Johnston v Victorian WorkCover Authority
[2016] VCC 456
•22 April 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-15-01801
KIM MAREE JOHNSTON Plaintiff v VICTORIAN WORKCOVER AUTHORITY (t/as WORKSAFE VICTORIA)
on behalf of K B I NO.5 PTY LTD
(deregistered, former ACN 112 168 475)First Defendant
and XCHANGING INTEGRATED SERVICES VICTORIA PTY LTD
(ABN 18 003 645 645)Second Defendant
---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
Melbourne
DATE OF HEARING:
8, 11 and 12 April 2016
DATE OF JUDGMENT:
22 April 2016
CASE MAY BE CITED AS:
Johnston v Victorian WorkCover Authority & Anor
MEDIUM NEUTRAL CITATION:
[2016] VCC 456
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to left lower limb with Complex Regional Pain Syndrome Type 1 affecting the left lower limb – secondary injury to right knee – pain and suffering damages – loss of earning capacity damages – plaintiff required to disentangle psychological factors from the physical injury –plaintiff is required to identify and prove to the requisite standard the consequences applicable to the injury to the left lower limb
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Church v Echuca Regional Health [2008] VSCA 153; Jones v Dunkel (1959) 101 CLR 298; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Application for serious injury certificate for pain and suffering and loss of earning capacity granted in respect of the physical injury to the left lower limb.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr A D Clements QC with Mr E Makowski Williams Winter & Higgs For the Defendants Ms A Magee QC with
Ms J ZhuRussell Kennedy HIS HONOUR:
1 The plaintiff’s application is brought by Originating Motion dated 16 April 2014. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act”) to bring proceedings to recover damages for an injury suffered by her arising out of, or in the course of, her employment with the first defendant, K B I No.5 Pty Ltd, on 18 January 2010.
2 The application made by the plaintiff in this case relies on a physical injury to the left lower limb, including her left knee, and a secondary injury to her right knee as a result of the accident at her work. The plaintiff has developed Chronic Regional Pain Syndrome Type 1 in respect of her left lower limb.
3 The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity in respect of the physical injury to her left lower limb.
4 The following evidence was adduced during the hearing:
·the plaintiff gave evidence and was cross-examined
·the plaintiff tendered the following documents:
§Exhibit A, hypnotherapy records of the plaintiff dated 11 April 2016
§Exhibit B, Plaintiff’s Court Book (“PCB”), pages 1-63, 68A-68D, 69‑141 and 688-689
§Exhibit C, Defendants’ Court Book (“DCB”), pages 1-4, 18-26, 45-53, 66-118 and 123-131
§Exhibit D, summary of surveillance footage not shown in the hearing, taken in the years 2015 and 2016
§Exhibit E, plaintiff’s earnings for the year 2011-2012.
5 In the course of the proceeding, the defendants tendered the following documents:
·Exhibit 1, DCB, pages 314-315
·Exhibit 2, DCB, pages 340-343
·Exhibit 3, cricket selection documents relating to the plaintiff’s cricket club
·Exhibit 4, income taxation return of the plaintiff for the year ending 30 June 2007
·Exhibit 5, clinical notes of Dr Nekoee, dated 7 October 2013
·Exhibit 6, DVD surveillance footage of the plaintiff taken on 23 and 24 August 2014
·Exhibit 7, DVD surveillance footage of the plaintiff taken on 14 September 2014
·Exhibit 8, DCB, pages 16, 27-39, 40-44, 54-65, 106-122, 131A-177, 276, 268 and 354-358.
6 Ms Magee, on behalf of the defendant, identified the following issues in this application:
(i)the plaintiff is required to disentangle the psychological factors impacting upon the organic injury suffered by the plaintiff;
(ii)the plaintiff had pre-existing conditions which impacted upon her claim for economic loss;
(iii)the plaintiff is required to disentangle the pain and suffering consequences relevant to other physical ailments suffered by her, which are not the subject of the work injury;
(iv) the credit of the plaintiff is challenged;
(v)the pain and suffering consequences relating to the plaintiff’s work injury to her left lower limb does not reach the statutory test; and
(vi)the plaintiff has a capacity to work in suitable employment and, consequently, does not meet the statutory test for “serious injury” in respect of loss of earning capacity.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in Australia in 1966 and is now forty-nine-years-old.[3] The plaintiff completed her education at Strathmore Secondary College in 1984. She successfully completed Year 12.[4]
[3]PCB 14
[4]PCB 15
11 Upon leaving school, the plaintiff initially attended at the Chisholm Institute to commence a sports psychology course. She deferred that course and never returned to it.
12 The plaintiff was married in 1989 and has two sons from that marriage. Her sons are twenty-six and twenty-three respectively.[5]
[5]PCB 15
13 In 1990, the plaintiff ruptured ligaments in her right ankle and these were repaired by arthroscopic operation.[6]
[6]PCB 17
14 The plaintiff had worked a number of jobs prior to her employment with the relevant employer K B I No.5 Pty Ltd.[7] The plaintiff worked in data entry and administrative roles for Jacquard Fabrics. She has also worked at the Keilor Basketball Association as a lifeguard and swimming instructor. The plaintiff, in 1997, was appointed as a manager of Fernwood Fitness in Carlton and undertook a Certificate III in Fitness Instructor course at that time.[8] The plaintiff subsequently managed Focus Health and Fitness and completed a Certificate IV in Personal Training with the Australian Institute of Fitness.[9]
[7]PCB 15
[8]PCB 16
[9]PCB 16
15 In 2002, the plaintiff established her own business, known as Bayside Bodies, and conducted that business as a personal training business. At one stage, she had five full-time and three casual staff.[10] In 2006, the plaintiff separated from her husband and the Bayside Bodies business was wound-up.[11]
[10]PCB 16
[11]PCB 16
16 In November 2007, the plaintiff commenced a position as a manager of Contours Fitness, which was a gymnasium operated in West Meadows.[12] In April 2009, the plaintiff transferred her employment to be a manager of the Contours Fitness gym in Niddrie, where she was employed by the first defendant in this case, K B I No.5 Pty Ltd.[13]
[12]PCB 16
[13]PCB 17
17 The plaintiff was injured at her work in Niddrie on 18 January 2010.[14]
[14]PCB 18-19
18 After treatment, the plaintiff returned to work as a manager at Focus Health and Fitness Centre in mid-2010, and remained in that employment for approximately one year.[15]
[15]PCB 22
19 In July 2011, the plaintiff transferred her employment to Bowling Centres Australia on a full-time basis. The role of that job was to be a corporate functions sales representative. The plaintiff continued that employment until September 2011, when she resigned from work.[16]
[16]PCB 22
20 In January 2012, the plaintiff obtained a new position as sales manager at the Windy Hill Leisure Centre, where she was employed by Belgravia Health and Leisure Pty Ltd (“Belgravia”). The plaintiff continued to work in that capacity until December 2012, where she was unable to continue with her work due to her symptoms.[17] The plaintiff continued to be paid until April 2013.[18] I accept the plaintiff’s evidence that she signed a further contract of employment with Belgravia on 1 March 2013.[19] The plaintiff stated that this contract was never acted upon and that her payments related to entitlements and sales commission in a run-off form from when she ceased her full-time employment.
[17]PCB 24
[18]Exhibit 1
[19]Exhibit 2
21 Since January 2013 until the time of the proceedings, the plaintiff had not been in paid employment as a result of her injuries. The plaintiff then, for the latter part of 2015, commenced a hypnotherapy diploma course, which she completed in October 2015.[20] After the completion of that hypnotherapy course, the plaintiff has engaged, in a limited way, in working as a hypnotherapist. The records of the plaintiff and the payments received by her are set out in exhibit “A”. The total earnings between 14 November 2015 and 2 April 2016 are less than $1,000 gross.[21]
[20]PCB 53
[21]Exhibit A
Injury with the Defendant
22 On 18 January 2010, the plaintiff, in the course of her duties as a manager of Contour Fitness gym, conducted by K B I No.5 Pty Ltd, attended at her place of work, 8 Treadwell Road, Niddrie. The plaintiff sets out the circumstances of her work accident in her affidavit sworn on 16 December 2014. She states as follows:
“At the time of the Accident I was carrying a box of files from my car (which was parked in the basement car park of the Building) up to the offices of KBI No.5 on the second floor of the Building. The files were work files which contained confidential and sensitive information relating to clients. In order to avoid the risk of becoming trapped in the Lift, I adopted my usual practice of using the fire escape stairs. While the weight of the box was not excessive, it was unavoidable that I required 2 hands to carry the box and that my view of my feet was obscured or partially obscured by the box as I was ascending the stairs.
I was wearing running shoes and loose comfortable clothing suitable for instructing clients on the gym floor.
The Accident occurred when I was climbing the last step before stepping onto the Level 2 landing. I believe that one of my toes caught the top of the stairs which caused me to lose my balance and fall forward heavily and awkwardly.
Because the railing finished at the last step, there was nothing I could grab to break my fall. Consequently my left knee heavily struck the concrete surface of the landing.
….
I felt immediate pain and my knee began quickly swelling up.”[22]
[22]PCB, 18-19
23 The plaintiff completed a Worker’s Injury Claim Form dated 28 April 2010, setting out the circumstances of her accident in the same manner as deposed to in her affidavit.[23] There was no evidence of an incident report form being completed, or exhibited in this proceeding.
[23]DCB 1-2
24 The injury resulting from this work accident was to the plaintiff’s left knee and left lower limb. The defendants have accepted a WorkCover Claim in respect of the left knee.[24] On 31 July 2014, the defendants also accepted the Complex Regional Pain Syndrome Type 1 as a compensable injury, as a second injury to the original left knee injury, which occurred on 18 January 2010.[25] The defendants subsequently accepted the right knee injury as a compensable injury as being secondary to the original left knee injury on 6 August 2014.[26]
[24]DCB 2
[25]PCB 136
[26]PCB 140
Medical treatment
25 The plaintiff has, during the course of her life, been a very active sportswoman. She has engaged in competitive cricket, netball and basketball. She has also been a swimming and fitness instructor, by occupation. As a result of her sporting and work activities, she has suffered a number of injuries prior to her injury to her left knee at work, being the relevant injury for these proceedings.
26 It is necessary to detail a history of the plaintiff’s prior injuries and the effect upon her for pain and suffering purposes in order separate out the relevant pain and suffering consequences for the plaintiff as a result of the injury to her left knee on 18 January 2010.[27]
[27]Peak Engineering v McKenzie [2014] VSCA 67
27 A summary of those prior injuries is as follows:
(i)In 1990, the plaintiff ruptured right ankle ligaments, which was treated by arthroscopy;[28]
(ii)In 1993, after the birth of her second son, the plaintiff suffered from debilitating panic attacks, which she was treated for at that time;[29]
(iii)In 1996, the plaintiff fractured her left ankle, which did not require surgery;[30]
(iv)In 2004, the plaintiff suffered injuries to her hip ligaments at her place of work and this was treated by way of arthroscopic repair;[31]
(v)In 2006, the plaintiff was complaining of lumbar back pain. She had an MRI scan of her lumbar spine in February 2016;[32]
(vi)In May 2006, the plaintiff was referred to Mr John O’Donnell, orthopaedic surgeon, for treatment in respect of her lower back pain and left hip pain;[33]
(vii)In December 2009, the plaintiff consulted Mr Richard Freeman, an orthopaedic surgeon, in respect of her bilateral plantar fasciitis. The plaintiff was treated by way of heel cups for that condition and advised to give up her sporting commitments;[34]
(viii)In January 2014, the plaintiff was referred to Dr Raju Yerra, neurologist, to determine whether or not she was suffering from multiple sclerosis. The plaintiff’s complaint, at that time, was relating to faecal soiling. The plaintiff stated to Dr Yerra that the soiling had commenced two to three years prior to her consulting him. The plaintiff also complained of a tremor in her left hand and a burning sensation on the tip of her tongue, which was intermittent. I accept the plaintiff’s evidence that she had been taking what she described as “shakes”, in order to reduce her weight in the period after her injury to her knee. After she had seen Dr Yerra, she ceased taking the “shakes” and her faecal soiling problem predominantly resolved. I accept her evidence that she now does not have that level of urgency as described to Dr Yerra in 2014;
(ix)In November 2014, the plaintiff had an ultrasound on her left heel.[35] This procedure was performed in relation to her treated plantar fasciitis. The plaintiff’s evidence was that she continued to wear the heel cups prescribed for her by Mr Richard Freeman, orthopaedic surgeon; and
(x)The plaintiff gave evidence that she had had lower back pain in the latter part of 2015. She described this pain as being in the left side of her lower back. She stated that she had been diagnosed with a kidney stone which had passed, and that the left lower back pain had predominantly resolved after that.
[28]PCB 17
[29]PCB 70
[30]PCB 17
[31]PCB 17
[32]DCB 13
[33]DCB 7
[34]DCB 16
[35]PCB 27
28 I accept the plaintiff’s evidence that all of the foregoing medical conditions and treatment for them have largely resolved, and that her ongoing and major concern relates to her left knee and subsequent right knee injury. Her current treatment from medical practitioners is all directed to the ongoing treatment of pain resulting from her left knee injury.
Medical treatment in respect of the left knee and right knee injury
29 The plaintiff initially attended her general practitioner, Dr Hussain, at the Greenvale Medical Centre on 22 January 2010.[36] On 27 January 2010, the plaintiff underwent an ultrasound and x-ray of her left knee. The left knee x-ray was reported as follows:
“There is a small joint effusion but no other abnormality is seen. There is no soft tissue calcification or loose body formation.”[37]
[36]PCB 20
[37]PCB 93A
30 The left knee ultrasound reported as follows:
“Collateral ligaments and underlying menisci are normal. There is a little fluid within the prepatellar bursa. No other abnormality is seen.”[38]
[38]PCB 93A
31 The plaintiff returned to her general practitioner on 20 April 2010, and she was then referred to Mr Paul Burns, orthopaedic surgeon, and for an MRI scan. Mr Burns, in his report dated 11 May 2010, noted that the:
“… x-rays are normal and the MRI shows a rather odd appearance of the anterior segment of the medial meniscus which certainly looks like a tear. A significant tear in this site is certainly unusual but it seems to correlate well with her symptoms and given she hasn’t settled over a three month period I think she will need an arthroscopy which I will organise Workcover permitting.”[39]
[39]PCB 72
32 On 21 May 2010, the plaintiff had her first operation on her left knee. In his operation report, Mr Burns reported as follows:
“Inspection of the medial compartment revealed a rather unusual anterior parrot beak/flap tear of the medial meniscus in association with a significant area of chondral injury involving virtually a full thickness flap of the anterior portion of the weight bearing area of the medial femoral condyle. The flap tear of the meniscus was resected and the unstable areas of articular cartilage debrided with rongeurs.
Inspection of the intercondylar region was normal and inspection of the lateral compartment revealed some partial thickness splitting of the tibial articular surface but this was stable and a normal lateral meniscus and femoral surface.”[40]
[40]PCB 74
33 In June 2010, the plaintiff returned to modified duties at work. By the end of June 2010, the plaintiff had returned to Mr Burns, complaining of ongoing left knee symptoms. Mr Burns recommended the plaintiff undergo physiotherapy to assist in the symptoms.[41]
[41]PCB 21
34 The plaintiff resigned from her employment with the second defendant in July 2010 due to financial stressors the second defendant was under at that time.
35 Between the middle of 2010 and May 2012, the plaintiff continued to work, but was experiencing more left knee symptoms. She re-attended Mr Burns in February 2012.[42]
[42]PCB 76
36 On 9 May 2012, the plaintiff had a further ultrasound of her left knee. The result of the ultrasound was that there was a small knee joint effusion.[43]
[43]PCB 96
37 On 23 June 2012, the plaintiff had an MRI scan of her left knee. The conclusion set out in the MRI report states:
“The medial meniscus is abnormal in configuration consistent with previous surgery. A recurrent meniscal tear is not seen.
This patient however does have full thickness chondral attenuation loss overlying the medial femoral condyle with delamination and undermining of adjacent articular cartilage shown. The lateral femorotibial joint and meniscus appear intact. Patellofemoral joint is normal. ACL appears intact.
There is a Baker’s cyst which appears to have ruptured with fluid extending distally adjacent to the medial head of gastrocnemius.”[44]
[44]PCB 100-101
38 On 27 June 2012, the plaintiff commenced seeing a new general practitioner, Dr Amir Nekoee, at Gladstone Park Medical Centre.[45]
[45]PCB 23
39 On 12 July 2012, the plaintiff attended upon Mr David Bracy, orthopaedic surgeon, for a second opinion in respect to her left knee condition. Mr Bracy’s opinion was that it was reasonable to treat the plaintiff by arthroscopy to her knee, with a view to a microfracture. He was of the opinion that the plaintiff may develop medial compartment arthritis in that area.[46]
[46]PCB 93
40 On 21 August 2012, the plaintiff had further surgery on her left knee. Mr Andrew McQueen, orthopaedic surgeon, performed an arthroscopic medial meniscectomy and a chondroplasty microfracture of her left knee.
41 Mr McQueen reported the operation as follows:
“Arthroscopy confirmed significant chondral changes in the medial compartment with a small area of exposed bone.
A microfracture technique was performed.
There was a small tear of the anterior horn of the medial meniscus.
There were no loose bodies in the joint.”[47]
[47]PCB 79
42 On 9 October 2012, the plaintiff had an ultrasound to her left calf for a suspected deep vein thrombosis. The plaintiff was treated for the deep vein thrombosis.
43 When Mr McQueen reviewed the plaintiff in October 2012, he found the following:
“She has features of a left peroneal nerve entrapment with paraesthesia onto the lateral aspect of her left foot. The nerve is irritable at the level of the upper end of the fibula on examination today.
Considering she is on anticoagulants I think it is best to delay a nerve conduction study until later as there is no evidence of weakness at this stage.”[48]
[48]PCB 80
44 Mr McQueen referred the plaintiff to Dr Peter Blombery, orthopaedic surgeon, and Dr Kuan Chin, a pain management specialist.
45 Dr Blombery first saw the plaintiff on 11 October 2012. Dr Blombery has continued to treat the plaintiff up to the present time. Dr Blombery has encouraged and advised the plaintiff to reduce her intake of prednisolone, which has previously been prescribed to her by her general practitioner, Dr Nekoee. I accept the plaintiff’s evidence that she has now reduced her intake of prednisolone to zero in the last week or so.
46 On 7 November 2012, the plaintiff had a nerve conduction study performed on her left popliteal nerve, at the request of Mr McQueen.[49]
[49]PCB 24
47 On 21 January 2013, the plaintiff had a further MRI scan of the left knee.[50] The conclusion of that report states:
“Since the previous scan there has been further chondral loss involving the weightbearing medial femoral condyle and the subchondral marrow stress response. This possibly represents the ongoing symptom generator.”[51]
[50]PCB 99
[51]PCB 99
48 In February 2013, the plaintiff consulted Mr Douglas Li, orthopaedic surgeon, for a second opinion in relation to having a knee replacement. The opinion of Mr Li was that the plaintiff needed to lose a considerable amount of weight prior to any medial compartment replacement arthroplasty.[52]
[52]PCB 86-7
49 On 19 February 2013, the plaintiff attended Dr Chin, a consultant physician in renal and general medicine, and Dr Chin reported as follows:
“Poor Kim has neuropathic pain and this needs to be treated in its own right. I have started her on Endep and Gabapentin and hopefully this will reduce her suffering. If this is not useful, she should have a Ketamine infusion to give her a break, as well as to wind down the whole pain syndrome. Should this be necessary she will need to a see a chronic pain specialist as this will clearly be a long term problem.”[53]
[53]PCB 88
50 Dr Chin then recommended the plaintiff be seen by Dr Blombery.
51 In May 2013, the plaintiff had an MRI scan of her right knee and a whole body bone scan study performed.
52 In April 2014, the plaintiff first consulted with Mr Lewi Yiolitis, clinical psychologist. The plaintiff continues to consult with Mr Yiolitis. In his report dated 9 September 2014, Mr Yiolitis states as follows:
“Given her high work ethic and personality style, Kim is likely to continue to strive for re-entry into the workforce. Of course, the reality of this occurring is contingent of her pain experience abating and falling to manageable levels. Should this occur, I would be confident of her returning to work.”[54]
[54]PCB 71
53 Mr Yiolotis’ prognosis for the plaintiff has proven to be prophetic. Mr Yiolotis clearly identifies the plaintiff’s desire to recommence work, but acknowledges the impact of the plaintiff’s pain upon her ability to return to work.
54 In June 2014, the plaintiff attended upon Dr Kevin Young, a pain specialist at the Dorset Rehabilitation Centre. The plaintiff attended upon Mr Young on 27 June and 1 August 2014. Mr Young recommended the plaintiff recommence prednisolone at the rate of 5 to 7.5 milligrams per day.
55 The plaintiff has continued to be treated by Dr Blombery for her pain condition.
56 The plaintiff was admitted to the Masada Hospital on 16 May 2015 for the purposes of a Ketamine infusion. The plaintiff remained in hospital on 27 May 2015. The Ketamine infusion was not successfully completed, as the plaintiff’s right arm swelled up during the insertion of the catheter.
57 In September 2015, the plaintiff was prescribed with Norspan patches, but these did not give her any pain relief.[55] The plaintiff’s current medication regime is 10 milligrams of Endep, increasing to 30 milligrams per night.[56] The plaintiff has now ceased taking prednisolone after a graduated reduction program of that drug. The plaintiff also takes six Panadeine Forte tablets a day.[57]
[55]PCB 50
[56]PCB 126
[57]Transcript (“T”) 31-32
Medical opinions
58 First of all, regarding the left knee injury, I have previously dealt with the opinion of the orthopaedic surgeon, Mr Burns. I will not repeat his opinions in this section of my Reasons for Judgment.
Mr Andrew McQueen, orthopaedic surgeon
59 I have previously referred to Mr McQueen’s opinion in respect of the plaintiff’s left knee injury. He succinctly sums up the plaintiff’s condition as follows:
“She has had what is labelled as ‘neuropathic’ pain as well as degenerative changes on the medial aspect of her right knee.”[58]
[58]PCB 83
60 In respect to the left knee, Mr McQueen states:
“She requires a hemi knee replacement on the medial side.”[59]
[59]PCB 83
Mr Douglas Li, orthopaedic surgeon
61 In Mr Li’s opinion, the plaintiff suffered from a problem of left knee pain due to medial compartment degenerative disease, and she appears to be deteriorating more rapidly than is desired and is not responding to previous arthroscopic treatment. In his opinion, he agreed with Mr McQueen that the plaintiff will require a medial compartment replacement arthroplasty; however, he noted that it was almost certain to fail prematurely unless the plaintiff lost some weight.[60]
[60]PCB 87
Mr Iain McLean, orthopaedic surgeon
62 The plaintiff was examined for medico-legal purposes on behalf of the defendants by Mr Iain McLean. In total, Mr McLean prepared six separate medical reports.
63 In his report dated 17 December 2013, Mr McLean gave the following opinion:
“1. What injury or medical condition does the worker have? (Include your clinical diagnosis where you can provide one. If the worker’s injury or medical condition has resolved please provide your clinical opinion on what injury or medical condition the worker’s history and examination was consistent with.)
Left knee medial meniscal and chondral injury.
Treated with two arthroscopic procedures, the last being partial medial meniscectomy, chondroplasty and microfracture.Ongoing significant pain and disability.
Secondary complex regional pain syndrome with the resulting hypersensitivity and reactivity.
2. In your clinical opinion, what has caused the worker’s injury or medical condition? If there are multiple causes please list all of these. Please give specific consideration to whether the worker’s employment is still a cause.
The problems were initiated by the work injury of 18 January 2010. These have continued and resulting in both the knee pain and pathology and the secondary complex pain component.
3. In your clinical opinion can the worker return to work in their pre-injury duties and hours?
No.
4. If in your clinical opinion the worker cannot return to their pre-injury duties and hours does the worker have a current work capacity (please answer yes or no)?
Kim does not have a current work capacity and given her significant limitation and mobility and now complex pain component so that suitable employment would be extremely difficult to find and extremely limited.”[61]
[61]DCB 48-9
64 In his most recent report dated 2 February 2016, Mr McLean notes:
“Ms Kim Johnston has the definite organic pathologies particularly related to her left knee to the medial compartment; with evidence of both the medial meniscal and chondral pathologies as recorded, but [both] with arthroscopic procedures and MRI studies.
This has then triggered the complex regional pain syndrome as outlined and described by Dr Peter Blombery.
She has then had a general pain problem with the secondary psycho-emotional pain components; along with the development of pain into her right knee, again to the medial and patellofemoral compartments.”[62]
[62]DCB 131
65 On the issue of the plaintiff’s ability to return to suitable employment, Mr McLean states:
“From the history as told to me by Ms Kim Johnston and with the reviews of her clinical status since 2012; her inability to return to any form of employment is now related to her complex regional pain syndrome.
As outlined, this is causing her pain and disability that is unpredictable and she is unable to work on a regular basis because of the need to stay in resting some full days, and having nights with no sleep. She is unable to be predictable or reliable relative to any work.
Any suitable work that would relate purely to the pathology in her right [left] knee would be that of purely semi-sedentary in nature. This would need to be only on a part-time basis; but taking the overall clinical situation, then I am unable to see her returning to any form of further employment in the near future.”[63]
[63]DCB 130
Dr Kevin Young, consultant in rehabilitation and pain medicine
66 In his report dated 17 December 2014, Dr Young diagnoses the plaintiff as suffering from pain in the left lateral lower limb. His opinion was that the plaintiff has Chronic Regional Pain Syndrome.[64]
[64]PCB 121
Dr Peter Blombery, consultant physician
67 Dr Blombery, in his report dated 8 February 2016, sets out his opinion as follows:
“Ms Johnston sustained a left knee injury in 2010. That was complicated by the development of complex regional pain syndrome type 1 affecting the left leg. That appears to have now become a more non-specific pain syndrome which has spread to involve the right leg as well as other areas. This is a not uncommon sequence of events in patients with complex regional pain syndrome. Such pain sensitisation phenomena are organic disorders of pain nerve pathways.
Further management should essentially be supportive with multidisciplinary therapy for chronic pain. There seems to be little point in her having any further ketamine infusions in view of the short duration of response on the last occasion. Her prognosis for recovery at this stage is relatively poor and it is going to be a matter of trying her on different medications and different forms of therapy to see whether we can minimise her experience of pain.
….
1. Confirmation of diagnosis of injury sustained –
Injuries to the left knee including meniscal tears complicated by complex regional pain syndrome type 1 and now by a non-specific pain syndrome. She also has degenerative changes in the right knee which are tending to exacerbate the pain there.
2. Assessment of the manner to which she has been affected occupationally –
It is my opinion that she has no capacity for work given the severity of the ongoing pain and the requirement for opiate type analgesics as well as other strong medications.”[65]
[65]PCB 126-27
68 Dr Blombery continues to treat the plaintiff and prescribes Endep to assist her with sleep. The plaintiff continues to take Panadeine Forte for the control of pain.
69 In his report, Dr Blombery specifically states that the five jobs set out in the Nabenet report prepared by, and on behalf of the defendants, are not suitable for the plaintiff. In particular, work as a sales manager, area or territory manager, weightloss consultant, business development consultant or fitness coordinator and team leader, are not within the range of employment for the plaintiff. The roles suggested in the CoWork Pty Ltd report dated 20 December 2015 are not commented upon by Dr Blombery.
Dr Amir Nekoee, general practitioner
70 Dr Nekoee has been the plaintiff’s general practitioner since June 2012. In his report dated 21 January 2015, Dr Nekoee sets out the medications taken by the plaintiff over the course of his treatment of her. These medications included Gabapentin, Lyrica, Endep and Cymbalta. The plaintiff is currently prescribed Panadeine Forte to deal with her pain symptoms.
71 Dr Nekoee’s opinion is that the plaintiff suffers from Chronic Regional Pain symptoms and he has also prescribed her prednisolone up until December 2014. The plaintiff’s evidence is that she continued to receive prednisolone up until her last appointments with Dr Blombery.
72 Mr McLean, in his report dated 31 July 2014, relates the right knee symptoms and disability to the fact that the pathology has been rendered symptomatic and problematic, and significantly aggravated by the prolonged and ongoing disability and limitation in the plaintiff’s left knee.[66]
[66]DCB 85
73 The preponderance of the medical evidence is that the plaintiff has suffered an extensive and chronic knee injury relating to her left knee involving structural damage to her knee and resulting in direct diagnosis of Complex Regional Pain Syndrome affecting her lower left limb. It is also accepted that the right knee condition of the plaintiff is a secondary result of the left knee injury.
Credit of the Plaintiff
74 The defendants mounted a substantial attack on the credit of the plaintiff in this proceeding. The criticism of the plaintiff was that she would make positive or forthright statements that did not stand up to scrutiny once the plaintiff was challenged in cross-examination. The defendants relied upon the following examples to illustrate the plaintiff’s lack of credit:
(i)In her evidence, the plaintiff stated that after her appointments with Dr Blombery in February and March 2016, she commenced reduction of her prednisolone medication. The plaintiff said she reduced her dose of prednisolone by 5 milligrams per week until she had ceased the medication completely by 4 April 2016 (Monday).[67] The attack on the plaintiff was that, in her affidavit dated 16 March 2016,[68] she never made any statement about a reduction in her prednisolone intake. In evidence, the plaintiff stated the failure to refer to the reduction of medication in her affidavit as because “I probably wasn’t asked”.[69] The plaintiff’s evidence was she commenced the medication reduction in March 2016. In particular, the plaintiff states:
[67]T31
[68]PCB 49-63
[69]T34
“I then resumed taking Prednisolone after this, and as at the present time I continue to take Prednisolone currently at 10mgs per day. I am endeavouring to reduce this medication, and hopefully stop taking it. But this is a battle, as it is the only treatment which gives me relief.”[70]
[70]PCB 50, paragraph 4
The above statement was made in the plaintiff’s affidavit dated 16 March 2016. The basis for the attack on the plaintiff’s credit on this issue is not made out or properly founded.
(ii)The plaintiff, in her evidence, stated that she had seen Dr Nekoee two or three weeks ago, on the recommendation of Dr Robyn Horsley.[71] The plaintiff later stated Dr Horsley made an appointment for her at 9.00am on 25 February 2016.[72] It was put to the plaintiff in cross-examination that the clinical notes of Dr Nekoee did not show any attendance by the plaintiff in February 2016. The plaintiff’s response was, “I can’t help it. I have no idea why.”[73] The relevant clinical notes were not shown to the plaintiff, nor were they tendered in evidence. The Court is left with the uncontradicted evidence of the plaintiff on her attendances to Dr Nekoee. I accept the plaintiff’s evidence in that regard.
[71]T35
[72]T36
[73]T36
(iii)The plaintiff, in her affidavit dated 16 December 2014, stated:
“I claim gross earnings for the period 18 January 2007 to 30 June 2007 on the basis of Bayside Bodies gross income, less payments made to casual fitness instructors for the period ($172,342 less $77,397). During this period, I was the only fulltime employee working for Bayside Bodies and I engaged casual fitness instructors as required.”[74]
[74]PCB 38
The defendants then cross-examined the plaintiff about her taxation return for the year ending 30 June 2007.[75] The taxation return set out the total business income at $172,342. The taxation return also set out the payments to subcontractors and commission expenses at $77,397. Those two figures are exactly same as the plaintiff’s affidavit. The relevant taxation return also sets out all the other expenses of the plaintiff’s business (Bayside Bodies) for that year, with a net income of $664 for the year. The taxation return for the year ending 30 June 2007 was exhibited to the plaintiff’s affidavit.[76] The plaintiff was not trying to hide or mislead the relevant monetary matters relating to the year of 2007.
[75]Exhibit 4
[76]PCB 42, paragraph 167
I accept that the statement in the affidavit does not accurately reflect the taxable income for the business operated by the plaintiff and known as Bayside Bodies. However, I do not accept that it was an attempt by the plaintiff to inflate her ability to earn income prior to her injury but, rather, a clumsy and rudimentary method of calculating her gross income contribution to the business known as Bayside Bodies.
(iv)The plaintiff was challenged about her evidence on her cricket playing activities between seeing Mr Freeman on 7 December 2009 and the date of her accident on 18 January 2010. The plaintiff, in her evidence, initially said she played cricket in that period. Exhibit 3 was the cricket records for that period relating to the plaintiff’s cricket club. According to those records, for the weekend of 19 and 20 December 2009, the plaintiff did not play cricket. There was a Christmas recess in the draw, and the women’s cricket resumed on the weekend of 16 and 17 January 2010. The plaintiff did not play cricket on that weekend. The injury, the subject of this application, occurred the next day, 18 January 2010.
The records show that the plaintiff was selected to play one further game for that season, on 20 and 21 February 2010. This game was a month after the injury date. The submission made by the defendants was that the plaintiff was prepared to leave the Court with the impression that she played cricket between her consultation with Mr Richard Freeman and her accident. Once challenged, the plaintiff responded, “I was probably away”.[77]
[77]T54
It is clear on the evidence in exhibit 3, that the plaintiff did not play cricket on 19-20 December 2009 and 16-17 January 2010. The other weekends are in the season’s recess period. I do not accept that this is a major issue in an assessment of the plaintiff’s credibility.
(v)The plaintiff attended Dr Yerra in January 2014 to investigate whether she was suffering from multiple sclerosis. In the course of the history given to Dr Yerra by the plaintiff, she set out how she could not hold a fork in her left hand because she was so tremulous after snorkelling on the Great Barrier Reef.[78] In her evidence, the plaintiff agreed she had given an accurate history to Dr Yerra.[79] The plaintiff, in her evidence, stated:
[78]DCB 55
[79]T65
Q:“In 2013, October 2013, you went on holiday to the Great Barrier Reef?---
A:Yes.
Q:And you were snorkelling on the Great Barrier Reef?---
A:Yes.
Q:And whilst you were on that holiday and whilst you were snorkelling, the tremor became so bad that you couldn’t hold a fork in your left hand properly?---
A:Yes, because the pain in my leg was so severe that I had to get back on the boat and my feet – my left leg and knee were so sore and then the tremor went all the way up my left-hand side and I couldn’t hold the knife and fork in my left hand. And yes, I dropped it, and yes, I did go and tell my doctor and asked him to explore my left hand.
Q:Mrs Johnston or Ms Johnston, if you had an episode in Queensland that was so bad that it went from your legs right up the body, right up the left-hand side of your body to the extent that you couldn’t hold anything, you would tell a doctor about that?---
A:I did, which is why they investigated what they thought was MS.
Q:Then why didn’t you tell Dr Yerra about the whole of body experience that you are now describing?---
A:I told him about the left hand tremor.
Q:Yes, but you did not tell him what you are now describing to the court of it being a consequence of something coming from your left leg, going up your body and effectively, what, paralysing the left-hand side of your body?---
A:No, it didn’t paralyse the left-hand side of my body.
Q:Affecting the whole left-hand side of your body?---
A:I had a tremor and weakness on the left-hand side of the body from exertion.
Q:Because what you have described to His Honour is very different from what you described to your own treating neurologist who is investigating you for an important condition to see if you had multiple sclerosis?---
A:I don’t think it’s different from what I discussed with him at all.
Q:Then you were very selective in what you told Dr Yerra; is that correct?---
A:No. Why would I be selective?
Q:You are exaggerating the circumstances in which you experienced the left hand tremor to try to support this case, aren’t you?---
A:No. I actually told Dr Kevin Yong at the Dorset Hospital about that episode when I came back and he put me back on Prednisolone, raised the Prednisolone after that.”[80]
[80]T74, L17 – T75, L26
I do not accept the defendants’ submission that the plaintiff is exaggerating or embellishing her evidence to support her application for serious injury certification by giving this evidence. The clearer interpretation of this evidence is that the plaintiff was so tired from her exertion that her left hand tremor was more severe. I find the plaintiff was very forthright in her evidence on this point and was accurately recalling what she had told the doctors in a matter-of-fact manner.
(vi)The plaintiff was challenged about her use of prednisolone. The plaintiff’s evidence was that she was taking 30 milligrams of prednisolone on her holiday trip to Queensland.[81] The plaintiff was taken to a clinical note of her general practitioner Dr Nekoee, dated 7 October 2013. This was exhibit 5. The plan section of that clinical note reads as follows:
[81]T78
“pred 20mg dose for 3 days to see what it does for the pains.
go back to 15 after and commence Endep 25 mg nocte escalate to 50 mg nocte.
seeing Bruce Mitchell next month for consult.”[82]
[82]Exhibit 5
The attack on the plaintiff’s credit was that, when she originally gave her evidence, she said her doctor had agreed to a dose of 30 milligrams of prednisolone. The clinical note (exhibit 5) clearly states an increase to 20 milligrams, followed by a reduction to 15 milligrams of prednisolone and the introduction of 25 milligrams of Endep. The plaintiff has inaccurately given evidence of the level of the agreed increase in her prednisolone intake between her general practitioner and herself. I do not find this inaccuracy is an embellishment, or an attempt by the plaintiff to mislead the Court in any way. The changes to dosage of medication took place nearly three years ago in a treatment setting for the plaintiff where many different medications have been prescribed and the dosages have been changed over time.
(vii)The plaintiff was challenged by the defendants for her reasons for ceasing work at Belgravia. The challenge was that the plaintiff’s evidence stated that she had ceased work in December 2012. The records of Belgravia noted that the payments continued to the plaintiff until April 2013. The plaintiff accepted that she had signed a contract with Belgravia dated 1 March 2013. Her evidence, however, was that she had continued to be paid under her previous work and sales commission. I note that the pay rate referred to in the contract dated 1 March 2013 is not the same pay rate referred to in the payments relied upon by the defendants, which were part of exhibit 1. I accept the plaintiff’s explanation that she had a separate arrangement with her immediate superior, who allowed her to continue to be paid, and her job was held open for a period of time after she had ceased attending work in December 2012. This attack on the plaintiff does not affect her credit in any way.
(viii)The video surveillance
In the authority of Church v Echuca Regional Health,[83] courts are warned about relying too heavily upon video surveillance when deciding on the credibility of the subject of that surveillance. In this case, there were three days of surveillance shown to the plaintiff. The surveillance covered 23 and 24 August 2014. There was further surveillance on 14 September 2014. In the August 2014 surveillance film,[84] I noted that the plaintiff was limping when she walked. This surveillance film corroborated the symptoms and difficulties that the plaintiff had been describing to her doctors during the course of her treatment. I find that this surveillance corroborated the plaintiff’s version of events rather than mounting an attack on her credibility.
[83][2008] VSCA 153
[84]Exhibit 6
The second set of surveillance was conducted over one day, 14 September 2014.[85] The surveillance is extensive of the plaintiff on this day. It involved her being filmed from approximately 8.45am in the morning until approximately 6.00pm, when the plaintiff admitted she had left the sporting ground. The film showed the plaintiff setting up tables and chairs for a function outside the Westmeadows Football Club rooms, it then showed the plaintiff going to the Westmeadows Tavern to collect some supplies. It was clear at the time of the surveillance of the plaintiff at the Westmeadows Tavern, that she was favouring her left leg. In particular, when she was descending the stairs, the plaintiff was very obviously favouring her left leg and holding the handrail going down those stairs. The defendants conceded as much in the course of argument.
[85]Exhibit 7
In the latter part of the day, the plaintiff is seen socialising in a group of people, moving about and, as it turned out, collecting money for a friend who was in stage 3 breast cancer illness. In the course of her moving about amongst the crowd on the film, I could see that the plaintiff was limping and favouring her left leg. The defendants relied upon the plaintiff’s ability to conduct this function over a long period of time to illustrate that she was able to go back into employment on a full-time basis or, at least, on a part-time basis.
In her affidavit dated 16 December 2014, at paragraph 119, the plaintiff says as follows:
“I am able to do more on some days if I take extra medication. For example, recently I organised a fund raising event at a local sports club for a good friend of mine who has been diagnosed with advanced breast cancer. I was able to coordinate and participate in the event by taking nearly triple my usual dose of Prednisolone to mask my pain. However, if I engage in increased levels of physical activity I pay for it in the following days. After I participated in the fund raiser and in consequence of my increased level of activity, I was subsequently bed ridden for the next 2 days with an acute flare up in my symptoms, particularly pain.”[86]
It is clear from the affidavit that the plaintiff has engaged in an activity to assist her friend in raising funds in order to pay for treatment and other necessities. The film in this case, on this particular day, is a clear demonstration of how stoic the plaintiff can be. I accept that the combination of the plaintiff’s statement in her affidavit on 16 December 2014, and the film, corroborate that she is an honest and straightforward witness, and I accept that that is the case. The plaintiff does not exaggerate her symptoms or difficulties. If anything, I suspect she tries to underplay them and get on with life.
As part of the evidence in this case, exhibit D set out the times of surveillance and duration of the surveillance of the plaintiff in the years 2015 and 2016. It is to be noted that none of this surveillance was shown to the plaintiff in the course of the hearing. The effect of that is that the surveillance on the dates 17, 18 and 19 August, 21 and 24 December 2015, and 6 January 2016, would not have assisted the defendants’ case in this matter.[87]
In summary, I find the plaintiff is an honest and straightforward witness and that her credit was not successfully attacked in any way during the course of this proceeding.
[86]PCB 32
[87]Jones v Dunkel (1959) 101 CLR 298
Disentangling the psychological and psychiatric symptoms from the Plaintiff’s physical symptoms
75 The defendants submitted that the plaintiff is required to disentangle the psychiatric/psychological consequences or symptoms complained of by the plaintiff from the physical symptoms complained of by the plaintiff. The defendants relied upon a statement made by Dr Blombery in a letter dated 10 February 2016 to the plaintiff’s general practitioner. In that letter, Dr Blombery stated:
“I am sure psychological factors are playing a significant role in tending to perpetuate some of her symptomatology and I will see her again in three months’ time.”[88]
[88]DCB 131A
76 The defendants also relied upon the diagnosis by the treating psychologist, Mr Lewi Yiolitis, of Adjustment Disorder with Mixed Anxiety and Depressive Reaction, which has now become chronic.[89]
[89]PCB 128
77 The defendants relied upon a statement made by Dr Horsley, occupational health and rehabilitation specialist, in her report dated 29 February 2016 as follows:
“She has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood by her treating psychologist. She has a history of panic disorder which was dormant for 15 years, prior to the onset of her current situation.”[90]
[90]PCB 130K
78 Dr Horsley administered a Beck Depression Inventory and a Beck Anxiety Inventory, which suggested that the plaintiff had Severe Depression with mild suicidal ideation and moderate anxiety.
79 Dr Horsley’s opinion went on to state:
“Ms. Johnston, on the basis of her presentation today, presents with no capacity for work, but once her depression has lifted and she commences a water based exercise program that is physio supervised and her functional tolerances improve somewhat, I believe that she is likely to have some capacity for work, albeit on a part time basis.”[91]
[91]PCB 130L
80 Dr Horsley is not a psychiatrist.
81 In this case, the only psychiatrist that has examined the plaintiff is Dr Dush Shan. Dr Shan prepared a report dated 30 July 2014, as a medico-legal report for the defendants in this case. Dr Shan’s opinion was that there was no psychiatric diagnosis prior to 2014. He stated:
“I would therefore say that there was no evidence of an identifiable psychiatric diagnosis or abnormal psychological condition related to the injury, prior to this year 2014.”[92]
[92]DCB 79
82 Dr Shan’s unequivocal opinion was that the plaintiff suffered from no psychological or psychiatric disability.
83 By way of completeness, I note that Mr Yiolitis stated that the plaintiff had –
“… consistently presented with troubling pain which has restricted her greatly in her personal, social and occupational functioning.”[93]
[93]PCB 128
84 In her evidence, the plaintiff stated that the panic attacks in the current time are not too bad.[94] The plaintiff went on in her evidence to say that the major cause of her panic attacks in the past was her insecurity about using her left leg in a manual car to manipulate the clutch. She stated that since changing her car to automatic transmission, the panic attacks have reduced in number and severity.[95]
[94]T62
[95]T62-63
85 On the basis of the evidence of the plaintiff, and the consistent diagnosis of physical injury to the plaintiff’s left leg and consequent injury to the right knee, combined with the Complex Regional Pain Syndrome Type 1 diagnosis, the plaintiff’s pain has a substantial physical organic basis for it.
86 On the basis of the authority of Meadows v Lichmore,[96] it is not necessary for me to disentangle the psychiatric or psychological issues when assessing the plaintiff’s consequences. Nevertheless, I find, on the basis of the evidence as outlined earlier in these Reasons, that the plaintiff has a real and demonstrated basis for her pain, which is physically based, and the alleged psychological or psychiatric impact on the plaintiff’s experience of pain is minimal or non-existent.
[96][2013] VSCA 201
Pain and suffering consequences for the Plaintiff
87 The plaintiff swore, and relied upon, two affidavits dated 16 December 2014 and 16 March 2016 in support of her application for serious injury. The plaintiff also gave evidence and was cross-examined extensively.
Sleep
88 The plaintiff stated that the pain in her left leg is severe and that it keeps her awake at night. She finds it difficult to sleep, and it causes her to toss and turn frequently. She stated that, as a result of that sleeping pattern, she would sometimes nap during the course of the day.[97]
[97]PCB 30-31, paragraphs 105 and 110
89 I accept the evidence of the plaintiff that, due to the pain in her left leg, and knee, in particular, that her sleep is disturbed. I find that this is a very considerable consequence for the plaintiff, causing her to be unrested and needing to sleep the following day, if possible. I accept that sleep deprivation of the kind described by the plaintiff must have a very considerable diminution on her ability to enjoy the activities of daily life.
Pain
90 The plaintiff has given evidence of being in constant pain. She has medical opinion support and treatment for neuropathic pain in her left knee and left lower limb. In her affidavit, the plaintiff sets out the extent of the pain in the following way:
“I continue to suffer unremitting and constant pain in my left knee. The plain fluctuates in severity. I believe that the pain is becoming progressively worse with time … But the pain is always there, in one form or another.”[98]
[98]PCB 30, paragraph 104
91 The plaintiff went on to describe that the pain is so severe on occasions that it is unbearable and she is bedridden because of it.
92 The plaintiff stated in her evidence that, at the current time, she takes six Panadeine Forte tablets to deal with the pain.[99]
[99]T31-32
93 I find that the endurance of permanent daily pain requiring frequent medication must, according to ordinary experience, raise a real prospect of a very considerable consequence as it is, in this case, for the plaintiff. I also have concluded that the plaintiff is a stoic person and she is prepared to put up with pain and suffering and make the best of her situation, but she should not be treated less favourably because of that and compared to a person who simply resigns themselves to their injury. The plaintiff has done the best she can in the circumstances she has to face.
Medication
94 The plaintiff states, at the current time, that she is taking six Panadeine Forte tablets per day.[100] In the past, the plaintiff has been treated with Endep and she currently takes that medication under the prescription of Dr Blombery. She has also had Gabapentin, Lyrica and a Ketamine infusion to ameliorate her pain. The predominant medication the plaintiff has taken until recent times is prednisolone. At the direction of her doctor, Dr Blombery, the plaintiff has reduced her current intake of prednisolone to zero. The plaintiff has given evidence that the only real relief for pain she has obtained in the past in when she is using prednisolone. The medical advice to her is to desist from using prednisolone because of the contrary indications for her health as a result of regular and constant use of the drug prednisolone. The plaintiff has followed that medical advice. I accept that the need for the plaintiff to take six Panadeine Forte daily in the evening, combined with Endone, to assist her with sleep, is a very considerable consequence for her and that these drugs are required to ameliorate her pain.
[100]T31-32
Lack of mobility
95 The plaintiff complained of instability and lack of confidence in the use of her left knee. She states that she is guarded and protective in her movements because of that instability in her left knee.[101] As a result of the instability in her knee, the plaintiff has sold her manual vehicle. She stated that driving a manual car has resulted in an increase in symptoms, forcing her to buy an automatic car.[102]
[101]PCB 31, paragraph 111
[102]PCB 31, paragraph 112
96 The instability in the plaintiff’s knee has also caused her to cease playing the sports of basketball, netball and cricket. The plaintiff was a very active sportswoman prior to this injury to her left knee. The plaintiff is unable to participate in sports of her choice and I accept that is a very considerable consequence for the her.
Right knee pain
97 The plaintiff has suffered right knee pain as a result of the injury and the pain that she suffers in her left knee. Mr McLean[103] accepts that the right knee pain is a result of a secondary response to the initial injury of the left knee. I accept that the pain in the plaintiff’s right knee is now, a very considerable consequence for her given that she has such a level of pain in her left knee.
[103]DCB 85
Holidays
98 The plaintiff gave evidence that she had to sell her caravan at the Dromana foreshore as a result of this knee injury. The reason she stated for the sale of the caravan was that she was unable to properly use the facilities at Dromana due to her left knee injury.[104] The impact of taking away the plaintiff’s leisure in respect of holidaying at the beach is a very considerable consequence for her.
[104]PCB 34-35, paragraph 127
Work
99 I accept, as a result of the plaintiff’s injury to her left knee and subsequent pain in her right knee, the plaintiff is unable to continue to work in the fitness industry. The plaintiff had worked in the fitness industry for the major part of her working life. It is a very considerable consequence for the plaintiff to be denied a capacity to work in her chosen field. It is clear, on the evidence, that the plaintiff was a very good and successful operator in the fitness industry prior to her injury.
Conclusion
100 I find that the consequences, as listed above, that flow to the plaintiff as a result of an injury to her left knee and lower limb, are at least are very considerable, and satisfy the statutory test for a serious injury certificate in respect of pain and suffering consequences. The plaintiff will suffer these consequences for the foreseeable future.
Loss of earning capacity
101 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
102 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
103 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
104 The parties in this case could not agree on the “without injury” earnings figure. The best guide to the “without injury” figure is set out in the Claim Forms signed and sworn both by the Worker Injury Claim Form and the Employer Injury Claim Report.[105] Based on those documents, the “without injury” earnings is $1,125 gross per week.
[105]DCB 1-4
105 In the three years after the sustained injury on 18 January 2010, the plaintiff earned income until April 2013. The gross annual earnings for those years are as follows:
·30 June 2011 - $57,981
·30 June 2012 - $58,945
·30 June 2013 - $49,532.
106 The evidence in this case is that the plaintiff has not worked since December 2012. I accept the plaintiff’s evidence in this regard and, consequently, she has not had any income since the last payments made to her in April 2013.
107 The only exception to paid employment from December 2012 until the time of this proceeding, is that the plaintiff engaged in hypnotherapy work in the latter part of 2015 and the early part of 2016. This income is set out in exhibit A. The gross amount of earnings for that period are less than $1,000.
108 The plaintiff has the onus of establishing the loss of income. The 40 per cent loss of income would mean that, if the plaintiff could earn more than $675 gross per week, then she has not satisfied the statutory test.
109 In this case, the defendants relied on two occupational therapist reports. The first report is one prepared by Nabenet, dated 24 April 2014, and a CoWork Pty Ltd report dated 20 December 2015.
110 In the Nabenet report, there were five separate occupations identified by the occupational therapist, Julie Tran, that the plaintiff was capable of performing. Those five areas of work, or occupations, have been considered by Dr Blombery, the treating physician for the plaintiff. At the risk of repeating the reasons in this case, Dr Blombery’s opinion on the plaintiff’s capacity to engage in suitable employment is set out in his report dated 8 February 2016. He states as follows:
“2. Assessment of the manner to which she has been affected occupationally –
It is my opinion that she has no capacity for work given the severity of the ongoing pain and the requirement for opiate type analgesics as well as other strong medications.
3. How do I assess her employability?-
It is my opinion that she has essentially no employability given the widespread nature of her pain and its long term presence.
4. Do I think that she should be fairly adjudged as having realistically no work capacity? –
It is my opinion that she has no current work capacity for mainstream employment.
5. Xchanging has arranged an assessment with the occupational assessors –
Looking at the five jobs which are suitable employment options, it is my opinion that none of those are suitable. She would not be able to work as a sales manager, area or territory manager, weight loss consultant, business development consultant or fitness coordinator and team leader either now or in the future.”[106]
[106]PCB 127
111 I accept Dr Blombery’s opinion, in combination with the plaintiff’s evidence, that she has been unable to perform any of those listed tasks of sales manager, area or territory manager, weightloss consultant, business development consultant or fitness coordinator and team leader, as a result of her injuries.
112 The defendants sought advice from a different occupational therapist at CoWork Pty Ltd. This report was prepared by Ms Joanna Bryant and dated 20 December 2015. Dr Blombery has not commented on the jobs listed in Ms Bryant’s report. Each of these occupations have to be assessed individually.
113 The first occupation listed by Ms Bryant[107] is a self-employed hypnotherapist. Ms Bryant has assumed that, for a 20-hour week, a hypnotherapist could make $2,400 gross. The plaintiff completed a hypnotherapy course in October 2015. Since that time, she has managed to make less than $1,000 gross from hypnotherapy clients.
[107]DCB 158
114 I accept the plaintiff’s evidence that she would not be reliable for clients to attend, as her pain condition fluctuates and impacts on her ability to do things in a predictable manner. I do not accept that employment as a part-time hypnotherapist is a realistic option for the plaintiff, or suitable employment under the Act.
115 The second job the defendants rely upon is a call centre operator. The plaintiff has no previous experience in call centre operations. That, on its own, does not disqualify her from being capable of performing the task. I accept her evidence about her unreliability and the evidence of her treating physician, Dr Blombery, that she would be unable to perform this task. By way of completeness, I note that if the plaintiff was even able to perform this task part-time, to the extent of 20 hours per week, on the rates indicated in Ms Bryant’s report, the plaintiff would not make the threshold of $675 gross per week. The listed 20 hours per week figure given by Ms Bryant is $556 gross per week.
116 The defendants also relied upon Ms Bryant’s report to cross-examine the plaintiff about performing a collection officer’s debt collection job. Again, the plaintiff has no past experience in this field of work. She would need to be trained in that employment. That is not determinative of the suitable employment issue for the plaintiff. I accept the plaintiff’s evidence, and Dr Blombery’s opinion, that she would be unreliable and because of her medicated condition unable to perform this task in any meaningful way. As a matter of completeness, I note from Ms Bryant’s report that the 20 hours of work as a collections officer would also only achieve $596 gross per week. This is a figure less than the 60 per cent required under the legislation.
117 The final job recommended by Ms Bryant for the plaintiff was a recruitment consultant. The 20 hours gross per week figure was $806 and, hence, would be in excess of the $675 gross per week figure, which represents the 40 per cent loss of income. This occupation is unsuitable for the plaintiff. She does not have any of the required education or relevant experience to perform in this task. There is no evidence before the Court that the plaintiff could achieve the requisite educational levels and qualifications to be allowed to perform this type of employment. Nevertheless, the fact that Dr Blombery says the plaintiff is unable to perform full-time employment or, indeed, any part-time employment due to her physical condition. I find that this job is not a suitable employment opportunity for the plaintiff.
118 The medical opinions of Dr Nekoee,[108] the plaintiff’s general practitioner; Dr Blombery,[109] the plaintiff’s physician, and Mr McLean,[110] the medico-legal examiner for the defendants, are all in agreement that the plaintiff has no work capacity now, or into the future.
[108]PCB 130O
[109]PCB 127
[110]DCB 130
119 The defendants relied upon the reports of Dr Dominic Yong, in particular, his report dated 1 February 2016. In that report, Dr Yong stated that the plaintiff had a capacity for a graduated return to work program. In his opinion, the plaintiff could commence on reduced hours of four-hour shifts at three days per week, and be progressively increased with an aim to return to pre-injury hours over approximately six months.[111] Dr Yong is the only medical practitioner in this case that expresses an opinion that the plaintiff has the capacity to return to full-time work. Dr Yong’s reports are based on two interviews with the plaintiff: one on 24 March 2014 and one on 5 June 2015. It is significant, when considering Dr Yong’s opinion, that he had not been shown the report of Mr Iain McLean, dated 2 February 2016. I regard Dr Yong’s opinion as being out on its own from the other medical practitioners. I disregard it.
[111]DCB 121
120 Dr Horsley examined the plaintiff for medico-legal purposes on 29 February 2016. Dr Horsley refers to what she has diagnosed as Depression, for the plaintiff, and says that once that issue has been addressed, then the plaintiff will have a capacity for part-time work. The opinion of Ms Horsley was that the plaintiff had a capacity for part-time work in the vicinity of 15 to 20 hours per week.[112] Dr Horsley’s opinion was that the plaintiff did not have a capacity for fulltime work.
[112]PCB 130M
121 I do not accept, on the whole of the evidence, both medical and from the plaintiff, that the plaintiff has a capacity for part-time work now or into the future. Unfortunately for her, a person of great energy and willingness to work, her Chronic Regional Pain Syndrome Type 1 and left knee injury impacting upon her left lower limb, has taken away her capacity to work. The main impact upon her is that the pain that she suffers from those conditions, means that she is completely unreliable for any employer. I accept that, on occasions, she has to go to bed for two days per week in order to deal with the pain. There is no suitable employment, in any capacity, that can facilitate the unreliability of two days per week being taken out due to the plaintiff’s pain and incapacity. In addition to that, the plaintiff is on considerable opiate medication and her concentration and ability to work would be affected.
Conclusion
122 I find that the plaintiff has satisfied the statutory test of loss of earning capacity now and into the foreseeable future.
123 On the balance of probabilities, I find that the plaintiff has satisfied the Court that the consequences of both pain and suffering, and loss of earning capacity, have a substantial organic basis. The injury is to the left lower limb and it is affected by Complex Regional Pain Syndrome Type 1 and is a physical injury to the knee. I find that the plaintiff’s condition will continue for the foreseeable future.
124 On the basis of the foregoing reasons, I grant the plaintiff leave to bring common law proceedings for both pain and suffering damages and loss of earning capacity damages arising out of the injury she received at her work on 18 January 2010 to her left lower limb.
125 I will hear the parties on costs.
---
0
6
0