provide the plaintiff with a great deal of benefit. He believed the plaintiff was probably going to develop some degenerative change in the right knee, although this may be years off. Mr Grossbard thought the plaintiff would continue to have significant symptoms with respect to the right knee and, on the basis of each of the injuries to his spine and knee, it would be reasonable for him to consider alternate duties. With respect to the work he had been performing at that time, he noted that the plaintiff was having increasing difficulty in coping with a full day at work, particularly of a heavy nature. He thought by this time the situation was close to stable.
79 In his affidavit sworn 2 September 2009,[42] the plaintiff swore that he continued to suffer symptoms in his right knee following the injury of 8 February 2008. He stated he had a restriction for work from the knee which is to limit the amount of standing that he does, although in practice he needed to stand for long periods each working day.
[42]PCB 42 (Exhibit A)
80 In a later affidavit sworn 8 December 2010, the plaintiff deposed that he had ceased work with the defendant on 26 March 2010. He stated he had been battling ongoing back and right knee pain. He had been certified by his general practitioner, Dr Gescheit, as totally unfit for work. He also swore that he was currently in receipt of WorkCover weekly payments with respect to his knee injury. It is common ground that he is still in receipt of those payments at that level at the time of hearing.
81 In December 2010, the plaintiff was having physiotherapy at the Reservoir Physiotherapy Clinic approximately once a month and was also regularly taking Panamax for the knee pain. He alleged that his right knee continued to swell and he got a clicking or crunching feeling in it. He stated that Mr Grossbard had suggested that surgery was still an option in respect of the knee. He further related he had difficulty standing and walking and had an increase in knee pain if he sat for too long with the knee bent. He had difficulty using stairs or walking on uneven ground, and at times when the knee is swollen he needed to elevate it. At times the pain in his knee would wake him up. The knee problem had interfered with his hobbies, including camping, fishing, indoor soccer and walking. He swore that his preference was he would still like to be at work.
82 In his affidavit sworn 16 August 2012, the plaintiff deposed that he has constant pain in his right knee which fluctuates with respect to levels. His general practitioner continues to certify him as having no capacity for work and he takes between six and eight Panamax tablets a day “more for knee pain”. He alleges that his right knee separately continues to incapacitate him for a range of domestic, social and recreational activities, as well as incapacitating him for work. He continued to receive WorkCover weekly payments with respect to the knee. He alleges that his son comes over to his house and helps to do things such as the garden, and he mows the lawns. The plaintiff does not do much around the house at all. He still drives a car but usually only around the local area. He states he spends a lot of his days simply sitting or lying and trying to get some pain relief. Although his back pain is his major problem, he says that the right knee is, of itself, of significant concern to him. He believes that the knee injury by itself would prevent him from working.
83 The plaintiff was then assessed by orthopaedic surgeon, Mr Peter Wilde, on 19 June 2012.[43] He detailed the clinical history as referred to above. At pages 2 and 3 of his report of the same date, he took a history as follows:
“He returned to work in mid-July 2008 and continued to work in restricted duties until 26/3/2010 when he ceased work due to ongoing low back and right knee pain. He was told by his employer there were no more light duties available. His local doctor certified him unfit for work. He continued to attend physiotherapy monthly for his right knee.”[44]
[43]Exhibit C
[44]Report of 19 June 2012, page 3, PCB 64 (Exhibit C)
84 In my view, this history is consistent with the sequence of events, being that the cessation of work was due to pain in the low back and right knee and then a subsequent communication to the plaintiff that the light duties were no longer available.
85 There was a further history of separate pain around the right knee with chronic swelling and clicking, with the knee giving way and resulting in poor balance. The pain was rated at levels of 5 to 9 out of 10 on the Visual Analogue Scale. I believe that a fair reading of Mr Wilde’s report is that this pain level is as a result of the pain in the back and the right knee combined. Further, the claimed walking distance was less than 500 metres because of back and right knee pain. Also, sleep was poor because of back and right knee pain, disturbing the plaintiff three or four times per night. Current medications were Panamax, eight tablets per day, and Mobic, daily. Examination of the right knee demonstrated a range of motion of 0 degrees to 90 degrees. There was a small effusion and tenderness over the medial femoral condyle and joint line.
86 On reviewing the investigations, Mr Wilde related that the x-rays from 2008 until 2010 were largely normal. However, an MRI scan of the right knee on 4 April 2008 led to the comment:
“The most striking feature was an osteochondral lesion of the medical [scil medial] femoral condyle of the right knee.”[45]
[45]Report of 19 June 2012, page 6, PCB 67 (Exhibit C)
87 Earlier in his report Mr Wilde had recited the conclusion of the radiologist to the following effect:
“1Subchondral fracture measuring 8 mm. x 8 mm. involving central weight bearing surface of the medial femoral condyle with a large amount of associated bone marrow oedema involving the majority of the medial femoral condyle. The appearances were in keeping with an insufficiency fracture.
2Thin line of subchondral increased signal measuring 2.7 x 1.9 cm. involving weight bearing surface of antero-medial aspect of the lateral femoral condyle. The appearances may represent chondral separation. There is moderate thinning of the underlying articular cartilage and a small amount of underlying bone marrow oedema.
… .”[46]
[46]Report of 19 June 2012, pages 5-6, PCB 66-67 (Exhibit C)
88 In summary, Mr Wilde considered the plaintiff had a chronic right knee condition following an injury on 8 February 2008. His diagnosis at that point was one of mild post-traumatic osteoarthritis of the right knee. He recommended ongoing conservative treatment for the knee but noted that in the medium to longer term, the plaintiff may require surgical intervention, including arthroscopy or total knee replacement. The prognosis regarding his right knee was fair and he would continue to report pain and swelling and “eventually require a knee replacement”.
89 Further, Mr Wilde considered the plaintiff continued to suffer with severe chronic right knee pain; he had few transferrable work skills; his English is poor, and he requires strong analgesic medication to manage his pain. He considered that in the real world, the plaintiff does not possess a current work capacity for any work.
90 Finally, in theory, Mr Wilde thought the plaintiff possessed a physical work capacity for full-time sedentary or light duties work. However, “in the real world he does not possess a current work capacity for any work”.[47]
[47]Report of 19 June 2012, page 8, PCB 69 (Exhibit C)
91 The next medical practitioner the plaintiff relies upon is occupational physician, Dr Robyn Horsley, who saw the plaintiff on 2 July 2012.[48] She recites the history of the right knee disability stemming from the injury at work on 8 February 2008. The history of current symptoms was as follows:
“Mr Ivanoski has ongoing right knee disability. This was apparent on entering the consulting suite and throughout the interview. He had his knee at 110°. He experiences swelling in the knee on a daily basis. The knee gives way when he walks for greater than 15 to 20 minutes. He also experiences locking. This can occur several times per week. He is unable to squat. He is unable to kneel. He is unable to jump. He is unable to run. He has great difficulty with stair and hill ascending more so than descending. The cold weather exacerbates his symptoms. He is cautious about the footwear that he chooses. He experiences discomfort in the right knee at rest as well as with activities. He states that at rest the discomfort is 7 out of 10 on the visual analogue scale and with activity it rises to 8 to 9 out of 10.
His functional tolerances are affected by both his back and his right knee. … .”[49]
[48]Exhibit C
[49]Report of 2 July 2012, pages 4-5, PCB 73-74 (Exhibit C)
92 Dr Horsley was unable to examine the right knee, apparently due to general tenderness and also apparently there was significant fear avoidance behaviour exhibited. Despite this apparent behaviour, after examining investigations referred to above, the diagnosis was one of:
“… significant injury to his right knee on 8th February 2008. He has radiological evidence of a subchondral fracture measuring 8 x 8mm involving the central weight bearing surface of the medial femoral condyle on the 4th April 2008. There is also a subchondral line of increased signal measuring 2.7 x 1.9cms over the more antero medial weight bearing surface of the lateral femoral condyle. This may represent chondral separation. Symptomatically, he has developed post traumatic arthritis although again, objective clinical assessment was not possible.
He has significant disability.”[50]
[50]Report of 2 July 2012, page 6, PCB 75 (Exhibit C)
93 Dr Horsley also considered that given the length of time since the injury and the ongoing nature of the symptoms, she believed that they were likely to persist and that the plaintiff had come to the end of his working life. Because of his poor educational background and no literacy skills in English, he was limited to the manual arena with a significant disability. The restrictions on the right knee were such that he was unable to squat and there was, accordingly, an avoidance of same, an avoidance of kneeling, an avoidance of repetitive stair climbing, being unfit to ladder climb and caution when choosing footwear. She believed that the plaintiff was totally and permanently disabled on account of the knee and the back injury.
94 In a supplementary report dated 23 July 2012, Dr Horsley was asked to comment on the plaintiff’s permanent restrictions with respect to each injury considered separately. In essence, she considered that overall the functional tolerances were reduced:
“… These are impacted upon, by both his right knee and his back. It is not possible to differentiate.”[51]
[51]Report of 23 July 2012, page 2, PCB 78 (Exhibit C)
95 The defendant had the plaintiff examined by general surgeon, Mr Ian McInnes, on 24 April 2008.[52] He took a consistent history of injury occurring on 8 February 2008 with a subsequent return to light duties and medication by Voltaren. The knee had, however, remained very painful and swollen. The plaintiff could not walk properly and could not fully move his knee and had a lot of trouble even sitting down. He had continued to work with suitable light duties, mainly sitting down and doing light work with his hands. On examination, he walked with a limp, favouring the right leg, and described pain on the medial side of the joint and posteriorly. Examination of the right thigh had revealed slight wasting of the right quadriceps and there was a slight swelling in the right knee due to a small synovial effusion.
[52]DCB 35 (Exhibit 4)
96 Dr McInnes considered, on reviewing investigations, that there was a subchondral fracture involving the weight bearing surface of both the medial and lateral femoral condyle relating to the subject injury on 8 February 2008. The injury had not resolved and was continuing to give trouble. There was no follow up examination.
97 The plaintiff was next examined with respect to the knee by Mr Michael Shannon, orthopaedic surgeon, on 30 October 2008.[53] He took a similar history and noted that the knee had not improved and at that stage, there were no further sedentary duties available. The knee was still sore medially and he had the occasional “click”. The knee swells at times and pain wakes him at night. He had problems with stairs and steps and could walk for about fifteen minutes and drive for about twenty minutes. The right knee flexed to 90 degrees with difficulty. An MRI scan was reported to show a subchondral fracture of the medial femoral condyle.
[53]DCB 40 (Exhibit 4)
98 Mr Shannon also thought there may be a small area of segmental avascular necrosis. Mr Shannon noted that the plaintiff was –
“… struggling on at work at present but the knee condition may further limit him.”[54]
[54]Report of 30 October 2008, page 4, DCB 43 (Exhibit 4)
99 Mr Shannon considered that the knee problems, although separate from the back, did –
“… further limit his work capacity.”[55]
[55]Report of 30 October 2008, page 4, DCB 43 (Exhibit 4)
100 The next assessment in time was from Dr Peter Stevenson, consultant physician, on 5 February 2009. It appears that this examination was principally with respect to the back. Incidentally, he reported the occurrence and pathology of the right knee, which he described as a “trabecular fracture”. There was a history of continuing pain therefrom but examination of the knee was difficult due to some functional overlay.
101 In proffering an opinion concerning the right knee, Dr Stevenson said it was difficult to assess. He understood that it was a separate claim. He considered there was very gross overreaction and amplification. Overall, he thought the knee was “not too bad”.
102 The plaintiff was next examined by Mr Shannon on 11 March 2011,[56] who took a history that the plaintiff had been asked to perform his normal job which involved bending and lifting. There was a history of increasing pain in the knee and the back, and he eventually ceased work and went on WorkCover payments. Counsel for the defendant points out that Mr Shannon took a history as follows:
“He continued working in this capacity until the 4th May 2010, when he was told that there were no further light duties available.”[57]
[56]DCB 45 (Exhibit 4)
[57]Report of 11 March 2011, page 1, DCB 45 (Exhibit 4)
103 I believe that this is consistent with the plaintiff ceasing the work that he was performing at that time due to increasing pain in the knee and back and the defendant communicated to him that there were no [alternative] light duties available.
104 In any event, the plaintiff has given direct evidence on this matter and been cross-examined, and I accept the sequence as related by him.
105 Mr Shannon took a history that the plaintiff was taking Panadol for the knee and that he had been told by his surgeon that there was no guarantee of success should he come to surgery. He could walk for a maximum of ten minutes and only drive a car locally and was otherwise inactive at home and simply sits down or lies down. There was a further history that, as a consequence, he was unable to sleep at night.
106 It is true, as counsel for the defendant points out, that there is a finding of non-organic features, apparently relating to both injuries. However, Mr Shannon said:
“The knee injury was apparently the result of direct trauma and may have resulted in a subchondral minor fracture.”[58]
[58]Report of 11 March 2011, page 3, DCB 47 (Exhibit 4)
107 Mr Shannon considered, apparently on a physical basis, that the knee would limit the plaintiff’s capacity to perform heavy lifting and he would have difficulty in squatting to lift. There was a further comment that physical examination was really quite unrewarding because of apparent total lack of co-operation with examination. Accepting this comment at face value, it appears to me that this does not detract from a formal finding of physical injury leading to the restrictions as set out. The plaintiff’s prognosis was that the knee condition would be anticipated to resolve to a tolerable level. However, Mr Shannon noted that –
“His age, his lack of qualification and the loss of his job however, would make it unlikely that he would be able to … obtain employment.”[59]
[59]Report of 11 March 2011, page 4, DCB 48 (Exhibit 4)
108 The plaintiff was next assessed by Dr Peter Stevenson on 30 April 2012,[60] who confirmed an impact injury to the right knee at work and “very minor fracture”. Examination of the knee was precluded by functional overlay. There was a history that his pain was worse. The plaintiff told Dr Stevenson that he stopped work because of the pain. He was not able to stand but he had been doing seated duties for a time but only for a little while. The defendant had allegedly taken the seat from him that had been given to accommodate his knee injury. He could not stand. He could not sit. The work he was given was too heavy and eventually his general practitioner had put him off.
[60]DCB 64 (Exhibit 4)
109 Dr Stevenson took a history that the plaintiff was taking painkillers, being Panadol and Mobic, and was having physiotherapy for his knee once a month. To Dr Stevenson, the plaintiff appeared “irascible and unfortunately his illness behaviour had grown even more florid”. His opinion was that “the compensable injuries appear speculative and resolved”. I take this to include the knee injury. Dr Stevenson could not identify any “chronic pathology caused by the impact injury to his knee”.
110 Not long thereafter, the plaintiff was again examined by Mr Michael Shannon on 7 June 2012.[61] Physical examination was thought to be not genuine. For example, in regard to his knee, he demonstrated, to formal examination only, 30 degrees of flexion but improved to 120 degrees when he was dressing at the end of the consultation. Mr Shannon noted that on plain x-rays, there was no significant osteoarthritis of joint space narrowing and it did not appear to him that any collapse had occurred at the site of injury to the medial femoral condyle. Overall, there were numerous discrepancies and non-organic features to his presentation. Despite these findings, Mr Shannon’s opinion is as follows:
[61]DCB 49 (Exhibit 4)
(i) It is acknowledged that he had sustained injury to his right knee;
(ii) It is acknowledged that he probably had subchondral bruising and a minor fracturing of the medial femoral condyle which would be anticipated to have stabilised within six to twelve months from the date of injury;
(iii) He accepts that the plaintiff may have some early degenerative change in the medial compartment and that his knee problem may limit him in squatting and heavy lifting;
(iv) From the physical organic point of view, he was nevertheless capable of light work but had not worked now for two years, when he lost his job, and it was unlikely that he would be able to obtain employment.
Right Knee – Conclusions
111 I consider that the plaintiff has proved on the balance of probabilities the following factors:
(a) On or about 8 February 2008, he suffered a traumatic injury to his right knee in compensable circumstances, such injury resulting in subchondral bruising and fracturing of the medial femoral condyle which resulted in pain, limitation of movement and restrictions in his ability to work.
(b) It is likely that from time to time he has exhibited either functional overlay or pain avoidance behaviour.
(c) Nonetheless, on a physical organic basis alone, there has been considerable ongoing and permanent pain and restriction with respect to the right knee.
(d) The right knee pain superimposed on a pre-existing back injury both contributed to his inability to continue at work after May of 2010.
(e) Thereafter, there were no alternative light duties available at his place of employment.
(f) Further, at the time of hearing, because of his pain and disability and limitations with respect to the chronic pain in his right knee, I consider that he is not fit for suitable duties, or, alternatively, there are no suitable duties, given the antecedent requirements of s5 of the Act.
Conclusions
112 There will be leave to proceed at common law for pecuniary loss damages with respect to each injury claimed.
113 Further, in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[62] there will also be leave granted to proceed at common law for non-pecuniary loss damages.
[62]Supra
114 I will hear the parties with respect to subsequent orders and costs.
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