Kundevski v Holden Ltd
[2013] VCC 329
•13 March 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-12-01268
| RISTO KUNDEVSKI | Plaintiff |
| v | |
| HOLDEN LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 4 and 5 March 2013 | |
DATE OF JUDGMENT: | 13 March 2013 | |
CASE MAY BE CITED AS: | Kundevski v Holden Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 329 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine, right shoulder, right knee and left knee – pain and suffering only.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries & Anor v Poljak [1992] VR 129; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Montgomery | Victorian Compensation Lawyers |
| For the Defendants | Ms J M Forbes | Hall & Wilcox |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”), that is “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff was indicated to me at the outset of this application to be the function of the spine, the right shoulder, the right knee and the left knee.[1] The application seeks leave to commence proceedings for the recovery of damages for pain and suffering only.[2]
[1]Transcript (“T”) 1
[2]T1 and T23
2 Section 134AB(38)(c) states:
“[a]n impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
3 The plaintiff must prove he suffered a compensable injury on or after 20 October 1999 that is a “serious injury”. Where a number of medical conditions exist, he must disentangle them as required by Lu v Mediterranean Shoes Pty Ltd and Others.[3]
[3](2000) 1 VR 511
4 In my opinion, the plaintiff has failed to discharge the onus of proving a serious injury and has also failed to appropriately disentangle.
5 It is worthwhile looking at some of the background.
Background
6 The case was opened on the basis that the plaintiff, who is aged seventy-one years and had been employed with the first defendant over a number of decades, was injured in the course of his employment and in an incident on 23 June 2003 in which it was said he sustained shoulder, back, right knee and chest problems,[4] as well as in a further incident on 12 May 2009 in which it was said he further aggravated his right shoulder, both knees and lower back.[5] Three days later, on 15 May 2009, he was made redundant when his whole section in the factory was retrenched. Notice had been given to the workers well before 12 May 2005 in relation to this upcoming retrenchment that led to redundancies. The plaintiff deposes that on 12 May 2009, three days prior to him finishing up at work, he “experienced sudden exacerbated pain in both my knees, right shoulder and back”.[6] I will deal with this matter further in the course of this judgment.
[4]T5
[5]T 6
[6]Plaintiff’s Court Book (“PCB”) 16
7 The case proceeded on the first day and at the commencement of proceedings on the second day, I was informed by counsel for the plaintiff that the application was only proceeding with respect to the right knee and the spine in relation to the leave being sought.
8 The plaintiff’s cross-examination continued and the case proceeded until the close of evidence. After both cases were closed, the plaintiff then sought to tender two handwritten letters detailing complaints about a medical examination conducted by the surgeon engaged for the defendants, Mr J Kendall Francis.[7]
[7]Exhibits B and C
9 I allowed further cross-examination of the plaintiff about these complaints as there had been nothing adduced in evidence in either of his affidavits or in his viva voce evidence on this topic. Mr J Kendall Francis is the only doctor engaged by the defendants in recent years, and clearly the letters would have some potential to compromise the weight of any opinion he gave. An answering letter from him was tendered by the defendants.[8]
[8]Exhibit 5
The Plaintiff’s evidence
10 The plaintiff’s materials consisted of two affidavits sworn 18 November 2011 and 15 February 2013, as well as an affidavit by his wife, Dragica Kundevski, on 15 February 2013. These affidavits disclose a hardworking factory employee who worked for the first defendant from the early 1970s with a break in order to return to Macedonia. On his return in 1979, he worked up until he was made redundant on 15 May 2009.
11 His affidavits describe a number of health problems, including a right knee injury that goes back to 3 May 1990 that required surgery on 20 May 1991 at the hands of Mr J O’Donnell. He experienced occasional pain after that injury; however, he was able to carry out his normal work and daily living activities.[9]
[9]PCB 14
12 He relates that in the course of his employment he sustained injuries to his spine, in particular the thoracic spine, his right shoulder, his right knee and his left knee, as well as mental or behavioural disturbance. He further describes the physical activities involved in his work on the factory line. He describes on 23 June 2003 that he developed pain in his right shoulder, neck, arms and back, as well as re-aggravating his right knee. He does not describe what sort of trauma led to such a wide range of physical injuries or aggravation occurring at the one time.[10] He then worked on with these various injuries, as well as other health problems, and states that he did not report any further incidents between 2003 and 2009, although he did occasionally attend physiotherapy until mid-2004, for his shoulder and back.[11] He then appears to have had little if any treatment for the subject injuries for the next five years. He then describes, on 12 May 2009, that he suddenly experienced symptoms that I have already alluded to[12] and three days later, the retrenchment of his section took place with redundancy effective on 15 May 2009. He has not worked since.
[10]PCB 15
[11]PCB 16
[12]PCB 16
13 The plaintiff’s affidavit material is in some ways very unhelpful in terms of the issues required in what is a clear disentangling exercise, the onus of which lies on the plaintiff. For example, he goes on to speak about his treatment and he refers to physiotherapy for his “work injuries”. He speaks further about his “injuries” being aggravated in the 2003 accident. On 4 June 2009, he refers to treatment and advice for “my work injuries” from his general practitioner. While there are some references to particular scans done to various parts of his body, he goes on speaking about reference to seeing an orthopaedic surgeon for “my work injuries” and that he was recommended to undergo surgery for his “injuries”. He continues to see his general practitioner for treatment of his work “injuries” in order to alleviate some of his “symptoms” he takes medication.[13]
[13]PCB 17-18
14 The affidavit goes on with a heading “pain and suffering and the loss of enjoyment of life that he suffers”.[14] While, again, there is some delineation at various parts as to what the knees, right shoulder, elbow and back lead to in terms of symptoms, the gist of his affidavit[15] refers to what the sum of his “injuries” have done to his life. It is a description of a number of aggregate body parts and their effects.
[14]PCB 18
[15]PCB 19, paragraphs 37-48
15 His second affidavit does not clarify the matter any further. This is an affidavit sworn on 13 February 2013 and he speaks about the onset of his work “injury” and then says he has been unable to work because of his work “injuries”.[16] Throughout that affidavit he refers to “injury” in the singular at paragraphs 10, 11, 21, 22, 23, 27, just to name a few.
[16]PCB 29
16 The plaintiff’s affidavit material does not sufficiently disentangle the consequences of these injuries and impairments that, in any way assists the Court to make a meaningful assessment of whether any particular identifiable injury meets the test of “very considerable” laid down in Humphries & Anor v Poljak.[17]
[17][1992] VR 129
17 I have included the right knee and the left knee as one body function in terms of walking and standing. However, the permissible aggregation of the right and left knee, both, in my view, essential parts of a body function, still leaves the affidavit material in an unsatisfactory state in terms of delineating between the consequences of the spine, the right shoulder and the knees.
18 I find that after a treatment regime following 23 June 2003 for the right knee, that essentially from there until 4 June 2009, when the plaintiff went to his general practitioner, Dr Skodric, there was little or no treatment. On that day, the doctor records treatment for the plaintiff’s left knee problem[18] which is no longer part of this application. The plaintiff then went to a Dr V Karlov, a consultant physician, some time in 2009, and from Dr Karlov was referred to an orthopaedic surgeon, Mr Peter Gard. Dr Karlov wrote to the Accident Compensation and Conciliation Service on 25 September 2009[19] and the complaints about right knee, shoulder and spine would appear to have surfaced some time after the redundancy and after the first consultation with Dr Skodric on 4 June 2009.
[18]PCB 70
[19]PCB 72
19 The plaintiff clearly worked full-time after an initial short period off work in June 2003, up until he was made redundant. In evidence before me, he was asked what happened on 12 May 2009. He described, “I was doing just the normal work but not really any incident like I hit something, I fall down or that, just normal. They come always – sometimes more, sometimes less”.[20] When I asked him to clarify what happened on 12 May 2009 that would lead to him hurting disparate sections of the body, such as the right knee, left knee, shoulder and back at the same time, he said:
[20]T 36
Q: “What happened on 12 May that hurt your knees and your shoulder and your back?
A:It’s not from 11 May and 12 these two days I felt bad pain. As I say, I didn’t do anything like fall on the floor or anything else but just come like pain, just working normal or like before.”[21]
[21]T37
20 While I found the plaintiff to be a man very motivated to work, I did not find him a reliable witness or particularly accurate. No explanation was given to me why, after many years on a job, there should arise, three days before that whole section in the factory is to be shut down and all the workers put off, a spurt of symptoms in the four different areas of the body. There was nothing said to me by the plaintiff by way of some description of a trauma or an incident that allows me to reach any conclusion that anything happened on that day at all.
21 I find this aspect of the case most unconvincing. While I accept there may well have been some low-grade right knee symptoms from as early as 1990 or 1991 through 2003 onwards, and perhaps some low-grade symptoms to other portions of the body, I find that these did not manifest themselves in any impairment of body function that led to any consequences of significance. He continued working and following the life outside of work that he wished to.
22 The spurt of symptoms that is suggested followed the incident on 12 May 2009 is therefore pivotal, in my opinion, to the success or otherwise of this application. The consequences that have been described in the various body parts mentioned in the affidavits, and in the way the case was presented on day one, are really all said to have commenced from this 12 May 2009 incident in spite of the fact that this application is put on the basis of the course of employment. I take that to mean from 20 October 1999 to the end of his time at Holden. I find he had little or no treatment from mid-2004 to June 2009 and “no serious” consequences. I do not accept the evidence that there was any specific aggravation of symptoms in the spine, right shoulder and right and left knees on that date.
23 Another matter that needs to be mentioned in relation to the presentation of the plaintiff and what I found about him as a witness was the video material that was shown to me and that was tendered as Exhibits 1 and 2 by the defendants. The plaintiff walked briskly for a period of over three-quarters-of-an-hour on 15 August 2012, 17 August 2012 and as recently as 1 February 2013. He does this, he says, on the advice of his cardiologist following heart problems that he has sustained since he left work. The video showed to me a seventy-one-year-old man not impeded to any significant extent by knee problems or any other problems insofar as the ability to walk was concerned. He refers to pain and difficulty “walking for prolonged distances”.[22] In my opinion, the video showed a seventy-one-year-old man walking briskly, up and down undulations in streets and on different surfaces. While at times he seemed to limp, he nevertheless showed a capacity to walk for what I consider considerable distances at a good pace without restriction.
[22]PCB 20
24 Statements to doctors, such as to Mr Brearley – “He cannot walk long distances for exercise” [23] – are simply not consistent with the video evidence.
[23]PCB 110
25 There were also some other statements made that, in my view, do not reflect well on the plaintiff as a witness. He stated, “Because of disability he was retrenched on 15 May 2009”[24] in a history given to Mr Kenneth Myers. This is not consistent with the evidence before me. A history given to Mr Myers, “In mid-May of 2009 there was a further aggravation of problems in the back while he was lifting heavy equipment at a machine”, has no support in the evidence. This was not specifically put in cross-examination but I have already alluded to a couple of passages where he describes really nothing special happening on that day.
[24]PCB 93
26 Doctors are reliant on a number of matters on aspects of history given by the plaintiff that are simply not accurate. I find he was an unreliable witness and his evidence largely unconvincing.
27 The plaintiff also tendered a couple of handwritten letters by way of complaints that he made[25] about the way he was treated by Dr Kendall Francis, who examined him on behalf of the defendants. The defendants, on the other hand, filed a letter from Mr Francis by way of reply to those complaints. I do not draw any conclusions from the letters from the plaintiff, nor from Mr Francis, save to note that clearly the plaintiff had concerns about the thoroughness of Mr Francis’s examination.
[25]Exhibits B and C
Medical evidence
28 The radiology is referred to by the doctors in the course of reports. The first doctor in time was Mr John O’Donnell, orthopaedic surgeon. He operated on the right knee on 5 August 1991 for meniscus damage and he thought –
“There remains an increased likelihood of further tearing of the meniscus but overall this is unlikely. There is no increased risk of arthritic change in the knee following this procedure.”[26]
[26]PCB 67
29 Dr Jim Ristevski, the general practitioner in 1992, reported that with respect to the right knee, the plaintiff was –
“… likely to continue to have right knee pain although this is unlikely to be disabling. Possible future complications likely to arise include osteoarthritis of the knee at an accelerated rate due to absence of cartilage.”[27]
[27]PCB 69
30 The treatment history is then largely absent in terms of medical practitioners reporting.
31 The next report is from a current general practitioner, Dr D Skodric, who gives a very brief handwritten report on 27 July 2009 after the plaintiff was made redundant. That report records an attendance on 4 June 2009 with respect to left knee problems. There is no other report from that general practitioner and, as already indicated, the left knee has been abandoned in relation to this application.
32 Dr Skodric has continued to be the plaintiff’s treating practitioner[28] and the plaintiff deposes to seeing him at regular intervals. The unexplained absence of any material from this general practitioner is significant as he is perhaps best placed of all to comment on the injuries, consequences and disentanglement.
[28]PCB 25
33 Mr Peter Gard, orthopaedic surgeon, wrote to a Dr Karlov with respect to a proposed arthroscope on the plaintiff’s right knee in August 2009 and following an attendance on 10 August 2009. He has two letters in the Defendants’ Court Book[29] and one in the Plaintiff’s Court Book.[30]
[29]DCB 10-12
[30]PCB 71
34 Mr Gard does not assist the plaintiff as I read his last report of 8 October 2009, when he states:
“His symptoms and MRI would indicate a certain level of disability but the relationship to his previous employment at this stage of my enquiries is not clear or established. I have the feeling that I may not be able to add support to your claim.”
35 Whatever the right knee symptoms and impairment, the treating orthopaedic surgeon does not link those to the plaintiff’s employment with the first defendant as I read his report or, at the very least, is not able to say one way or the other.
36 Dr V Karlov, consultant physician, treated the plaintiff for his various injuries. The first attendance on Dr Karlov was on 21 June 2009 at the referral of his general practitioner. Dr Karlov refers to injuries that include the back, right shoulder and knees. He reports, incorrectly in my opinion, in relation to the general evidence in this case as follows, “Mr Kundevski was employed in this job from 2003 until May 2009 when he was no longer able to work”. [31] While he does not say it specifically, I read that report as the plaintiff being unable to work because of injuries rather than being forced to accept redundancy.
[31]PCB 72
37 Dr Karlov then provides a report to the solicitors on 19 December 2012. In that report he has obviously been asked to disentangle any psychological contribution from physical injury and he answers questions to that effect. However, in relation to the physical injuries, he does not disentangle the various physical areas or the various physical impairments clearly. He deals with the spine, the right shoulder, the left and right knee. There are some passages that can be read as providing some evidence of disentanglement of these functions, such as, “Thus each of the injuries taken alone would prevent him from doing his pre-injury duties”.[32] Further, he states, “he was required to stand over the workbench for many hours and damage to his knees would no longer enable him to do that. Thus the knee injury would prevent him from carrying out his pre-injury duties”. Also, “He was required to lean over the workbench and his thoracic spine likewise would limit him and prevent him from his previous occupation”. However, when it comes to further comments on loss of enjoyment of life, his statements are broad and, in my view, encompass all of the physical injuries:
“Mr Kundevski feels that his injuries and the stress have ruined his sleep. The pain wakes him every two or three hours during the night and he has to sleep on his back if he turns on his side. The neck pain and shoulder pain wake him. He is fixated on his injuries; has suffered considerable stress which has contributed to his coronary artery disease resulting in the insertion of a coronary stent. He feels generally uncomfortable because of his injuries. But this comfort is constantly with him and limits him severely. There has been domestic strife due to his injuries. His wife pushes him to do things and this leads to arguments. He has difficulty driving his car. Previously he found no difficulty in this and because of his injuries and his knees he has difficulty in controlling the car.”[33]
[32]PCB 76
[33]PCB 78
38 Read as a whole, while there are passages that point specifically to a particular impaired function, much of his report is a general comment about the four injuries, together with reference to some other health issues, such as his psychological stress and heart condition. The consequences he describes I take as largely resulting from an aggregation of the multiple body parts.
39 The chiropractor reports on 24 June 2010 about a referral from the general practitioner, Dr Skodric, for chronic thoracic pain, but says nothing further of assistance.[34]
[34]PCB 79
40 There is a report from a physiotherapist, Mr Tim MacDonald, who describes some courses of physiotherapy commencing on 16 September 2003, and other courses in 2004, 2010 and 2012[35] which are essentially for the spine, as well as for left tennis elbow which required some cortisone injection treatment. I have already referred to the gap of some five years or so in treatment. He describes the spinal problems and refers to a heavy job at Holden from 1967 through to 2009 involving repetitive functions which have aggravated his spinal condition. He thought that the ongoing spinal pain and stiffness would most likely continue to limit the plaintiff from managing with everyday household gardening duties and limit his socialisation as well as some other activities into the foreseeable future. I do not take his physiotherapist as indicating any injury that I could find was suffered on or after 20 October 1999 as opposed to one suffered over some decades of heavy work going back to the 1960’s.
[35]PCB 80
41 The plaintiff relied on two medico-legal opinions engaged by his solicitors, the first being Professor K Myers, a general surgeon, and I have already referred to some passages from Mr Myers’ report of 10 September 2012 that are not consistent with the evidence. He describes that the plaintiff “cannot drive a car because of injuries and stress”.[36] The plaintiff admitted in evidence after the video shown to him that he drove from his home to Merricks on the Mornington Peninsula. He describes the plaintiff as going for “short walks” which is inconsistent with the video material tendered to me. He speaks about the right shoulder, the knees, the lumbar spine and varicose veins under the heading “Injuries”.[37] He attributes all of these to the plaintiff’s work. He finds the plaintiff has no current capacity for full-time unrestricted employment and answers a number of questions that just include “injuries” which does not assist in determining any consequences from separate identifiable injuries. Overall, I read these comments as based on an aggregation of the various body functions.
[36]PCB 94
[37]PCB 96
42 Professor Myers is asked to report on a second occasion and answers a whole series of questions[38] but it is unclear just what his opinion is on a number of matters. For example, he is asked about the right knee in terms of the existence of “the original or aggravated pathology” and from a reading of both his reports, I can only conclude that by the “original pathology” he is referring back to the 1991 problems. He then says that “the pathology in the right knee constitutes a very significant medical problem”.[39] What pathology he is talking about is unclear. Similarly, he says that the pathology “renders the right knee very susceptible to aggravation”.[40] It is not apparent whether he is talking about the original pathology or the aggravated pathology, or both. Similarly, with the spine, he is asked a series of questions about the “original or aggravated pathology” with reference to that body part. The answers he gives again are equivocal.
[38]PCB 104-107
[39]PCB 104
[40]PCB 105
43 He then states that “I believe that all of his disabilities result from employment subsequent to 20 October 1999 and that my understanding is that he had good work capacity up till June 2003”.[41] This may be taken as evidence the plaintiff can rely on that there are at least compensable disabilities and I emphasise the plural, however, how he reaches the view that the plaintiff had a good work capacity up until June 2003 when he worked full time up until redundancy in May 2009. He places reliance on the particular injuries suffered on 12 May 2009.[42]
[41]PCB 106
[42]PCB 106
44 I have already commented on the lack of any credible evidence as to what happened on that day to suddenly either “light up” or make more apparent injuries to the disparate body functions I have referred to. This report does not sufficiently avoid the problem of aggregating a whole series of injuries and commenting on that aggregated group of pathologies. He describes:
“His work over thirty years with Holden Ltd was of a heavy nature and there would be no doubt that a serious contribution to all of his injuries has been made by the nature of his prolonged heavy and awkward work.”
45 Mr Kenneth Brearley[43] appears to give some delineation between the various injuries. There he says that “because of the serious condition of his knees, particularly the right where there is well established osteoarthritis and where he probably will need interventional treatment and arthroscopy and debridement and possibly eventual knee joint replacement”[44] would mean he could not remain in employment. He also says that the right shoulder and his back make it difficult for him to remain in employment.
[43]PCB 114
[44]PCB 114
46 While I accept those last statements go some way in assisting the plaintiff in the task of disentangling the various consequences, the thrust of Mr Brearley’s report is that these problems have occurred over thirty years.[45] This case is put as “a course of employment” application; however, I need to be satisfied about what has happened in terms of an identified injury, impairment and very considerable consequences post-20 October 2009.
[45]PCB 113
47 The plaintiff also relied on a report of Mr Peter Scott who reported to the insurer. Mr Scott diagnosed right knee, left knee, chronic low-back pain and right shoulder rotator cuff lesion.[46] It is really an AMA report and it does not assist in the task of determining consequences that could be said to be serious arising from the right knee and/or the back following proper disentanglement.
[46]PCB 125
The Defendants’ evidence
48 The defendants tendered a statement from the plaintiff dated 19 February 1992[47] in relation to the knee problems that he had back in 1990. This is of limited value to me but some one-and-a-half years after his knee problem that arose on 3 May 1990 the plaintiff is still describing that he was able to “do my work with difficulties”. This statement does indicate how far back the knee problems go when they required an operation by Mr O’Donnell. A report of Mr O’Donnell’[48] is dated 7 August 1992 and he found a permanent percentage loss in relation to the knee. While the percentage quantum does not assist, he does offer this opinion:
“There is some possibility of further problems with the knee in that he may suffer further tearing of the already damaged meniscus, but there is no way of accurately predicting whether this is likely to happen or not.”
[47]DCB 3
[48]DCB 4
49 A report of a surgeon, Mr Frank Combe, dated 3 September 1992 thought that in relation to the right knee, he saw –
“… the condition as stable and on a permanent basis he should avoid squatting, stairs or ladder work, longer standing or longer walking.”
50 Mr Peter Battlay provided two early reports, 1992 and 1992,[49] and a more up-to-date report on 31 July 2003.[50] In relation to the knee injury back in 1990, Mr Battlay thought it related more to a congenital abnormality rather than any work-related problem.[51] He thought that “his minor level of nuisance value symptoms will continue to affect him”, however, he seems to be speaking about a back injury with referred leg symptoms, so I do not place any weight on Mr Battlay’s opinion in relation to the tasks before me in this current originating motion.
[49]DCB 13 and 15
[50]DCB 18
[51]DCB 17
51 In his more up-to-date report on 31 July 2003, he is dealing only with a left shoulder problem, together with a left tennis elbow syndrome.
52 A report of the senior consultant surgeon, Mr Kendall Francis, has been the subject of some controversy with respect to the thoroughness of that doctor’s examination and consideration of the plaintiff’s complaints, radiology and generally. The plaintiff’s handwritten statements have been exhibited[52] and a letter by way of reply from Mr Francis is also before me.[53] I cannot hope to reach any firm conclusions about the merits or otherwise of the complaints made by the plaintiff given that I have not heard from the doctor and after giving leave for the plaintiff to be further cross-examined I do not have anything like a full picture.
[52]Exhibits B and C
[53]Exhibit 5
53 Mr Kendall Francis essentially finds that the plaintiff has widespread degenerative damage involving his knees, shoulder and back. He considers these are more consistent with his age than any employment contribution. I accept that part of his opinion. I also accept his comments that the plaintiff was working right up until three months before this doctor saw him when he was “retrenched for other reasons, it would seem he still could be an active member of the workforce by continuing working despite the knee, shoulder and back symptoms”.[54]
[54]DCB 24
54 The defendants tendered a number of extracts from the records of Dr Skodric’s clinic, the Nova Clinic.[55] These records indicate that on 4 June 2009, the left knee was the only complaint recorded and, similarly, on 16 June 2009, in a referral letter to Dr Karlov on 16 June 2009, the left knee is the only injury referred to. A later letter, however, of 22 June 2010, by way of referral to Dr Karlov, mentions as follows:
“Lower back and right shoulder pain, longstanding problem. Patient is under impression those pains are related with heavy work he used to do.”
[55]Exhibit 4
55 These notes, as brief as they are, assist me in finding that at the time the plaintiff was made redundant, on 15 May 2009, there were no spinal or right knee complaints, injuries or impairments that could be described as very considerable. I find that he was able to work up until the time he was unfortunately put off with others in the workforce and while he may well have had some symptoms that were ongoing over the years, both with respect to his spine and his right knee, these were not such as to seriously impair his capacity to carry out his job nor did they impact on his enjoyment of life. I find that is still the situation.
56 Dealing more specifically with the spine, I do not find that the plaintiff has proved he suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999 to his spine. I find that there may well have been degenerative changes that possibly have been contributed to by many years of physical work. However, any consequences of that condition, whether it was work-related or not, and I do not find it was work-related in “compensable period”, could not, in my opinion, reach the test of being a “very considerable” impairment or loss of body function when judged by comparison with other cases in the range of possible impairments or losses of the function of the spine.
57 In relation to his right knee, clearly the plaintiff has suffered a work-related knee injury as early as 1990 with a further aggravation in 2003 in the course of his employment. In my opinion, judging the plaintiff as I must now, I am not satisfied that the plaintiff has proved on the balance of probabilities that there has been a compensable knee injury since 20 October 1999 that has resulted in consequences that could now be said to be very considerable. I do not consider that the plaintiff has proved on the principles set out in Petkovski v Galletti[56] that he has suffered an aggravation since 20 October 1999 which has led to serious consequences.
[56][1994] 1 VR 436
58 Whatever the cause in time of the symptoms in the knee, after viewing the video material, I do not find that any impairment of the knee that is anything more than a mild but still persisting disability. It does not prevent him walking significant distances at a brisk rate, walking up and down inclines, and being seated reasonably comfortably for lengthy periods of time.
59 In summary, what has really been presented to the Court is an aggregation of four physical injuries, then reduced to two, which it is said are productive of consequences in relation to his incapacity for work and that impact on his enjoyment of life. The plaintiff bears the onus of disentangling the injuries relied on, and proving the consequences of impairment to these separate body functions are at least very considerable. The plaintiff has failed to discharge that onus.
60 For these reasons, the plaintiff’s application must fail.
61 I will hear the parties as to costs.
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