Knight v VWA

[2018] VCC 713

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-16-04282

LOUCINDA KNIGHT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17,18,21,22 May 2018
DATE OF JUDGMENT:	22 May 2018
CASE MAY BE CITED AS:	Knight v VWA
MEDIUM NEUTRAL CITATION:	[2018] VCC 713

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury application-left hip-right knee
Legislation Cited: Accident Compensation Act 1985
Judgment:                Leave granted to bring proceedings for pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Mr D Nguyen	Arnold Thomas Becker
For the Defendant	Mr B McKenzie	Russell Kennedy

HIS HONOUR:

1       This application for leave relies on two paragraph (a) injuries. The first is an injury to the left hip and the second is an injury to the right knee. Leave with respect to pain and suffering only is sought. These injuries are alleged to have occurred following a fall in Canberra. It was  suffered in the course of her employment with Tim Kerr Nominees Pty Ltd on 22 December 2014. On any view it was an extremely heavy fall as she suffered fractures in both arms and also in her right knee.

2       Essentially the pain and suffering consequences relied on are ongoing pain as well as reduced mobility arising from both the hip as well from the knee impairment.

3       The defendant indicated that the issues were causation in relation to the left hip impairment. It was not an admitted compensable injury and if I found it was causatively related to the fall the left hip impairment did not reach the bar of “serious injury” consequences. The right knee impairment was as a result of an admitted compensable injury. But it also did not reach the bar.[1]

[1]Transcript(T)27-28

4       She was taken by ambulance to Canberra Hospital and admitted overnight. Upon returning to Melbourne she attended the Maroondah Hospital on Christmas Eve and then her local general practitioner’s clinic in Ringwood on 22 January 2015. I will deal at the outset with the defendant’s suggestion that there was some inconsistency with this serious injury left hip claim and the histories in various medical documents.

5       The very brief, obviously computer driven notes from the ambulance, Canberra and Maroondah hospitals and the local Ringwood clinic do not have any specific reference to left hip symptoms or problems until 23 June 2015.[2] The plaintiff repeatedly stated and I accept her evidence that following this heavy fall she  kept mentioning the left hip problem on a number of occasions to those attending virtually from the outset. I accept she was “sore all over” and had “pain all over” and all the while had “a problem with the left hip” but more urgent and obvious injuries occupied the various treaters.[3]

[2]Plaintiff’s Court Book(PCB)15,18-23,39,Exhibit 1 p10

[3]T34,38-39,44,46

6       This court has been reminded of the need for caution as to the weight to be given to what is contained or is not contained in brief clinical notes and records. This application provides a very good example of that need to be careful.

7        Firstly it needs to be said that any inspection of the clinical records shows that they are so brief that they could not possibly record the conversation that took place between doctor and patient. I will just refer to a few dates from the multiple   examples of this where clearly after pressing some button on a computer a clinical record is produced that virtually provides no history of anything in particular about the reason the patient was there.[4]

[4]Exhibits 1&2, 22 January 2015,3 April 2015,19 June 2017,16 November 2017

8       Secondly when a patient has  fractures of the left arm, the right arm and the right leg to be dealt with by health professionals it is only common sense that they would be the focus of note taking. That focus in the initial stages does not in any way exclude the presence of other injuries at that particular time requiring less immediate attention than the fractures.

9       Thirdly it would be difficult to get a better example of why notes are often unreliable than this case. The local Ringwood clinic notes an attendance on 22 December 2014 on one of the general practitioners.[5] The evidence is clear that on that date she was an inpatient at the hospital in Canberra. She was not discharged from there until 23 December 2014.[6]

[5]Ex1 p12,22December2014

[6]PCB20

10      I give little weight to the absence of any specific mention of left hip symptoms in these earlier notes as they are perfectly consistent with a proper focus on the immediate demands of the fractured bones. However in these notes from a clinic where a number of doctors practise is a note from a Dr Amin on 23June 2015 of “chronic left hip pain few months”.[7] These notes and records did not  impact adversely in any way on the plaintiff’s credit.

[7]Ex1p10

11      Similarly the WorkCover claim forms do not contain a specific mention of the hip until January 2016.[8] This is no surprise given the other injuries suffered in this fall. Consistent with the initial emphasis on the fracture injuries obviously being the more serious in the earlier days is the filed Particulars of Injury dated 13 December 2016.[9] The first injury listed seeking “serious Injury” status is the left arm fracture, the second is the right arm fracture and the third is the right knee fracture. Then the left hip is listed fourth. This was how they appeared in her first affidavit sworn over two years ago now in 2016.

[8]PCB5-6

[9]PCB11

12      At the hearing the first and second were not pursued. This was consistent with  the 2018 affidavit focussing on  the left hip and then the knee in that order as in time they have proved to be the major impairments for her. I found this to be consistent with a candid witness who has largely learned how to cope with some ongoing arm symptoms but which are now of less concern than her left hip and right knee.

13      Her affidavit spoke about when she specifically focused on left hip pain as opposed to her fractured right and left arm and her right knee: “At approximately two weeks after the injury I commenced to experience left hip pain and that symptom has continued.”[10] I accept the probabilities are that once she started to become ambulant  again and bone fractures commenced healing, her own attention was directed more to the left hip pain than it had been in the early weeks. But nevertheless, it had been present virtually from the outset but back then it was overshadowed by symptoms in other areas the subject of more immediate and pressing medical attention.

[10]PCB4,5

14      It is worthy of note that she repeatedly stated in court how she had mentioned the left hip injury to WorkCover people over the phone. Upon enquiry it became clear these were people from Gallagher Bassett, the claims agent, who would have been liasing with her when she was off work before getting back in May 2015. She said she told “the guy” there “right at the beginning”.[11] She also told “Casey” at the agent’s.[12] In fact she gave details of Aaron, Melanie, Penny Bolton, Jacinta, Chris as well as Casey all from Gallagher Bassett being reps of WorkCover she spoke to.

[11]T38,57-58

[12]T58

15      There was no affidavit from anyone at Gallagher Bassett on this topic. I accept the  worker did tell the agent more than once about the left hip injury virtually from the start. The likelihood is that as with  everyone else there were other more pressing injuries they were interested in at that stage.  

16      The absence in some Konekt documents of specific reference to the left hip also did no damage to her credit.[13] Konekt was the rehabilitation provider appointed to supervise her getting back to work. While she could not recall what she did or did not say to them, I accept she told the agent Gallagher Bassett repeatedly that left hip symptoms had been suffered since the fall. That agent was her communication conduit as it were to WorkCover. 

[13]Defendant’s Court Book(DCB)57-66i

17      Ms Knight is 59 years old. Her job consisted of operating Thomas the Tank Engine trains that went around shopping centres providing train rides for children. After being off work for five months she returned to her old job starting part-time then working  full-time by July 2015. She works six days per week taking children on very gentle train rides around shopping centres.

18      Exhibit three comprised DVD’s on three dates in April 2018 showing the small train that very slowly moves around on rubber tyres with the plaintiff driving. She sits in a low driving position with her knees above her hips. The job involves no real exertion. She gets out of the train and lets down the sides of the two small carriages so children and adults accompanying them can get aboard and she lifts the sides up. She walks a few short steps to do this. She bends basically at the hips to move the hinged carriage sides. It could be described as about as light and slow paced a job as is ever seen in these courts.

19      Film in this case was no more than snapshots of a few brief minutes of the last three and a half years. There was no lengthy walking or any mobility where prolonged or vigorous effort was shown. As would be expected out in large shopping centres often for 42 hours per week and trying to get children and their parents to go for a ride on the little train, she is anxious to conceal her impairments.[14] She did want to appear like an old lady limping around. That is perfectly understandable and commendable for a conscientious employee inviting people to get on board and enjoy the experience of a ride on her train.

[14]T78,81

20      There was nothing of significance in the films that was inconsistent with her affidavit or oral evidence about how she makes some postural changes and adjustments to accommodate this job. She was forthright and readily  admitted these allowed her to continue in a job she loved and from which she had not taken any time off save for her surgery.

21      She made a number of admissions against interest. These included how other injuries also not relied on  before me impacted on her sleep, gardening, playing with grandchildren and even her interest in cars.[15] It was no surprise that right knee pain and left hip pain as well as arm symptoms would affect a number of her pursuits but she was both forthright and honest in readily conceding this when in a serious injury case injuries cannot be just aggregated or rolled up. This is not to say however that left hip pain is the same as pain in in the knee of the opposite leg. They are different body parts and obviously quite distinct.  Similarly they can each of themselves impair mobility.

[15]T111,119-120

22      Having heard and observed her over two days it was obvious the plaintiff was a very well-motivated worker. As a single mother over the years she has endured a number of other physical and mental health conditions and significant personal issues but has still kept working full time. These problems include having to deal with her son’s addiction to ice.[16] She did not exaggerate her impairments of the left hip or right knee. If anything she had a stoical attitude. No doctor on either side criticised her genuineness at clinical examination or otherwise.

[16]Ex1 p2,4,Ex2

23      I accept her evidence about the ongoing pain and consequences regarding both impairments but of course I must assess them separately. The fact that she has pain and reduced mobility in the left and right legs due to different body parts of those limbs does not mean there are no serious consequences caused by them as individual impairments.

24      Applications such as this where a highly motivated worker has got back to work and relies on pain and suffering consequences involve matters of fact and degree and impression. A value judgment has been said to be involved in determining if the consequences can be fairly described as being at least very considerable.  

25      I will deal with the left hip impairment first.  I accept it was caused by the fall but became more in focus in time as other injuries improved. There is no need to list the investigations and treatment she went through but this condition resulted in specialist referral and then surgery on 28 April 2017. It gave only marginal improvement and has led her to be told by her surgeon that she faces replacement surgery.[17]

[17]PCB13,41

26      She still has pain in the left hip and even simple manoeuvres like pressing on her hip or turning her left foot in a certain way cause particular pain.[18] She can get other pain to go “away” by altering posture and lying down but the left hip pain “doesn’t” go away.[19]  The left hip also causes a feeling of instability and has given her the “staggers”.[20]  She takes “baby steps’ when she walks but basically tries to conceal her pain.[21] These are problems caused by the left hip impairment and are not coming from the right knee nor from a combination of the two. Given the passage of years now since the fall these are very considerable left hip consequences that are likely to remain for the foreseeable future. A stable leg is something we take for granted virtually every minute of every day we are on our feet. Her left hip now gives her an unstable leg.

[18]PCB5.12-13

[19]T62

[20]PCB13

[21]T78,81

27      The medical evidence about her left hip includes a number of “reports” from the local doctor at Ringwood, Dr Wong. They are not really reports but are more like reproductions of the parts of the same computer driven records that comprise exhibits 1 and 2. Nevertheless he did answer some questions extremely briefly and they include work being the cause but he seemed to be answering in regard to her arms, her left hip as well as the right knee.[22]

[22]PCB35-36

28      He was called for cross-examination. The plaintiff several times made it clear she had to see Dr Wong at the Ringwood clinic as he was the only one looking after WorkCover matters. She also made it very clear that she felt he took little or no notice of her left hip complaints. Indeed at times she said he just “fobbed her off” in terms of complaints.[23] He was a less than satisfactory witness and was at times as vague as his notes were inadequate. He did however concede in oral evidence that she did mention left hip and groin pain before he made any written note about it.[24]

[23]T93,114

[24]T126,132,133-134,137

29      An example of poor notes was he only recorded “family problems” as the reason for a visit on one date and really wrote nothing else.[25] This could not possibly be anything like a proper medical record of what the patient was attending the doctor for. He was written to on 24 July 2017 by Mr Singh, the surgeon he referred her to for the left hip. Mr Singh advised that post operation the patient “would benefit from strengthening program at the gym”.[26] Dr Wong could not even remember whether he discussed this with the patient. Unsurprisingly there is not a word on the topic anywhere in the pages of clinical notes.

[25]Ex1p9

[26]PCB44

30      He was taken in cross-examination on a journey through the records of his clinic that really confirmed their inadequacy. But in spite of that, Dr Wong’s written opinion in May 2016 was that Ms Knight “…hooked foot on ramp and fell forwards onto both hands; pain all over. hip left started hurting soon after (2 weeks) no previous pain before ever”.[27] He   referred her off to see Mr Singh on 14 August 2016. He was obviously in no doubt about  causation as he recorded in the notes on that day “Left WorkCover Hip pain”.[28]

[27]PCB31a

[28]Ex1p4

31      He did not alter that  view in the witness box. Indeed he  confirmed it more than once.[29]  My reservations about his records and to a certain extent his oral evidence remained, but on the probabilities I accept his opinion that  the left hip impairment was caused by the fall at work.

[29]T128,131,152

32      The treating surgeon, Mr P Singh, was also called. His first letter back to the referring general practitioner noted the complaint of constant pain since the fall. [30] He clearly had no doubt about causation as he sought WorkCover approval for the left hip operation and he received it.

[30]PCB41

33      The acceptance by the claims agent for the costs of the operation is a piece of evidence that supports the plaintiff’s case that the left hip was suffered in the course of her employment. The defendant submitted that because in 2016 the same agent had not accepted liability for the left hip on an impairment claim, I should give less weight than usual to this evidence. That submission ignores the fact that in the next year, 2017, the same agent then  admitted liability for the costs of the surgery. No explanation was addressed by any evidence from the claims agent. That later decision by the same agent is in my view a piece of evidence that supports the plaintiff on this causation issue.

34      Mr Singh’s operation note showed the extensive left hip pathology.[31] After surgery he then wrote to Dr Wong suggesting the gym program be taken up.[32] Dr Wong apparently did nothing about that specialist’s suggestion.

[31]PCB42

[32]PCB44

35      Mr Singh then provided a formal report on 7 May 2018. He repeated the history of pain being present since the fall and how it was aggravated when she sleeps, stands, walks and sits and was worse with activity. The extent of damage addressed in theatre was set out and he ended rather pessimistically: “The likelihood of deterioration in the longer term is possible. This is due to the cartilage damage found at the time of surgery. Cartilage damage typically happens in the presence of arthritis and gradually deteriorate(s) over time. The larger the cartilage damage the more likely the chance of developing progression of arthritis. Should this occur, a total hip replacement may be required in the longer term. I would expect Cindy to be able to undertake her job in a normal capacity. She may need to take care during deep squatting repetitively to avoid aggravating her hip.”[33]

[33]PCB45

36      He did not alter his opinion in cross-examination regarding work being the cause of her left hip condition. I accept the treating surgeon’s opinion that her left hip is a result of the fall and that she has ongoing pain and other symptoms and is now facing a total hip replacement at some time in the future as a result of the damage. He provided details of an injury that supports her complaints of ongoing pain and disability.

37      His evidence included an explanation of how “distracting injuries” can operate when a person has suffered multiple injuries in the same trauma. The more immediate injuries, such as broken bones in this case, can become “the  dominant injury”.[34] This is really just common sense. I accept that is what occurred in Ms Knight’s case in terms of the absence in the notes from the early treating professionals of her left hip complaints.

[34]T177-178

38      Mr Singh thought there might still be some improvement from an exercise regime to improve musculature. Nevertheless I am satisfied his evidence supports my finding that she has an injury that results in pain and restricted mobility which will be with her for the foreseeable future and which can be fairly described as being very considerable consequences.

39      He was asked about MRI scanning of the right hip but he was limited in what he could say in that regard as he was only treating the left hip which was what his patient was complaining about. Whether or not she has some degeneration in her right hip that may or may not require treatment is really not to the point once the causative link to the fall is made in regard to her left hip.

40      Other treating reports deal more with her right knee and do not assist greatly in regard to her left hip. Except to say that the fact that she has an additional impairment due to a right knee injury, does not detract from her left hip impairment which when looked at independent of the right knee is productive of permanent consequences that are very considerable.

41      The plaintiff also tendered  medico-legal reports from Mr R Miller, orthopaedic surgeon who examined her in 2016 and again in 2018.  He said in 2016 that her left hip injury had occurred as a result of the work accident.[35] He also disentangled the hip problem  from the other injuries saying “The left hip injury alone would impose some restrictions on prolonged standing, prolonged walking, twisting, turning and bending. These restrictions are permanent.”[36]

[35]PCB52

[36]PCB55

42      He had the benefit of seeing her again this year. He said the left hip “is a major problem for the client. There is ache, discomfort, and pain in the left hip, radiating into the low back on the left side.”[37] He found she was a clear and straight forward historian. His opinion was basically unchanged from what he had described in 2016. He felt that the surgery she had undergone had resulted in no sustained improvement. Comparing his 2016 examination with the one he did in 2018 showed a worsening in terms of loss of mobility.[38]

[37]PCB58

[38]PCB50,59

43      I accept Mr Miller’s opinion that the left hip impairment was caused by the fall at work and also that it is a permanent problem for her that will impact on a number of daily activities in terms of pain and restricted mobility. His opinion supports my finding that she suffers very considerable consequences as a result of that impairment.

44      The plaintiff also relied on a report from a Professor Littlejohn, rheumatologist, who saw the plaintiff only last month on behalf of the defendant. In fact it is the only up to date report obtained by the defendant. He found Ms Knight gave a clear history and exhibited no abnormal pain behaviour.[39] His opinion as to causation was somewhat equivocal but it seems that in the end he felt the likelihood was the fall had caused an injury to a left hip that  was to some extent already degenerative.[40] He accepted the symptomology would result in pain and discomfort and at times it would be a catching type pain with certain movements.

[39]DCB43

[40]DCB47

45      The surgeon, Mr M Shannon, only saw her once and that was about five months after the December 2014 fall. His report is now well out of date and does not assist. He did not even deal with the left hip and this is consistent with the attention in the early days to the more obvious and pressing injuries, namely the fractures to both arms and the right knee.

46      Associate Professor Goldwasser found the plaintiff a consistent and co-operative patient.[41] He was obviously engaged to perform a AMA percentage assessment and given the agent had initially not accepted liability for the left hip, it was no surprise he did not assess it. As with Mr Shannon he did not comment on her left hip although significantly he did record her complaint of left hip pain. Professor Goldwasser was not asked to see her again.

[41]DCB19

47      Mr G Doig was another surgeon the defendant engaged but his report was back in 2016 and before the left hip surgery in 2017. He was also not asked to see her a second time. Mr Doig thought bilateral hip pain was unrelated to the fall but his reasons were left unexplained.[42]

[42]DCB33

48      Without hearing from him as to just how he reached that view is little more than  speculation. It seemed he got to that point because Mr Shannon made no mention of a hip problem.[43] As described Mr Shannon was seeing the worker only five months after the fall so it is no surprise he focussed only on the obvious fracture injuries to arms and right leg. Mr Doig’s report  is now dated. It reads as having no  proper explanation and reasoning. He did not take a full history about the left hip pain which he recorded.[44] I find his opinion on causation both unpersuasive and against a body of other medical opinion.

[43]DCB33

[44]DCB31,33

49      A number of Konekt documents from back in 2015 were tendered.[45] These do not take the matter any further in making an assessment of her left hip claim that is required now in May 2018.

[45]DCB57-71

50      In view of the plaintiff proving the left hip is a “serious injury” on its own there is no need to discuss the second injury relied on, that is the right knee. Without going into  reasons, but just to avoid any doubt about the matter,  the evidence about knee pain independent of the left hip, also establishes the pain and loss of mobility from the right knee impairment amounts to a “serious injury”.[46]

[46]PCB5,13

51      I grant leave to bring proceedings for pain and suffering damages.