Josephine Cudia v The Royal Children's Hospital
[2010] VCC 1823
•16 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-03465
| JOSEPHINE CUDIA | Plaintiff |
| v | |
| ROYAL CHILDREN’S HOSPITAL | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2010 |
| DATE OF JUDGMENT: | 16 November 2010 |
| CASE MAY BE CITED AS: | Josephine Cudia v The Royal Children’s Hospital |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1823 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s left leg – causation – whether the pain and suffering consequence was more than significant or marked or at least “very considerable"
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Richard W McGarvie S.C. | Grando & Breheny |
| Donald K McIvor | ||
| For the Defendant | John L Batten | Hall & Wilcox |
DRAFT
HER HONOUR:
Introduction
1 The plaintiff is 57 years of age and single. She was born in Italy and migrated to Australia at age 13. Despite language difficulties the plaintiff said that she completed school to Form 2 level after which she did one year of nursing aid training at Ballarat Base Hospital.
2 Between 1972 and 1989 the plaintiff worked at various hospitals as a nurse's aid and for four of these years she was employed by defendant in radiology. There was an interval of four years during some of which she worked as a receptionist. From 6 March 1997 she commenced full-time employment with the defendant as a Patient Services Assistant. She worked eight hours a day, Monday to Friday performing what she described as physically demanding duties including vacuuming, mopping floors, washing dishes, emptying wastepaper baskets and pushing trolleys.
3 Relevantly, at hearing the plaintiff said that, following a work-related injury to her right knee in May 2000 involving a trolley, she no longer pushed trolleys. Thereafter, a task such as scuff mark removal, for which she previously used her dominant right foot, was performed using her left foot.
4 By originating motion filed on 27 July 2009, the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of pain and suffering damages only.
5 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's left lower limb by reason of lateral meniscal tears, repaired during repeat arthroscopy performed by orthopaedic surgeon, Mr Tang on 24 August 2004 and on 11 February 2010 and permanent aggravation of degenerative changes (chondromalacia patellae ) in her previously asymptomatic left knee.
DRAFT
6 The plaintiff’s Senior Counsel described her injury as having arisen throughout the course of her employment with the defendant and in particular in or about mid-July after the plaintiff was required to place excessive strains on her left knee as she used a scourer under her left foot to remove scuff marks from the floor of the defendant’s premises.[1] Nevertheless, in his final submissions Senior Counsel made it abundantly clear that this is a course of employment case focused on the work-related stresses and strains on the plaintiff's left leg:
[1] Transcript (“TN”) 18.
• in the period commencing 20 October 1999 to May 2000 following which restrictions were placed on the plaintiff's duties to accommodate the injury to her right knee; • in the period between the plaintiff’s return to work in 2000 and the 2003 incident when the plaintiff relied more heavily on her left leg to perform her duties, in particular she used her left leg for scuff mark removal; and • in the period between the plaintiff’s return to work in 2003 and September 2007 and the withdrawal of the plaintiff's restricted duties when, notwithstanding pain and disability, the plaintiff continued to perform her still physically demanding duties. 7 The circumstances leading to the onset of incapacitating knee pain on or about 16 July 2003 were explained in more detail by the plaintiff in paragraph 7 of her first affidavit sworn on 23 March 2009 in the following words:
“…. At that time a fellow worker was absent and I was required to do an increased amount of work. This included an increased amount of work which involved removal of scuff marks from the floors. In order to remove the scuff marks I had to use a scourer under my left foot. I then had to apply considerable pressure with my left leg in order to remove such scuff marks. I could not use my right leg because of my previous knee injury. As a result of performing this work, I developed considerable pain in my left knee. I reported the injury, but continued working. However, I avoided doing the scuff mark cleaning work." [2] ("the 2003 incident")
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[2] Plaintiff's Court Book ("PCB") 30-31.
8 On 16 July 2003 the plaintiff filed an Incident Report Form in which she stated, amongst other things, that:
[3] Defendant's Court Book ("DCB") 257
• she had suffered a "Sprain/Strain" injury due to "Repetitive movement;" • there had been no specific incident, rather her knee had become quite painful in the "Period To 16.7.03"; and • she had reported the incident to the then WorkCover officer, D. Pemberton.[3] 9 Relevantly, the defendant admitted the plaintiff's WorkCover claim submitted in August 2003 and subsequently in May 2007 it also accepted a claim made under s98C of the Act. The defendant did so notwithstanding some discrepancy between the Incident Report and the WorkCover claim where the plaintiff said that her left knee became very painful on 16 July 2003 while she was removing scuff marks.[4] In any event, having accepted her as a straightforward and honest historian, I have also accepted as likely her account that whilst instructing her on how to complete the Incident Report form the WorkCover officer had directed her to indicate that there was no specific incident.
[4] PCB 1-3.
10 It is well understood that acceptance of liability may not be binding. As explained by Ashley JA in Ansett Australia Ltd v Taylor,[5] such an admission should ordinarily be regarded as very significant but not conclusive because a defendant might be able to satisfactorily explain its conduct. However, in this application it can hardly be said that there was any misapprehension on the part of the defendant about the circumstances giving rise to the claim for compensation.
[5] [2006] VSCA 171.
11 When her condition failed to improve on 29 July 2003 the plaintiff sought
DRAFTtreatment from her general practitioner, Dr Hocking who arranged x-rays and prescribed painkilling and anti-inflammatory medication. In August 2003 he referred the plaintiff to orthopaedic surgeon, Mr Tang who had previously treated and in August 2000 performed an arthroscopy of the plaintiff's right knee. He had also treated a flare up of pain in her right knee in June 2001 prior to the plaintiff undergoing rehabilitation and returning to work on duties which restricted, amongst other things, her use of trolleys.
12 A MRI scan of the plaintiff's left knee was obtained, at the time demonstrating a partial thickness chondral defect of the lateral patella but normal menisci and cruciates.
13 The plaintiff apparently returned to restricted duties in late October 2003, which she asserted did not require her to perform scuffing work using her left leg. Given the problems she reported in the Incident Report whilst undertaking this activity I think it unlikely that the plaintiff continued to perform scuff removal using either leg. I formed this view notwithstanding the omission of this activity from the restrictions listed in the bundle of Certificates of Capacity relating to bilateral knee pain for the period August 2007 to May 2008 and the Return to Work Plan dated 26 April 2004, tendered by the defendant.[6] These documents all placed restrictions on lifting and the operation of trolleys and they directed that the plaintiff be permitted to alternate sitting and standing tasks.
[6] DCB 82-97.
14 The plaintiff remained symptomatic and in February 2004 Mr Tang decided to perform an arthroscopy, as he reported, to "exclude any other damage that
may have been missed on the MRI scan of the left knee in August 2003."[7]
This proved to be a well judged decision because at surgery in August 2004 the specialist found further pathology, that is a torn lateral meniscus which he resected as well as the known lateral patella chondral defect, for which he
DRAFT
[7] PCB 57.
performed a lateral release.
15 The plaintiff deposed that on 8 November 2004, whilst still undergoing treatment which included medication, physiotherapy and hydrotherapy, she returned to part-time restricted duties working 4 hours a day, 5 days a week. Her duties subsequently increased to full-time restricted duties. However, she also said that the surgery had not improved her left knee condition.
16 In or about August 2005 the plaintiff, who is dominant right-handed, developed left shoulder and arm pain which eventually led to a subacromial decompression carried out by orthopaedic surgeon, Mr Salmon on 29 June 2006. In December 2006 this surgeon thought the plaintiff may have difficulties performing heavy lifting, prolonged repetitive activities or overhead activities for the long-term. However, in her affidavit evidence and at hearing the plaintiff countered this by saying that the surgery produced a good result and that she now has only occasional pain in the shoulder, a good range of movement and the ability to use this body function to perform overhead activities.
17 It appears that the plaintiff continued performing restricted duties until on 6 July 2007 she reported a "bad flare up" in her left knee pain. On this occasion, due to Mr Tang's absence overseas, the general practitioner referred the plaintiff to orthopaedic surgeon, Mr Steele who in 2007 arranged a further MRI scan. This reportedly demonstrated cystic change in the anterior aspect of the lateral meniscus.[8] He recommended further arthroscopy, a procedure also recommended by another orthopaedic surgeon, Mr O'Sullivan from whom the plaintiff sought a second opinion.[9]
[8] PCB 69-70
[9] PCB 46.
18 Importantly, so far as the plaintiff was concerned in January 2008 Mr Steele informed the claims agent that in his view the condition of the plaintiff's left knee was unrelated to the injury on 16 July 2003 because the changes seen
DRAFT
on the MRI scan obtained on 21 August 2007 represented new findings.[10] Following this advice the request to cover payment of further arthroscopy was rejected. Evidently the relationship between any further pathology in this knee and work performed by the plaintiff remains in dispute.
[10] DCB 58.
19 Save for contesting the assertion that on 21 September 2007 it terminated the plaintiff's employment, the defendant nevertheless agreed that it withdrew her restricted duties which led to the plaintiff ceasing work and in January 2009 it terminated her employment. She has never returned to work. According to the plaintiff in the period following the termination of her employment she has continued to be disabled by impairment of her left knee.
20 The plaintiff received weekly payments of compensation until June 2008 and more recently she has been granted a Disability Support Pension. She has been unsuccessful in her efforts to find alternative employment.
21 In December 2009 the plaintiff returned to Mr Tang complaining of ongoing pain in her left knee which following his examination was described by him in his report dated 15 September 2010 as - "medial and lateral joint line pain and
tenderness, as well as pain due to chondromalacia, as well as pain arising
from the patellofemoral joint."[11]
[11] PCB 57-58
22 A further scan on 11 January 2010 apparently confirmed the presence of a large oblique tear in the anterior horn of the lateral meniscus which Mr Tang said had not been noted on the earlier MRI scan organised by Mr Steele in 2007. Arthroscopy performed on 11th February 2010 confirmed a large macerated anterior horn tear of the lateral meniscus which Mr Tang said he debrided to a stable rim and a small parameniscal cyst which he decompressed.
23 Dr Hocking, Mr O'Sullivan and Mr Tang are all of the view that ultimately the
DRAFTplaintiff is likely to require knee replacement. The surgeons did not specifically comment on causation. This is hardly surprising where, as in this case, not all of the doctors who provided reports had their attention directed to this issue. Nevertheless, in his recent report dated 28 October 2010 Dr Hocking did address this issue. In his opinion the plaintiff's original injury, that is a lateral meniscus tear and lateral patella chondral injury and the development of secondary degenerative changes at the site of the original lateral meniscus tear, are wholly related to the plaintiff's work and the subsequent injury arose as a direct complication of the original injury with some probable contribution through subsequent work-related exacerbation.[12]
[12] PCB 45b.
The Legal Requirements (in summary)
24 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering consequence of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the left knee, are more than "significant" or "marked" and at least "very considerable". In his final submissions the plaintiff's Senior Counsel made the very salient point that when comparing the loss of body function with other cases in the range of possible impairments self evidently the permanent loss of function of a second knee could (and in this case probably should) of itself render the pain and suffering consequence at least very considerable. Obviously this was one of many factors which have allowed me to accept that the plaintiff has met this test.
25 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case only the pain and suffering consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they
DRAFT
are permanent and "very considerable".
26 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury. This is not an application complicated by non-organic factors.
27 Where, as in this application, there is evidence of pre-existing degenerative disease of the left knee, I must consider what the evidence disclosed as to the prior condition of the plaintiff's left knee and determine whether any additional impairment resulting from work-related injury is serious and permanent. It was common ground that until July 2003 the underlying degenerative condition in the plaintiff's left knee had been asymptomatic.
The Areas of Contest
28 In addition to drawing my attention to the relevant obligations and tests to be applied in determining this serious injury application the defendant made the following general concessions:
• save for a handful of incidental factual issues, one of which I have already canvassed, the defendant did not contest the history given by the plaintiff and opened by her Senior Counsel at hearing; • the plaintiff should be treated as a witness of credit because, as the defendant correctly conceded, she was frank in her responses and she did not appear to embellish her evidence or advance her case at the expense of candour; • uncontroversially the plaintiff has bilateral degeneration in both knees and as I have already noted the defendant conceded that there was no evidence that the plaintiff's left knee was symptomatic prior to July 2003; • the plaintiff was a good worker who prior to July 2003 was already permanently incapacitated for unrestricted duties by reason of the condition of her right knee. These restrictions continued until she ceased employment. However, as I have already noted one consequence of the impairment of the plaintiff's left knee was that the plaintiff could no longer and probably did not continue to perform scuff mark removal duties; 29 Essentially the defendant put in issue:
DRAFT
•
the nature and the extent of injury to the left knee occurring on or about 16 July 2003 or alternatively throughout the course of employment from 20 October 1999 onwards;
•
causation, both as to the extent (if any) to which the plaintiff’s employment significantly contributed to left knee injury either in or about July 2003 or throughout the course of the plaintiff's employment and as to whether any specific incident occurred on or about 16 July 2003 as alleged. The opinions of the doctors in so far as they directly or indirectly address causation vary depending on whether the doctors understood that the injury arose from the 2003 incident or from the work performed throughout some eight years of employment;
•
the extent to which other compensable and non-compensable medical conditions, some of which I have already mentioned, affect the plaintiff's health. In all I was unable to see any evidentiary basis for concluding that other medical conditions such as the plaintiff's left shoulder condition required ongoing treatment or medication or limited her physical capacity to perform her restricted duties following her recovery from surgery to her shoulder in 2005;
•
whether the consequences of any compensable injury to the plaintiff's left leg meet the "very considerable" test.
The Evidence Called and Tendered
30 The plaintiff deposed to the accuracy of her affidavit sworn on 24 March 2009 and her further affidavit sworn on 29 October 2010. With the leave of the Court, the plaintiff gave further evidence in which she explained that she changed from using her right leg to using her left leg for scuff removal following the injury to her right leg in 2000. She was cross-examined at length.
31 The material tendered by the plaintiff consisted of her Court Book from which a number of documents had been removed and to which a report from the plaintiff’s treating orthopaedic surgeon, Mr Tang, dated 21 December 2004 and addressed to the claims agent, was added. The plaintiff also tendered and relied on the copy correspondence from Mr Tang to Dr Hocking contained in the defendant’s original Court Book.
32 The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, the bundle of Certificates of Capacity and the copy Return to Work Plan to which I have
DRAFT
already referred were added.
33 Relevantly, the defendant's Court Book included an affidavit sworn on 6 October 2009 by the defendant's WorkCover Claims Officer/RTW Coordinator, Doris Pemberton, to which she exhibited her witness statement made on 23 April 2009. Through her responses given during cross-examination the plaintiff generally confirmed the various work-related matters to which Ms Pemberton deposed, although she clearly contested the assertion that her duties were not further restricted following the 2003 incident.
The treatment received
34 I have already discussed in a summary fashion the plaintiff's treatment since mid-2003.
35 Subject to my discussion of the medico-legal evidence below, I have generally preferred the detailed evidence of general practitioner, Dr Hocking and orthopaedic surgeon, Mr Tang because both have had the advantage of treating the plaintiff’s knee conditions since the onset of her right knee injury and both have provided detailed and well reasoned reports concerning the onset, investigation and treatment of her left knee condition.
36 In Dr Hocking’s case five reports were tendered, submitted at intervals over a four-year period between October 2006 and October 2010. In his earliest report he noted that on 29 July 2003 the plaintiff had complained of pain over a two week period in her left knee, similar to that experienced in her right knee.
37 Dr Hocking did not mention any particular episode involving the use of the plaintiff's left leg to remove scuff marks. Nevertheless, I think it abundantly clear from their reports that this treating general practitioner and orthopaedic surgeon, Mr Tang were well acquainted with the nature and type of restricted duties the plaintiff continued to perform after she recovered from arthroscopic
DRAFT
surgery to her right knee in August 2000.
38 For instance, in December 2004 Mr Tang advised the claims agent that even if, as postulated by one of the defendant’s specialists,[13] the chondromalacia patello affecting both the plaintiff's knees had not been caused by her work, based on the matters the plaintiff had described for him, he had no doubt that her condition had been aggravated by the nature of the work performed by her over many years. This work he said had included pushing trolleys and beds around as well as cleaning and scrubbing operating theatres, duties which Mr Tang also noted required a lot of bending and straightening of her legs.[14]
[13] Orthopaedic surgeon, Mr Kudelka.
[14] PCB 56(a).
39 In 2008 Dr Hocking similarly rejected any suggestion that the plaintiff's pain was due to the natural progression of osteoarthritis, in effect arguing that in his view her pain was due to osteoarthritis, in his view the onset of premature osteoarthritis in the joint was a direct complication of the original injury and therefore also work-related.[15]
[15] PCB 43-44.
40 In any event, in 2006 Dr Hocking advised the plaintiff’s solicitors that in his opinion the torn lateral meniscus repaired by Mr Tang and the partial- thickness lateral patellar chondral defect which was evident on the first MRI study were work-related injuries.[16]
[16] PCB 39.
41 Relevantly, in May 2008 Dr Hocking advised the claims agent that the left knee lateral meniscus cyst identified in the 2007 MRI study represented a progression of the lateral meniscus tear found by the surgeon on arthroscopy in August 2004. He gave two reasons for concluding that this injury was due to the plaintiff's employment. Firstly, the original injury in 2003 was definitely work-related and secondly, the plaintiff had also reported that even her restricted duties "tended to persistently exacerbate her bilateral knee pain."[17]
DRAFT
[17] PCB 41.
42 As is evident from his later reports Dr Hocking strongly disagreed with any suggestion that the more recent meniscus cystic change, identified after the plaintiff reported gradual worsening of pain particularly in her left knee, was a new injury. As I have already mentioned, Dr Hocking reasoned that it was exactly the same injury because the MRI findings were at the same anatomical site as the lateral meniscus tear demonstrated at the 2004 arthroscopy and the injury had gradually worsened in the intervening years due to continuing work-related irritation to the previously injured area.
43 In some of the earlier reports this doctor also discussed at length the plaintiff's left shoulder injury and the extent to which this and the right knee injury had impacted on her ability to perform her duties. However, as I have already indicated I was satisfied by the evidence given at hearing that the left shoulder condition no longer impacts on the plaintiff's work capacity. Indeed, had it not been for the impairment of her left knee and in view of the comparatively much less symptomatic condition of her right knee, it is likely that the plaintiff would have continued to perform the full-time restricted duties tailored by the defendant to accommodate the work-related impairment of her right knee.
44 Having read Mr Tang's reports including his correspondence to the general practitioner, I was satisfied that Mr Tang viewed the 2003 incident as responsible for the lateral meniscus tear repaired by him during arthroscopy in 2004. However, whilst he did not specifically mention this, I was further satisfied that Mr Tang also viewed the plaintiff's work as having made a significant contribution to the more recently repaired large macerated anterior horn tear of the lateral meniscus.
45 In Mr Tang's opinion, the anterior knee pain of which the plaintiff continues to complain is due to chondromalacia patellae, a condition he said was brought on by the type of work the plaintiff performed with the defendant. As we know from the evidence the plaintiff had pushed trolleys around at least up until her right knee injury in May 2000 and, despite the restrictions imposed, once her
DRAFT
dominant right leg was compromised, her duties nonetheless placed stresses and strains on her left leg, particularly in the performance of scuff removal duties.
46 I was also satisfied that between the 2003 incident and September 2007 when the plaintiff ceased all duties, her ongoing albeit restricted Personal Services Assistant duties, as both she and Dr Hocking claimed, probably continued to place stresses and strains on the plaintiff’s left knee such that it is likely her employment did continue to make a significant contribution to the deterioration of the condition of the knee.[18]
[18] PCB 56(a) and 58.
47 I have already mentioned in passing orthopaedic surgeon, Mr O'Sullivan who in 2008 provided the plaintiff with a second opinion. His reports are not particularly informative, although without explaining this in any detail, he clearly accepted that the meniscal injury and the two arthroscopies to the left knee were due to injury to the plaintiff's left knee at work and that with a probable increase in pain and changes within the knee, total knee replacement was "highly likely".[19]
[19] PCB 46-49
The Pain and Suffering Consequences Alleged
48 According to the plaintiff whilst she also suffers similar but less severe symptoms in her right knee, since July 2003 she has suffered pain, stiffness and limitation of movement in her left knee which worsened after she stopped working in September 2007. However, following her most recent surgery, having at first noted some initial improvement in pain at the front of her knee, she said that this had deteriorated, whilst pain at the back of her knee had continued.[20]
[20] TN 33 and PCB 36b.
49 The pain and suffering consequences were generally described in paragraphs 13 to 17 inclusive of the plaintiff's first affidavit and paragraphs 3 to 5 of her
DRAFT
further affidavit, with some explanation provided through the responses given
in cross-examination and re-examination.50 In cross-examination the plaintiff agreed that after her right knee injury she had not played volleyball, waltzed at family functions, jogged, been to the movies nor had she been able to take long walks. She also agreed that she still attends to all of her personal health and hygiene activities and, subject to some limitations on these, that she performs her own domestic tasks.
51 In summary the pain and suffering consequences to which she alluded involved:
•
difficulty with prolonged sitting or standing, walking longer distances, performing work requiring lifting, repeated bending, kneeling or squatting. In cross-examination the plaintiff acknowledged that in accordance with her doctors' advice she did "a bit of walking", her tolerance being 20 minutes to half an hour walking her dog around the block before her left knee hurts. This is in contrast to her evidence in re-examination when the plaintiff explained that for the period between injuring her right knee and prior to her left knee condition developing her walking tolerance had been an hour.
•
an inability to climb stairs and ladders. In re-examination the plaintiff said that prior to injuring her left knee as part of her duties she still climbed stairs and ladders. However, following this injury due to pain and numbness in her left knee, the plaintiff said that she had found it more difficult to climb stairs, particularly going upstairs;[21]
• difficulty sleeping and getting out of bed in the morning; • a lessening of her ability to play games with her nephews and nieces; •
difficulty with domestic activities such as vacuuming and mopping and any activities requiring squatting or kneeling. In cross-examination the plaintiff also said that whilst she might pull a weed she needed a gardener to do the gardening and mow her lawn;
•
an inability to drive more than short distances, although the plaintiff agreed that she drives to her local shops and continues to do her own shopping without overloading the trolley, on which she sometimes leans, presumably to ease the stress on her leg;
•
the need to attend her general practitioner for the prescription of painkilling and anti-inflammatory medication. At hearing the plaintiff said that she takes 2 to 3 over-the-counter panadol and 2 to 3 digesic (Mobic) per week
[21] TN 31 and 37.
DRAFT
for pain in her right knee. However, she currently takes painkilling and anti- inflammatory medication to treat her left knee symptoms, on average six of each of these medications daily. In cross-examination the plaintiff agreed that the Mobic helped "a little." Following her most recent surgery that plaintiff said that she had weekly physiotherapy which ceased a couple of months prior to the hearing, although she continues to perform the daily exercises shown to her by the physiotherapist;
•
the likelihood of knee replacement surgery and the very real prospect of increased left leg pain until the plaintiff undergoes this surgery;
•
an inability to perform the manual employment duties to which she was previously suited by reason of her background, education and experience;
•
significant loss of function in her hitherto good leg in circumstances where the plaintiff’s capacity to carry out the activities of daily living, to socialise and to work were already compromised by early work-related impairment of the function of her right knee.
The Medico-Legal Evidence
52 The plaintiff tendered reports from orthopaedic surgeon, Mr Grossbard and Mr Shannon.
53 Mr Grossbard examined the plaintiff on 3 March 2009, on 17 March 2010 and again on 29 September 2010. His multiple reports indicate that Mr Grossbard received a comprehensive history and that he had access to the relevant radiological material including a selection of other medical reports.
54 In his second report, submitted in March 2010, Mr Grossbard appears to have confused the circumstances relating to the plaintiff's right knee injury in 2000 with those relating to her left knee claim. Nevertheless, allowing for all of his reports, the most recent acknowledging his earlier error, Mr Grossbard concluded that if the incident in July 2003 did not cause the chondral and meniscus injury it was undoubtedly a significant aggravating factor.[22]
[22] PCB 52 and 56.
55 In May 2007 Mr Shannon was appointed to provide an independent impairment assessment. He found that as a result of the incident in July 2003 the plaintiff had suffered injury to her left knee "resulting on chondromalacia of
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the patella and a lateral meniscus tear (sic)" which had left her with a permanent impairment.[23] I think it likely that when Mr Shannon made this report his intention was to indicate that, in addition to the injury to the meniscus, the episode had aggravated chondromalacia of the patella.
[23] PCB 62.
56 Orthopaedic surgeon, Mr Kudelka examined the plaintiff once on 5 October 2004 at the request of the claims agent. He examined both knees. Whilst Mr Kudelka's report gives no indication of what he understood to have been the circumstances of any incident in 2003, he specifically excluded any significant contribution from incidents in 2000 and 2003 -- "There will be no permanent
impairment resulting from the incidents which she described in 2000 and
2003" -- for what he deemed to be constitutional bilateral chondromalacia patellae.[24][24] DCB 48.
57 Mr Kudelka obviously did not also turn his mind to the issue of work-related aggravation of the plaintiff left knee condition throughout the course of her employment. He nevertheless acknowledged a permanent partial incapacity for work, albeit due to age-related progressive degeneration in both knees.
58 The plaintiff specifically relied on the report obtained by the claims agent from orthopaedic surgeon, Mr Deacon who examined the plaintiff once on 22 November 2004. Notably, Mr Deacon obtained further x-rays, he said, to establish the degree of patella mal-tracking.
59 According to Mr Deacon the plaintiff has a long-standing but unrecognised and asymptomatic condition of patella mal-tracking with secondary chondromalacia causing lateral patella compression on the left which, at the time, he expected the arthroscopy some months earlier would improve. Importantly, so far as the plaintiff is concerned, Mr Deacon linked the condition of both knees to the workplace incidents in 2000 and 2003 when he described them as significant aggravating factors to a pre-existing pathology
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which had increased the plaintiff's vulnerability to such aggravating
incidents.[25][25] DCB 54-55.
60 If, as appears to be the case, Mr Deacon wrongly believed that the plaintiff's duties between 2000 and July 2003 had also involved pushing trolleys, it seems to me that this misunderstanding does not lessen the value of his opinion on causation or on the significance of the contribution the plaintiff's other work duties made to her left knee injury.
61 Rheumatologist, Dr Kostos examined the plaintiff either at the request of the claims agent or the defendant's solicitors on three occasions, 7 November 2007, 5 May 2008 and 9 November 2009.
62 He took a detailed history and he also, it seems, viewed the earliest x-rays of both knees and read the results of the MRI studies obtained in 2003 and 2007.
63 Whilst Dr Kostos accepted that it could have aggravated chondromalacia patella, he was doubtful that the incident described by the plaintiff in mid-July 2003 had also caused a tear of the lateral meniscus.[26]
[26] DCB 61.
64 Relying in part on Mr Steele's view that the cyst formation identified by the MRI study he ordered in 2007 was unrelated to the condition treated by Mr Tang in 2003, Dr Kostos determined that the work components of the left knee injury had resolved and that the pain and disability of which the plaintiff now complains is due to the natural progression of osteoarthritis in both her knees.
65 I am unable to speculate on whether, had he seen the most recent MRI study or even the report, Dr Kostos would have been pursuaded to vary his opinion. In July 2008 Dr Hocking obviously felt that, in opining that the plaintiff's pain was due to the natural progression of osteoarthritis, this rheumatologist had chosen to ignore the MRI findings in 2007 which Dr Hocking said confirmed a
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work-related worsening of the earlier injury by demonstrating a left knee lateral meniscus cystic change in exactly the same anatomical site as the lateral meniscus tear found at arthroscopy in 2004.[27]
[27] PCB 44.
66 Orthopaedic surgeon, Mr Jones examined the plaintiff at the request of the defendant's solicitors on 13 July 2009 and on 15 March 2010.
67 In addition to a selection of medical reports, Mr Jones reported that he had viewed the radiological material including the most recent scan.
68 When he first reported in July 2009 Mr Jones relevantly observed that on her left side there was clinical and radiographic evidence particularly of wear involving the plaintiff's patello-femoral joint. As the defendant's counsel conceded, this finding clearly favoured the plaintiff's case. Mr Jones concluded that the plaintiff was suffering from:
".. some degenerative disease principally affecting the patella joint of both her right and left knees. The course of such a condition is one of anterior knee pain depending on the demands made on that particular aspect of the joint. Activities such as squatting, kneeling, stair or ladder climbing either during the course of employment or outside of work has the capacity to aggravate her condition. The cystic changes evident on the most recent MRI-scan are likely to be degenerative in etiology but as suggested a tear of the lateral meniscus on the most recent MRI-scan could not be completely excluded."[28]
[28] DCB 74.
69 In March this year, post arthroscopic surgery on 11 February 2010, the plaintiff's condition had not stabilised. However, having also seen this Mr Jones thought that the MRI study in 2010 showed "clear evidence of a lateral
meniscal tear and associated parameniscal cyst, a fissure in the medial femoral condyle and some low-grade wear affecting the medial patella
facet."[29]
[29] DCB 80.
70 In view of the repair of the meniscus undertaken by Mr Tang in August 2004, in his report in 2010 Mr Jones said that he was at a loss to explain the apparent development of the meniscal tear evident on the most recent MRI
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scan.[30] Nevertheless, in assessing his report I have also taken into account Mr Jones' lament that he had been hampered in providing a prognosis by the lack of information he received concerning the recent arthroscopic procedure undertaken by Mr Tang. This comment really underscores the advantage the treating surgeon had in this case in formulating his opinion.
[30] DCB 81.
71 So far as the plaintiff's right knee is concerned Mr Jones thought that depending on the demands made on the right knee joint the prognosis is likely to be one of minor anterior knee pain.
The Compensable Injury
72 In this application, there is evidence of pre-existing asymptomatic degenerative changes in the plaintiff's left knee. The plaintiff’s uncontested evidence was that in the period coinciding with the onset of debilitating symptoms she had taken on an increased workload and she was also performing scuff mark removal.
73 Even where they have not described the circumstances of the 2003 incident or for that matter not agreed on the permanency of any work-related contribution to this, all of the doctors have accepted that in mid-2003 the plaintiff probably suffered some degree of work-related aggravation of underlying chondomalacia patellae.
74 The weight of the medical evidence supports a finding that either the plaintiff's employment from October 1999 and/or the 2003 incident caused and/or aggravated the condition of her left knee as confirmed by arthroscopy in August 2004.
75 I have rejected the opinion of the defendant's specialists who assert that any aggravation of the underlying degenerative process in the plaintiff's left knee has ceased and is now overtaken by a degenerative process clearly affecting
DRAFT
both knees.
76 As the High Court explained in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson[31] it cannot be said that an aggravation injury has ceased simply because the underlying disease would have proceeded to a similar stage in its own unaided progression.
[31] [1967] 117 CLR 19 at pages 26-27.
77 It seems to me that the specialist opinions on which the defendant relied provided no rational explanation for how, in the face of persistent symptoms and further limitations on her duties which also accommodated the impaired function of her previously asymptomatic left knee, the effects of the aggravation injury had ceased and the underlying disease process had taken over.
78 To the extent that this is directly addressed or can be inferred from the reports made, the evidence of the treating and most of the medico-legal specialists (including the general practitioner) has satisfied me that the plaintiff suffered compensable injury as a result of work-related meniscal tear and aggravation of pre-existing asymptomatic degenerative changes in her left knee. Her employment with the defendant from 20 October 1999 until the onset of symptoms coinciding with the 2003 incident and thereafter until she ceased her duties was a significant contributing factor to this injury and injury-related impairment continues to make a material contribution to the pain and suffering consequence I have already summarised. This consequence is serious because it is permanent (that is it is likely to last into the foreseeable future) and it is likely to result in the replacement surgery. The plaintiff’s impairment, when judged by comparison with other cases in the range of possible impairments of the knee and particularly in circumstances where she has suffered significant loss of function in her only unimpaired lower limb, is at least "very considerable".
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Orders
79 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering damages for injury to her left knee arising throughout the course of her employment from 20 October 1999. I will hear from the parties as to the making of appropriate orders.
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