Jurisic v Victorian WorkCover Authority
[2017] VCC 1047
•4 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-01541
| TONY JURISIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 and 3 August 2017 | |
DATE OF JUDGMENT: | 4 August 2017 | |
CASE MAY BE CITED AS: | Jurisic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1047 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injuries to the left leg resulting in impairment of leg function – causation with respect to left peroneal nerve lesion – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring proceedings to recover common law damages in respect of pain and suffering and pecuniary loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HIS HONOUR:
1 In this application for leave the plaintiff relied on injuries to his left leg resulting in impairment of leg function. A left knee injury that led to two surgical procedures ending with a surgical reconstruction is the principal injury. Reliance was also had on a nerve injury that has been described as a left peroneal nerve lesion localised in that knee and causing left foot drop.
2 The plaintiff is fifty-one years old. He has an excellent work record in his chosen trade where he is a qualified maintenance fitter. From age eighteen he has worked for thirty years in his trade up to the subject left knee injury on 5 January 2013. His trade is one that can be heavy at times and not heavy at others but is always manual. More importantly, it always demands dexterity and working in awkward positions, with squatting, kneeling and crouching required. Machinery has to be accessed from underneath, from overhead, climbing stairs, and ladders can be required and different physically demanding postures accommodated.[1]
[1]Plaintiff’s Court Book (“PCB”) 10; Transcript (“T”) 66
3 While there were some left leg problems in earlier years, there was no argument directed to that being relevant.
4 The plaintiff relies on a traumatic injury suffered on 5 January 2013. On that day in the course of his employment, a steel carriage that was part of a mechanical conveyor system dropped on him and forced his left leg to twist and bend in an unnatural way.[2]
[2]PCB 7-8
5 The defendant admits the left knee injury is a compensable injury. It admits it has led to permanent effects. It is disputed that the left peroneal nerve lesion or condition is a compensable injury. That dispute occupied most of the time taken in this hearing. In essence then, the defendant contests the question of causation with respect to the nerve lesion.
6 By way of its overall defence, it was submitted that the compensable left knee alone does not result in pain and suffering consequences that can be fairly described as being “at least very considerable” when judged by comparison with other cases in the range of possible impairments of the function of the left leg. It was further submitted that the plaintiff did not meet the 40 per cent or more permanent loss with respect to earning capacity. Even if the nerve lesion was factored in as causatively related, it was submitted that the plaintiff still failed to establish the requisite loss of pain and suffering or earning capacity when it was added to the admitted compensable left knee impairment.
7 In particular as to loss of earning capacity, the defendant submitted that even if the knee injury precluded the plaintiff from his trade, then he still had a residual capacity for at least five alternative suitable jobs that would mean the plaintiff failed to reach the 40 per cent or more financial loss bar.
8 This case highlights the difficulties in this jurisdiction of assessing voluminous medical and radiological reports, which numbered close to fifty, without hearing from any of the authors. The trauma his leg suffered occurred over four-and-a-half years ago. The impairment and any consequences must be judged now, in August 2017. While I have considered all the medical material tendered, I give greater weight to the more recent reports as a number are quite out of date. Some even pre-date a surgical procedure and more recent radiology, so they are of little assistance.
9 By way of illustrating how some material is out of date, surgery on the left peroneal nerve took place on 15 March 2016. Across two extensive court books, the plaintiff has provided only five reports that cover that. There are three recent reports in June 2017. The defendant only has one report that postdates even August 2015.
10 Doing the best I can with respect to this task, it is useful to commence by dealing with the admitted compensable injury to the left knee alone, that is absent the peroneal nerve condition.
11 The starting point in an application such as this where the plaintiff was the only witness to give oral evidence is an assessment of him as a witness. It is of considerable advantage to not only hear but also observe a witness cross-examined at some length by very experienced counsel.
12 I found the plaintiff to be a quite unsophisticated man but one who attempted at all times to tell the truth. He was a refreshingly candid and positive witness who made many concessions against interest in terms of symptoms and capacity for alternative job suggestions. However, his optimism has to be measured against the medical evidence as to capacity. A highly motivated man’s optimism does not always match his real capacity. That is true of this case.
13 He was a reliable witness but he is a layman. To an extent his overoptimism clouds the true impact of his knee impairment when the whole of the evidence is examined and in particular, the objective medical material. He underestimates the reality of the situation facing him due to the real extent of his knee impairment. He seemed to equate avoidance of pain as tantamount to little or no problem and ignored the significance of the activities he had to avoid to stay free of pain.
14 Sometimes he was mistaken about some dates and details, but overall he was very upfront and in no way embellished his situation nor his incapacity. There are differences for example as to just when it was the left foot drop started between his affidavit and what he said to doctors and in court. This is not surprising. He has had a severe knee injury requiring surgery and months of other modalities. He had a hinged brace on and then was on crutches for six months or so, then a walking stick.[3]
[3]T37, PCB 9 and 11
15 His honesty has not been impugned. The likelihood is his focus through his months of knee rehabilitation would be on the knee and not any lesser foot problems that I accept he first noticed in 2013 but which were relatively minor back then.
16 After extensive hydrotherapy and physiotherapy in the early period, he readily conceded he had no therapy directed to the knee for some years now. Nor does he take prescription medication now for the knee. His frankness was illustrated again when he readily conceded that he had not even taken over-the-counter painkillers for the knee this year.[4] The defendant would have difficulty contesting a contrary answer when there is no paper trail.
[4]T80
17 This evidence needs to be looked at in its proper context. Put shortly, he can avoid knee pain but only by avoiding many simple day-to-day postures and movements a fifty-one-year-old man would otherwise perform without a second thought.[5] He pays a very considerable price in this avoidance in order to seek the reward of being pain free.
[5]PCB 13-14
18 There is objective evidence of this otherwise fit man avoiding demanding and strenuous activities and positions to protect his left knee in the muscle wasting recorded in the most recent medical report. I will deal later with the medical evidence but Mr M Dooley, orthopaedic surgeon, who reported on behalf of the defendant on 20 July 2017, found: “There is evidence of wasting of both quadriceps and calf musculature.”[6]
[6]DCB 64
19 In my opinion, Mr Jurisic was a man who understates the level of his symptoms and the problems that his left knee presents him with, in particular regarding work. He had a very stoical attitude to his lot.
20 To properly assess the impairment in this case two facts need to be kept in mind when considering his candid evidence about lack of symptoms and capacity to try new jobs. Firstly, since 5 January 2013, the plaintiff has never been able to perform the full duties and hours of his trade.[7] Secondly, he has been protective and cautious in carefully avoiding the activities that will aggravate or increase knee symptoms.[8] These two facts were not challenged.
[7]T53-4
[8]PCB13-14
21 I accept he has always been a highly motivated tradesman who still wants to work. Indeed he has worked all his life to the full extent of his qualifications and employment opportunities that have come his way. How his trade works is that agencies such as Skilled are the actual employer. They send the tradesman out to what are known as host employers who need a maintenance fitter. There, the worker attends to his trade duties until the job is completed. Then, the agency hopefully directs him to the next job at the next host employer’s premises.
22 He has no qualifications other than for his skilled manual trade which included a diploma course following completion of his apprenticeship. After the subject left knee injury, he undertook a seven-week computer course in 2015 as part of his rehabilitation. He did not achieve any upskilling. So he went and did the course again in 2016 without any change to his skills. Bearing in mind how our community functions in this day and age, I find he has no real computer skills. In the witness box it was clear he also has difficulty even with basic paperwork. At one stage I even had to ask counsel to find relevant passages for him in a set of quite simple documents he had in front of him in the box.[9]
[9]T52-3
23 Looked at realistically, at fifty-one years of age, I find he has no office, clerical or other skills for work outside manually-based tasks.[10] With his computer limitations he has no realistic retraining or re-education prospects for non-physical duties.
[10]PCB 15
24 There was no attack on the plaintiff’s credit. Nor was there any question about his motivation to work. For years now he has been registered with no less than five employment agencies. He rings them every few days looking for work as a fitter. He has not obtained anything now for a year or more. In fact since his last surgery on 15 March 2016, he has only had one day’s work. For almost two years now he has only had a total of about three days’ work. Two were in late 2015.[11] He had one day in 2016. Even these short periods led to symptoms, and the work he was performing was restricted fitting duties.[12]
[11]Defendant’s Court Book (“DCB”) 165-166
[12]PCB 14
25 Consistent with his motivation and keenness to get work, he has not told these agencies of his limitations. I accept his evidence that there is a declining work market in his trade, based as it is around manufacturing. Availability of work in his trade has been a problem for some years at least since 2014. When he has obtained positions, and I accept that he has attempted to return to work on a number of occasions, he has never been able to work a full 38-hour week due to his knee impairment alone. At one stage, he got up to 28 hours but it did not last long and was on restricted duties. On the evidence, he has not lasted long in any of his short-term returns to work. He has never been able to perform full maintenance fitting duties due to the knee impairment alone.
26 In spite of his optimism and motivation, he now faces the harsh reality that his skilled manual trade which he enjoyed and followed all his working life is now a thing of the past because of his impaired left leg function due to the knee. I also accept he has attempted to retrain and find himself other work but due to lack of education and qualifications for anything other than demanding manual work, he has been unsuccessful.
27 Looking at the treatment journey for the knee, it has been extensive. The first operation was on 12 January 2013, one week after the accident. Mr P Byrne was the surgeon. On 15 January 2013, full reconstruction surgery by Mr Byrne took place. The documents indicate the extent of damage.[13] It involved bone and soft tissue damage with a fracture of the tibial plateau, a bucket tear of the medial meniscus and rupture of his medial collateral ligament.
[13]PCB 19, 20 and 40-41
28 Dealing with the knee alone and starting with Mr P Byrne, who was the treating surgeon, his most recent report is very dated and based on an examination two-a-half-years ago. It seems he last saw the plaintiff in April 2015 when he found some muscle wasting. He thought at that stage, the left knee was stable and the graft was sound, following the reconstructive procedure.[14] He really said nothing more that assists me in judging consequences now.
[14]PCB 41
29 The general practitioner, Dr S Joel, is similarly of limited assistance. He reported in 2014 and most recently wrote a short letter in 2016. But it really only indicated that the March 2016 surgery for the peroneal nerve injury and foot drop had stabilised.[15] Nothing was said about the left knee.
[15]PCB 77
30 The other treater was Dr Maartens, neurosurgeon, who operated to address the left foot drop problem in March 2016. He linked it causatively to the work injury but did not comment on the knee condition itself.[16]
[16]PCB 55-6,74-76
31 Turning then to the recent reports that are of assistance, they comprise medico-legal opinions.
32 Dr D Gorai is a consultant neurologist who had the advantage of examining the plaintiff twice after he had undergone the nerve operation. He saw Mr Jurisic in August 2015 and again in June 2017. He had no doubt it seems about the causative connection between the left foot drop and the knee injury but did make a comment, as recently as June 2017, that, without hearing from him, seems referable to the knee alone:
“… he has got to be careful because of knee pain and even simple shopping, he has to keep [the] car very close to the shopping complex to get out and do his shopping, but any prolonged activity causes pain in his left knee and he begins to start limping.” …. .[17]
[17]PCB 80-81
33 Dr Gorai was asked to comment specifically on suitability for any employment and while he answered in a context of both the knee and the left foot drop, I read his opinion as applying to both and to each individually:
“… it appears in his nature of work the difficulty for him to be crouching, bending, kneeling for even a short period of time as he starts experiencing the pain and this causes an incapacity from his left knee and also with regards to the left foot drop.”[18]
[18]PCB 80
34 I accept this evidence as supporting my finding that the plaintiff’s trade of some thirty years is now beyond him permanently. Also looked at realistically, these very wide limitations, given his lack of qualifications, all but preclude him from any full-time work he is suitable for.
35 Mr T Kossmann, orthopaedic surgeon, also had the advantage of examining the plaintiff twice. He saw him in June 2015 and again on 27 June 2017. He had been given an enormous amount of medical material including radiology and reports that reached 67 in number.[19] His views about the left knee injury alone were pessimistic. He thought the prognosis was guarded to poor, and said:
“… He continues to suffer from instability of the anterior cruciate ligament, which may be detrimental for his left knee in the future. He may develop osteoarthritic changes, …. .”[20]
[19]PCB 86-87
[20]PCB 88
36 In relation to employment capacity with respect to the left knee impairment alone, Mr Kossmann said:
“In my opinion Mr Jurisic’s left knee injury is restricting him in relation to employment and activities involving standing, walking, driving, stooping, repetitive bending, twisting or lifting. In my opinion this incapacity will continue for the foreseeable future. `
In my opinion Mr Jurisic will not be able to return to his pre-injury employment based on his left knee injuries alone, since he has significant restrictions regarding his work … .”[21]
[21]PCB 89
37 Mr Kossmann went on to give a detailed analysis of why he thought the peroneal nerve palsy was related to what he described as a “severe knee injury”.[22]
[22]PCB 91
38 In regard to other possible suitable employment, he thought the capacity was limited to sedentary employment with the very real restrictions of inability to do any physically demanding work or where he was required to walk for long distances, on uneven ground, up and down stairs, on inclines or declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kilograms.[23]
[23]PCB 90
39 I accept Mr Kossmann’s very detailed report as supporting my finding that the plaintiff is in effect unemployable when the provisions of s5 of the Accident Compensation Act 1985 are considered and the evidence is viewed with the reality of the employment market for a fifty-one-year-old man in mind.
40 The most recent report tendered by the plaintiff is from Dr D Middleton dated 28 June 2017. It is a very extensive report that runs to some 23 pages. He is an occupational health and rehabilitation consultant and his opinion with respect to the left knee impairment on its own is clear.
41 I accept his opinion as accurate and well argued. He analysed in detail a very considerable list of radiological, medical and even physiotherapy and hospital reports in the course of giving his opinion. He concluded there had been significant structural damage to the left knee and there was likely development of premature osteoarthritis that would require a total left knee replacement.[24]
[24]PCB 113
42 With respect to the left knee alone, he considered the plaintiff was restricted in prolonged sitting, standing, walking, driving and/or stooping to maintain manageable levels of discomfort in the left knee. He considered that the left knee injury precluded him from repetitive bending and/or twisting in, including squatting to bend or stoop. He was also restricted in lifting if the effect of weight or force was greater than 5 kilograms or involved in any squatting or kneeling. Restrictions extended to prolonged sitting, standing, walking, driving and/or stooping to maintain manageable levels of discomfort in the left knee.[25]
[25]PCB 113-114
43 Dr Middleton’s report dealt with the left knee and left foot drop separately. He felt the left foot drop had been caused by the trauma to the knee but dealing with the knee alone, I read his report as supporting my conclusion that when looked at realistically, the plaintiff has no capacity for employment. At best he could be trialled on a graduated basis of two or three hours a day for two or three days non consecutively per week.
44 I accept Dr Middleton’s opinion as an expert that, when the provisions of s5 are looked at, there is virtually no basis on which he could realistically find work where the physical demands of the work conformed to his restrictions. In the end I accept his evidence that when he was specifically asked to refer to the left knee injury and impairment on its own, he stated:
“… It is my opinion that Mr Jurisic has no current work capacity as defined under The Act and that this is likely to continue for the foreseeable future.”[26]
[26]PCB 115
45 The only other up-to-date medical opinion is from Mr Dooley and I have already referred to his finding in July this year of wasting. He thought that while there had been a good recovery from the knee injury, there was a risk of developing slowly progressive post-traumatic osteoarthritis of the left knee joint. He thought that the knee condition could be self managed with low-impact exercise and “sensible modification of activity”.[27] Of course that is precisely what the plaintiff is doing in order to avoid knee pain.
[27]DCB 65
46 Mr Dooley did not consider that the left foot drop was causatively related so when he was asked in a covering letter to comment on suitable employment I read his opinion as referable to the knee alone when he said:
“From an orthopaedic point of view, I believe that Mr Jurisic has a physical capacity to undertake suitable employment. In general, such employment would include light physical work and clerical duties. He would note difficulty carrying out regular heavy physical work and work that involved a lot of kneeling and squatting on the left knee.”[28]
[28]DCB 65
47 Of the up-to-date opinions this is the most favourable one for the defendant. But even Mr Dooley, in my opinion, puts restrictions on the plaintiff that when judged against all of the matters required by s5, places very real limitations on his capacity for work out in the real employment world.
48 The only other report that could be said to be reasonably up to date is the lengthy February 2016 report of Dr H Sutcliffe, occupational physician. That of course pre-dates the left foot drop surgery in March 2016. Nevertheless it is a report that clearly supports the plaintiff’s application with respect to the knee alone. This occupational physician stated:
“I believe he has no capacity for his pre-injury employment now or into the foreseeable future. He has no capacity to undertake limited duties taking into account the nature of his occupation, taking into account his age, education, past work experience and the nature of the injury. I believe that he has no capacity to undertake persistent manual handling and he has no experience at all in office based work.”[29]
[29]PCB 69
49 Dr Sutcliffe thought this unhappy position would persist into the foreseeable future.
50 I have considered all of the other reports tendered by both sides before coming to my findings. They are all out of date, with the most recent being nearly two-and-half-years old.[30] I will not elaborate on them all but they confirm a traumatic knee injury in the early days when those examinations took place.[31] As to prognosis and the current incapacity, they do not assist to any great degree when I have not heard from these doctors and they have not had the benefit of up-to-date re-examinations.
[30]DCB 53
[31]Dr D Barton 2013, Dr A Miller 2013 and 2014, Medical Panel Opinion 2014, Dr Baynes 2014 and 2015
51 I will briefly mention the Medical Panel Opinion back in September 2014. While it was concerned with a particular question not related to “serious injury”, that independent Panel found a permanent whole person impairment due to the left knee injury on its own.
52 I have also considered the Nabenet vocational assessment material that has been tendered by the defendant.[32] The essential part of that evidence was a vocational assessment about suggested suitable alternative employment but that assessment was done almost three years ago, back in October 2014.[33] Of course that means there is a very extensive amount of medical material that is before the Court that was not taken into account in the vocational assessment performed that long ago.
[32]DCB 107-118, 129-150
[33]DCB 107
53 There are some other reasons why I do not consider that the job suggestions made are within Mr Jurisic’s capacity. One of those is that I consider them to be job suggestions that are more theoretical than real. There has been no onsite factory floor analysis of just what is involved in these suggested positions. There is a lack of definition about the real demands of a number of those jobs in view of the restrictions he has due to his left knee. But on any reading of the suggested duties, they will encompass a number of the very significant postures and movements that he deliberately avoids daily in order to reduce his pain.[34]
[34]DCB 110-114, PCB 13-14
54 In the end I am satisfied that on the balance of probabilities the plaintiff has suffered a loss of earning capacity that effectively puts him out of the workforce for both his old trade and anything suitable when his age, experience, qualifications and the other matters required in s5 are taken into account. He probably has some capacity in some job where he can avoid all of the activities and stresses on the knee that I have referred to but it would only be at best on a trial basis for a few hours here and there on perhaps two or three non-consecutive days during the week.
55 Due to his knee alone he has suffered a permanent loss of earning capacity that is much more than 40 per cent of what he had previously. The plaintiff has thus discharged the onus with respect to the left knee alone.
56 Accordingly, it is not necessary for me to set out in any detail the evidence about the foot drop condition. But unless there is any doubt about that issue, I am satisfied on the balance of probabilities on the whole of the evidence that the left foot drop was causatively related to the left knee trauma and the treatment of that condition.
57 In view of my granting leave with respect to loss of earning capacity, it follows there is leave granted for pain and suffering.
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