Janusauskas v Victorian WorkCover Authority

[2024] VCC 527

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-04658

HAYLEY JANUSAUSKAS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Shepparton
DATE OF HEARING:	15 April 2024
DATE OF JUDGMENT:	16 April 2024 (ex tempore)
CASE MAY BE CITED AS:	Janusauskas v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 527

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – workplace injury – right knee injury – plaintiff’s retained capacity – whether impairment consequences “more than significant or marked”

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2020] VSCA 10

Judgment:                  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC with Mr N Horner	Shine Lawyers
For the Defendant	Mr P Scanlon KC with Mr S Martin	Landers & Rogers

HIS HONOUR:

1Hayley Janusauskas claims that the injury to her right knee sustained at work with Yulong horse stud farm has resulted in impairment consequences which are more than significant or marked. She submits that this entitles her to a determination in accordance with s335 of the Workplace Injury Rehabilitation and Compensation Act that she has sustained a ”serious injury”.  There is no issue that she sustained an injury in the course of her employment.  While there was some mild debate about the exact injury sustained, the central issue in the case was whether the impairment consequences flowing from that injury rise to the level which meets the statutory threshold. For the reasons which follow I find that they do not.

Brief relevant chronology

2There was very little that was contentious in the Plaintiff’s background history so the chronology can be set out in brief compass only.

3The Plaintiff was born in Melbourne on January 1985. She finished high school to the end of year 9. She began a retail traineeship and worked with her mother in a dental factory for several years. She worked in commercial cleaning for 2 years or so. In about 2010 her parents bought a rural property and she moved there. She started a farming business called Vinoli Farm, around this time.  The property comprises 40 acres of her farm plus the leasing of 2 adjoining agricultural properties of about 350 acres in total. On that combined acreage she runs a small herd of cattle and over 25 horses. At trial she estimated this to be about 60 horses currently.

4In addition to her own property she also began working at stud farms, assisting with foaling. These were at Chatswood Stud and Swettenham Stud.

5She started with the Defendant as a foaling attendant in 2019. Before coming to the subject incident it is useful to also set out some of her background medical history.

6She has a long term history of depressive episodes which have required periods of medication and treatment – usually through a GP mental health care plan. At times, notably in 2015 and 2016 she was referred by the general practitioner to a psychiatrist, Dr Polonowita, for medication.

7She suffered from arthritic pain in her feet, knees, back and elbows prior to commencing in 2019 with Yulong.[1] She described this condition as causing pain “most of the time” which interfered with her activities[2], interfering with her sleep[3], and effecting her mobility.

[1]        Defendant’s Court Book (“DCB”) 66

[2]        DCB 68

[3]        DCB 68

8She also suffered from significant weight issues and has been applying forgastric banding surgery since at least 2019. In an intake questionnaire in January 2020 she put her weight at 136kg.[4]

[4]        DCB 66

9Despite these matters she lived on Vinoli Farm with her mother and 3 children aged in their early teens.

The incident

10There was no controversy about the circumstances of the incident or the fact that it occurred at work. She deposed to working on 8 September 2020 at the Yulong Farm. She was on her way to do a medication delivery to a horse. She entered a paddock in gumboots. She slipped on the ground “…causing [her] to fall onto [her] buttocks with the knees both splayed outward”.[5] Her right knee pain was the worst. She informed her farm manager and went home early. The next day she went to the Seymour Hospital. X-ray was performed,  reported as clear of fracture and with some effusion in the suprapatellar pouch. She was discharged that day with Panadeine Forte for the pain.

[5]        Plaintiff’s court Book (“PCB”) 6, at paragraph [14], Exhibit P1

11She was off work. She attended her treating doctor a few days later and was referred for ultrasound and put into a right knee hinged brace. She had some physiotherapy but complained of ongoing pain.

12MRI was conducted on 18 September 2020[6]. The findings of that examination became important to the issue of what constituted the injury so I have repeated it here:

“Articular cartilage of the medial and lateral compartments are normal. Near full thickness ulceration involves both the medial and lateral patella facet with the former demonstrating a focal full thickness of defect measuring 2 * 1 millimetre with minimal subchondral odoema minimal subchondral bone marrow odoema involves the lateral femoral condyle compatible with an osteochondral impaction fracture due to a valgus mechanism of injury.”

[6]        DCB 20

13She was referred by her treating doctor to see Mr Thomas an orthopaedic surgeon. He saw her in January 2021 and concluded that the predominant pain was coming from an ongoing healing medial collateral ligament but there was also a significant chondromalacia which had been stirred up by her work injury. He considered that physiotherapy was the best course of treatment and that no surgery was warranted.[7]

[7]        PCB 31

14A further MRI was conducted on 27 January 2021 P24. It recorded “…stable near full thickness ulceration involving the medial and lateral patellar facets. Trochlear cartilage normal. Articular cartilage of the medial and lateral compartments are normal. Resolution of subchondral bone marrow odoema involving the lateral femoral condyle secondary to the previously demonstrated osteochondral impaction fracture." The conclusion was “uncomplicated healing grade 2 sprain of the medial collateral ligament”.[8]

[8]        PCB 25

15As a result of that scan Mr Thomas reported back to the treating doctor that conservative treatment was warranted, that Ms Janusauskas could continue with modified duties and return to full duties as tolerated. He discharged her from his care.

16In February 2021 she ceased working with Yulong as she found the modified duties work, being making up and carrying feeds for the animals, too difficult. She saw a medico legal practitioner, Dr Pereira, in June 2021. At that appointment she described being able to drive for one hour, sit for unlimited periods and stand for one hour. She described stairs being a problem and that she had put on a considerable amount of weight.[9]

[9]        PCB 59

17She developed plantar fasciitis in September 2021 and had two cortisone injections. She had a major relapse for depressive condition in late 2021 and had an increase in her dose of Sertraline. She did some retraining as a disability support worker and began employment in early 2021 in the field. She did such work for about 15 to 20 hours per week. She performed similar work as a sole trader from about early 2023 however she had a significant deterioration in her mental health in December 2023. She ceased her disability care work at this time. She has not returned to it.

18Currently she describes her life as being busy. She has 2 children at home and has primary responsibility for the farm work. This involves all the ownership and managerial farm work including feeding out, fencing and leading the horses, as is necessary.  She ceased physiotherapy about a year ago and is relying on pain medication to deal with her pain. I will deal with the alleged impairment consequences below.

The injury

19There was dispute between the parties as to the injury caused. The parties agreed that the plaintiff had sustained a grade II strain to the medial collateral ligament. The defendant did not accept however that the plaintiff had sustained an osteochondral fracture. The defendant placed great weight on the MRI scan of January 2021 which it argued demonstrated that there was no more than underlying degenerative change. I do not accept the defendant’s characterization of the medical evidence in this case. I find that the plaintiff sustained a grade 2 strain to the medial collateral ligament and an osteochondral fracture at the date of injury. I come to that conclusion for the following reasons. First the MRI of 18 September 2020 clearly identifies the injury as an osteochondral fracture “…due to a valgus mechanism of injury”.[10]That is the same cause of injury as that which caused with the MCL strain. This can be seen in the conclusion of the MRI at Plaintiff’s Court Book 20.

[10]        PCB 19

20Thus it can be seen that there is one mechanism of injury implicated in the causation of 2 organic findings. To accept the Defendant’s conclusion it would have to be accepted that there were 2 valgus events both causing 2 separate injuries yet the first (on the Defendant’s case being the osteochondral fracture) not being appreciated by the Plaintiff. This seems unlikely. The more likely explanation is that one valgus event occurred – being the fall with the legs splayed out. This is also the second reason – which is that the fracture is consistent with the mechanism of injury. Third, the treating specialist considered that the fall generated “significant valgus force”.[11]  This is consistent with the fracture being caused at that time. Fourth the subsequent MRI was considered to be consistent with the “…resolution of an osteochondral impaction fracture” by Mr Thomas.[12] This clearly implies there was a fracture at an earlier time and it had healed by the time of the second MRI. These reasons I consider are sufficient to accept the Plaintiff’s submissions on this point. If necessary I would also rely on Dr Keith’s opinion.[13]. To the extent that reliance was placed on Dr Ghan’s opinion I do not accept it. It does not really engage with the MRI findings and is really focused on the state of the right knee as it was at the time of his examination. Furthermore I prefer the radiology opinion and that of Mr Thomas who were investigating and treating the Plaintiff at about the time of the injury. The clinical findings at that time are much more likely to have informed the clinical diagnosis of Mr Thomas and he was therefore in a better position to form an opinion than Dr Ghan.

[11]        PCB 31

[12]        PCB 31

[13]        PCB 47

21As a result of that finding I find that the Plaintiff sustained an injury to her right knee in the fall at work on 8 September 2020. In that fall she sustained a Grade II strain to her right MCL ligament and an osteochondral impaction fracture.

22I find that that injury to the right knee caused an impairment of a body function being the right knee and lower leg.

The impairment consequences

Work capacity

23The Plaintiff gave evidence that she loved animals “…loved being busy and loved hard work”[14] The first impairment consequence that the Plaintiff complained of was her inability to continue working at horse farms as she had at the date of injury. The evidence as to this point seems to favour the plaintiff’s submission. The occupational physician Dr Barberis did not think she could.[15] Dr Keith had the same view.[16] As did Dr Perera.[17]. However her treating specialist thought she could return to pre-injury duties[18]as did Dr Ghan.[19]. The plaintiff herself was of the view that she could not return to pre-injury duties and so ceased work in February 2021.

[14]        Transcript (“T”) 30 Line (“L”) 2

[15]        DCB 19

[16]        PCB 47

[17]        PCB 61

[18]        PCB 33

[19]        DCB 39

24In coming to an assessment of this submission it is necessary to appreciate that the treating specialist only indicated the Plaintiff could return to her old duties as “tolerated”. The Plaintiff’s evidence was that she could not tolerate the role and so she left Yulong. It is often said that the credibility of the Plaintiff is critical in an assessment of the Plaintiff’s case.[20] Here the Defendant made no submission that the Plaintiff’s credit was in issue. In fact it was accepted by the Defendant that save for some minor areas of unreliability the Plaintiff was an honest witness.  I accept that characterisation. The Plaintiff appeared to be a straightforward, intelligent witness who answered honestly and as best she could. She conceded appropriately, for example when notes as to her weight being 136 kilograms prior to the date of injury and her weight gain after the injury not being 40kilograms. This was to her credit and represented only minor unreliability in her evidence.

[20]        Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2020] VSCA 10

25However her evidence must be looked at overall and some of the evidence given in cross examination does not sit comfortably next to her affidavit evidence or that contained in medical reports. The first area this is demonstrated in is  in relation to her ability to work. I have set out the contrasting opinion above as to her ability to return to work as a foaling attendant.  Really it is only Dr Ghan who opines that she has the capacity to return to her work as a foaling attendant. To this extent I consider his opinion isolated and I do not accept it. This leads me to a finding that she cannot work as a foaling attendant.  However, I find, having assessed all the evidence and for reasons I will come to below, that her occupational capacity related to working with horses is only very slightly reduced by the loss of this very specific work capability.

26The evidence she gave as to her ability to work on Vinoli Farm was illuminating as to her capacity. She gave evidence that her days were “long and busy”.[21] In that time she gave evidence that she would do all activities involved in the farm.[22] She said that she could do all the requisite tasks with some modifications. For example she gave evidence of not being present for foaling any longer.[23]. Her days then involved  her feeding, drenching, leading horses, fencing, catching horses, driving a buggy around the farm with hay or fence posts and mustering cattle in. She can drive farm machinery.[24] She can transport, and I infer lift feed bags of 20kgs.[25]  Though I accept this is likely to be momentary lifting, on and off the buggy.

[21]        T32 L19

[22]        T32 L22

[23]        T35 L14

[24]        T33

[25]        T34 L7

27She said some things weren’t done but did not elaborate on what those things were.[26] She gave evidence that in between those farm tasks, she was also caring for her children, doing the household chores with help from her mother and doing the shopping.

[26]        T32 L28 

28That evidence left me with the strong impression that the Plaintiff worked a hard, physical job on an almost daily basis. I accept that she required modifications – such as not being present at foaling – and also breaks to complete these tasks such as feeding, driving the ATV, catching and leading horses, drenching and mustering stock, but the evidence was clear that she could do the full range of farm tasks.

29On this basis I consider that while she may not be able to work as a foaling attendant she has the capacity to perform all the ownership and management tasks associated with running a working farm of 350 acres on which cattle and horses are run. I find this is a significant retained work capacity.

30She deposed to struggling to work in the disability care sector but did not explain why. The evidence of her farm work leaves me with the strong impression she has significant physical capacity. The lack of affidavit evidence [27]as to why she cannot perform disability care work is also telling. Given that she performed such work for her employer and herself for a considerable period after the right knee injury supports my finding that her ability to work in the disability care sector is not reduced. I am not prepared to accept this as an impairment consequence.

[27]        PCB 43

Pain consequences

31She described the pain in her right leg as constant in her affidavit.[28] However Dr Keith recorded it as intermittent; while Dr Barberis made no specific comment.[29]  Dr Ghan recorded “She does not have any locking or significant pain” but made no comment on the chronicity of the pain.[30]

[28]        PCB 9 at paragraph [31]

[29]        DCB 18

[30]        DCB 36

32As to pain medication taken in respect of the pain there was some debate as to whether her pain medication use had decreased since the incident. It became apparent that prior to the date of the incident she was taking meloxicam, a pain medication daily. She no longer takes that medication on a daily basis.[31] I find that its use is not related to her right knee injury as its use was likely for the arthritic pain she was in since 2019.[32]It is relevant to note that at that time she described her pain as being present “most of the time’;[33]  She describes suffering from “severe pain” and it “often” interfering with her usual activities”[34].

[31]        T46 L9-16

[32]        DCB 67

[33]        DCB 68

[34]        DCB 69

33It must be said that her affidavit material did not really touch on any of these pre-existing matters save to depose in the following terms: “In about 2019 I experienced left and right ankle pain and foot pain”.[35] The affidavit material did not allow any real assessment of the pre-existing condition and its pain and functional consequences to be calculated as is called for in a Petkovksi v Galletti. The Defendant did not take up this issue  but I record that the affidavit material on this issue and on others, which I will come to below, did not descend to the detail necessary when identifying impairment consequences allegedly flowing from the right knee injury.

[35]        PCB 5 at paragraph [11]

34As to Panadol and Nurofen use, which she deposed to taking on a daily basis in March 2024.[36] Dr Keith, in contrast, did not record such use. Associate Professor Doherty recorded use every few days and the use of Panadeine Forte “as required occasionally.”[37] The treating doctor makes no mention of this. The pain that the plaintiff complains of is recorded by her on a visual analogue scale as being between 2 and5 our of 10.

[36]        PCB 14 at paragraph [2]

[37]        DCB 27

35Overall I find that the evidence suggests that the Plaintiff is a stoic individual who has simply got on with her life as best she can. It would be wrongheaded to punish her in any way for persevering in the way that she has. However the evidence as to the level of activity in combination with the recorded evidence suggests that she has only intermittent pain in the right knee which requires pain medication, being Panadaol and Nurofen every few days. To this extent I consider the recording of the doctors more accurate as they are consistent with the level of activity the Plaintiff has. I also note that there is no supporting affidavit from the Plaintiff’s family which might shed some light on her level of pain medication usage  or opinion from the treating doctor. On occasion I accept there might be a need for Panadeine Forte but the evidence is unclear how often that is. At best the Plaintiff deposes to taking it “every couple of months”[38]. No records were put in from the treating doctor that would substantiate the ongoing prescriptions of Panadeine Forte.

[38]        PCB 13 at paragraph [2]

36It is also the case that for the last year at least she has not had any allied health therapy such as physiotherapy. She uses only a “red light” to ease the pain on bad days, self-massage and a heat pack.[39] I record again that the affidavit material did not detail the red light, massage, heat pack or other therapy treatments at all. I can make no detailed finding in respect to the frequency or intensity of that treatment.

[39]        T48

37To sum up then on the topic of pain. I find that the Plaintiff has intermittent pain at a level of 2 to5 out of 10. Every few days she might take Panadol or Nurofen. I find that she may on occasion take Panadeine Forte but I cannot find how often or in what quantity it is taken. On occasion she uses red light, self massage and heat packs as treatment. The pain does not stop her ability to perform all the activities required to own and manage a farm.

Functional consequences

38Turning to the functional impact. At paragraph 32 of her first affidavit the Plaintiff deposed to struggling to squat, crouch or kneel. This was said to demonstrate the ongoing nature of the injury. The Plaintiff called in aid the examination findings of MCL laxity by both Dr Keith[40]  and Dr Perera[41]. Dr Ghan did not make such a finding on clinical examination. Whatever the finding as to laxity or some swelling as Dr Barberis found,[42]   it is not clear in what way this impacts on her impairment consequences.

[40]        PCB 45

[41]        PCB 60

[42]        DCB 18

39It was put by Counsel for the plaintiff that this impacted her in the ability to do household tasks below waist height, such as making beds or cleaning out kitchen cupboards;[43]  or of lifting up a horse’s leg to examine it. The plaintiff claimed that the accident had reduced her ability to contribute to housework from an hour or two to fifteen minutes a day.  I do not accept this submission given this is inconsistent with the descriptions the Plaintiff gave of the work that she did on Vinoli Farm,  which was of getting on and off the ATV to do a range of jobs, some of which were likely below waist height – such as picking up bags of feed to load the ATV and then tip into feed buckets. All the evidence in the case must be assessed and the logical nature of things seems to strongly suggest that if she is able to do physical farm work, then she can do the far more sedentary home tasks.

[43]        T67 L1

40Overall, I find that she is not restricted in household tasks.

Sitting

41It was then submitted that she had difficulty in sitting for more than 40 minutes. This is inconsistent with Dr Barberis’s recording of unlimited sitting ability. It also does not seem consistent with her being able to sit on the ATV during the course of the day, drive to Melbourne which she did to see Associate Professor Doherty or travel in a motorhome on holidays regularly. I do not accept that she is limited in her sitting capacity as deposed.

Sleep

42It was next submitted that the knee injury affected her sleep. In cross examination it became apparent this was as a result of her daughter and not her knee injury.[44] I find that her sleep is not affected by the right knee injury. However it was submitted that even if her sleep was not affected by the right knee she had to move to the downstairs bedroom as a result of trying to avoid stairs and also buy an electric elevating bed to raise her knee. This was clearly a modification she had made in response to the right knee injury. The same was the reason why she purchased a reclining chair. I accept that she has made these modifications to cope with her right knee injury.

[44]        T43 L12-16

Ability to ride horses

43He affidavit evidence was also that as a result of her right knee injury she could no longer ride horses. In cross examination she conceded that she had stopped riding horses well before the date of injury.[45] I do not consider this an impairment consequence that can be claimed as related to the knee injury consequently.

[45]        T43 L19

Weight gain

44Similarly her affidavit deposed to significant weight gain as a result of the knee injury – in the order of 40kilograms.[46]  However, in cross-examination the Plaintiff conceded that it was much more likely to be  5 to6 kilograms.[47] Thus I consider there has only been modest weight gain as a result of the right knee injury.

[46]        T23 L20

[47]        T25 L17

Skiiing

45The Plaintiff also deposed to not being able to ski as a result of the right knee injury. It was put to her that given she could walk for 4 hours at a time on the farm, she could  ski. She conceded that she did not know if she could ski as she had not tried. Certainly no doctor says that she ought not to. Given the range of physical activities that she currently engages in I consider there is no particular reason why she could not ski. However I do recognise that the act of skiing places significant strain on the knees and it may well be that a person with a knee injury would not want to engage in this activity out of caution even without medical opinion banning her. I can accept then that this is an impairment consequence but it is of little moment given the Plaintiff did it only a few times a year.

Hiking

46I find the same is likely in respect of her claim of being unable to hike.  It was not clear in her affidavit what type of hiking she previously did – with a heavy overnight pack or day pack – but given her ability to walk 4 hours at a time and work a physical job around the farm on uneven ground, it is not clear from the affidavit in what way her ability to hike is impacted. I do not find this is an impairment consequence that can be called to account.

47It will be apparent from the above that I prefer the evidence of Dr Ghan to that of Dr Keith. That is the case as it is clear that Dr Keith has not taken a correct history. For example he took no real history of the work that she does on a daily basis on Vinoli Farm. For example he considered that she had a capacity for only “low physical demand occupational roles”[48] AS I have found above, she is performing a strenuous physical role every day. Similarly he recorded a walking capacity of only 1 hour. The Plaintiff accepted in cross-examination being able to walk much more than that with no issues on a good day. He went on to record that because of her knee injury she could not horse ride, travel or hike. As to these matters, each are incorrect. She ceased horse riding well before the knee injury, she travels regularly in a motorhome and I have found that she can hike.  This incorrect history compromises his conclusions and I do not accept them.

[48]        PCB 46

Retained capacity

48It is also necessary to examine the matters the Plaintiff retains. I have set out the substantial physical work she conducts in running and managing Vinoli Farm. In addition she is doing a certificate in counselling and may continue onto other study such as equine therapy. Save for not being able to work as a foaling attendant she has an almost full work and domestic capacity. She travels on a regular basis in a family motorhome on drives to places such a Mallacoota. She can drive in her car to Melbourne. She can socialise.

49In summation then, there is no doubt that Ms Janusauskas has an injury to the right knee sustained at work. Exercising a degree of assessment and balancing all of the evidence in the case, I have found that the Plaintiff’s injury does not rise to the level of being more than significant or marked. In that event, I will deny her application.