Kelada v Ausco Fitzroy Pty Ltd
[2013] VCC 1995
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00472
| GABRAEIL KELADA | Plaintiff |
| v | |
| AUSCO FITZROY PTY LTD (ABN 85 105 749 308) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 17 June 2013 | |
DATE OF JUDGMENT: | 18 December 2013 | |
CASE MAY BE CITED AS: | Kelada v Ausco Fitzroy Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1995 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left and right knees
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Alcoa of Australia Ltd v McKenna (2003) 8 VR 452; Dordev v Cowan & Ors [2006] VSCA 254; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; See Spence v Gomez [2006] VSCA 48; Forder v Hutchinson [2005] VSCA 281; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings for loss of earning capacity and pain and suffering damages with respect to each injury suffered by him in the course of his employment with the defendant on 24 September 2006 and 22 January 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms N Wolski | Shine Lawyers |
| For the Defendant | Mr T Ryan | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This is a serious injury application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). It arises from injuries that the plaintiff sustained to his left knee on 24 September 2006 in the course of his employment with the defendant and also to his right knee on 22 January 2007, once again in the course of his employment with the defendant. Certificates are sought both with respect to pain and suffering consequences and loss of earning capacity consequences.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s134AB(37) and (37).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose a specific burden in relation to a claim for loss of earning capacity.
6 By ss(38)(c) of the section, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “more than significant or marked” and as being “at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively arising from the injury. A comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
Factual background
9 The plaintiff was born in 1950 and is now sixty-three years of age. He was born in Egypt and he initially attended a trade school, training as an electrical fitter in that country. He then began working in the cruise line industry in the Mediterranean, centred in Greece, and obviously was able to return home back to Egypt from time to time. He came to Australia in 1975. He worked for Ford in Campbellfield from 1975 to 1978. He became a permanent resident in 1978. That same year he became a tram conductor and driver, through until 1980. He then worked for V/Line as an electrical fitter until he was retrenched in 1993. He then moved his family up to Queensland, where they resided for some nine years through until 2003, and he was variously employed in casual work, resorts, hotels and ongoing projects.
10 The plaintiff experienced the onset of symptoms in his knees whilst in Queensland. As outlined by his counsel, the plaintiff clearly had longstanding degenerative changes in both knees.
11 The plaintiff’s case is that he was able to maintain a work capacity and through separate injuries involving each knee, one in 2006 and one in 2007, he sustained an aggravation of those underlying changes to the point that he has not subsequently been able to return to work. He had arthroscopic surgery on each knee on 19 October 2006 and 22 March 2007 for the left and right knees respectively. Ultimately, he will come to bilateral knee replacement surgery.
Past medical history
12 The plaintiff attended the Hinterland Medical Centre in Nerang in Queensland in August 2002 with some stiffness and soreness in his knees, and x-rays were taken at that time. They disclosed mild osteoarthritic changes, no loose bodies or calcification was identified and alignment was relatively normal, with some mild medial angulation in the structure of the knee joints at that time. He went back to the medical centre and there were signs of patellar early osteoarthritis on 27 August 2002.
13 It is clear that the plaintiff had some work-related injuries to his knees and back whilst in Queensland, and some time off work.
14 When he came back to Victoria in about 2003, the plaintiff began attending Dr Demirtzoglou, who has remained his treating practitioner. There is an attendance for knee pain in December 2003 and again in March 2004. In June 2004, it was noted there was left knee pain over a number of months beforehand without any traumatic origin. On examination, Dr Demirtzoglou found no swelling, normal gait and there was a diagnosis of arthritis and a referral for an x-ray.
15 A couple of days thereafter there was a further attendance upon his general practitioner and there was a suspicion of a meniscal injury and a recommendation that there should be some weight loss.
Employment: Defendant
16 In September 2004, the plaintiff began work with the defendant. He was employed as a maintenance worker and handyman, providing services at the Park Hyatt Hotel. There was significant work stress on his knees; painting; cleaning skirting boards; handyman work; tiling; carpeting, cleaning and maintaining the indoor swimming pool; maintenance in rooms, including climbing a ladder to change the lights in rooms throughout the hotel.
17 In September 2004, there was another attendance on Dr Demirtzoglou with some anterior left knee pain after doing exercises, and a diagnosis then of patellar tendonitis.
18 Then there was a break, as far as can be assessed, for two years, through to September 2006. The plaintiff attended Dr Demirtzoglou on this occasion with right knee symptoms, episodic over the past three years. On examination, the gait was found to be normal. There was no swelling in the knee joints and the knee was thought to be stable. Later the same month, on 22 September 2006, he went back to Dr Demirtzoglou with left knee symptoms – pain daily in the joint lines. Again, on examination, the gait was normal, there was no knee swelling and there was a suggestion of referral to an orthopaedic surgeon for an MRI scan.
19 Before that happened, two days later on 24 September 2006, the plaintiff was entering the pool equipment room at the Hyatt to ensure the settings for chemicals were correct. To do so, he had to step up a high step of about 60 to 70 centimetres. He placed his right foot on the step of the doorway into the equipment room and pushed off onto his left leg in order to propel his body weight upwards and forwards on to his left leg. At some stage in this procedure he felt a pop in his left knee and sharp pain in the left kneecap.
20 The plaintiff attended Dr Demirtzoglou the next day. The notes demonstrate that there was a left knee injury which had occurred the previous day, and the circumstances were explained. On examination, there was a swollen painful left knee, pain in all ranges of movement and there was a diagnosis of meniscal ligamentous injury and the suggestion for referral for orthopaedic assessment. The next day there was still pain, and the very same day, 26 September 2006, Mr Shimmin, who was the treating orthopaedic surgeon upon referral, was seen and there was an immediate request for an MRI scan. It disclosed a complex tear within the posterior horn of the medial meniscus, superficial fissuring and articular cartilage damage in the lateral femoral condyle. There was a degenerative tear in the posterior horn of the medial meniscus, fissuring again in the articular cartilage of the medial femoral condyle and Grade 2 to 3 ulceration of the articular cartilage in the patellar and trochlear groove. The plaintiff concedes there was a considerable degree of degenerative change prior to this injury.
21 Surgery was recommended and performed on 19 October 2006, which involved an arthroscopic resection of the lateral and medial meniscal tissue, undertaken by Mr Shimmin. After some short time off work, the plaintiff returned to work on modified duties, increasing to 4 hours a day, up to 12 hours per week.
22 Then there was a further incident on 22 January 2007. The plaintiff was walking along a corridor on an uneven floor surface and a downward ramp. The left knee gave way. He tried to brace himself using the right knee. His evidence is “I still fell over halfway and in the process my right knee was damaged”. There was an attendance that day at Epworth Hospital for an x‑ray, an attendance the following day upon Mr Shimmin, and a referral for an MRI scan, this time of the right knee. That was performed some days later on 1 February 2007 and identified a 6-millimetre large radial tear at the junction of the posterior horn and the root of the medial meniscus in the right knee, a high-grade chondromalacia patellae, a 5-millimetre intraarticular loose body within the popliteus tendon sheath, a small jointed fusion and a medial collateral ligament, Grade 1 to 2 injury. Mr Shimmin recommended surgery for the right knee. Arthroscopic surgery was performed on 22 March 2007 involving a partial menisectomy, chondroplasty of the medial femoral condyle and patellofemoral joint and the removal of loose bodies from the knee joint.
23 Post-surgery, the evidence is of greater strain on the left knee with gradual deterioration during 2007 and persistent swelling in the knee. The plaintiff was reviewed by Mr Shimmin in June 2007. Both knees remained painful. The plaintiff was reviewed again in October 2007. It was conceded both knees remained painful thereafter to this day. In November 2007, weight bearing x-rays disclosed an underlying genetically inherited varus alignment, which plaintiff’s counsel described as “cowboy bow-legged-ness” where the knees bow outward, placing extra load on the medial compartments of the limb.
24 In September 2010, Mr Shimmin recommended conservative treatment with analgesics, anti-inflammatories, Glucosamine and quadriceps strengthening exercises, and it was thought that there would be a progression of symptoms which may result in knee replacement surgery in the future.
25 Since then, there have been ongoing attendances at Dr Demirtzoglou’s clinic on a three-monthly basis. Tramadol has been regularly prescribed; other than that, six to eight Panadol or Panadeine tablets a day, and Glucosamine is self-administered.
26 Weekly payments of compensation ceased in March 2012. The plaintiff is now on a Disability Pension. By way of treatment he continues to use six to eight Panadol a day, or Tramadol as required.
The Plaintiff’s case
27 The plaintiff alleges that he has longstanding degenerative changes in both knee joints, which were respectively mildly symptomatic before the two work incidents, one involving each knee. After the first injury to his left knee, he required arthroscopic surgery and was only able to return to work 12 hours per week before incurring the right knee injury, which effectively rendered him totally incapacitated. It is alleged the plaintiff has limited English language skills and very limited vocational skills such that he is virtually unemployable. In time, it is alleged he will require a bilateral total knee replacement.
The Defendant’s case
28 The defendant, while not conceding any of the basic elements of the plaintiff’s proof, concedes that the plaintiff did sustain meniscal injuries in the course of his employment as alleged, which in turn led to the surgical intervention.[2] However, the defendant asserts that the acute injuries suffered at work were repaired by arthroscopic surgery such that any sequelae from such injuries are minimal and that the plaintiff’s present impairment is referable to underlying degenerative change and no longer due to either of the workplace injuries.[3]
[2]Transcript (“T”) 14, L27 – T15, L12
[3]T15, L15-27
29 Defence counsel strongly resists the proposition that either workplace injury is causally related to the present day impairment but asserts if causation can be proved by the plaintiff as to the present day impairment, then the ingredients of serious injury are very close to being established.[4]
[4]T13, L1-24
Serious injury template
30 It would appear common ground that the following template is appropriate according to the Court of Appeal decision in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[5] to wit:
(a)First, I should identify each injury;
(b)Secondly, I should delineate the impairment consequences of each injury;
(c)Thirdly, I should determine whether each injury considered alone qualifies as a “serious injury” under s134AB(37) of the Act as amplified by s134AB(38).
(d)Fourthly, in determining whether the plaintiff has discharged the onus of establishing that each individual injury was a “serious injury”, I should make a comparison between the plaintiff’s condition before each separate injury and his condition after each separate injury and then make an assessment of the differential (additional) impairment;
(e)Fifthly, as the two injuries arose from separate incidents, they should not be accumulated. Each injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination one with the other.
[5][2012] VSCA 60 at paragraphs [31] to [35]
Credit of the Plaintiff
31 Counsel for the defendant contends that the plaintiff’s case is deficient because there are a number of medical practitioners who have not been told the complete, or any, history concerning pre-existing symptoms to either knee. In particular, he points to the histories obtained by Mr Khan, Mr Shannon, Mr Jones, Mr Dooley and Mr Shimmin. He relies on the principles set out in Dordev v Cowan & Ors[6] and Sejranovic v Berkeley Challenge Pty Ltd.[7] In this matter, I do accept that the plaintiff’s credibility is compromised in terms of the histories given, in particular to the medical practitioners so named. Accordingly, the application should only be successful if there is objective evidence to support it and appropriate medical opinion based on that objective evidence.[8]
[6][2006] VSCA 254
[7][2009] VSCA 108 at paragraphs [144] and [145]
[8]Sejranovic v Berkeley Challenge Pty Ltd (supra) at paragraph [171]
Identity of injury: left knee/right knee
32 Defence counsel principally relies on the report of orthopaedic surgeon, Mr Ian Jones, dated 22 December 2009. At page 5 of his report, he stated:
“I believe the cause for this man’s left and right knee complaints with a degeneration affecting both knee joints (sic). I believe that the patient has recovered from the effects of the possible meniscal injuries caused by the incident of 24 September 2006 to his left knee and the apparent injury to his right knee on the unspecified date when the left knee gave way.”[9]
[9]Exhibit 2, DCB 28
33 The inference I am asked to draw is that the only injuries, or the only permanent injuries, suffered by the plaintiff in the respective incidents was a meniscal tear in the left knee and a possible aggravated degenerative meniscal tear to the right knee. I am asked to infer that the left and right knee complaints relating to the underlying degeneration has not been affected in such a way that it is has been causally related to either injury. The plaintiff’s counsel submits that Mr Jones is effectively silent as to whether or not either injury has played a part on the underlying and pre-existing disease process.
34 It would appear from Mr Jones’ report that the advanced degeneration affecting the left and right knees and the unstable nature of his knee makes him “unfit for any physical employment which requires standing or walking”.[10] It would have to be said that this is a marked changed from the situation that pertained prior to the first injury and in between the first and second injuries. It is also consistent with a finding that following the first injury, the plaintiff was reduced from full-time work to approximately 12 hours per week and after the second injury, his capacity was reduced from 12 hours to virtually nil hours per week.
[10]Exhibit 2, DCB 28
35 Further, on examination, Mr Jones found there was “quite slight welling in the knee joints and bilateral patellofemoral crepitus and pain”.[11]
[11]Exhibit 2, DCB 26
36 Mr Jones records that a partial meniscectomy and chondroplasty were undertaken with respect to the first injury and a similar procedure was performed with respect to the second injury. He does not comment whether either procedure is likely to lead to any sequelae by way of pain, and whether such pain, if it exists, is permanent or temporary.
37 The plaintiff principally relies on the report of orthopaedic surgeon, Mr Russell Miller, in his report dated 5 May 2013.[12] Mr Miller took a history that there were some occasional aches and discomfort in the knees prior to the injuries as pleaded. He stated he had seen his doctor in the past in relation to the knees but he was coping quite well and had not missed any significant time off work.[13]
[12]Exhibit M
[13]Exhibit M, PCB 110c
38 Examination of the left knee revealed Grade 1 quadriceps wasting, a small effusion in the left knee and medial joint tenderness. Similarly in the right knee there was Grade 1 quadriceps wasting, a small effusion in the right knee and medial joint line tenderness. There was also a finding of mild patellofemoral joint crepitus in both knees. The plaintiff reported significant discomfort when attempting to kneel and squat.[14]
[14]Exhibit M, PCB 110d
39 In relating his diagnosis, Mr Miller relied on the left knee arthroscopy findings by Mr Shimmin with respect to the first operation. They were as follows:
“’I performed left knee arthroscopy, resected unstable medial meniscal tissue, both medially and laterally and also noted some degeneration of the articular cartilage, probably more significant than shown on MRI scan. There was grade 1 change in the medial side of the joint and grade 2 change on the lateral side of the joint. There was grade 2 change in the patello-femoral joint.’ … .”[15]
[15]Exhibit M, PCB 110e
40 Mr Miller then opines:
“This man has had only a moderate response to that arthroscopic debridement of the left knee and he has significant ongoing symptoms. I believe symptom progression is likely and the prognosis for the left knee is only fair.”[16]
[16]Exhibit M, PCB 110e
41 Similarly, with the right knee, Mr Miller quotes the treating surgeon’s finding at arthroscopy as follows:
“’I performed right knee arthroscopy on 22/4/2007 which revealed he had extensive degenerative articular cartilage disease affecting the medial femoral condyle and patello-femoral joint. There was also a degenerate tear of the medial meniscus which was treated with partial meniscectomy.’ … .”[17]
[17]Exhibit M, PCB 101e
42 Mr Miller then comments:
“He has significant disease in the knee involving chondro pathology and meniscal pathology. The prognosis for the right knee is only fair.”[18]
[18]Exhibit M, PCB 101e
43 It would appear common ground that the meniscal tears in both knees are related to the respective incidents as pleaded. The main area of disagreement appears to be whether the underlying degenerative process has been aggravated in line with the principles outlined in Petkovski v Galletti,[19] such that the aggravation is, itself, a “serious injury”.
[19][1994] 1 VR 436
44 Mr Miller considers these issues in the following manner:
“Relationship to Work Accidents
This is clearly a complex issue in this case. It is likely that this man had pre-existing disease in the knees and involving the articular cartilage. It is likely that he had pre-existing slight varus mal-alignment. In my opinion, his work in general has contributed to the evolution of his disease and I believe it is likely that the work event on approximately 24/9/2006 aggravated the left knee condition and caused further superimposed injury. I believe it is likely that his work in a similar way and his work in general and the work event on 22/1/2007 aggravated the right knee condition. I believe that affect persists and accounts significantly for his current clinical status. I acknowledge the difficulties in making such a determination.”[20]
[20]Exhibit M, PCB 110f
45 Mr Miller then continues in the following way:
“Mr Kelada has had appropriate treatment to date with some benefit from the arthroscopic debridements. I believe his ongoing conservative regime is appropriate and will need to continue indefinitely. I believe this man is likely to come to the requirement for total knee replacements. It is difficult to put a time frame on this, but believe it is likely to be a 5-10 year time frame. I believe the requirement for that treatment has been accelerated by the work and the work injuries outlined above.”[21]
[21]Exhibit M, PCB 110f
46 Finally, Mr Miller states:
“… He therefore could not return to pre-injury duties in my opinion on either a full time or part time basis. Given my understanding of his age, education and work experience, a return to work would be problematic in this case due to the combined effects of the left and right knee injuries. There is a work related component to those injuries in my opinion.”[22]
[22]Exhibit M, PCB 110f
47 It appears reasonably open, based on Mr Miller’s opinion, that in addition to the acute trauma to the respective medial menisci in the two relevant incidents leading to the need for a partial resection in both cases, that Mr Miller believes that the underlying degenerative process has been aggravated by the respective trauma to a recognisable extent and that the work component is a permanent contributing factor. It would also appear open that the combined physical consequences caused by the respective trauma has accelerated the need for total knee replacements in the vicinity of five to ten years.
48 Mr Brendan Dooley, orthopaedic surgeon, provided three reports on behalf of the plaintiff, dated 11 November 2009, 19 August 2010 and 27 June 2011.[23] Originally he was given a history that the plaintiff never had any problems with either knee joint prior to the first injury.
[23]Exhibit J
49 For the purposes of his third report, Mr Dooley was provided with the Queensland clinical notes and x-ray reports from the Gold Coast Medical Imaging, all of which related to the pre-existing state of the knees. Accordingly, Mr Dooley opined:
“… At the clinic he had been treated for bilateral knee pain as well as low back pain, both the clinical notes and the radiological reports indicate the pains he complained of in both knees related to osteoarthritis affecting both knees and that the pain in the knees did not represent referred pain from his lumbosacral spine. … .”[24]
[24]PCB 51
50 Mr Dooley further stated that a final opinion would depend upon the extent of the pain and any disability caused by the arthritis that pre-existed the injuries to both knees at work on 24 September 2006 and 22 January 2007. It did seem clear to Mr Dooley however, that although the plaintiff was having ongoing pain due to osteoarthritis in both knee joints from the year 2000 onwards, nevertheless he had worked as a handyman for the defendant with work involving multiple tasks, repairing tiles, doing painting, fixing toilets, changing washers on taps et cetera, together with a lot of kneeling. He stated that if the pain and disability was minimal prior to 24 September 2006, then –
“… the probabilities are that there was significant aggravation of the osteoarthritic changes present in his left knee resulting from the injury of 24 September 2006, and likewise to his right knee on 22 January 2007, and his ongoing inability to return to his previous work and his ongoing pain affecting both knees.”[25]
[25]Exhibit M, PCB 52
51 Further, he stated:
“Currently he is severely restricted and … I believe WorkCover should take responsibility for the cost of bilateral total knee replacement arthroplasty surgery should it become necessary in the future. … .”[26]
[26]Exhibit M, PCB 52
52 It would thus appear to me that once again, comparing the plaintiff’s clinical situation objectively pre and post the two various injuries, there seems to be a marked deterioration in the terms already described following each incident.
53 Once there has been an aggravation of a pre-existing condition which has the effect of rendering a plaintiff significantly disabled, as in this case, the plaintiff submits that it is for the defendant to prove when it was that the underlying condition would have disabled the plaintiff absent either respective trauma. The plaintiff submits that the defendant has failed to discharge this onus.[27] The defendant submits that it has fulfilled this requirement by introducing the evidence of Mr Jones, and it is now for the plaintiff to prove the extent of the injury according to the principles laid down by Petkovski v Galletti.[28]
[27] See Spence v Gomez [2006] VSCA 48 at paragraph 34
[28]Supra
54 Without finally deciding this particular point, I consider that the plaintiff has discharged his onus with respect to proving that the first injury reduced the plaintiff’s capacity for employment from full time to approximately 12 hours per week. and that the second injury further reduced his capacity for employment from approximately 12 hours per week to zero hours per week. Apart from the contemporaneity of the respective trauma and the need for operative relief as already described, there are ongoing findings consistent with the original injuries. For example, Mr Dooley found, on 11 November 2009, with respect to the left knee joint, that:
“… there was moderate fluid evident in the suprapatellar pouch in his left knee. … There is pseudo laxity in the medial compartment because of the articular cartilage loss in that compartment. … He had moderate wasting bilaterally in his thigh muscles.”[29]
[29]Exhibit J, PCB 44
55 With respect to his right knee, Mr Dooley found:
“… there was fluid in the suprapatellar pouch in his right knee. … .”[30]
[30]Exhibit J, PCB 44
56 Even if it were to be considered that the medical evidence in essence goes no higher than that the respective incidents were capable of only being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition.[31]
[31] Forder v Hutchinson [2005] VSCA 281 at paragraph 47
Other medical evidence
57 Orthopaedic surgeon, Mr Thomas Kossmann, saw the plaintiff for medico-legal purposes on 21 January 2011 and reported twice on 21 January 2011 and 12 July 2011.[32]
[32]Exhibit K
58 At the first consultation, he took a history that the plaintiff –
“… had some type of pain problems with his knees and consulted his general practitioner from 2004 onwards for several times. Mr Kelada emphasised that this was more of a chronic pain issue, that he never had any swelling and the knees were always regarded as stable.”[33]
[33]Exhibit K, PCB 54
59 On this occasion, it was his opinion that both accidents caused an aggravation of the underlying osteoarthritic condition of both knees and that this had resulted in a complete incapacity for him to work as a handyman. Further, he was of the opinion that if the injuries had not occurred, the plaintiff would not be incapacitated at the present time. He stated:
“Despite suffering from a mild form of osteoarthritis of both knees, I am of the opinion that Mr Kelada would have been able to work until his retirement.”[34]
[34]Exhibit K, PCB 56
60 In the second report, Mr Kossmann referred to additional information given to him by way of scan reports of the Gold Coast Medical Imaging and records from the Hinterland Medical Centre. He confirmed that he had not been informed by the plaintiff about these earlier scans and problems and he was asked if, in light of the new evidence, he would alter his previous opinion. After canvassing the extra information, he stated:
“As expressed in my previous report I am of the opinion that both accidents (24 September 2006 and 22 January 2007) caused an aggravation of the underlying osteoarthritic condition of both knees. The injuries happened in the course of Mr Kelada’s employment and are well documented with MRIs which were performed immediately after the injuries occurred. The injuries are consistent with the two accounts.
… My opinion expressed in my report dated 21 January 2011 has not changed despite the new evidence.”[35]
[35]Exhibit K, PCB 60
61 The defendant had the plaintiff examined by orthopaedic surgeon, Mr Rodney Simm, on 6 June 2012.[36] The plaintiff gave a history of suffering an “ache” in both knees over a period of years. He said the symptoms did not require treatment and did not prevent him from undertaking full activities. Mr Simm recorded:
“This history was apparently inaccurate, as I subsequently read in a report from Mr Brendan Dooley that whilst living in Queensland he had problems with both knees in 2000, 2001 and 2002.”[37]
[36]Exhibit 3
[37]Exhibit 3, DCB 30
62 Approximately thirty minutes after the completion of the consultation, the plaintiff returned to see Mr Simm and told him of an injury to both knees from walking up and down stairs in Queensland whilst carrying linen. He had a period of incapacity following this injury. He thereafter confirmed the history of the work for the defendant in Victoria from about 2004.[38] It was Mr Simms’ opinion that the underlying degenerative pathology was constitutional and even in the absence of any factors arising out of employment, he would have expected the plaintiff to experience progressive symptoms from osteoarthritis which would have ultimately led to bilateral total knee replacements.[39]
[38]Exhibit 3, DCB 30
[39]Exhibit 3, DCB 33
63 He considered that the two respective trauma –
“… probably amount to symptomatic exacerbation of the established and already symptomatic pathology. It is unlikely that either the right or left knee injury altered the underlying pathological process in a significant way.”[40]
[40]Exhibit 3, DCB 33
64 However, Mr Simm went on to state:
“On the basis of his report of increased pain as a result of these work injuries, it may be interpreted that the work injuries have influenced his clinical course.”[41]
[41]Exhibit 3, DCB 33
65 In my view, the influence on the plaintiff’s clinical course includes the fact that he had a reduced work capacity immediately following the two relevant injuries. When discussing the presence of the pre-existing arthritis further, Mr Simm stated:
“It is evident that this man had established, moderately advanced, symptomatic osteoarthritis of the knees prior to commencement with Ausco, and that the symptoms had prevented him continuing with a particular job in Queensland. It is also a matter of record that he was able to kneel and undertake the physical requirements of his work with Ausco until the subject left and right knee injuries led to increased pain from the osteoarthritis. This clinical history could be interpreted to indicate there is a relationship between the deterioration of his condition and employment.”[42]
[42]Exhibit 3, DCB 33 – 34
66 The defendant also had the plaintiff examined by surgeon, Mr Michael Shannon, on 7 April 2008. Initially he took a history that there were no symptoms in either knee prior to the first injury. On that basis, he assessed that both injuries had aggravated underlying degenerative osteoarthritis and that there were permanent impairments with respect to each injury which took that into account, of 4 per cent for the left knee and 1 per cent for the right knee.[43]
[43]Exhibit 1, DCB 12
67 Thereafter, on 29 January 2010, Mr Shannon was advised that the plaintiff had in fact had bilateral knee problems dating back at least as far as 2003. He stated:
“In view of the further information I think it is confirmed that he had pre-existing osteoarthritis in both knees and this was the opinion expressed in my report.”[44]
[44]Exhibit 1, report of 5 February 2010, DCB 15
68 Mr Shannon therefore considered there was –
“… considerable doubt as to whether in fact the work injury has had any significant influence on the knee condition because the meniscus tears identified at surgery were essentially degenerative in nature.”
69 Finally, Mr Shannon considered –
“… it seems likely however that there has not been any significant aggravation by employment.”[45]
[45]Exhibit 1, DCB 16
70 Finally, the defendant had the plaintiff examined by an occupational physician, Dr Michael Baynes, on 23 July 2008 and 21 January 2009.[46]
[46]Exhibit S
71 On the first occasion, the plaintiff apparently denied any past history of knee pain prior to 2006. In that setting, he believed that the two injuries were contributing factors to the aggravation of a pre-existing injury, with surgery allowing some improvement but there were still significant ongoing symptoms. He believed that work was still a material contributing factor to the aggravation of a pre-existing injury. He also considered that pre-existing degenerative change was also a material contributing factor.[47]
[47]Exhibit S, DCB 20
72 On the second occasion, the plaintiff still denied any past history of knee problems although Dr Baynes did consider radiology revealing pre-existing degenerative change in both knees. He considered that it was likely that employment had accelerated the degenerative change; however, it could also be said that without work occurring or the injuries occurring, that ultimately the plaintiff would have presented with symptomatic degenerative changes in his knee and ultimately would have required knee joint surgery. On balance, he still believed that work was a material contributing factor to the aggravation of a pre-existing injury. He also believed that constitutional aged-related osteoarthritis of the knees was also a significant material contributing factor.[48]
[48]Exhibit S, DCB 23
73 Because of the disparity in the histories given by the plaintiff concerning pre-existing problems with his knees, the following matters become significant.
Objective evidence: left knee
74 The plaintiff attended his general practitioner requiring relevant medical treatment in a contemporaneous manner with the first trauma.
·The histories and findings on examination before and after trauma were consistent with the plaintiff’s case
·Similarly, his inability to return to work beyond 12 hours after the first operation due to pain in the knee joint is corroborative
·The fact he was only able to work 12 hours per week after the first injury due to pain in the left knee is also corroborative
Objective evidence: right knee
·The plaintiff was unable to work at all after the second injury to the right knee due to pain in the right knee and the left knee
·There was no recovery from the total incapacity position since 2007.
Consequences
75 The treating general practitioner, Dr Dermitzoglou, has treated the plaintiff since 2003. He has provided five reports to the Court dated 20 December 2007, 25 January 2010, 4 September 2010, 23 June 2012 and 28 March 2013.[49] In the context of the plaintiff having a full working capacity prior to suffering the first injury, Dr Dermitzoglou has relevantly recorded the consequences as follows.
[49]Exhibit H
76 In his first report, he recites:
“Despite physiotherapy the patient continued to have ongoing right knee pains and swelling.
He continues to need strong pain relief and cannot walk for more than 15 minutes before disabling pain.
He then continued to have left knee pains and could not return to work as he found it difficult standing or walking for more than 10 minutes before disabling pain. His left knee pains became worse with time and required further reviews.
He had physiotherapy without benefit.
On review by Dr Shimmin, it was concluded that his only option was to have a left knee replacement due to the degenerative nature of his knee joint compartment.
In the interim he is to have ongoing pain relief in the form of paracetamol, non-steroidal anti-inflammatories and Glucosamine tablets. …
He is presently totally incapacitated as he waits total knee replacement which remains his only option.
He still requires daily analgesia.”[50]
[50]Exhibit H, PCB 35
77 Then on 25 January 2010, Dr Dermitzoglou recorded that the plaintiff has required ongoing pain relief and he did not have a capacity for work at present. He had ongoing knee pains at rest and on walking, had right knee instability and needed to use a walking stick. He also had difficulties performing activities of daily living due to ongoing pains.[51]
[51]Exhibit H, PCB 37
78 In his report dated 23 June 2012, Dr Dermitzoglou recorded that he was prescribing Tramal SR, 100-milligram tablets. The plaintiff was still unable to resume any form of work.[52]
[52]Exhibit H, PCB 40
79 Further, he considered that the injuries had caused significant restrictions to his activities of daily living and –
“… he cannot stand or walk for long periods, he cannot go shopping, cannot sleep well due to pains associated with turning in be and cannot squat.”[53]
[53]Exhibit H, PCB 41
80 Finally, on 28 March 2013, Dr Dermitzoglou recorded that the plaintiff was still requiring pain relief and still had no capacity for work.[54]
[54]Exhibit H, PCB 41a
Conclusions
81 On balance, I consider that the plaintiff has identified the left knee injury as either a tear or aggravation of a tear of the medial meniscus, together with aggravation of the underlying degenerative change in the left knee joint to the extent that the degenerative changes were rendered more symptomatic than prior to the injury and that that condition has remained until the present time and will continue to do so for the foreseeable future.
82 The consequences of the left knee injury are that the plaintiff has been rendered permanently unable to work more than 12 hours per week with respect to that injury.
83 The plaintiff has identified the right knee injury as being either the production or aggravation of a meniscal tear in the right knee, together with aggravation of underlying degenerative changes in that joint to the extent that they have been rendered symptomatic, after which the plaintiff’s employability has been reduced from 12 hours per week to nil hours per week.
84 Each injury, when looked at separately, has reduced the plaintiff’s pre-existing employability from 38 hours per week to 12 hours per week with respect to the first injury, and from 12 hours per week to nil hours per week with respect to the second injury. Accordingly, when looked at separately, each injury is a “serious injury” with respect to economic loss consequences pursuant to s134AB(38)(e) and (f) of the Act.
85 Accordingly, there will be leave to the plaintiff to issue proceedings for loss of earning capacity with respect to each injury and according to the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[55] the plaintiff will also be granted leave to issue proceedings with respect to pain and suffering damages.
[55][2009] VSCA 170
86 I will hear the parties as to consequential orders.
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