Mackay v Victorian WorkCover Authority
[2021] VCC 1704
•4 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-03572
| KEITH MACKAY | Plaintiff |
| v | |
| GOULBURN VALLEY REGION WATER CORPORATION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2021 | |
DATE OF JUDGMENT: | 4 November 2021 | |
CASE MAY BE CITED AS: | Mackay v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1704 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – Sections 325 and 335 – Application in respect of pain and suffering and loss of earning capacity – Reliance upon paragraph (a) of the definition – Injury to the left knee – Issues of pre-existing and supervening orthopaedic and other health problems – Factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr S Scully | Maurice Blackburn |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HIS HONOUR:
(a)General background
1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing his application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s325(1) of the Act. He is seeking leave to bring proceedings in respect of both pain and suffering and loss of earning capacity.
2In bringing his application, the plaintiff primarily relies upon an incident of injury which occurred on 12 August 2015. This shall hereinafter be referred to as “the accident”. In the accident, the plaintiff essentially slipped on some stairs and was immediately aware of a popping sensation in his left knee. This shall hereinafter be referred to as “the injury”. I would add that the occurrence of the accident is not challenged by the defendant. I refer to Transcript (hereinafter referred to as “T”) 10. At that same page, it can be seen that the issues identified by Mr Saunders on behalf of the defendant relate to the extent of pre‑existing and supervening orthopaedic and other health problems; the extent to which they impinge upon the plaintiff’s capacity for work; and issues of capacity and relevant pain and suffering generally.
3Mr J Richards QC with Mr S Scully of Counsel appeared on behalf of the plaintiff. Mr A Saunders of Counsel appeared on behalf of the defendant. The plaintiff relied upon material contained in two affidavits and, apart from one typographical error of no significance, adopted them as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the accident
4The plaintiff is aged 59 years, he having been born in March 1962. He is a married man with three adult children. He is currently residing in Balmoral, which could be described as being in Western Victoria and approximately halfway between Hamilton and Horsham. The plaintiff had previously resided in Broadford. The move to Balmoral appears to have been because the plaintiff’s wife was able to find work at the hospital in Horsham. The move took place in May 2020.
5The plaintiff’s background is that he completed his Year 12 at Sunraysia College of TAFE as an adult and when in his early 20s. He worked as a brickie’s labourer for approximately six years before completing Year 12. In relation to his further employment, he worked in a clerical position for the RAAF for approximately six or seven years until 1992. He then worked as a storeman and water treatment plant operator for the Launceston City Council. Between 1999 and 2006, he was employed by Sunraysia Rural Water as a general labourer. After that, he worked for approximately two years at the Mildura Base Hospital. The capacity in which he was so employed was that of a patient services attendant. As shall be discussed, he suffered an injury to his right knee whilst in that employment. He then worked for Lower Murray Water for a couple of years, before commencing employment with the defendant as a treatment plant operator in February 2010. He has a Certificate III in Water Processing. The plaintiff’s duties shall be discussed, but he has sworn that they required physical fitness, involving as they did a lot of climbing of stairs and walking to and from water treatment facilities. It was whilst he was engaged in duties of this type that the accident occurred on 12 August 2015 and the plaintiff suffered the injury.
(c)The plaintiff as a witness
6I found the plaintiff to be a straightforward witness, whose evidence I accept. I note that Dr Joseph Slesenger, who examined the plaintiff at the request of his solicitors, whilst having to conduct his assessment using Telehealth, referred to the plaintiff as interacting well and being of reasonable affect. Dr Nitin Dharwadkar, consultant psychiatrist, saw the plaintiff at the request of the defendant, this examination taking place on 27 February 2018. Dr Dharwadkar described the plaintiff as being alert, cooperative and having a relaxed and pleasant manner. He also appeared to be well motivated. As shall be discussed subsequently, he thought that the plaintiff did not require any psychiatric treatment and did not have a current mental disorder. I note that his operating surgeon, Mr Justin Hunt, referred to the plaintiff as being a “delightful fellow”. As stated, my overall impression of the plaintiff is that he was a truthful and reliable witness.
(d)The state of the plaintiff’s health prior to the accident
7The plaintiff has suffered from a number of health issues. In August 2006, when the plaintiff was employed as a hospital orderly and personal services assistant, he suffered an injury to the right knee when moving a patient. He was diagnosed as having developed medial compartment arthritis in the right knee. This condition required surgery. In October 2006, the plaintiff was considered to be fit for full duties. However, some symptoms did return and further surgery was performed in August 2007. In 2008 he resigned from that particular type of employment and returned to his previous work with Lower Murray Water. He had also suffered some pain in the right upper limb.
8The plaintiff does have a history of hypertension and hypercholesterolaemia. An angiogram performed in 2009 showed diffuse coronary artery disease with a 90 per cent stenosis in the mid to distal left descending coronary artery. In 2011 he was referred by Mildura Cardiology to the Royal Melbourne Hospital with a complaint of central chest discomfort. He underwent stress testing in February 2011. It was considered that the study which was conducted revealed reversible myocardial ischaemia, and ongoing medical therapy was recommended. It would seem that he then had no particular treatment in relation to any cardiac problems until after the accident. Certainly he had been able to perform the duties of a treatment plant operator, and was so doing as at the date of the accident.
(e)The injury, its treatment, diagnosis and prognosis
9As stated, the accident occurred on 12 August 2015. After it, the plaintiff iced and rested the left knee. On approximately 17 August 2015, five days after the accident, he attended at Broadford Medical Centre. The plaintiff was referred by Dr Geetha Venkatram, presumably of the Broadford Medical Centre, for an x‑ray and ultrasound of the left knee, these being apparently carried out on 20 August 2015. The ultrasound detected small knee joint effusion, whilst the plain x‑ray detected no fracture. However, these radiological investigations were overtaken by referral of the plaintiff to Mr Justin Hunt, who had previously operated upon the plaintiff’s right knee.
10Following referral, Mr Hunt organised an MRI scan of the left knee, which would appear to have been carried out on 31 October 2015. The comment of the radiologist was that there was an oblique tear through the body and posterior horn of the medial meniscus. There was an adjacent grade 4 full-thickness cartilaginous loss being in relation to the anterior tibia and femoral condyle with underlying anterolateral tibial marrow stress response. There was a parameniscal cyst of approximately 1.5 cm x 1 cm seen just posterior to the posterior cruciate ligament.
11Mr Hunt appears to have reported back on 21 January 2016. He referred to the fact that he had previously performed surgery on the plaintiff in 2011 and 2012 in respect of the right knee, and noted that on this occasion he presented with similar symptoms in relation to the left knee. The right knee had remained stable and the plaintiff had found that he could do most things. However, his left knee had become increasingly painful. Mr Hunt referred to the radiological investigations. He observed that the MRI performed on the left knee on 31 October 2015 demonstrated evidence of a medial meniscal tear and full thickness cartilage loss in the medial compartment of the knee, with associated marrow stress response. Mr Hunt also referred to loose bodies which had been evident on x‑ray. The overall diagnosis of Mr Hunt was of a left knee medial compartment and patellofemoral osteoarthritis with associated medial meniscal tear. He foreshadowed arthroscopic debridement of the left knee. If that was not effective, he thought that the plaintiff might benefit from a high tibial osteotomy on the left side. He noted that the plaintiff did not express significant problems in relation to the right knee, upon which surgery had previously been performed, and stated that this was progressing reasonably well. He implicated the plaintiff’s employment as being the cause of his symptoms. He also expressed the opinion that the plaintiff’s right knee was not requiring any active treatment as at the time of the report.
12It is apparent that a left knee arthroscopy and high tibial osteotomy were performed by Mr Hunt on 7 June 2016. At surgery, severe degenerative change involving the medial compartment of the left knee was found. It was hoped that the plaintiff could return to modified duties once union had occurred, with Mr Hunt expressing the view that this could take five or six months.
13On 22 June 2016, Mr Hunt completed a questionnaire which had apparently been forwarded to him by or on behalf of the defendant. He noted that the operative findings were of severe degenerative change involving the medial compartment of the left knee. The procedure undertaken had been left knee arthroscopy with high tibial osteotomy. This report was written comparatively soon after the surgery, and Mr Hunt stated that the plaintiff could expect to return to modified duties once union had occurred around the 5−6 month mark, with the possibility of a return to full duties after 12 months. However, Mr Hunt also observed that restrictions in the longer term would depend on how much symptomatic relief the plaintiff experienced from the surgery. It was hoped that he would make a good recovery, similar to that following the surgery to the right leg.
14On 15 January 2018, Mr Hunt reported to Dr Venkatram. Mr Hunt had reviewed the plaintiff on 21 December 2017, following removal of a plate and screws from the left tibia on 23 August 2017. The wound had healed, and the plaintiff was happy with the outcome of the procedure. However, he still had pain in the knee. The operation had not been successful in relieving his symptoms. The plaintiff was not able to walk or stand for significant periods due to ongoing symptoms in the left knee. There was discussion of knee replacement surgery.
15It is apparent that Mr Hunt had performed a left knee arthroscopy on 8 March 2017. He went on to perform a left total knee replacement on 18 April 2018. He forwarded to the plaintiff’s solicitors a lengthy report of 11 February 2019, which covered events from 10 March 2016 onwards. Whilst some of this has been covered above, it could be summarised as follows. Following the arthroscopy in March 2017, the knee “felt a little bit better”, but the plaintiff was not in a situation where he could work. By this time, Mr Hunt was of the view that it was highly likely that the plaintiff would go on to require knee replacement surgery, as the result from the high tibial osteotomy had not been as favourable as the one on the right side, which had produced a good result. On 23 August 2017, Mr Hunt performed a two portal arthroscopy and removed some loose bodies. The plate that had been in place for management of the high tibial osteotomy was removed, as the fracture had well healed. When seen on 17 October 2017, the plaintiff was having ongoing trouble with knee pain. The arthroscopy had shown medial compartment arthritis which was severe, and also patellofemoral arthritis.
16Mr Hunt next saw the plaintiff on 21 December 2017. Whilst the wound had healed nicely, he was still suffering from knee pain, and a knee replacement was discussed. At this time, he was not able to walk or stand for significant periods due to the ongoing symptoms in the left knee.
17On 18 April 2018, the plaintiff attended for a total knee replacement. Mr Hunt summarised the situation as being that the plaintiff had a previous work-related injury with previous arthroscopic interventions plus high tibial osteotomy, but his symptoms had been refractory. When the surgery was performed, severe medial compartment arthritis was found. The surgery itself was straightforward. When reviewed on 16 May 2018, the plaintiff had done well, but had developed redness and pain over the superior aspect of the wound. There was also cellulitis along the upper part of the wound, which was quite sensitive to touch. The plaintiff was commenced on additional medication and instructed to visit his local practitioner on a daily basis. When reviewed on 7 June 2018, the plaintiff’s wound infection had settled. He was gaining flexion and was managing the pain symptoms with Meloxicam.
18It would seem that the plaintiff underwent further treatment on 28 June 2018. A further manipulation was performed and went well. The plaintiff required overnight admission to hospital, followed by some intensive physiotherapy post-operatively. When the plaintiff was reviewed on 27 August 2018, the pain was much better than it had been prior to the surgery, but there was still some pain and a sense of weakness with exercises, particularly those that isolate the quads muscle. On examination, he had almost full extension of flexion. The plaintiff felt some pain over the anterolateral aspect of his knee, which may have been due to a friction syndrome. He also had trochanteric bursitis. Mr Hunt described him as “persevering”. There was the suggestion of an ultrasound-guided injection into the bursa over the greater trochanter. An x‑ray was also suggested, as the plaintiff was relating a lot of his symptoms to around the patellofemoral joint.
19When seen on 30 November 2018, the plaintiff still had significant inflammation in his knee, seven months post-surgery. On uneven ground, he felt that the knee was irritable and unstable, which, in the opinion of Mr Hunt, was due to persistent inflammation of the knee. Mr Hunt told the plaintiff that it was likely to settle down over the next four to five months, and that the situation had been a complicated one, where there had been multiple surgeries to the knee, culminating in a rather large operation and knee replacement. Mr Hunt expressed the opinion that the injury sustained was the aggravation of pre-existing degenerative changes and consistent with the stated cause. In the case of the left knee, that was the accident of 12 August 2015. Mr Hunt considered that the plaintiff’s capacity for further work had been limited, and that his ability to kneel, squat, bend down, lift and twist had also been significantly limited. He thought that the plaintiff might be able to perform sedentary-type work for which he was appropriately educated and trained, and which required sitting to standing. He would not be suitable for active physical work. It also seemed unlikely that he could perform light physical work. In expressing that opinion, Mr Hunt referred to the pain which the plaintiff was currently perceiving in his right knee, and the ongoing pain and stiffness in his left knee. He did not believe that the symptoms in the right knee were severe enough to warrant further management at this stage.
20It is apparent that, following the accident, the plaintiff attended the Kilmore Wellness Centre for physiotherapy. Ultimately, he came under the care of Mr Rhys Saultry, but this was after the left high tibial osteotomy performed by Mr Hunt. He had been attending at that particular clinic prior to Mr Saultry taking over his management in 2016. The report of Mr Saultry is dated 4 April 2019. The plaintiff underwent a treatment regime with a particular focus on increasing his knee flexion. A home exercise program was put in place. Hydrotherapy was also employed, as well as work in the gymnasium. The plaintiff also received treatments from myotherapists and osteopaths. Mr Saultry believed that the plaintiff may be able to return to work, but not in the same capacity or occupation as previously. He would not be able to perform manual labour or any physical work. Mr Saultry pointed out that the plaintiff has not completed training in other industries and found it hard to sit or stand for long periods. He would need an employer who was sympathetic or a part‑time role that did not exacerbate his condition. He would need to continue exercising, as well as attending the gymnasium and hydrotherapy, for the foreseeable future.
21The plaintiff has also been seen for medico-legal purposes. At the request of his solicitors, he was seen by Dr Joseph Slesenger, specialist occupational physician, who reported on 29 April 2021. The original consultation was undertaken by Telehealth on 4 March 2021, but because of some difficulties or inadequacies with that method of consultation, a face-to-face evaluation was conducted on 19 April 2021.
22Dr Slesenger listed the tasks which had been involved in the plaintiff’s work as a water treatment plant operator. The job tasks involved were described as driving throughout treatment plants (or major plants and some satellite plants); loading and unloading chemicals; pouring chemicals into treatment silos; checking tanks and valves; minor plant maintenance; and the taking of samples. The job demanded constant standing, climbing up and down stairs, squatting, bending, forcefully pushing and pulling, and the lifting of weights of up to 20 kilograms.
23The plaintiff advised Dr Slesenger that, after his right knee surgery in 2012, he had returned to work on normal duties and working pre‑injury hours. After that surgery, there had been some left knee symptoms due to the plaintiff avoiding the use of his right knee, but those symptoms had settled.
24Dr Slesenger noted that the plaintiff had undergone a high tibial left osteotomy in 2017 and, when his symptoms failed to respond to this, a left knee replacement in 2018. The plaintiff had undergone a manipulation under anaesthesia under the care of Mr Hunt some six months after the left knee replacement.
25The plaintiff complained of residual left knee pain, swelling, stiffness and a restricted range of movements. The pain was constant and moderate to severe. Activity aggravated his symptoms. The plaintiff had poor sleep, waking regularly, this being due to a combination of a sleep disorder and his chronic left knee pain. Dr Slesenger also noted that the plaintiff was attending a psychologist every three weeks. There were restrictions in relation to his walking. The plaintiff had difficulty climbing up and down stairs and was unable to squat. He was taking a mix of medications, including Norspan, Panadol (twice daily) and aspirin.
26As shall be discussed, the plaintiff was now living at Balmoral, in Western Victoria. He had ceased work in 2016. There was no return-to-work plan in place and the plaintiff had not undergone retraining. The plaintiff’s only qualification was a Certificate III in Water Processing. He has average computer skills. He can email, but not use an Excel spreadsheet. When seen in person, the plaintiff struggled to climb on and off the couch or in and out of the chair. He was unable to squat. He had difficulty in moving from a seated position to a supine one and from a supine position to a prone position. He had a pronounced left-sided limp. There was severe tenderness to minimal palpation along the medial and lateral joint line.
27Dr Slesenger also reviewed considerable documentation. His diagnosis was of aggravation to pre‑existing degenerative disease of the left knee, resulting in multiple arthroscopic repairs and a left knee replacement. The plaintiff had chronic left knee pain. Dr Slesenger thought that there was some psychological impairment, adding that this was outside his area of expertise. He implicated the accident in the plaintiff’s condition. Dr Slesenger recommended a considerable range of restrictions upon the plaintiff’s activities and performance of sedentary tasks only. He did not anticipate a significant alteration in the foreseeable future. Taking into account the plaintiff’s residential location, his past employment history, his qualifications, his limited computer skills and his past occupational experience, Dr Slesenger did not anticipate that the plaintiff could return to work performing suitable alternative duties on a consistent and reliable basis. He considered the prognosis to be guarded. He examined various alternative employments that had been suggested in a vocational assessment report by Recovre. In essence, he thought that the suggested positions were likely to lie outside the limits of the plaintiff’s capacity and that he was unlikely to be able to attend work consistently and reliably. Some were positions for which he had no experience or training. In short, he was not of the view that the plaintiff had a capacity to return to work on a consistent and reliable basis.
28Mr Thomas Kossmann, orthopaedic surgeon, saw the plaintiff at the request of his solicitors, reporting on 8 February 2021. Clearly this was an “in person” examination. Mr Kossmann took an appropriate history, including a detailed history of the plaintiff’s pre‑injury condition, with particular emphasis upon the right knee. The diagnosis of Mr Kossmann was of an oblique tear through the body and posterior horn of the medial meniscus, and aggravation of pre‑existing medial compartment osteoarthritis in the left knee. There had been a total left knee replacement, complicated by ongoing pain and movement restriction.
29Mr Kossmann expressed the opinion that the prognosis for the plaintiff in relation to his left knee was poor. He was suffering from ongoing pain and movement restrictions in his left knee, despite multiple operations which included a total knee replacement. Mr Kossmann stated that the plaintiff’s left knee condition had impacted upon all aspects of his life. He expressed the opinion that the plaintiff was not able to return to the workforce whilst he was suffering from ongoing pain issues and movement restrictions in his left knee. If there was improvement in his condition, a vocational assessment would be needed. However, there were considerable incapacities which would continue for the foreseeable future.
30The defendant also tendered various medical reports. These could be summarised as follows.
31A medical report dated 26 February 2009 from Associate Professor John Hart, orthopaedic surgeon, was placed in evidence. This relates to an examination carried out in the context of an application in respect of permanent impairment of the plaintiff’s right knee. I note that the history taken by Associate Professor Hart refers to the fact that the plaintiff was considered to be fit for full duties and discharged by the relevant orthopaedic surgeon at the Mildura Base Hospital on 10 October 2006. However, there were some further problems and the plaintiff underwent an arthroscopy on 11 July 2007. Surgery was performed on the right knee on 17 August 2007. There was a further arthroscopy on 27 October 2007. When reviewed in November 2007, the plaintiff said that his right knee was improved, but that he still had pain. Thereafter, he ceased seeing any specialists, but continued to attend his general practitioner. He ceased physiotherapy in June 2008. He was on light duties until September 2008, when he resigned from his job as a hospital orderly. He returned to his previous work with Lower Murray Water. When seen by Associate Professor Hart, he was still having constant pain over the medial aspect of the right knee. However, he was riding a bicycle three times a week for distances up to 5 kilometres and his only medication was Voltaren. He could drive for unlimited distances. He was working full‑time as a plant operator, which was described as a sedentary job, although the plaintiff had to control the channels for irrigation and control the pumps. He was no longer engaging in running or attending a gymnasium, but had returned to golf and cycling.
32Associate Professor Hart was of the view that the plaintiff had recovered a reasonable range of motion, although there was persistent pain. Recent x‑rays indicated that he had developed medial compartment arthritis in the right knee. He had mild patellofemoral osteoarthritis and had sustained a medial meniscus tear treated by medial meniscectomy. In carrying out his assessment pursuant to the AMA Guides, Associate Professor Hart noted that there was no impairment in relation to loss of motion of the right knee. He arrived at a combined whole person impairment for all physical injuries of 4%.
33In my opinion, the report of Associate Professor Hart, which was written in excess of 12½ years ago, does not take matters very far. It is clear that, following the right knee surgery, the plaintiff was able to return to work and to engage in various activities. This is consistent with the history taken by Mr Hunt some years later of the plaintiff not expressing significant problems in relation to his right knee and progressing reasonably well.
34Associate Professor Anthony Buzzard, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 24 July 2019. The primary purpose of the examination was to provide an impairment assessment of the left lower limb. He took an appropriate history. At this time, the plaintiff had ceased physiotherapy, but was attending Wallan Osteopathy every two or three weeks and a myotherapist every three weeks. He was also going to the gymnasium three to four times per week for about 40 minutes per time. He was attending his general practitioner approximately once every two months. The plaintiff described his left knee pain as moderate and at times severe. He was also of the view that it was worsening. The pain was confined to the left knee. There was a tightening sensation in the left calf and foot when he was walking. The plaintiff could perform activities of daily living, such as washing, dressing and the like, but did them “with difficulty”.
35Associate Professor Buzzard was of the view that the accident caused an aggravation of pre‑existing degenerative disease. He noted that it was an accepted injury. He thought that it was reasonable to accept that the plaintiff’s left knee problem was such that he could not carry out the type of work which he had been doing prior to the cessation of it. He thought that the plaintiff could carry out sedentary work if such work could be made available. He considered the plaintiff’s condition to be stable. It would appear that he gave the plaintiff a 20% whole person impairment, which Associate Professor Buzzard considered to be a “fair result”. Apparently, a Medical Panel ultimately arrived at the same percentage impairment assessment as Associate Professor Buzzard.
36Dr Graeme Doig, who specialises in general orthopaedics and trauma, reviewed medical documentation which apparently had been provided to him by the defendant’s solicitors. He did not see the plaintiff. He reported to the defendant’s solicitors on 12 October 2020. He referred to the plaintiff having a total knee arthroplasty in April 2018, which Dr Doig believed to have resulted in a poor outcome. He noted that there had been a subsequent manipulation under anaesthetic. He also noted that the plaintiff had undergone several sub-acromial cortisone injections to the right shoulder and that there was a degree of lateral epicondylitis in the right elbow. The plaintiff had also suffered from back pain for a number of years, in addition to his previous problems with the right knee. Dr Doig seems to have been directing attention to all injuries of an orthopaedic nature which the plaintiff might have suffered. He thought that there was a high probability that the plaintiff would not have been able to continue working to age 60 as a result of what he described as “the other musculo-skeletal conditions”, unless the plaintiff was able to obtain a less physically demanding position.
37On 22 April 2021, Dr Doig provided a supplementary medical report. It is apparent that again he did not see the plaintiff. He simply reviewed a file which had been provided to him. He repeated that, because of the plaintiff’s other orthopaedic conditions, and in view of what he described as the physical demands of working as a water-treatment plant operator, the plaintiff would have struggled to continue in this capacity up until retirement and mostly likely would have needed to cease work or move into a more sedentary position. In his supplementary report, Dr Doig emphasised that his opinion was based upon his clinical experience and the documentation supplied, but also pointed out that every individual is different, particularly with respect to the appreciation of pain. He also emphasised that no examination had been performed on the plaintiff’s musculoskeletal system. As I understand it, the object of this examination of the file was to obtain an opinion as to whether the plaintiff’s injuries other than that to his left knee would have caused him to cease work or change occupations in any event. It is also apparent that Dr Doig may not have been supplied with a great deal of information concerning the plaintiff’s duties at work. In his earlier report, he stated that his opinion was “assuming Mr Mackay’s position as a water treatment plant operator is physically demanding”. Thus, the opinion of Dr Doig in relation to the impact of his other injuries upon his employment capacity has to be seen in the context of his not having seen or communicated with the plaintiff and, as far as can be ascertained, not having a great deal of information about the nature of the plaintiff’s employment duties as at the time of the accident.
38Dr David Barton, consultant occupational physician, saw the plaintiff on 11 June 2020, reporting on the following day. He took a history of the plaintiff’s injury and its treatment. He noted that the plaintiff said that his problems were worsening, particularly without doing any gymnasium work or massage. The plaintiff described severe and generalised pain around the whole of the left knee, such pain being present at all times. He described various restrictions. At this time, the plaintiff was taking approximately six high dose paracetamol and Nurofen tablets per day, along with occasional Voltaren. There was a history of right knee problems, but, as at the time of the examination, the plaintiff described the right knee as being “not too bad”. Dr Barton noted that the plaintiff moved with a slow, shuffling gait and with a limp which mostly favoured the left leg. He also noted that the plaintiff had undergone five orthopaedic surgery procedures on the left knee and that the results, according to the plaintiff, had been poor.
39Dr Barton was of the view that the plaintiff currently had findings consistent with a total knee replacement. He had persisting dysfunction of the left knee. Dr Barton pointed out that not all knee replacements are successful and that the plaintiff appeared to have had a poor result. His symptoms seemed to be consistent with what had occurred. However, there may have been a small degree of disproportionate pain and limited movement, in part reflecting the compensation process and the plaintiff’s anger about the situation. Clearly there had been some minor degenerative changes noted in the knee on x‑rays, but it would be argued by the plaintiff’s treating practitioners that the incident at work had highlighted, aggravated or deteriorated the already existing condition. He thought that the plaintiff’s employment was still a materially contributing factor to the injury. In relation to the plaintiff’s physical capacity for employment, Dr Barton stated as follows:
“I doubt that he will have much of a capacity to do any physical work at all. He has had a total knee replacement which appears to have produced a poor result.”
40Dr Barton had also been asked to comment upon the plaintiff’s right knee condition. He stated that the plaintiff had minimal symptoms following surgical treatment for that injury, which would appear to be having minimal impact “in regards to the level of impact that his left knee is having”.
41Dr Barton provided another report on 6 November 2020. It would appear that he did not see the plaintiff again. He had been forwarded a Vocational Assessment Report from Recovre, it being dated 27 October 2020. He expressed the opinion that, from a physical point of view, the plaintiff had the capability to undertake all the jobs detailed in that report. He did not believe that there should be any particular restrictions in relation to the number of hours of work, expressing the view that the light duties detailed were within the plaintiff’s capacity on a full‑time basis. He also believed the plaintiff had the capacity to participate in any rehabilitation or training that may be required. It is to be remembered that, in his earlier report and having seen the plaintiff, Dr Barton expressed the view that he doubted whether the plaintiff would have much of a capacity to do any physical work at all. I shall turn to the issue of the jobs described in the Recovre report later. The second report of Dr Barton did not describe them or go into any particulars about them. No greater details are given as to what, on the face of it, has the potential to be a significant shift in opinion, particularly when this has occurred without him seeing the plaintiff again or performing any detailed analysis of the suggested occupations.
42Dr Barton reported again on 16 April 2021. Again it would appear that he did not see the plaintiff, as the only consultation referred to is that of 11 June 2020. The object of this report was to obtain his comments upon the report of Mr Kossmann of 8 February 2021. In any event, apparently Dr Barton disagreed with the statement of Mr Kossmann that he did not believe that the plaintiff had an ability to return to the workforce “as long as he suffers from ongoing pain issues and movement restrictions in his knee”. Mr Kossmann had referred to restrictions which would have to be placed upon any employment in order to make it suitable if the plaintiff’s condition improved. Dr Barton expressed his understanding that the duties that he had reviewed in his second report covered a range of activities that would comply with the suggested restrictions. He also raised the issue of whether Mr Kossmann had any experience, training or qualifications to comment upon work capacities and capabilities. How the suggested employments fitted in with his original opinion that he doubted that the plaintiff would have much of a capacity to do any physical work at all is not expanded upon or explained. It is to be remembered that he had not seen the plaintiff again since expressing that opinion.
43Dr Barton reported yet again on 3 May 2021. Again, he did not see the plaintiff. The purpose of this report was to obtain his comments upon the report of Dr Slesenger of 29 April 2021. Of course, by this time it was almost 11 months since his sole consultation with the plaintiff. In this report, he stated that, when he saw the plaintiff, he felt that the plaintiff had a capacity to return to suitable duties. He subsequently reviewed the duties detailed in the vocational assessment and thought that the plaintiff had the capacity to undertake these on a full‑time and sustained basis. He went on to state as follows:
“I note that Dr Slesenger suggests a number of restrictions but then goes on to say that none of these jobs are consistent with these restrictions. I am not sure what his basis is for that opinion. He talks about sedentary tasks, avoiding squatting, bending, walking on uneven ground, prolonged standing and climbing more than one flight of stairs. Many of the duties that were detailed in the vocational assessment do not exceed these limitations. It is then suggested that the worker may have ‘medication side-effects and daytime fatigue’.
Many people are on such medication and continue to work. I do not believe that these factors are a contrary indication to the worker undertaking the duties on a full‑time and sustained basis.”
44Again, Dr Barton does not set out or comment upon the individual jobs in question and as to how, or whether, they accord with his original statement, made after seeing the plaintiff, that he doubted that the plaintiff would have much of a capacity to do any physical work at all and had apparently obtained a poor result from his total knee replacement. It is evident that he had not seen the plaintiff after his original report and there is no suggestion that he was forwarded surveillance material or the like which damaged the credibility of the plaintiff.
45The defendant also obtained a report from Associate Professor Jeremy Hammond of the Melbourne Hypertension Clinic, such report being dated 14 October 2020. Associate Professor Hammond stated that the reason for referral by the defendant’s solicitors was the provision of a medical report concerning the plaintiff’s cardiac condition. Associate Professor Hammond was provided with a history of the plaintiff’s coronary complaints and the surgery which he had undertaken.
46Again, it is not suggested that Associate Professor Hammond in fact saw the plaintiff. His task was to perform a review of documentation and to provide a medical report concerning the plaintiff’s cardiac condition. He had been provided with considerable material from the Royal Melbourne Hospital and the Austin Hospital, as well as some attendance notes and clinical records. Based upon this material, he expressed the conclusion that the plaintiff was suffering from the underlying condition of coronary arthrosclerosis. Associate Professor Hammond referred to this as being a condition which is progressive in nature. There was a risk of a sudden cardiac arrest. There was also the risk of embolic stroke. Given the plaintiff’s cardiac condition, Associate Professor Hammond would not regard him as being suitable to undertake an occupation that involves repetitive heavy physical activity. He seems to have thought that this was the type of work involved in the occupation of a water treatment plant operator. However, occupations that were sedentary or involved light to moderate physical activity would be suitable from a cardiac standpoint.
47I am in no way critical of Associate Professor Hammond. However, I find it difficult to believe that he would not have been assisted by actually seeing the plaintiff, discussing his work duties and the like. Be that as it may, it does not seem to me that the report of Associate Professor Hammond takes matters much further. The most that can be said is that, from a cardiac viewpoint, his opinion is that the plaintiff could undertake an occupation that involved light to moderate physical activity and, as he also stated, would be able to undertake such occupation until the age of 65 years in all probability and assuming that there were no further cardiac complications.
48Apparently Associate Professor Hammond was asked to provide an Urgent Supplementary Medical Report, which he did on 20 April 2021. Again, he did not see the plaintiff. He noted that the plaintiff’s duties had required him to be physically fit and to be able to climb stairs and walk to and from water treatment facilities. The object of this report (being the eleventh report obtained on behalf of the defendant) was to pose a further question to Associate Professor Hammond, this being whether he considered that the plaintiff’s underlying coronary atherosclerosis condition would have incapacitated him for his pre‑injury duties irrespective of the work injury suffered on 12 August 2015. Associate Professor Hammond expressed the opinion that the plaintiff would have been unable to pursue that occupation as of 1 January 2017 due to the progression of his underlying condition of coronary artery disease. The issue of where that takes the case is one to which I shall return.
49That concludes my summary of the medical material contained in the Court Books, save for the report of Dr Nitin Dharwadkar, consultant psychiatrist, who reported to the defendant on 27 February 2018. I am not critical of the defendant for obtaining this report or in relation to the manner in which it was obtained. There may have been a possibility of reliance upon or the existence of a psychiatric or psychological component of injury.
50Dr Dharwadkar did see the plaintiff at his rooms on 27 February 2018. He provided a quite lengthy and detailed report. In any event, his conclusions were that the plaintiff had not received any psychiatric treatment and did not require any psychiatric treatment. In answer to the question “Does the worker have a current mental disorder?”, his answer was simple – “No”. Lest there be any doubt, his answer to a subsequent question was, “There is no psychiatric incapacity”. I might add that this coincides with the impression made by the plaintiff in the Zoom hearing.
51The nature of the plaintiff’s injury is comparatively clear cut. As found by Mr Hunt at surgery, the plaintiff had a medial meniscal tear and osteoarthritis of the medial compartment of the left knee. He ultimately had a left knee replacement, having undergone other surgery. This is similar to the diagnosis of Mr Kossmann of an oblique tear through the body and posterior horn of the medial meniscus; aggravation of pre‑existing medial compartment osteoarthritis in the left knee; and a total left knee replacement, complicated by ongoing pain and movement restriction in that knee. I prefer and accept these diagnoses.
52Whilst the plaintiff had undergone a previous x‑ray of the left knee on 10 February 2012, and whilst this might have excited the interest of Associate Professor Buzzard and caused him to raise a query as to the plaintiff’s reliability, this is a matter which received little, if any, attention during the conduct of the case. It was not raised by Mr Saunders when he was identifying the issues in the case – see T10. It received little, if any, attention during cross-examination or closing addresses. Whilst the injury may well have resulted in the aggravation of a pre‑existing condition in the left knee, in addition to the results of any direct trauma, I am quite satisfied that any pre‑existing condition in that knee was largely, if not totally, asymptomatic in the years immediately before the accident. It is the accident which has produced and resulted in the need for extensive left knee surgery.
53I am also of the view that the consequences of the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Again, this was not raised as an issue of significance in the case. Mr Kossmann described the plaintiff’s prognosis in relation to his left knee as being poor. Dr Slesenger considered the prognosis to be guarded, bearing in mind the duration of the plaintiff’s impairment and disability and his poor response to treatment. Whilst Associate Professor Buzzard, reporting on behalf of the defendant, raised an issue about the reliability of the plaintiff as an historian, he accepted that the accident caused an aggravation of pre‑existing degenerative disease and was prepared to make an assessment pursuant to the American Medical Association Guides to the Evaluations of Permanent Impairment to the extent of 20 per cent. I am satisfied that the consequences of injury are permanent and will persist for the foreseeable future.
54There is no reliance upon paragraph (c) of the definition and hence consequences of a psychiatric or psychological nature will not be taken into account. In any event, the only report from a psychiatrist or psychologist that was placed in evidence was that of Dr Dharwadkar, examining on behalf of the defendant. As earlier stated, that doctor found that there was a lack of any clinical depression, anxiety, or other psychiatric symptoms or signs and that the plaintiff was not suffering from a current medical disorder.
55I appreciate that the plaintiff is visiting a psychologist on a regular basis, but the only expert evidence is that to which I have just referred. On the basis of the available evidence, any consequences of a psychiatric or psychological nature would appear to be minimal.
(f)Other developments since the injury
56The plaintiff has not worked since 2016. He continued to live in Broadford, until moving, with his wife, on 12 May 2020 to Balmoral. As earlier stated, Balmoral is a small town in Western Victoria and could be described as being approximately halfway between Hamilton and Horsham. This move enabled the plaintiff’s wife to obtain part‑time employment at the Wimmera Base Hospital in Horsham.
57The plaintiff has had some cardiac problems. He had a past history of coronary artery disease. He underwent coronary angiography in April 2017. He was referred to the Austin Hospital for consideration of coronary artery bypass surgery and underwent this on 25 May 2017. He has suffered from some symptoms from time to time, although his blood pressure seems to have been well controlled with the use of anti-hypertensive medication. I note that Associate Professor Hammond made the assessment that the plaintiff would have been unsuitable to pursue his previous occupation as at 1 January 2017 due to the progression of his underlying condition of coronary artery disease. As pointed out earlier, Associate Professor Hammond did not see or examine the plaintiff and provided his opinion solely on the basis of documentation.
58As stated, the plaintiff regards himself as having made a good recovery from the cardiac surgery and was able to perform the duties of a treatment plant operator as at the date of the accident. I accept that.
(g)Ruling
(a) Loss of earning capacity
59I am satisfied that the plaintiff’s earning capacity has been destroyed as a result of the accident and that it is effectively zero. It may be that the plaintiff now receives little by way of treatment of the left knee and leg. Certainly, when he was still attending doctors in Broadford, it was noted on 4 February 2019 that his left knee was tender and movement was restricted. A telephone consultation on 22 October 2020, by which time the plaintiff had moved to Balmoral, included a reference to bilateral knee pain, as did a consultation on 19 November 2020. This consultation seems to have been carried out in person, even though the plaintiff was living in Balmoral and the surgery was in Broadford. In any event, in his report of 11 February 2019 to the plaintiff’s solicitors, the operating surgeon, Mr Hunt, stated that he had last seen the plaintiff on 30 November 2018, which was seven months after the left knee replacement. At that time, the plaintiff was having symptoms of irritability and lack of stability in the knee. Mr Hunt was of the view that this was due to persistent inflammation. He thought that the plaintiff’s capacity for further work was limited and that he may be able to perform sedentary type work for which he was appropriately educated and trained. He thought that the plaintiff was receiving appropriate treatment and did not need any other treatment.
60Dr Slesenger is a specialist occupational physician. He conducted both a Telehealth and a face-to-face assessment. He expressed the opinion that, taking into consideration the plaintiff’s residential location, his past employment history, his qualifications, his limited computer skills and his past occupational experience, he did not anticipate the plaintiff being able to return to work performing suitable alternative duties on a consistent and reliable basis. Dr Slesenger listed seven restrictions which would impede the plaintiff from so doing, taking into consideration his left knee injury only. It is apparent that Dr Slesenger was directing his attention solely to the left knee injury and its consequences when considering the plaintiff’s employment capacity.
61Mr Thomas Kossmann is an orthopaedic surgeon. He described the plaintiff’s left knee condition as having had an impact on all aspects of his life. Specifically, he stated his belief that the plaintiff is not able to return to the workforce for as long as he suffers from ongoing pain issues and movement restrictions in his left knee. Even if the plaintiff’s condition improved, in the opinion of Mr Kossmann he would not be able to walk long distances, walk on uneven ground, go up stairs, down stairs or on inclines or declines, climb up and down ladders, kneel, squat or carry items weighing more than 2-5 kilograms. As stated, this was on the basis of possible improvement. Indeed, Mr Kossmann recommended that the plaintiff be supplied with a handicap parking permit. This is expressed in his report of 8 February 2021 and followed an “in person” examination.
62Associate Professor Buzzard, examining on behalf of the defendant, was carrying out an assessment pursuant to the AMA Permanent Impairment Guides, but did make the observation that the plaintiff could not carry out the type of work which he had been doing up to the time of the cessation of it and that he thought that the plaintiff could carry out “sedentary work”. However, he did not expand on this.
63Dr Doig, also examining on behalf of the defendant, placed a very considerable list of limitations upon the plaintiff’s movements and activities. These included restricted bending and twisting through the spine; requirement for breaks from prolonged sitting and driving; limitations on bending, twisting and squatting; and required breaks from prolonged standing and walking. He considered it extremely difficult to say whether the plaintiff would have to work reduced hours and stated that he expected that the plaintiff would have to be moved into a more sedentary, office-type position. In general, he expressed the view that the plaintiff would have needed to cease work irrespective of the injury under consideration. I would point out that at no time did Dr Doig in fact see the plaintiff, either in person or by means of a Telehealth conference.
64In his report of 12 June 2020, Dr Barton, also examining on behalf of the defendant, stated that he doubted that the plaintiff would have “much of a capacity to do any physical work at all”. He believed that the plaintiff would have a capacity for lighter office-based type duties. However, and without apparently having seen the plaintiff again, on 6 November 2020, he stated that the plaintiff, from a physical point of view, had the capability to undertake various jobs in the Recovre report. It is not a proposition with which the plaintiff agrees, even assuming that he could get to such jobs regularly and reliably from the town of Balmoral in which he now lives. When asked in evidence if he could manage even a light job on a reliable and consistent basis, even if part‑time, he answered as follows:
“I don’t believe I could. Due to the pain, I do not honestly believe that I could do that. I could not do a reliable part‑time job at all, I just physically can’t do it.”
65It is a statement the truth of which I accept. That is leaving to one side the fact that, according to the Recovre report, the town of Balmoral where the plaintiff lives has a population of approximately 250. To go to either Hamilton or to Horsham would require a drive of 45 to 50 minutes each way. I note that, in expressing his opinion, Dr Slesenger, who is a specialist occupational physician, mentioned as his first consideration the plaintiff’s residential location at Balmoral. His ultimate finding was that he did not anticipate the plaintiff returning to work performing suitable alternative duties on a consistent and reliable basis. There is no indication that Dr David Barton, consultant occupational physician, who saw the plaintiff at the request of the defendant on 11 June 2020, took into account, or indeed mentioned, the plaintiff’s residential location. As previously stated, at that time Dr Barton expressed the view that he doubted that the plaintiff would have much of a capacity to do any physical work at all, a view which he subsequently seems to have modified quite substantially, although not seeing the plaintiff again. He was forwarded the report of Dr Slesenger for his opinion, which he proffered on 3 May 2021. There is no mention in it of the plaintiff’s residential address or Dr Slesenger’s opinion in that regard. Of course, the residential address of an injured worker is a factor to be taken into account pursuant to the definition of “suitable employment” contained in s3 of the Act.
66When all of the above is taken into account, I am of the opinion that the plaintiff has established that he has no capacity for suitable work. Accordingly, he has discharged the burden of proof in relation to loss of earning capacity.
(b) Pain and suffering
67Given that the plaintiff has discharged the burden of proof in relation to loss of earning capacity, there is no necessity for me to turn to the question of pain and suffering. However, I am of the view that the plaintiff would have discharged the burden of proof in that regard in any event. In his affidavit of 18 March 2020, he has sworn that he lives in “pretty much constant pain”. In his second affidavit, of 22 April 2021, he swore to the fact that he was suffering constant pain, relying on significant medication and experiencing poor sleep. As a result, he was constantly exhausted. Prior to the accident, he was engaging in activities such as bike riding, motorbike riding, basketball and golf. Now he is unable to perform any activities that require him to bend his left knee. He used to play competition golf every Saturday and socially a couple of times per week. He has sworn that his inability to play golf upsets him greatly. He has problems with any activity that requires him to walk on any uneven surfaces, climb stairs or climb ladders. If he wishes to take his two dogs for a walk, he uses a quad bike. Pain results from the performance of many small everyday activities, such as putting on his shoes and socks. In his second affidavit, he swore that he was still experiencing poor sleep, despite increased medication. When matters such as these are taken into account, it seems to me that the plaintiff quite clearly has discharged the burden of proof in relation to pain and suffering. (Check [42] in relation to Barton’s report of 16 April 2021 against the actual report???)
(h)Conclusion
68The plaintiff is successful. He has discharged the burden of proof in relation to loss of earning capacity and, were it necessary, pain and suffering. Leave is given to him to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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