Leicester v Latrobe Valley Insulation Pty Ltd and Victorian WorkCover Authority
[2013] VCC 656
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01951
| STEPHEN LEICESTER | Plaintiff |
| V | |
| LATROBE VALLEY INSULATION PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 8 and 9 May 2013 | |
DATE OF JUDGMENT: | 12 June 2013 | |
CASE MAY BE CITED AS: | Leicester v Latrobe Valley Insulation Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 656 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left knee – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti (1994) 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267.
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delaney | Maurice Blackburn Pty Ltd |
| For the Defendants | Mr J Batten | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 16 April 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the left knee.
Outline of Section 134AB
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
7 By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. 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.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2](1994) 1 VR 436
13 Finally, I must determine whether the impairment meets the statutory requirements established by the Act, namely whether it is permanent and at least very considerable.
14 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged forty five, having been born in England in February 1968. He came to Australia in 1981. He has two sons aged ten and nineteen.
16 The plaintiff left school before completing Year 11. He is a qualified sheet metal worker, having completed a four-year apprenticeship in 1988.
17 In his initial affidavit sworn in November 2010, the plaintiff deposed for the previous twenty five years he had worked in the power, gas and oil and chemical industries and in various capacities, including sheet metal worker, rigger and asbestos removalist for many different companies working on numerous sites.
Previous knee problems
18 In 1992, when aged about twenty four, the plaintiff injured his left knee when he fell whilst fishing from a rock.
19 After that incident, the plaintiff experienced pain almost immediately and he could not kneel on his knee. He saw a doctor and later had a tiny piece of loose bone fragment removed.
20 The plaintiff had been an active sportsman all his life prior to the said date. He played schoolboy rugby in England and started playing in Australia in 1995 and played representative rugby for Gippsland.[3]
[3]Transcript (“T”) 116
21 In mid 1997, the plaintiff had a knee reconstruction performed by Mr Thomas following a rugby injury. The plaintiff resumed rugby in 1998 and played for a year on and off. He had a couple of games in 2000 and finished up in 2001, as there were not enough teams to keep the league going. The plaintiff did not have any problems with his knee on his return to rugby.[4]
[4]T58
22 The plaintiff’s left knee condition was not limiting his lifestyle in the years leading up to the incident
23 The plaintiff’s next knee problem was in 2007. Whilst working for Trans Pacific, the plaintiff twisted his knee and experienced swelling. He did not see a doctor, he just iced his knee.[5] He did not have any time off work. He did not go back to Trans Pacific as his employment was transferred to the first defendant.
[5]T59
24 That was the only knee problem after the 1997 surgery. Since that time, there had been maybe some aches and pains in the plaintiff’s thigh but that was about it.[6]
[6]T60
25 From May 2007, the plaintiff was employed on a casual basis by the first defendant as a sheet metal worker and asbestos removalist.
26 On commencement of that job, the plaintiff had a limp because of his left knee. He advised his employer, Nick, of this situation and told him that he expected the injury would heal in a few weeks.
27 The plaintiff’s normal duties with the first defendant involved maintaining boilers and associated pipe work, removing asbestos and generally working at the premises of the first defendant’s customers. The plaintiff was on his feet most of the working day, with constant kneeling, squatting and climbing. His job required the full and free use of his left leg and knee.
28 The plaintiff was required to do squatting, crouching, kneeling and that sort of thing on a daily basis doing sheet metal work. He did not have any trouble with his left knee doing that job until the incident.
29 The plaintiff was employed as a first class sheet metal worker with the first defendant. His job was to fabricate and fit associated pipe work, maintain boilers and precipitators.[7]
[7]T53
30 The plaintiff agreed that with overtime he earned about $75,000 a year with a basic salary of $1,457 per week when he started this job in May 2007.
31 On the said date, the plaintiff was removing asbestos at Energy Brix Australia in Morwell, working in a dark and dusty part of the premises using a head lamp on his helmet for visibility.
32 The plaintiff was sitting on a duct in order to remove an asbestos gasket in a flange, which was about four feet above his head. He used steel wedges to split the flange in order to remove the gasket. The wedges weighed about 2 to 3 kilograms each. As he was splitting the flange, a wedge fell from his grasp and hit him on his knee.
33 The plaintiff instinctively jumped off the duct and onto the plastic drop sheet spread out on the scaffolding. As his left leg slipped on the drop sheet, his left foot fell between scaffolding planks and he heard his left knee snap and he felt severe pain (“the incident”).
34 The plaintiff reported the incident. He then went home and iced his knee. He struggled at work the next day because of severe pain and disability and has not worked since.
35 At the time he swore his first affidavit in November 2010, the plaintiff had recently been assessed for pain management treatment. He deposed he had suffered a serious long-term impairment of left knee and his injury had affected his mental state. He had not looked for work or undergone any retraining or rehabilitation.
36 WorkCover accepted liability for the plaintiff’s injury and paid for all treatment. As of November 2010,weekly payments had been recently terminated and the plaintiff intended to challenge that decision.
37 In November 2008, Mr McMahon operated on the plaintiff’s knee. However, it was worse after surgery. The plaintiff was referred to another specialist, Mr Ritz, who operated in November 2009 excising the end of a neuroma giving the plaintiff some relief.[8]
[8]T70
38 The plaintiff attended Mr Edwards for a second opinion but he did not really check the plaintiff.[9] He just said he did not know what the plaintiff was doing there and the plaintiff heard nothing further from him.
[9]T70
39 Mr McMahon referred the plaintiff to The Avenue to have a cortisone injection in July 2009, following which the plaintiff had an anaphylactic reaction. The plaintiff may have seen Mr McMahon after that injection.[10]
[10]T69
40 The plaintiff had undergone physiotherapy and taken painkillers and anti-inflammatories and was treated by Dr Jim Kee and psychologist, John Redmond. At that stage, he was seeing them both monthly and taking Lyrica, 600 milligrams daily, and the occasional Valium and Tramal.
41 The plaintiff told Mr Redmond about harassment in his previous job and being head butted and also about his right upper limb problem. The plaintiff was referred to Mr Redmond because he was sick of the pain in his leg.
42 The plaintiff then thought he may require further reconstruction surgery.
43 The plaintiff continued to suffer constant and fluctuating left knee pain, the level of which was usually dependent on movement. Walking, particularly over rough or uneven surfaces, climbing stairs or ladders, heavy lifting, running, kneeling, squatting and prolonged sitting and standing usually increased his pain level, as did cold weather.
44 The plaintiff’s knee often swelled if he walked for a long time or rode his bike. He had lost strength in his left knee and leg, which moved about a lot and constantly felt unstable. He had fallen about three times since the incident.
45 The plaintiff had been a heavy drinker for years and he used alcohol to cope with the effects of the injury.
46 Before the incident, the plaintiff enjoyed his job with the first defendant and he led a fit and active lifestyle. He earned a good wage and liked the people he worked with and enjoyed having a laugh with them. Working gave him a lot of purpose in life, as well as self confidence and it also kept him fit.
47 The plaintiff enjoyed interests away from work, including playing golf at least once a week; tennis; kicking the footy or soccer ball with friends and children; throwing the rugby ball; jogging; camping and fishing; motorbike riding and gardening, and he did a lot of house chores.
48 The injury then continued to have a substantial impact on his lifestyle, preventing him working for the first defendant and significantly limiting the sort of work he could do.
49 The plaintiff believed he could not return to work. He missed work, including the ability to earn a decent wage and enjoy the company of workmates.
50 As a result of his injury, the plaintiff avoided playing golf and tennis because of his left knee symptoms. He had sold his motorbike since the injury. Exercising his knee caused more pain and the plaintiff had lost fitness and his life was nowhere near as active or satisfying as it was before the injury.
51 The injury affected the plaintiff’s ability to jog and play sport with his children and friends and his social life had deteriorated, particularly as a consequence of being unable to participate in activities as before.
52 The plaintiff had lost self confidence and felt embarrassed that he was not working. He got frustrated very easily because of his many limitations due to his left leg problem. He did less around the house and also spent less time sharing activities with his children.
53 The plaintiff’s temperament had changed since the injury and he got irritable and annoyed a lot more easily.
54 The injury then continued to disturb the plaintiff’s sleep and he was woken by knee pain or discomfort and kept awake. He rarely got a good sleep and was generally tired and lacking in energy.
Upper limb injuries
55 The plaintiff injured his neck, right shoulder and left arm (“the previous work injuries”) at work in December 2006 and March 2007 when employed by Australia Wide Asbestos Removal Encapsulation Pty Ltd. He also suffered psychological injury.
56 As a result of his previous work injuries, the plaintiff underwent right shoulder surgery. He continued to experience symptoms in his neck and shoulders but did not presently receive treatment for those problems. Treaters in relation to those prior injuries included Dr Sadhai in Bacchus Marsh and Dr Kee, surgeon, Mr Bell, and neurologist, Dr Subramanya.
57 The plaintiff deposed the previous injuries had also affected his lifestyle and were affecting it in the period leading up to the incident.
Work
58 The plaintiff has lost wages as a result of his knee injury and has not worked since 17 April 2008.
59 The plaintiff’s knee injury prevented him from returning to work for which he was suited and restricted him from doing work requiring any significant walking, particularly over rough or uneven surfaces, climbing stairs or ladders, heavy lifting, running, kneeling and squatting, as well as prolonged sitting or standing. He was also unable to work in a cold environment. He believed his capacity to work had been substantially reduced or destroyed, taking into account his injury, age, limited formal qualifications and his employment history.
60 The plaintiff swore a supplementary affidavit on 5 April 2013.
61 The plaintiff noted that Dr Kee initially referred him to Nicole Turner, a physiotherapist, whom he saw on a regular basis for some years and then was treated by her successor, Ms Muir, until mid 2012. Since that time, the plaintiff has been undertaking exercises designed by her on a daily basis at home to improve the musculature in his leg[11] but this has not occurred. Even after the latest surgery, the plaintiff has lost that much muscle and he has got no muscle or strength left in his left leg.[12]
[11]T82
[12]T81
62 The plaintiff no longer takes Lyrica because he had bad side effects from the medication. He continues to take Tramal, which has been reduced to 150 milligrams. He hopes to eventually wean himself away from any painkilling medication because of his fear of potential liver damage.
63 No one suggested had suggested to the plaintiff that he is being prescribed addictive medication but he has decreased his dosage, weaning himself off because the tablets are not doing what he wants them to do and they are not helping him in any way.[13] He is just sustaining his pain and suffering and just taking it in his stride.
[13]T108
64 The plaintiff currently alternates Tramal and Panadeine Forte. He takes two tablets of Tramal, 150 milligrams per day, and Panadeine Forte, 500 milligrams. Sometimes he takes two Panadeine in the morning and does not take a Tramal until later on that night, or he could take two Panadeine and four hours later he will take a Tramal. Before he goes to bed he will take a Tramal. Since he swore his affidavit, his dosage of Tramal has been reduced. He also takes 5 milligrams of Valium, but not every day.
65 The plaintiff continues to suffer from constant pain in his left knee which fluctuates in its intensity. Since his earlier affidavit, he has suffered falls when his knee has collapsed on him without warning on about seven to nine occasions.
66 On one occasion, the plaintiff was walking in King Street, Melbourne to get a coffee with a friend. As the plaintiff crossed the street, his knee gave way without warning and he collapsed on the roadway and was fortunate on that occasion his friend was there to help.
67 Following each incident when his knee has collapsed, the plaintiff consulted Dr Kee. The plaintiff was referred by him to Mr Thomas, orthopaedic surgeon, who previously operated in 1997 following an ACL rupture.
68 As a consequence of continuing falls, the plaintiff underwent an arthroscopy on his left knee carried out by Mr Thomas on 19 January 2012 (“the arthroscopy”).
69 Following the arthroscopy, the plaintiff found there was some improvement in his level of pain for a period of time but after a few months, his left knee again deteriorated and he feels he is now back to where he was prior to the arthroscopy.
70 The plaintiff agreed it might have been thought his knee operation was successful at the time, which it was.[14] He agreed he had further incidents and that there was a total knee replacement suggested by Mr Thomas at a later stage as the plaintiff was now too young for that procedure.
[14]T89
71 Since Mr Thomas’ last procedure, the plaintiff has had two further falls: one at his brother’s residence when he fell in his driveway and the other was a near fall in his kitchen when his knee collapsed. On that occasion, the plaintiff was able to hold onto the kitchen sink to avoid a complete fall.
72 Mr Thomas arranged for a further MRI scan of the plaintiff’s left knee in about November 2012, following which he told the plaintiff that his knee is as good as it is going to get.
73 Mr Thomas still practises in Traralgon and the plaintiff last saw him in 2012. Mr Thomas did not give him any advice about how long the reconstruction might last. He did not say anything at all, except not to play sport for twelve months. He did not advise about the possibility of arthritis, nor did he foreshadow future problems with the knee.[15]
[15]T57
74 The plaintiff deposed that although he is just forty five, he now realises that his only option in relation to his left knee is to undergo a total knee replacement and he will be guided by his doctors as to when such an operation should be carried out.
75 The plaintiff was cross-examined extensively as to the number of falls since the incident.
76 In cross-examination, the plaintiff said the next time he hurt his knee after the incident was when it collapsed and gave way overseas on 23 December 2009 in the snow.[16] He fell on his right hand. He did not know if he twisted his knee or it slipped. His left leg just gave way and went from underneath him.[17]
[16]T66
[17]T124
77 The plaintiff agreed his knee had earlier given way when walking on the wet slippery bathroom floor at home in July 2008. He was pretty sure he then went to see Dr Kee.
78 The next incident would have been maybe in March 2010 in the backyard when the plaintiff walked into a hole. The plaintiff agreed he saw Mr Edwards and reported on 27 February 2010 that when he was mowing the lawn his left leg fell into a hole.
79 The plaintiff’s knee swelled up and he got severe pain and he went to the doctor. The plaintiff agreed this was a significant event and he did not feel his leg was stable. He then had the surgery in June 2010 in relation to right upper limb problems. He was sent to Mr Lim for his knee.
80 In cross-examination, the plaintiff agreed Mr Lim discussed with him the central sensitisation diagnosis[18] and light touch sensitivity and that he believed the plaintiff could do better through learning how to become his own pain therapist.
[18]T106
81 The next incident occurred on 9 February 2011 when the plaintiff heard his knee snap whilst using a pull start motor. He saw Dr Kee,[19] who referred him to Mr McMahon and then to Malcolm Thomas because WorkCover would not fund treatment.
[19]T72
82 The plaintiff had told most doctors about the snow incident and he told him that his knee gives way on numerous occasions.[20]
[20]T73
83 Between the lawnmower incident in February 2011 and the arthroscope nearly a year later, the plaintiff had a number of other incidents, perhaps seven to nine.[21] In July 2011, stepping off a step, his knee went again after a twisting incident.
[21]T73
84 On 18 August 2011, the plaintiff reported stepping down a garage step at home, feeling a sudden severe pain in the left knee. Also, in August 2011, the plaintiff got off a chair at home, with swelling and something going pop, and he rang an ambulance.[22]
[22]T74
85 The plaintiff agreed he had a further MRI scan of his knee in October 2011. When asked about the torn lateral meniscus shown up in that investigation, the plaintiff said it was recurring when it was suggested to him the tear could have happened in any of those other incidents. His leg had not stabilised at all.[23]
[23]T74
86 In December 2011, the plaintiff was walking in King Street when his left knee collapsed after he heard a snap. He was taken by a transport vehicle to hospital.
87 The plaintiff agreed there were a number of other incidents in 2011, including a fall at his brother’s house, and falling in his own kitchen around Christmas.
88 The meniscectomy in January 2012 relieved the plaintiff’s pain.[24] At the time, it improved the function and stability of his left knee. When he had his last fall, the plaintiff went back to see Mr Thomas and had an MRI scan.
[24]T75
89 The fall at his brother’s house was when the plaintiff was walking down the driveway and he stepped on a rock and fell over. He heard the same “pop”. His knee swelled up and he was told by Mr Thomas that there was not much more that could be done and that was the last time he saw him.
90 The plaintiff said he generally told all doctors every incident that happened.[25]
[25]T69
91 In re-examination, the plaintiff confirmed the problem with his knee giving way. Since the incident, his knee has never been pain free, save for when he had the cortisone injection, and then he had a reaction where he went to hospital emergency.
Work since the incident
92 After the incident, the plaintiff attended work the next day and has not worked since. He has not looked for work. He has registered with CRS and is now with Gippsland Solutions.[26]
[26]T61
93 The plaintiff was with CRS before his Magistrates’ Court hearing in February last year and they were looking and helping to find him appropriate work. The plaintiff was not looking himself.[27]
[27]T62
94 The plaintiff is not on Able Consultations’ books, holding himself out for being available for work.[28] He explained he was looking for work.[29] He agreed he was the fulltime carer of his nine-and-a-half-year-old son and received an allowance from Centrelink of $412 per fortnight.
[28]T62
[29]T63
95 The plaintiff is not saying he is an invalid and he is not a cripple.[30] He agreed he was not looking for work but disagreed he had withdrawn his services because he was looking after his children.
[30]T77
96 When asked about genuine attempts to get himself a job, the plaintiff said he would work through Gippsland Work Solutions, whom he had been with since October last year.[31] CRS had helped him out but until his knee stabilised, he is unstable to perform especially his trade, and he was looking for a courier or a driving job.[32] At the moment he is a liability because his knee is still not the same. It is still unstable.
[31]T77
[32]T78
97 When it was suggested to the plaintiff that he only wanted to go back to his trade, he disagreed, saying he would take a courier’s job, anything involving driving, anything that was going to prevent him from falling.[33]
[33]T78
98 In addition to being registered with Gippsland Solutions, the plaintiff is looking through the papers for driving work.[34] He mentioned he was going to apply for a warehouse training course starting in April for four months but he had to go to court at that time.
[34]T78
99 The plaintiff agreed, if he was available with his domestic situation, he was prepared to get involved in retraining. He would do work as a courier if such a job became available.
100 The plaintiff confirmed he had had his licence cancelled in 2008 for four years and he had renewed it in February this year. He has a forklift licence but he knows there is no work in the local area because he has looked. He also has an elevated work platform ticket.[35] If he found a job, he would take it and he would actually give it a go “putting his toe in the water”.
[35]T80
101 The plaintiff noted however that forklift driving was not just sitting and driving, it involved climbing in and out of the cab and might involve tying things down and walking around.[36]
[36]T80
102 The plaintiff has not worked for a number of years as a scaffolder and has a basic scaffolding ticket.
103 When assessed by Work Able in 2010, the plaintiff “absolutely” told the assessor he was keen and motivated to return to work and he repeatedly told her he had to do something, not if but when, but when his knee was right, but at that stage it kept giving way on him.
104 While the plaintiff thought being a park ranger was “handy”, he had not approached anyone for retraining, or any other organisation. He did agree he was suitable to work as a vocational teacher.
105 The plaintiff accepted he was literate and able to communicate with people. He had no ambition to teach kids and did not know what sort of skills he could teach them.[37] He disagreed he was being negative about the vocational educational teacher role but did not think he had the education to do it and he would not be capable of doing that sort of work.[38] He was a basic sheet metal worker, scaffolder and rigger.
[37]T83
[38]T84
106 The plaintiff has not done anything to see what retraining is involved in becoming a more advanced scaffolder.[39] He disagreed that scaffolding was very simple and that there would not be much further retraining involved.[40]
[39]T85
[40]T86
107 The plaintiff had done a five-day occupational health and safety course with some supervisor responsibilities in the past. He did not consider that he would be a good occupational health and safety representative[41] because he did not like getting involved in arguments and he liked his life plain and simple, to do his job and go home.
[41]T87
108 The plaintiff did not have the training to be a metal fitter and machinist.[42] He disagreed he had rejected everything out of hand. The machinist job would require him to be an apprentice all over again.
[42]T87
109 The plaintiff would like to get back to his own trade[43] but that is not going to happen. Until his WorkCover hearing in February last year, his stance was he was only going back to work as a sheet metal worker providing his knee was stable[44] so in the meantime, he would be looking for a courier’s job, a spare parts job, a delivery driver or pathology.
[43]T88
[44]T88
110 The plaintiff did not think, because of his previous problems with the law, he would be getting any work in hospitality. He had not gone back to any of his previous employers to see if there was any work.
111 The plaintiff has not discussed suggested jobs with Mr Thomas. Mr Thomas has just asked him if he was working.
112 When his knee stops giving way on him, the plaintiff would like to back to be back and work; that is why a courier’s job would be perfect and he would start it tomorrow.[45]
[45]T108
113 The plaintiff agreed he had submitted a permanent and total disability claim because he thought he was permanently and totally disabled.[46] He had an injury that meant he cannot return to his old trade and he has not done so because his knee has not been stable[47] and he would be a liability. He received $170,000 pursuant to that claim.[48]
[46]T108
[47]T109
[48]T110
114 The plaintiff explained his employer contributed to Inco Link, not the plaintiff himself, and that he would be paid when he was out of work or made redundant.[49] The plaintiff agreed that he might have received payments under this scheme in July 2012 and in December 2007.
[49]T110
115 The plaintiff has not made any plans on finalisation of his litigation. He does not know where he is going to; he has no forward plan; he is looking for a job as courier, as a driver.
Domestic and sporting activities
116 The plaintiff lives at home with his two children, the older, nineteen, is working. He gets his son up and off to school and prepares meals at night.
117 The plaintiff has help from his parents looking after his children. When the incident happened, the two children were at home and the plaintiff had help from his parents looking after them.
118 In cross-examination, the plaintiff denied his affidavit suggested he had lost all functioning capacities for tennis, golf and football. He used to enjoy football and having a kick. That enjoyment has gone because he is lacking physical movement at the moment to complete his involvement in activities with his children, otherwise he would be out there playing for Carlton right now.
119 The plaintiff occasionally plays golf with his older son. The plaintiff is not a member of a club and he has a set of clubs and a buggy. The plaintiff had played about a dozen games in the last five years and he thought that in the last twelve months, he had only played twice.[50]
[50]T64
120 Sometimes the plaintiff plays golf and will not even play the nine holes and he just walks around.[51]
[51]T92
121 In re-examination, the plaintiff said he took up golf in 2004. He enjoyed playing.[52] After 2004 he probably played once a week leading up to hurting his shoulder. After the shoulder injury, he stopped playing golf but then went on to say, after the shoulder injury and before he hurt the knee, he had a game of golf.[53]
[52]T116
[53]T117
122 The problem with playing golf with his shoulder is an electric shock in his left arm.[54]
[54]T117
123 The plaintiff has five tennis racquets and used to have a hit with his children, playing doubles for about forty minutes. He wears an elasticised sock. He last played this year, just slapping the ball around.[55]
[55]T93
124 The plaintiff’s father has taught the plaintiff’s son to fish. The plaintiff has recently bought himself a 12-foot fishing rod which he has used twice.[56] He cannot use his heavy fishing rod.
[56]T94
125 In re-examination, the plaintiff described his enjoyment of fishing.[57] Prior to the shoulder injury, he spent quite a lot of time at Port Campbell when working there in 2007, fishing every night after work. Before the shoulder injury, he went fishing once a month or once a fortnight.[58] He did not return to fishing after the shoulder injury and before the knee injury.[59] The problem was he tried to cast his surf rod and it was too big, long and heavy.
[57]T118
[58]T118
[59]T119
126 After the shoulder injury, the plaintiff rode the trailbike from time to time and stopped riding it after the knee injury.
127 The plaintiff sold his motorbike to his brother in 2009 because he could not ride it any more.[60] The plaintiff did not buy a bicycle until March 2010. He bought it to strengthen his leg.[61] His physiotherapist advised him the bike would help.[62]
[60]T95
[61]T97
[62]T121
128 The plaintiff denied that his social life had deteriorated since he split up with his partner earlier in the year.[63] He could not engage with his children and do the things he used to be able to do physically, properly or appropriately. Everything was just a little bit of a kick here and there and he could not bounce on the trampoline with his youngest child.[64]
[63]T96
[64]T96
129 In re-examination, the plaintiff confirmed that he was previously involved in physical fitness activities such as jogging but has not been able to continue. He regularly went jogging.[65] He used to hit a boxing bag every second day before his shoulder injury but had not returned to it. Jogging stopped after the knee injury, as did the trailbike riding. He tried to have a run.[66]
[65]T119
[66]T119
130 Since the incident, the plaintiff can just help his children start up their motorbikes in the backyard.[67]
[67]T120
131 In re-examination, the plaintiff described a problem with sleep, as rolling on his left shoulder he gets an electric shock that wakes him up or if he rolls over and bangs his knee that also wakes him up so he sleeps on his back.[68] In the last three to four months while on Imovane he has had a good sleep.[69]
[68]T125
[69]T126
132 The plaintiff has two knee braces, one with aluminium rods down the side but it irritates him when wearing it. He also uses an elastic sock, but not often because it heats his leg up.[70]
[70]T127
Video
133 Exhibit 1 was surveillance film taken on 8 and 9 November 2010 of about four minutes.
134 The plaintiff was shown on his son’s birthday on 8 November 2010 at the BMX track in Newborough near his house, riding a pushbike. The plaintiff was shown riding for approximately thirty seconds, during which he rode over half a dozen small sand hills. He explained it was part of his physiotherapy and he had ridden his bike on many occasions before this day.
135 Exhibit 2 was the surveillance of 7 and 8 December 2010 of 18.43 minutes.
136 On 7 December 2010, the plaintiff was shown briefly walking around the neighbourhood.
137 The following day, the plaintiff was shown playing golf at Yallourn Golf Club. At 12.59pm, the plaintiff and his son were shown in the Club car park unpacking their gear. The plaintiff was then shown hitting the ball on a number of occasions, leaving the course at 1.45pm.
138 In cross-examination, the plaintiff explained that he does not have a handicap, he did not know what type of clubs he had or what his driver was. He had not had lessons.
139 The plaintiff classed the activities of bike riding and golf as physiotherapy.[71] He did not call it playing golf; he was having a hit. He did not play eighteen holes, just nine.
[71]T104
140 When it was suggested to the plaintiff that he looked normal on the video, he said he did with a few painkillers, Tramal and Panadeine Forte.[72]
[72]T107
Investigations
141 An MRI scan of the plaintiff’s left knee was organised by Mr S McMahon in June 2008.
142 It was reported there was a longstanding tear of the ACL graft, bucket handle tear of the medial meniscus, horizontal tear of the body and the anterior horn of the lateral meniscus giving rise to a parameniscal cyst, and an old injury to the capsule of the posterolateral corner of the tibia with adjacent chondral loss.
143 An MRI scan of the left knee organised by Mr McMahon in May 2009 showed an intact hamstring ACL graft, a small area of scarring above the anterior aspect of the saphenous nerve deep to the fascia just below the level of the knee joint, a large radial tear of the anterior horn body junction of the lateral meniscus with an adjacent horizontal tear, patchy chondral loss in both the medial and lateral compartments posteriorly and moderate patellofemoral chondropathology.
144 Mr Thomas organised an MRI scan of the left knee in October 2011.
145 It was reported the ACL repair was intact and there was degenerative change in the patellofemoral joint and an undisplaced tear anterior horn lateral meniscus.
Treaters
146 In a referral letter to Mr McMahon, orthopaedic surgeon, from Dr Kee dated 9 December 2008, Dr Kee noted the presenting problem was “right knee pain and dysfunction for review? Compensatory injury to his left knee injury for further review and further investigation.”
147 Mr McMahon wrote to Dr Kee on 18 November 2008, having reconstructed the plaintiff’s left knee that day. He noted examination under anaesthetic confirmed gross instability.
148 The arthroscopy confirmed the bucket handle tear of the medial meniscus, which was resected by Mr McMahon. He noted the surface of the medial compartment was normal.
149 The plaintiff had Grade 2 to 3 changes of the small area of the under side of his patella which Mr McMahon decided to debride. He noted the femoral trochlea had Grade 1 changes and the lateral compartment was normal.
150 Mr McMahon advised the plaintiff’s old ACL graft had ruptured and he removed the screws from the tibia and fibula and reconstructed the A using a quadruple hamstring graft, and screws were placed distally.
151 Mr McMahon wrote to Allianz in April 2011 advising the plaintiff had reinjured his knee starting a lawnmower earlier that year and he was concerned the plaintiff may have torn his medial meniscus or partially torn his medial collateral ligament.
152 Mr McMahon requested funding for an MRI scan.
153 Dr Kee most recently reported in April 2013 in which he detailed the plaintiff’s treatment organised by him following the knee injury.
154 Dr Kee noted the plaintiff was referred to Mr McMahon with an MRI scan which showed damage to the medial meniscus of the left knee and the plaintiff underwent a knee reconstruction on 18 November 2008.
155 Post operatively recovery was very slow and the surgeon felt, whilst the reconstruction was successful, there was probably an end neuroma caught in the scar.
156 In April 2009, the plaintiff was further investigated with an ultrasound and MRI scan which confirmed a nerve was involved in the scarring and probably the cause of ongoing pain.
157 The plaintiff had a cortisone injection to his left knee at The Avenue on 15 July 2009, following which he suffered an anaphylactic reaction and required emergency treatment.
158 The plaintiff was referred to Mr Ritz for further surgery in order to excise the end neuroma, but after further surgery, the pain was still troublesome and the plaintiff was referred to Mr Edwards for further review.
159 Dr Kee noted at that time, the plaintiff began to complain about the deterioration in his shoulder pains from an earlier work incident in 2006 and he was referred to Mr Bell for review and management.
160 Dr Kee noted that by March 2010, Mr Edwards had diagnosed the plaintiff to be suffering with neuropathic pain in his lower limb and encouraged him to recommence hydrotherapy. He started the plaintiff on Lyrica and referred him to Dr Lim for pain management.
161 Right shoulder surgery in June 2010 was noted with some improvement subsequently later that year but continuing right arm pain.
162 Dr Lim saw the plaintiff for his knee on 3 September 2010 and concurred he suffered with neuropathic pain but also that he was exquisitely tender with multiple trigger points, a component of pain that had never been previously identified. Dr Lim believed that was the major contributor of the plaintiff’s ongoing and persistent pain. Dr Lim advised there was no cure for central sensitisation but advised self treatment and management and increased dosages of Lyrica.
163 Dr Kee noted that the plaintiff was to be admitted to North Eastern Rehabilitation for a four-week outpatient course, but funding was denied.
164 Dr Kee noted the plaintiff suffered an aggravation of his left knee injury on 9 February 2011 when trying to start a lawnmower.
165 Dr Kee saw the plaintiff on 15 March 2011, when he advised he had been told by the insurance agent he would not require a new certificate for the aggravation and would be covered under the old injury.
166 Dr Kee noted Mr McMahon felt the plaintiff required an MRI scan and repeat x‑rays. However, funding for these investigations and a further request for pain management were denied.
167 On examination in May 2011, Dr Kee noted the plaintiff’s neuropathic pain was still significant and his Dothep was increased from 25 to 50 milligrams. Dr Kee thought the treatment was obviously inadequate and the plaintiff faced the danger of narcotic addiction with extended use of narcotic analgesics.
168 As nothing was achieved at conciliation, Dr Kee had no option but to refer the plaintiff for treatment in the public health system where he did not get an appointment until October 2011.
169 The plaintiff suffered many episodes of aggravation to his left knee during that period. Dr Kee noted on examination on 2 August 2011, that on 30 July 2011, the plaintiff’s knee gave way whilst walking in the driveway.
170 The plaintiff required crutches until 18 August 2011 and was advised to use a stick on that day. Later that day, he suffered severe pains in his left knee, stepping down a garage step at home and he called an ambulance.
171 An MRI scan on 26 October 2011 showed a torn lateral meniscus of the left knee.
172 Dr Kee noted the plaintiff’s knee collapsed while walking in Melbourne and he was taken by ambulance to St Vincent’s Hospital.
173 Arthroscopic surgery finally took place on 20 January 2012 by Mr Thomas. Three weeks post surgery, the plaintiff’s symptoms had improved; however the knee was still painful.
174 Throughout 2011 and 2012, the plaintiff continued to suffer with ongoing pain and dysfunction in both shoulders.
175 Access to physiotherapy was limited by WorkSafe and finally ceased. The plaintiff tried to have some physiotherapy funded by Medicare, but that was limited to five treatments, which Dr Kee thought was grossly inadequate.
176 Dr Kee reported the plaintiff continues to suffer with improved but ongoing pain in his left knee, with two separate mechanisms, one being neuropathic, the other trigger point pain. Dr Kee thought the plaintiff required pain management, as Dr Lim suggested.
177 Dr Kee noted the plaintiff’s ongoing and recurrent left knee pain was present before the lawnmower incident and had not changed in any way since.
178 In addition to the incident at home in August 2011 and walking in Melbourne, the plaintiff further aggravated his left knee on 22 December 2011, 4 and 18 January 2012 and required crutches after each aggravation.
179 Dr Kee thought the plaintiff was certainly unfit to work due to the injuries (both). He felt the plaintiff may never return to pre-injury duties.
180 The plaintiff has had treatment at Gippsland Physiotherapy Group, initially from Ms Turner, later by Ms Muir, initially presenting on 18 April 2008 complaining of left knee pain, following the work incident.
181 Ms Muir diagnosed Type 1 Chronic Pain Syndrome and episodic instability following a left ACL reconstruction and subsequent arthroscopies.
182 The last reported physiotherapy noted in the April 2013 report was 29 May 2012. Ms Muir noted the plaintiff may require further knee surgeries and in those circumstances, would have to undergo post-operative rehabilitation, including physiotherapy. She recommended he be given an ongoing pool or gym pass in order for him to continue with self management and exercises to maintain his condition, potentially limiting the need for further interventions.
183 Mr Ritz, plastic surgeon, first saw the plaintiff in September 2009 presenting after a second ACL reconstruction. The plaintiff then had dysesthesia and discomfort in the saphenous nerve distribution. Mr Ritz noted certainly the plaintiff had a Tinel’s sign and neurolysis of the nerve was discussed.
184 That procedure was carried out on 9 November 2009 when the scar was excised on the left inferior knee. Mr Ritz explored the scar down to the bone and performed a neurolysis of the nerve.
185 On 17 November 2009, the plaintiff was healing well but had some hyper sensation of the skin. He was doing well in December and failed to attend an appointment later that month.
186 The plaintiff was initially assessed at North Eastern Rehabilitation Centre in November 2010.
187 Clinical findings were of multiple trigger points in the left knee and the plaintiff reported swelling, discolouration and tightness of the leg with allodynia present. It was noted the plaintiff was able to commit to the time requirements of the program and identified functional goals to achieve in therapy. It was recommended he engage in a four-week residential pain management plan.
188 Dr Lim wrote to Dr Kee in September 2010 and July 2012.
189 In the first letter, Dr Lim advised Dr Kee that there was an additional pain contribution from the development of central sensitisation which he suspected was a consequence of the original injury, as well as a further pain amplification component from the plaintiff’s behaviour – namely anticipating the light touch allodynia pain.
190 Dr Lim noted in November 2009, Mr Ritz, plastic surgeon, raised the surgical scar to provide some relief for the nerve that was caught in the scar tissue. However, the plaintiff remained with persistent pain light touch allodynia which was further amplified by anticipation.
191 Dr Lim noted what had not been identified was the fact the plaintiff had exquisitely tender and multiple trigger points which could trigger or refer pain mimicking neuropathic discomfort and he believed that was currently a major contributor to the plaintiff’s pain. Those trigger points also reflected the development of central sensitisation, which Dr Lim believed was now not only perpetuating but also amplifying the plaintiff’s pain. He noted there was no cure for that condition but it could be treated through self management.
192 Dr Lim advised he asked the plaintiff to gradually increase Lyrica form 225 milligrams to a maximum of 600 milligrams per day.
193 Dr Lim advised Allianz in July 2012, the plaintiff had been referred back by Dr Kee.
194 In that letter, Dr Lim recommended approval be given for a pain management course, describing the plaintiff’s symptoms and initial assessment in September 2010.
195 Dr Lim advised the surgery had had no positive impact on the plaintiff’s pain because his chronic pain condition had different contributing factors, even if both had been the result of the work incident.
196 Dr Lim explained the plaintiff’s chronic pain condition was due to the development of central sensitisation and described the mechanism thereof. He explained why the pain management program he suggested was most appropriate and asked for approval thereof.
197 Mr Thomas wrote to Dr Kee in February 2012, noting that the plaintiff had significant arthroscopic findings. He noted the plaintiff had recovered without complication but still had symptoms in his knee. He advised the plaintiff would need to work with the strengthening program but suspected in the fullness of time his knee would become much more comfortable.
198 Mr Thomas wrote to Dr Kee in November 2012.
199 Mr Thomas advised he reviewed the plaintiff for evaluation of his left knee with a past history, including an ACL reconstruction with Mr McMahon. That was complicated by a saphenous nerve injury which remained troublesome for the plaintiff.
200 The plaintiff had an arthroscopy in January 2012 and did have a large bucket handle tear of the medial meniscus and a radial tear to the lateral meniscus. He underwent partial meniscectomies.
201 The plaintiff’s knee at the time of surgery was, in fact, quite stable with a negative pivot shift. There were some Grade II changes on the patella which were debrided.
202 The plaintiff told Mr Thomas about two weeks ago (early November 2012), when he twisted on the knee, it collapsed underneath him and he came in reporting continued knee symptoms, some of which were unusual and difficult to sort out.
203 Examination revealed the plaintiff’s quadricep was still quite wasted compared to the right, although not as bad as he recalled earlier in the year. His knee had some increased movement to Lachman testing, although a negative pivot shift. There was no swelling and no joint region tenderness.
204 Mr Thomas looked through his arthroscopic findings and photographs from January. His assessment was the plaintiff was difficult to sort out. He noted the plaintiff was taking WorkCover to court to claim over his knee, and this clouds the picture. Certainly Mr Thomas did get a sense that the plaintiff had some symptoms which were difficult to explain. He referred the plaintiff for an MRI scan, although he doubted that further surgical intervention would be any help to him. He planned to re-examine the plaintiff once he had that investigation.
205 Mr Thomas organised an MRI scan of the plaintiff’s left knee on 27 November 2012.
206 It was reported there was an intact ACL graft and previous medial and lateral meniscal surgery. The residual body, posterior horn of the medial meniscus was deficient, but an acute meniscal tear was not seen. Chondromalacia of the medial facet of the patella was noted.
207 Dr Kee reported in May 2013 that this was the last correspondence received form Mr Thomas.
208 Mr John Redmond, psychologist, saw the plaintiff on 20 April, 15 May and 3 June 2009, then 8 July, 17 August, 15 September, 28 October and 7 December 2010. In 2011, the plaintiff attended in March, April, June, September and November and he returned in 2012 in April, July and November.
209 Mr Redmond noted the plaintiff had not been seen since then because he was due to see Mr Thomas.
210 Mr Redmond noted the plaintiff had been referred by Dr Kee, who assessed him as moderately depressed.
211 Mr Redmond noted the plaintiff was seen under the GP Mental Health Care Plan because Allianz refused payment. The plaintiff, at the time of the April 2013 report, continued to have sessions allocated for further assistance in the future through Medicare bulk billing.
212 From previous sessions, Mr Redmond noted it appeared the plaintiff cannot work, even though he constantly expressed the desire to be employed. He noted the psychological treatment would continue focussing on pacing the plaintiff’s activities and reduce his isolation and frustration which led to depression. Mr Redmond noted the plaintiff was generally cooperative with treatment.
The Plaintiff’s medico-legal evidence
213 Dr John Gill, psychiatrist, examined the plaintiff in October 2001. The plaintiff told him of his knee injury while working for the first defendant.
214 Dr Gill had a history of the plaintiff coping without any difficulty with his job until the injury on the said date, having suffered an earlier sprain shortly prior to his employment in 2007. Dr Gill had a history of the shoulder incident in December 2006.
215 Dr Gill diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was an understandable psychological reaction to the plaintiff’s workplace injury and its sequelae. At that stage, he thought, given the plaintiff’s current mental state with significant anxiety, agitation and depressed mood associated with chronic pain, he did not consider the plaintiff had any capacity for work. If there was no improvement physically, it was unlikely the plaintiff would have any future work capacity.
216 The plaintiff was examined initially by Mr Kossmann, orthopaedic surgeon, in October 2011 and re-examined in March 2013.
217 On the initial examination, the plaintiff complained of ongoing pain issues in his left knee and described constant pain which he rated at between six and seven out of ten, fluctuating, depending on his level of activity. Mr Kossmann did not know about any aggravation in 2007, but was aware of the ACL reconstruction in 1997 and the shoulder incident.
218 The plaintiff told Mr Kossmann the injury to his left knee had had a significant impact on his social, domestic, recreational and sporting activities. He advised he was not engaged in any sporting activities any more, and prior to the incident, he was playing golf and enjoying riding his bicycle.
219 On examination, the plaintiff complained of pain over the medial meniscus. He had distinct patellofemoral friction and movements of his left knee were impaired. He had stable ligaments on the medial and lateral side. He had an interior draw and his left knee was rocking back and forward when he was moving his left lower extremity – a sign of a lax anterior cruciate ligament.
220 Mr Kossmann diagnosed complex left knee injury with two ACL ruptures, meanwhile reconstructed a second time with hamstring graft, tear of the medial meniscus left knee and lateral meniscus, osteoarthritic changes in the form of chondral pathology in all three compartments of the left knee and neuropathic pain in the left knee.
221 Mr Kossmann noted post-operatively, the plaintiff complained of pain which was finally diagnosed as nerve damage.
222 Mr Kossmann thought the plaintiff had a bad prognosis regarding his left knee. He noted he had twice ruptured his anterior cruciate ligament and had been diagnosed with tears in his medial and lateral meniscus, and was suffering from chondral pathology in all three compartments. He thought the plaintiff should undergo further treatment, at least in the form of an arthroscopy, and, furthermore, he was of the opinion that the plaintiff was developing accelerated osteoarthritis and would be a candidate for a total knee replacement in the not too distant future. In Mr Kossmann’s opinion, the plaintiff will not be able to return to his pre-injury work as a welder and labourer with a heavy physical workload and that incapacity would last for the foreseeable future.
223 On re-examination in March 2013, the plaintiff advised of ongoing pain issues in his left knee with constant pain of between four and five out of ten. The plaintiff told Mr Kossmann his injury had had a significant impact on his social, domestic and recreational activities.
224 The plaintiff advised he had played a round of golf approximately a dozen times in the last five years. Sometimes he joined his friends in a buggy on the golf course, hitting a ball from time to time. He had had one game of tennis with his son. Prior to the accident, he was playing golf and enjoying riding his bike on a regular basis.
225 On examination, the plaintiff complained of pain over the medial meniscus. He had distinct patellofemoral friction and his knee movements were impaired. He had stable ligaments on the lateral side and a slightly unstable medial ligament. He had a slight anterior draw and his left knee was rocking back and forward when he was moving his left lower extremity – signs of a lax anterior cruciate ligament.
226 Mr Kossmann noted the aggravation of the left knee injury in a garden accident.
227 Mr Kossmann noted the plaintiff was still suffering from significant left knee pain and impaired left knee function with an anterior draw and significantly reduced muscle mass around his left knee. Further, he was suffering from neuropathic pain around his knee. He confirmed he thought the plaintiff had a bad prognosis and that he was developing accelerated osteoarthritis and would be a candidate for a total knee replacement in the not too distant future. He confirmed his views as to an incapacity for pre-injury or heavy employment.
228 Dr Horsley, occupational health and rehabilitation specialist, examined the plaintiff in September 2012 in relation to both his shoulder injury and later knee injury.
229 The plaintiff told Dr Horsley of the removal of a foreign body from his knee in 1992 and a knee reconstruction in 1997. She noted, prior to his injury, the plaintiff’s hobbies and interests included motorbike riding, surf fishing, playing tennis, jogging, camping, playing golf and activities with his son. All of those activities had been reduced since his injuries, noting he presented with left knee pain and bilateral shoulder problems.
230 Dr Horsley noted the plaintiff’s knee treatment and a subsequent aggravation on 9 February 2011 when he was trying to start lawnmower at home and his left knee twisted and collapsed under him. There was persistent disability and he was referred back to Mr McMahon, who proceeded to further surgery on 19 January 2011.
231 The plaintiff complained to Dr Horsley of chronic left knee pain, three to four to seven out of ten. The discomfort was located down the medial aspect of the upper tibia and down the lateral aspect of the left calf. On examination of the left knee, there was a positive draw sign, but it was less prominent than on the right. There was no effusion. There was acute dysesthesia on palpation of the scars anteriorly. Patellar grinding did not reproduce discomfort.
232 There was no change in temperate or colour, or swelling. There was a normal range of movement, but some stiffness and discomfort at the end of the full range of flexion. A McMurray test reproduced discomfort over the medial aspect of the joint. The plaintiff’s gait was antalgic, favouring the left knee, and he was unable to walk on his toes. Walking on his heels exacerbated the antalgic nature of his gait and he was only able to half squat.
233 Dr Horsley diagnosed a left knee injury with an ACL rupture, reconstructed a second time with a hamstring graft, a tear of the medial meniscus and lateral meniscus of the left knee managed surgically, and persistent neuropathic left knee pain. Dr Sutcliffe thought the plaintiff’s knee problems were permanent and noted he presented with significant anxiety.
234 Dr Horsley noted a vocational assessment from Occupational Rehabilitation Group dated 31 October 2011 and their recommended suitable employment options of vocational education teacher, instructor in scaffolding, forklift operator, machine operator, metal fitter and machinist.
235 Dr Horsley thought, without considerable upgrading of skills, the plaintiff’s opportunities for redeployment were going to be quite limited and that he presented with an ongoing disability. She believed, with respect to his left knee, he should avoid repetitive stair and hill climbing, use caution when walking over uneven surfaces, and when choosing his footwear, he would not be able to kneel on the left side. His gait was abnormal and he was not able to fully squat. Those factors impacted upon his manual handling technique and therefore put him at risk of mechanical back pain.
236 Dr Horsley also thought his anxiety and depression needed to be addressed before a return to work.
237 In Dr Horsley’s view, without considerable support and retraining, the plaintiff’s opportunities for redeployment were quite limited. She thought he would need to work within the restrictions she outlined and believed he was likely to remain off work into the longer term and his prognosis for a return to work was guarded.
238 Dr James Rowe, specialist occupational physician, examined the plaintiff’s left knee on behalf of CBUS for a total permanent disablement claim in April 2012.
239 On examination, the plaintiff had limited movement in the left knee and three centimetres of wasting of the left quadricep compared to the right. The medial ligament on the left was quite lax and the anterior cruciate ligament was quite lax as well. Patellofemoral crepitus was felt and heard when Dr Rowe mobilised his knee.
240 Dr Rowe diagnosed internal derangement in the left knee requiring reconstruction. He noted the plaintiff had residual weakness in the left knee and leg and he had wasting of the quadriceps and had quite marked laxity of the ligaments above the knee.
241 Dr Rowe thought at the moment the plaintiff was not fit for full-time or part-time work, but noted he was keen to retrain in hospitality. However, he was not fit to go back to work as a labourer, rigger, scaffolder or forklift driver, or any jobs he had had in the past. He could not climb, carry heavy weights or work in awkward places or positions, the reason being his knee is unstable, he has a weak left shoulder and he could not be reliably re-employed.
242 Dr Rowe considered that eventually, the plaintiff may be able to find work but he will need retraining and re-education. He might be able to work in a gaming establishment or work in retail outlet like Bunnings, where he would have the chance to sit and stand. He was not of the view the plaintiff would never return to work because of his age and, whilst he does have two medical conditions, he is undergoing some retraining and undergoing an exercise program, but could improve his knee in particular. That might allow other options of employment to open to him so it would be reasonable, he thought, to defer any acceptance of the plaintiff’s total disability claim for at least six to nine months.
243 On 26 October 2010, the Medical Panel found the plaintiff had a 13 per cent whole person impairment resulting from the accepted left knee injury. It also was of the opinion there was a zero per cent psychiatric impairment.
Surveillance
244 Counsel for the defendant admitted that there had been 15 hours of surveillance on 7, 8 and 9 December 2010, and also on 8 November 2010. There were 25 hours of surveillance on 10, 11, 12, 14 and 16 April 2012 and 15.5 hours of surveillance on 24, 25, 26 and 27 February 2013.
245 It was agreed that the plaintiff’s gross income was as follows:
Financial Year Amount Incolink Total 2006 $107,447 - - 2007 $93,090 $3,320 $96,410 2008 $78,695 $2,072 $80,767
246 It was agreed that there were industry increases of 15 per cent over the last three years since 2008.
Vocational evidence
247 Mr Paul Hartley, senior rehabilitation consultant from the OR Group, reported in October 2011 for the purposes of a vocational assessment. He commented that the jobs suggested by Work Able Consulting in 2010 of vocational education teacher, instructor, scaffolding, forklift operator, process worker, light duties and machine operator, metal fitter and machinist, were not suitable for the plaintiff. He noted that the plaintiff’s general practitioner, Dr Kee, advised on 16 June 2011 that the plaintiff was currently unfit for work. He also commented that the plaintiff had no qualifications or training experience to undertake the roles of teacher or instructor. He did not have basic education or English competency necessary for him to undertake such training. He would have problems demonstrating to students.
248 Mr Hartley thought forklift operator/driver was unsuitable due to access, straining, static postures and vibrations, and that operating that machinery whilst in pain, fatigued and heavily medicated would be a considerable cause for concern. As to a process worker, light duties, even with light work static postures, were required and minimal opportunity for variety or rest breaks.
249 The plaintiff’s unremitting pain, poor postural tolerances, fatigue and strong medication and an inability to remain at the work station for the duration of his shift would impact significantly on his ability to carry out that job effectively and safely, and he would be very unlikely to reach the quotas and requirements of the role. Thus, that was not a reasonable or suitable employment option for the plaintiff. Further, the plaintiff had no experience or skills in a manufacturing setting and could not, in Mr Hartley’s opinion, withstand the postural requirements of the job or undertake the role in an unrestricted manner.
250 Mr Hartley thought that the plaintiff does not have the necessary qualifications to work in the field of machine operator, metal fitter or machinist, which is a completely different trade to sheet metal worker. The plaintiff’s physical restrictions would appear to preclude him from such a role as it is physically demanding.
251 Having interviewed the plaintiff, read the medical reports and extrapolated the plaintiff’s skills, education, training, experience, restrictions, abilities, barriers to employment and injury symptoms, he was unfortunately unable to put forward any suitable and viable employment options for him at that time.
252 Mr Hartley noted, should the plaintiff gain benefit from the proposed knee surgery and is subsequently provided with proactive and realistic occupational rehabilitation assistance with a view to realistic retraining options, the plaintiff may feel able to contemplate a return to the workplace. Mr Hartley noted, unfortunately, the plaintiff was simply running out of time to undertake education and still remain competitive for job vacancies in the current labour market and economy.
253 Mr Hartley provided a further report on 4 April 2013 providing details, as requested, as to average hourly rates for a number of jobs. In terms of a taxi driver, Mr Hartley noted there were significant variables as it depended which shift and days you were working. However, the variation was less significant for Regional Victoria compared to Melbourne Metropolitan. The more lucrative shifts, such as Friday and Saturday nights, are given to drivers who have worked for a longer time with the taxi company. Most drivers work for an owner as a contract driver and will traditionally receive 50 per cent of meter takings. However, from industry sources, regionally, the consensus is if you take an average, a driver will be lucky to make the minimum wage of $15.96 per hour.
254 Perhaps a more lucrative option, in Mr Hartley’s view, was as a light courier driver, but most drivers are contractors to have to provide their own van or commercial vehicle and pay their own expenses. The regional industry consensus is they could make an average of between $20 and $25 an hour.
255 According to Gribbles Pathology, who employ pathology collectors in the Latrobe Valley, their drivers are casual and are employed at just over $21 an hour.
Claim documents
256 The Worker’s Claim Form was signed on 24 April 2008. It set out the plaintiff suffered injury when a wedge fell from the flange and the plaintiff slipped on plastic drop sheets. The injury was noted as medial ligament strain, cartilage tear and bruised knee cap with the incident occurring on 16 April 2008. It was noted the plaintiff was working a forty-hour week with overtime and his pre-injury gross ordinary weekly earnings, excluding overtime, was then $1,415 per week.
257 The WorkCover Employer’s Form was dated 28 April 2008. There was confirmation of the pre-injury earnings of $1,415.16. It was noted the injury occurred on 16 April and the plaintiff stopped work on 18 April 2008. He was employed as a casual sheet metal worker and hammering a steel wedge between two flanges when a flange came apart and a small wedge dropped and landed on the top of the plaintiff’s left knee.
258 There is also a Claim for Compensation dated 14 February 2011 in which the plaintiff claimed he had suffered an injury in the form of a medial meniscus strain or tear of the left knee, starting his lawnmower when it would not start and his left knee gave way. That occurred on 9 February 2011 and the form was signed on 14 February.
The Defendant’s medico-legal evidence
259 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff initially in October 2008. The plaintiff then had constant left knee pain and said his knee swelled most of the time. He also had restricted movement of the knee and it felt insecure and at that had given way on two occasions.
260 On examination, the left knee had a slight effusion and a range of movement of zero to 90 degrees without patellofemoral crepitus. There was tenderness over both the medial and lateral joint lines and there were signs of a tear of the ACL.
261 Mr Moran diagnosed a tear of the ACL of the left knee and tears of both the medial and lateral meniscus. He thought the plaintiff did not then have a current work capacity because of those conditions and that would persist until the plaintiff had a reconstruction. He thought the plaintiff should be able to do some of the duties of a sheet metal worker about three months after the surgery. In his opinion, the plaintiff’s injury arose solely from his employment with the first defendant and he considered surgery was reasonable and would lead the plaintiff to being able to return to his pre injury duties.
262 There was an MRI scan of the left knee organised by Mr McMahon in June 2008 which is referred to in the other judgment and MRI scan of the left knee also organised by Mr McMahon in May 2009.
263 Mr Moran re-examined the plaintiff in March 2010, at which time he said he was worse than on the previous visit, with his pain post operatively worse following surgery in November 2008. Mr Moran also noted Mr Ritz’s performance.
264 Mr Moran noted the plaintiff reported mowing the lawn on 27 February 2010 when his leg went into a hole and he felt it twinge on the medial aspect of the left knee and had an ultrasound on 5 March which revealed bruising.
265 At the time of that examination, the plaintiff had constant pain on the anterior aspect of his left knee and over the proximal half of his left shin. He said his left knee swelled and he had restricted movement. He said it felt insecure and he had fallen three times since the surgery.
266 On examination of the left knee, there was no effusion. There was wasting of the left thigh and range of movement of the left knee was 10 to 110 degrees.
267 There was decreased sensation to light touch over the left shin. There was no tenderness over the medial joint line but there was tenderness over the lateral joint line.
268 Mr Moran confirmed his earlier diagnosis and noted the plaintiff now has scarring around saphenous nerve in his left leg as a result of the surgery in November 2008. Mr Moran thought the plaintiff was not fit to return to pre-injury duties and hours and that he should take Tramal and Panadeine Forte when he had lower limb pain and continue with physiotherapy whilst his knee felt insecure. Mr Moran thought the plaintiff did not have a current work capacity and was not fit for work as a result of the scarring around the saphenous nerve of his left leg.
269 Mr Moran re-examined the plaintiff in June 2010, noting the referral for a second opinion to Mr Edwards.
270 The plaintiff complained of constant pain on the anterior aspect of his left knee and the proximal half of his left shin. He said his knee felt insecure and it swelled and he had restricted movement.
271 On examination, there was wasting of the left thigh. There was no effusion of the left knee and the range of movement was 0 to 105 degrees. There was tenderness over the medial joint line but not the lateral line. There was altered sensation to light touch over the left shin.
272 The plaintiff told Mr Moran in March 2010 that post operatively, after seeing Mr Ritz, he had less pain.
273 At that time in March, Mr Moran thought the plaintiff was not fit to undertake the work options set out in the Work Able report of 22 February 2010.
274 In the June 2010 examination, Mr Moran confirmed the plaintiff was not fit to return to pre-injury duties and hours and did not have a current work capacity.
275 Mr Moran noted the plaintiff may be fit to return to work if treatment prescribed by Dr Lim lessened or abolished the plaintiff’s constant pain around the anterior aspect of his left knee and the proximal half of his left shin. Mr Moran thought the plaintiff was not able to work because of that pain because of the insecurity associated with his left knee and restricted left knee movement. He recommended the plaintiff be reviewed concerning his capacity to work after he had had three months’ treatment from Dr Lim, which he thought was likely to lessen the plaintiff’s constant pain.
276 There was a further re-examination in March 2011, when the plaintiff reported he was worse than the previous visit. He had yet to obtain approval for the pain management course.
277 The plaintiff reported having felt a crack or snap in his left knee and falling to the ground when starting a lawnmower on 9 February 2011. The plaintiff gave similar complaints of his knee pain and giving way.
278 On examination, there was wasting of the left thigh. There was no effusion of the knee and the range of movement was 0 to 100 degrees. There was tenderness over the medial and lateral joint lines. There was alteration in sensation to light touch over the anterior aspect of the proximal head of the left shin. There was some anterior cruciate ligament laxity.
279 When asked whether the plaintiff suffered a new injury in the lawnmower incident, Mr Moran advised the plaintiff may have sustained a strain of the medial collateral ligament, although when seen by him the plaintiff did not have any tenderness over the femoral attachment of the medial collateral ligament and he did not believe the plaintiff sustained any significant left knee injury in the lawnmower incident.
280 Mr Moran read a WorkCover pain rehabilitation program from NERC in October 2010 and viewed the surveillance, where the plaintiff was seen to be riding a mountain bike around a BMX track. Mr Moran noted in the DVD the plaintiff was seen to have full extension of his left knee and he flexed it up to at least 100 degrees.
281 Mr Moran noted that the activities displayed by the plaintiff in the DVD were not consistent with his complaint on 1 June 2010 that he had constant left knee pain, noting that on 17 March 2011, the plaintiff said he had knee pain most of the time.
282 Mr Moran changed his view as to the plaintiff’s work capacity previously expressed. Based on the activities shown in the DVD, Mr Moran thought the plaintiff was fit to work and he would not place any restrictions on his work duties. Also based on the DVD, he did not believe the plaintiff required a pain rehabilitation program and recommended the defendants not accept liability for it.
283 The plaintiff was re-examined by Mr Moran in May 2012. Mr Moran noted Mr Thomas, orthopaedic surgeon, had performed an arthroscopic partial lateral meniscectomy on 20 January 2012, after which the plaintiff said his left knee still felt insecure, although it had not given way since the surgery.
284 The plaintiff reported that his sensitisation was about the same as it was on his previous visits.
285 The plaintiff complained of constant left knee pain and pain in the anterior aspect of the proximal half of his left shin and gave similar complaints to earlier examinations.
286 There was no effusion of the left knee and range of movement was 0 to 110 degrees. There was tenderness over the medial but not the lateral joint line. There was slight laxity of the ACL. There was no tenderness over the femoral attachment of the medial collateral ligament. The circumference of the right thigh 10 centimetres above the superior pole of the patella was 42 centimetres and on the left 40 centimetres. There was altered sensation to light touch over the medial aspect of the proximal half of the left tibia.
287 Mr Moran viewed the report of the November 2011 MRI scan.
288 At that stage, Mr Moran thought the plaintiff’s left knee condition continued to relate to the incident. He thought the plaintiff had, from an orthopaedic viewpoint, a current work capacity and was fit for work where he did not have to kneel or squat. He thought the plaintiff would be able to undertake a full range of recreational and social activities as long as they did not involve him in kneeling or squatting. Mr Moran noted the MRI scan of October 2011 revealed degenerative changes in the femoral condyles and in the patellofemoral joint. He noted the plaintiff had had pain for partial medial and partial lateral meniscectomies of his left knee and the degenerative change in his left knee would progress with time.
The Defendant’s vocational evidence
289 In its Initial Assessment Report of 19 August 2008, The Work Able Consulting occupational therapist described the plaintiff as having a plethora of skills and thought he would return to work sooner should consideration be made about his other transferable skills rather than just focussing on him returning to his pre injury duties.
290 Work Able Consulting carried out a 130-week vocational assessment in February 2010. It was noted the plaintiff had stated he was keen and motivated to return to work and repeatedly stated he had to do something, not “if” but “when”.
291 A number of suitable employment options were identified: vocational education teacher ($1,214); trainer in scaffolding ($1,057); forklift driver ($800); process worker light duties ($780), and a metal fitter and machinist ($1,150).
Overview
292 I accept the plaintiff suffered a compensable injury in the incident involving an ACL tear of the left knee and tears of the medial and lateral meniscus as described by Mr Moran.
293 The preponderance of medical evidence is that the injury is organically based. The only suggestion of another diagnosis was by Dr Lim, who thought the plaintiff had chronic pain condition due to the development of central sensitisation; however, he did not describe this condition as non organic or functionally based.
294 Psychiatrist, Dr Gill, diagnosed an Adjustment Disorder, not a Chronic Pain Syndrome.
295 In this case, where there is a pre-existing knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2008 incident is serious and permanent.
296 In Petkovski v Galletti,[73] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[73]supra
297 This approach was recently followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[74]
[74][2012] VSCA 60.
298 The plaintiff had a pre-existing knee condition in relation to which he underwent minor surgery in 1992 and a knee reconstruction in 1997.
299 After that major procedure however, the plaintiff was able to return to competitive rugby. He did not require ongoing treatment and there was no interference with his work.
300 There was a flare up in March 2007 but with no ongoing problems and the plaintiff could do a full range of duties until suffering further injury in the incident.
301 As counsel for the plaintiff submitted, this issue was very simple because at the time of the incident, the plaintiff was clearly working and able to earn a significant amount of money. Whilst there might have been a little flare up in 2007, it subsided in two weeks and the plaintiff never went to the doctor and never stopped work.[75]
[75]T196
302 In these circumstances, I am satisfied the plaintiff did not have any ongoing problem with his knee at the time of the incident. The lack of reports from specialist treaters in this regard is not of great moment and no inference can be drawn that the plaintiff had a significant ongoing knee problem before the incident.
303 Counsel for the defendants submitted that the plaintiff’s current situation is the result of subsequent intervening acts rather than the incident. It was submitted there are a series of novus actus interveniens that had caused the damage leading to the left arthroscopic surgery performed by Mr Thomas with medial meniscus damage and a deep radial tear of the lateral meniscus.[76]
[76]T17
304 It was submitted that what was revealed on that surgery and repair was a consequence of new and subsequent intervening events and there was no evidence in this case to say that the compensable injury was a cause or productive of, or rendered the plaintiff vulnerable and more likely to have those incidents.
305 This submission however, does not have medical support.
306 Insofar as there is any medical opinion in relation thereto, Dr Kee described the lawnmower incident in early 2011 as an aggravation of the original incident injury and noted that the plaintiff’s ongoing and recurrent left knee pain was present before the lawnmower incident and had not changed in any way since.
307 When Mr Moran re-examined the plaintiff in March 2010, the plaintiff told him that he had put his left leg in a hole and felt a twinge on the medial side of the knee and that he had fallen three times since the 2008 surgery.
308 On a further re-examination in March 2011, the plaintiff gave a history of his knee snapping when he started a lawnmower the previous month.
309 When asked whether the plaintiff suffered a new injury in the lawnmower incident, Mr Moran advised the plaintiff may have sustained a strain of the medial collateral ligament, although when seen by him, the plaintiff did not have any tenderness over the femoral attachment of the medial collateral ligament and he did not believe the plaintiff sustained any significant left knee injury in the lawnmower incident.
310 As of the most recent examination in May 2012, Mr Moran thought the plaintiff’s left knee condition continued to relate to the 2008 incident.
311 Dr Kee noted in his report of April 2013 that Mr McMahon wrote to Allianz in April 2011 advising the plaintiff had re-injured his knee and he requested funding for an MRI scan.
312 Taking into account these opinions, which are the only ones before the Court, I am not satisfied that the defendants have established that the plaintiff’s present knee condition is related to causes other than the incident.
Credit
313 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[77] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[77][2010] VSCA 69
314 Counsel for the defendants submitted that I should not be satisfied with the plaintiff’s evidence unless it was corroborated. Further, it was submitted the plaintiff’s evidence was selective, he was an advocate in his own interests, he was evasive under cross-examination and generally, although clearly intelligent, was able to anticipate questions or second guess them. Overall, he was not a reliable witness.[78]
[78]T170
315 Reliance was also placed on the credit issues that arose from the plaintiff’s history to Mr Kossmann on the first examination in October 2011 that he was not engaged in sporting activities anymore having prior to the incident, played golf and ridden a bike.
316 Having been told of the film, the plaintiff admitted that he told Mr Kossmann on the following examination in early 2013 that he had played a round of golf about a dozen times in the last five years.
317 Further, it was submitted the film of the plaintiff riding his bike and playing golf showed a level of activity inconsistent with his affidavit and other evidence.
318 Counsel for the plaintiff submitted however, the plaintiff was a pretty frank witness and gave a fair account of himself and did not exaggerate.
319 Whilst the plaintiff was in some difficulty in the witness box with his affidavit evidence as to his pre incident activities and his condition as at the date of the incident, I accept that he did not discredit himself in the witness box. At the end of the day, he appeared to be a man who was doing his best to accurately describe his situation.[79]
[79]T193
320 I accept the plaintiff’s explanation that he deposed to relatively good health at the time of the incident as his upper limb problems from the previous work injury at that stage were not giving him the problems he later experienced.
321 The activity on the film riding the bike was quite intense but for it took place over just thirty seconds. The plaintiff’s golf was not particularly free flowing and he was only on the course for about forty five minutes.
322 In my view, the film raised credit issues in terms of the history given by the plaintiff to doctors rather than showed a level of activity at odds with a significant knee injury.
323 The film would have been of more weight if the plaintiff had not required further knee surgery early last year.
324 Further as counsel for the defendant admitted the plaintiff had been under surveillance for many hours. Only the two brief films were shown.
325 Although Mr Moran is the only examiner who has seen the film, Mr Kossmann was aware on re-examination that the plaintiff had been filmed riding a bike and playing golf. This additional information did not change his original opinion as to the plaintiff’s incapacity for employment and other restrictions.
Pain and restriction
326 I accept that since the incident, the plaintiff has continued to suffer constant and fluctuating left knee pain, usually dependent on movement. Walking, particularly over rough or uneven surfaces, climbing stairs or ladders, heavy lifting, running, kneeling, squatting and prolonged sitting and standing usually increased his pain level, as did cold weather.
327 These restrictions have been confirmed by all medical examiners.
328 The plaintiff’s knee often swelled if he weight beared for a prolonged period. He had lost strength in his left knee and leg. His knee constantly felt unstable and as a result he had fallen on a number of occasions, as confirmed by Dr Kee.
329 The plaintiff currently alternates two x 150 milligrams of Tramal and Panadeine Forte, 500 milligrams. He also takes 5 milligrams of Valium some days. In the past, he has also been prescribed Lyrica by Dr Lim.
330 As Dodds-Streeton JJA noted in Kelso v Tatiara Meat Company Pty Ltd,[80] a case where chronic pain was a feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must according to the ordinary human experience, raise a very real prospect of a very considerable consequence.
[80][2007] VSCA 267 at paragraph 199
331 The plaintiff has undergone extensive surgical treatment including a knee reconstruction in 2008, the excision of a neuroma 2009 and an arthroscopy in January 2012. He also had a cortisone injection 2009 and has undergone hydrotherapy and physiotherapy treatment.
332 I accept that certain aspects of the plaintiff’s sporting life have been affected by his knee injury. He cannot run or jog and he is limited in his enjoyment of activities requiring him to be on his feet for prolonged periods such as camping and fishing.
333 I do not accept that the plaintiff’s golfing activities have been impacted upon by his knee injury. In any event, I do not accept that the plaintiff was anything other than a very casual golfer before the incident.
334 The most significant consequence of the knee injury is that the plaintiff cannot work in his trade. The second is that he is restricted significantly in the amount and type of work he can do.[81]
[81]T197
335 The consensus of medical opinion is to this effect. Mr Moran modified his view after seeing the film but still considered the plaintiff unfit for work involving kneeling or squatting.
336 I accept the submission of the plaintiff’s Counsel that everything in this case points away from the plaintiff “living the life of Reilly”.[82]
[82]T193
337 The plaintiff experiences ongoing significant pain, requiring treatment, which interferes with his domestic and work activities, as Dr Kee confirmed. The plaintiff has gone from earning a very good income to facing very limited employment prospects.
338 These are consequences which in my view are “serious”. Further, as the plaintiff’s knee pain and restriction has persisted for in excess of five years, I accept that his impairment is permanent.
339 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
340 Having satisfied the narrative requirement to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(i).
341 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury earnings”; and
(ii) “after injury earnings”.
342 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
343 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the worker was earning or capable of earning from personal exertion or would have been capable of earning from personal exertion had the injury not occurred.
344 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
345 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f)) and (g) therein.[83]
[83]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 70
346 Counsel for the plaintiff put a “without injury earnings” of $100,000, which he described as “pretty modest”[84] based on earnings from the three years prior to the incident. Sixty per cent of that amount is $60,000 or $1,153 per week.
[84]T184
347 Counsel for the defendants submitted $87,308 was the appropriate figure based on a weekly wage of $1,460 per week as at April 2008, with 15 per cent pay rises for the following three years, resulting in a weekly wage of $1,679 in April 2011 or $87,308 for that year. Sixty per cent of that yearly amount was $52,385 or $1,007 per week.
348 Whilst occupational physicians, Dr Rowe and Dr Horsley, did not comment specifically on the jobs suggested by Work Able, they concluded the plaintiff’s restrictions were such that he could not return to his trade or engage in unrestricted manual work which involved being on his feet – a viewed shared by Mr Kossmann.
349 I accept that the strong thrust of the medical reports supports the plaintiff’s contention he clearly has lost more than forty per cent of his earning capacity although that question is not addressed with precision.[85]
[85]T192
350 Until Mr Moran saw the video, he did not think the plaintiff had a capacity for suitable employment. His most recent view, after the plaintiff had undergone arthroscopic surgery in 2012, was that the plaintiff was restricted in his ability to work in jobs requiring kneeling or squatting.
351 I accept that the plaintiff is capable of working as a courier driver and is now prepared to seek that type of work. Whilst he has had made enquiries about forklift work, that job may not be suitable for him given the requirement to get in and out of the cabin frequently during the day. Further, the plaintiff’s ability to operate machinery whilst in pain and heavily medicated would be a cause for concern as Mr Hartley described.
352 However, even working full time in those roles, the plaintiff would suffer the requisite loss of earnings of forty per cent on the figures suggested by both Counsel. (Plaintiff - $1,153 / Defendant - $1,107). The respective weekly wages for those positions was: forklift driver- $800; taxi driver - $606; courier driver - $760 ($20 per hour x 38 hours) or $950 ($25 x 38 hours), and pathology collector - $796 ($21 per hour x 38 hours).
353 If the plaintiff worked full time as a light process worker, a job about which he had little knowledge and no experience, he would also suffer the requisite loss earning only $780 per week. However, this job may be unsuitable for the plaintiff because of the static postures that may be involved as Mr Hartley described.
354 I am not satisfied that the plaintiff could work full time in the other jobs suggested where earnings would be in excess of $1,000 per week..
355 The plaintiff does not have the training or education to be a TAFE teacher nor the experience to be a scaffolding trainer. The plaintiff has been a basic manual worker all his life and does not possess the various skills set out in the job description for a teacher such as “identifying the various needs of students and creating effective learning options to meet these needs”.
356 Further, working as a metal fitter and machinist is an entirely different trade to a sheet metal worker and the plaintiff would need to do a further apprenticeship to work in that physically heavy trade.
357 I do not accept that the plaintiff has simply adopted the role of carer and has no intention of returning to the workforce. I accept the submission by his counsel that it is nonsense the plaintiff would somehow or another choose not to work for some nebulous gain.[86]
[86]T193
358 I am satisfied that as a result of his knee injury, the plaintiff has suffered a loss of earning capacity of forty per cent and that such loss is likely to continue into the foreseeable future.
359 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
360 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
361 Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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