Masson v Corimbelly and VWA
[2014] VCC 2254
•19 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-12-00659
| MADELIENE MASSON | Plaintiff |
| v | |
| MARIA CORIMBELLY | Firstnamed Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Secondnamed Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2014 | |
DATE OF JUDGMENT: | 19 December 2014 | |
CASE MAY BE CITED AS: | Masson v Corimbelly & VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2254 | |
REASONS FOR JUDGMENT
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Subject: SERIOUS INJURY – Application to bring proceedings pursuant to section 134AB Accident Compensation Act 1985 (Vic)
Catchwords: Serious injury - Pain and suffering – loss of earning capacity – impairment to right knee.
Legislation Cited: Accident Compensation Act 1985 (Vic) – Section 134AB – S98C
Cases Cited: Ansett v Taylor [2006] VSCA 171; Peak Engineering v Mckenzie [2014] VSCA 67; Hayden Engineering v McKinnon [2010] VSCA 67.
Judgment: Plaintiff granted leave to bring proceedings at common law for pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Mighell QC | Maurice Blackburn Lawyers |
| M Pilipisadis | ||
| For the Defendants | R Kaye | IDP Lawyers |
HER HONOUR:
Introduction
1 This is an application by the plaintiff for leave to bring proceedings pursuant to s134AB(37) Accident Compensation Act 1985 (“the Act”) for injury suffered by her to her right knee as a result of the heavy nature of her employment between 1999 and late 2003, and as a result of an incident on 6 November 2000. The plaintiff’s claim is for pain and suffering and loss of work capacity.
2 The defendant disputes that the plaintiff injured her right knee in an incident at work in November 2000, or indeed due to the heavy nature of her employment. The case for the defendant is that the condition of the plaintiff’s right knee is due to her constitutional osteoarthritis. In addition the defendant contends that a later left shoulder injury has caused her pain and impacted her work capacity .
3 The plaintiff was the only witness required for cross-examination. She swore two affidavits in support of her application, dated 13 October 2011 (“the first affidavit”) and 24 April 2014 (“the second affidavit”). There was also an affidavit sworn by her husband, Mr Eddie Masson, on 24 November 2014.
4 Both parties relied on medical reports contained in the court books. I have read and carefully considered all the tended material. In view of the voluminous nature of this material (for the plaintiff 132 pages and the defendant 317), I do not intend to summarise all the material in this judgement.
5 However, I will refer to the material in the respective court books where necessary to explain the history of the plaintiff’s injury. In addition where they are relied on in particular as supporting the case for each party . I will also refer to the relevant aspects of the material I relied on to make my decision.
Background History
6 The plaintiff was born in Mauritius on 8 March 1992. She is married and has three children. On leaving school she worked in childcare before coming to Australia in 1986. After coming to Australia, she worked in a number of different factories doing general factory work. In 1999 she commenced working fulltime as a personal care assistant with the defendant .
7 She worked at the Bel Air Gardens Special Residential Home in Noble Park (“Bel Air Gardens”). Her work involved cleaning, and looking after the clients, which included dressing and bathing them and doing some work in the kitchen. The work was repetitive requiring long periods of time on her feet with bending and squatting.
The November 2000 Incident
8 The plaintiff claims that in November 2000 while working at Bel Air Gardens she slipped on a wet floor in a shower and suffered an injury to her right knee (“the November 2000 incident”). She reported the incident and attended Dr Goldman, her general practitioner, who placed her off work for a couple of days.
9 On 5 December 2005, Dr Goldman provided Allianz Australia Workers Compensation (“Allianz”) with the following history of her injury:
· The plaintiff first injured her right knee on 6 November 2000, and attended his surgery with a painful swollen right knee;
· The plaintiff told him that she had slipped in the shower at the nursing home and twisted her right knee;
· The pain and swelling of her knee was consistent with an acute knee injury;
· The plaintiff returned to see him three days later and her knee was still swollen;
· The plaintiff was referred for an x-ray, as well as to the local physiotherapist.
· The x-rays showed moderate sized joint effusion with slight loss of cartilage height in the medial compartment and some minor osteophytes.[1]
[1] Plaintiff’s Court Book (“PCB”) 24A
10 However, there is an issue as to whether it was the right or left knee which was injured in the November 2000 incident. This it is because in his attendance notes for 6 November 2000, Dr Goldman made no reference to which knee was injured. To confuse things further the x-ray was reported as a left knee x-ray.
11 When dealing with this issue in the Alliance report, Dr Goldman said:
“As a matter of confusion, the x-ray is reported as a left knee x-ray, but this is wrong, as the referral that I wrote to the physiotherapy on the same day, was for the right knee”[2]
[2] PCB24A
12 This claim is supported by Dr Goldman’s referral to the Hampton Park Physiotherapy clinic of 9 November 2000 which states:
“Thank you for seeing Madelaine Masson, aged 38 yrs. Fell at work in NH shower, twisting injury R knee.”[3]
[3] PCB24 (my underlining)
13 I will come back to this issue later in this judgement.
First Arthroscopy to Right Knee 2001
14 After returning to work the plaintiff continued to have ongoing pain and swelling in her right knee. She was limping. As a result of limping she started to notice pain in her left knee and her back. She gave evidence that an arthroscopy was carried out on her right knee in 2001.[4] No records of this procedure have been located.
[4] T18
Second Arthroscopy to right knee February 2003
15 Dr Goldman reported that she presented to him with a painful right knee again in December 2002. Dr Goldman was of the opinion that there was an effusion which had built up over some time. He treated her with Prednisolone to see if it would settle down. He then referred her to Mr Razif, who performed another arthroscopy on her right knee in February 2003.
16 On 3 July 2003, when reporting to Dr Goldman on the result of this procedure, Mr Razif says:
“I have continued to review Mrs Masson following her arthroscopic chondroplasty in February 2003. She has continued to complain of persisting pain in the right knee. The range of movement is restricted to 5-100 degrees and there is significant tenderness at the medial compartment to palpitation.”[5]
[5] PCB 51A
The plaintiff was able to return to her employment after this procedure, but she was unable to continue on a casual basis as there were no light duties available. Consequently she ceased employment with the defendant in September 2013, but about four months later obtained some agency work with Silver Circle.[6]
[6] T25
Third Arthroscopy to Right Knee September 2003
17 On 1 October 2003 Mr Razif reported to Dr Goldman that as the plaintiff had continued to complain of pain arrangements had been made for her to have an MRI. She was reviewed with the results on 22 September 2003. A degenerative cartilage involving the femur and tibia and a complex tear of the medial meniscus were demonstrated. Consequently Mr Razif carried out a further arthroscopy at the Western port Hospital on 30 September 2003 .[7]
[7] PCB51B
18 A report from Southern Health contains a history that the plaintiff attended the Dandenong Hospital Emergency Department on 5 July 2004, saying that she was on the waiting list for right knee replacement and experiencing pain in the right knee following a twisting injury while getting out of bed.[8] When she was cross-examined about this attendance while the plaintiff did not deny it she could not remember it.[9]
[8] DCB30(a)-(b)
[9] T20
Injury to Left Shoulder in 2005
19 In 2005 the plaintiff suffered pain in her left shoulder while moving a client. As a result of this injury she had a period off work and then returned. She had some injections in her shoulder and eventually ceased work with Silver Circle in April 2005. Apart from a two day trial period doing duties in the mail room she has not resumed employment.
20 In his report of 11 May 2009, Dr Goldman described the shoulder injury as “a left acromioclavicular joint injury of left shoulder residual dysfunction.”[10] The incident that it related to occurred on 26 April 2006 when the plaintiff was attempting to move a patient from a commode chair with the assistance of her son. The patient slipped and fell onto her shoulder. She immediately felt pain and a feeling of her shoulder giving way.
[10] DCB55
21 From that injury, the plaintiff had continuous pain in the left shoulder with numbness and tingling in her arm. She did not present to him with the injury until 9 June 2005, as she was very reluctant to start a second Work Cover claim. On 27 July 2008 she attended Dr Mark Patrick who reported that “the presence and nature of the injury is of a left shoulder adhesive capsulitis with myofascial soft tissue pain overlay”.[11]
[11] DCB53
Unicondylar Replacement of Right Knee June 2006
22 Returning to her right knee on 10 March 2006, Mr Razif wrote to Alliance Workers Compensation stating that:
“Mrs Masson has had two previous arthroscopies of her right knee. An MRI of the right knee in September 2003 revealed degenerative cartilage changes within the medial compartment with associated fraying / complex tear of the meniscus. Mrs Masson requires a right knee hemiarthroplasty and I am writing to see if you will accept the costs for this procedure.”[12]
[12] PCB52
23 The report from Southern Health reveals that the plaintiff was admitted from 21 to 26 June 2006 for an unicondylar replacement of the right knee. In her first affidavit the plaintiff reported being in a great deal of pain after this operation. However, as time went on her right knee improved a bit [13].
[13] DCB30a
Arthroscopy on left knee March 2008
24 On 15 September 2006 the plaintiff consulted Dr Goodman reporting that her right knee was feeling better after the operation but her left knee becoming more sore. Consequently in 2008, Dr Goldman referred her to Mr Baré an orthopaedic surgeon. In March 2008 he performed an arthroscopy at Dandenong Hospital upon her left knee.[14]
[14] DCB159
25 On 10 June 2009 Mr Baré reported to Dr Goldman that although the plaintiff received some initial relief following this arthroscopic procedure, she was now reporting increasing pain and decreased range of motion. After viewing x-rays he was of the opinion that there may be a loose body within the joint which may have come off from the loose femoral component on the left side.[15]
[15] PCB40
26 The Southern Health report reveals that the plaintiff was admitted overnight to the Monash Medical centre on 20 July 2008, due to pain and swelling in the knee. An x-ray of both knees revealed a bone fragment in the knee joint [16].
[16] PCB120-DCB30b
27 In his report of 22 July 2009 to Dr Goldman, Mr Baré advised him that while the plaintiff might eventually require a total knee replacement his preference was to proceed with a medial unicompartmental knee replacement revision.[17]
[17] PCB42
28 The plaintiff attended Dandenong Hospital on 13 August 2008 complaining of pain in the left knee. A bone scan was performed on 22 August 2008 and it showed non-specific inflammation or infective arthropathy. A CT scan on 27 August 2008 confirmed the presence of a loose body in the left knee joint.[18]
[18] PCB 121-122
Left Knee Replacement August 2008
29 On 27 August 2008 Mr Baré performed a total left knee replacement. Mr Baré reported on 4 August 2010:
“I have been attending Ms Masson since I was involved in her care at Dandenong Hospital. She had bilateral medial unicompartmental knee replacements performed at Dandenong Hospital. She did well following the right knee but had ongoing pain following the left. …
The bilateral medial unicompartment knee replacements were performed for medial compartment osteoarthritis in both knees. This condition has an aetiology which is multi-factorial. Contributing factors in Ms Masson’s case include manual duties at work and her obesity.”[19]
[19] PCB 45
30 Mr Baré, in his report dated 20 April 2010, stated:
“I reviewed Madeline today, four years since I performed her bilateral medial compartment knee replacements and nine months since I performed a revision of the left medial unicompartmental knee replacement to a total knee replacement.
Madeline continues to function well with the right knee, however, the left continues to cause trouble with ongoing increasing anterior knee pain which is restricting her mobility.
...
My fear is that her excessive weight is placing strain on her knees and may predispose to early loosening of both left and right knees.”[20]
[20] PCB 44
31 The report from Southern Health reveals that on 14 November 2010 the plaintiff attended Dandenong Hospital, with pain in the left knee following a fall. The x-ray showed no bony injury.[21]
[21] DCB30a-30b
32 In July 2010, due to her ongoing pain, the plaintiff was referred by Dr Goldman to Dr Terry Lim at Cabrini Hopetoun Rehabilitation Hospital for pain management. The proposal was that she complete an inpatient program due to the travel distance. However, the plaintiff did not do this program as it was not approved by WorkCover.[22]
[22] PCB33 (a)
33 Mr Baré saw the plaintiff on 13 December 2010. He reported to Dr Goldman that:
“Unfortunately she is still complaining of ongoing anterior knee pain in the left total knee replacement. The medial unicompartmental knee replacement in the right continues to function well.…
Madeline’s pain is coming from the patellofemoral joint. … It is associated with anterior knee joint clicking and catching.”[23]
[23] PCB 47
34 Mr Baré informed Dr Goldman that he would arrange for a left knee arthroscopy to be performed in the future.
35 On 10 May 2011 Mr Baré reviewed the plaintiff regarding her bilateral knee replacement and reported to Dr Goldman that:
“Clinically and radiographically, both knees appear to be functioning well, however Madeleine is complaining of ongoing bilateral knee pain which is restricting all weight bearing activities. …
I do not think that Madeleine’s knee pain is related to the knee prostheses per se as both of these appear to be functioning well. The pain is related to her weight. …
I have told Madeleine today that the only thing that will give her a chance at getting some symptomatic improvement in her knees is to have a significant weight reduction. To this end, it would be worthwhile considering a lap banding procedure.”[24]
[24] PCB 48
36 In his report of 20 March 2013 Mr Baré stated that:
“Ms Masson has been reviewed in my clinic on the 13th December 2010, the 10th May 2011 and the 7th March 2012. During this time she has been complaining of ongoing knee pain in the revised left total knee replacement. The original right medial unicompartmental knee replacement continues to function well. The anterior left knee pain has consistently been inhibiting Ms Masson’s physiotherapy program that she was attempting to do to restore her quadriceps strength. She had also been unable to return to work in any capacity due to left knee pain. …
The left knee has consistently been her major issue preventing her from returning to functional activities.”[25]
[25] PCB 49
37 He continued:
“With regard to the current anterior knee pain, this has developed subsequent to the original condition of medial compartment osteoarthritis and subsequent to her revision total knee replacement. I suspect therefore that the anterior knee pain is more likely to be related to revision knee surgery rather than being related directly to her employment. I have not seen Ms Masson for some time now. When I last reviewed her she had no capacity for work.”[26]
[26] PCB 50
38 On 10 March 2014 Dr Goldman reported that earlier in the year the plaintiff had reported to him with increasing pain in the shoulder and much less movement. He sent her to Professor Martin Richardson who reported that an MRI of her neck showed some degenerative disease but no significant disc pathology compressing nerves. He noted that she had adhesive capsulitis of the shoulder and recommended manipulation under anaesthesia and capsulotomy, which had not yet been approved by WorkCover.[27]
[27] PCB33 f
39 On 19 October 2014 Dr Goldman reported that there had been little change in the plaintiff ‘s overall condition since the last report. She continued to suffer pain in both knees, especially the left and he had referred her back to Mr Baré. The plaintiff continued to suffer from pain and this was affecting her ability to exercise which was making her knee symptoms worst.[28]
[28] PCB33j-k
40 In her second affidavit the plaint claimed that her inability to exercise because of her knees had caused her to put on 20-30 kg. She continued to see Dr Goldman every three to four weeks. She was currently taking Panamax and Panadol Osteo. Previously she had taken stronger medication but it had affected her stomach. She had not returned to work but had completed a beginners course in computers. She had also completed an English Literacy course attending every Wednesday for two hours each week.[29]
[29] PCB18c
Causation
41 As I stated in the introduction to this judgement the case for the defendant is that the plaintiff right/left knee injuries are not related to her employment but are caused by constitutional osteoarthritis. Alternatively to the extent that the plaintiff suffered any injury (to either knee) at work, the consequences of the injury are submitted to be transient. They have settled and do not contribute to any permanent acceleration in the natural progression of her constitutional osteoarthritis.
The Discrepancies Regarding Which Knee Was Injured In November 2000
42 In her closing address, Counsel for the defendant submitted that Dr Goldman’s history of the plaintiff injuring her right knee in the incident in November 2000 was unreliable. Essentially however, the defendant’s case went further than this. It was that I could not be satisfied on the balance of probabilities that the plaintiff injured her right knee in the incident in November 2000 due to various inconsistencies in the evidence. In particular the defendant relied the following matters:
· Dr Goldman’s attendance note of 6 November 2000 simply stated “knee injury at work, twisted in shower, sore+++”[30] with no reference to it being the right or left knee.
[30] 46cu
· Dr Goldman’s attendance note of 9 November 2000, requested diagnostic imaging of “the knee (L)” and noted “Letter written to Hampton Park Physiotherapy Cli re l knee injury”[31].
[31] DCB180
· On 10 November 2000 the plaintiff had attended at MDI Radiology and it was the left knee that was x‑rayed.[32]
[32] PCB116
· On 3 April 2001, Dr Goldman requested diagnostic imaging for both knees with no reference linking it back to the shower incident in November 2000.[33]
[33] DCB179
· The certificates of work capacity issued by Dr Goldman for November 2000 refer to the left knee.[34]
[34] Page 61
· In a letter to the physiotherapist at Hampton Park dated 2 January 2003, Dr Goldman had referred to the plaintiff having a “r knee injury, prob w c.” However, there was no reference back to the injury occurring in the shower incident in November 2000 or as to why it could be a WorkCover matter.
· The physiotherapy attendance note from Hampton Park of 10/112000 says “L knee injury at work, felt P lateral outer knee”[35] and on 21 December 2000 there is a note of the plaintiff complaining about “spasm of L lateral thighs”.[36]
[35] DCB297
[36] DCB298
· While the Report from the physiotherapist,[37] refers to the right knee it is dated 24 January 2006, well and truly after the event. It is also inconsistent with the notes.
[37] Page 51 PCB
· While in his letter to Allianz Insurance dated 5 December 2005,[38] Dr Goldman refers to the plaintiff injuring her right knee, it was written five years after the event. It was also after she had submitted a claim for her right knee.
[38] Page 24a
· The plaintiff had two arthroscopes in the early 2000s without applying for Work Cover
The Acceptance of the Plaintiff’s 98C claim
43 A further matter which has to be considered is that despite the above mentioned discrepancies, the defendant accepted the plaintiffs s98C claim with respect to the right and left leg. They also paid medical and like expenses. The plaintiff relied on Ansett v Taylor[39] in submitting that the acceptance of this claim by the defendant and the payment of medical and like expenses was an admission that the plaintiff had sustained an injury to her right knee in November 2000.
[39]
44 While the acceptance of a claim under s98C does not establish conclusively that the worker had sustained compensable injury in Ansett v Taylor Ashley J said:
“Such an admission should ordinarily be regarded as very significant, however having regard to the serious consequences for the Authority flowing from the acceptance of a claim.”[40]
[40] [2006]VSCA 171 p 1 para 3
and that:
“I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”[41]
[41] “” p15 p40
45 The defendant relied on this second quotation in submitting in essence that there was a satisfactory explanation for their conduct in accepting the plaintiff’s S98C claim and paying medical and like expenses. This was that when they had accepted the claim they had been unaware of the issues with respect to whether it was the right or left knee which was injured in the incident at work on 6 November 2000.
46 In support of this submission the defendant relied on an affidavit sworn by Timothy Grant a Senior Legal Manager with Allianz.[42] In his affidavit Mr Grant set out the history of the plaintiff’s claim and deposed that the defendant only became fully aware of the issues after receiving Mr Simms report of 12 June 2012.
[42] DCB46a
47 Mr Simm believed that it was probably the plaintiff’s left knee which was injured in November 2000 as:
· Her left knee was referred to in the original notes;
· Her left knee was referred to in the medical certificates;
· There was a left knee x‑ray ordered following the first consultation.
48 In an addendum, Mr Simm reported that he had been able to obtain the original x‑ray report of 10 November 2000. He said:
“It is most important to note that it was the left knee which was x‑rayed. The x‑ray showed a moderate sized joint effusion and slight loss of cartilage height within the medial compartment. In the light of the confirmation that it was the left knee which was injured in November 2000, I believe all of the conclusions I have drawn above are validated and there is no evidence that the fall at work in November 2000 which injured the left knee has influenced the clinical course of constitutional osteoarthritis of both knees.”[43]
[43] DCB6
49 The relevance of Mr Simm’s report was that after examining the relevant contemporaneous material he had concluded that the plaintiff had injured her left knee and not her right knee in November 2000. Further, that there was no evidence that the fall at work in November 2000, had influenced the clinical course of constitutional osteoarthritis of both her knees.[44]
[44]Report DCB612 June 2012
50 Given the confusion arising from the differences in the contemporaneous material I accept that the defendant would most probably have rejected the plaintiff’s s98C claim and not paid medical and like expenses if they had received Mr Simms report earlier. Consequently I have not taken their acceptance of the 98C claim into account in determining the issue of causation.
51 However, putting aside the defendant’s acceptance of the plaintiff’s s98C claim and their paying of medical and like expenses I am satisfied on the balance of probabilities that the plaintiff aggravated the pre-existing osteoarthritis in her right knee in the fall at work in November 2000.
Reasons for finding that the plaintiff injured her right knee in the fall at work in November 2000
52 While Dr Goldman’s attendance note of 6 November 2000 fails to refer to which knee was injured in the fall at work it supports the plaintiff’ s case that she suffered an injury at work. The letter he wrote to Hampton Park Medical Centre three days later clearly refers to the same incident – Fell at work in –NH shower, twisting injury right knee.
53 On 5 December 2005 Dr Goldman reported to Alliance that the plaintiff first injured her right knee and came to see him on that date. While the work capacity certificates and x-ray request of 10 November 2000 refer to the left knee Dr Goldman was not called by the defendant and cross-examined about these inconsistencies.
54 While the physiotherapy notes of 10 November 2000 refer to the plaintiff injuring her left knee at work, the report of 24 January 2006 stated that:
“This letter is to confirm that Mrs Masson attended this clinic for physiotherapy treatment on her right knee. I understand from her clinic notes that her injury was work related and reportedly developed after a fall in the shower causing her to twist her right knee. Mrs Masson had 10 treatments starting on 10 November 2000 and concluding on 21 December 2000”[45].
[45] PCB51a
55 This report is clearly inconsistent with a report dated 12 April 2013 which stated that:
“[46]Mrs Masson initially presented to Hampton Park Spinal and Sports Physiotherapy on 10 November 2000 with left knee pain following an injury at work on 5 November 2000.She described the injury occurred at her work as a personal carer for the elderly after a fall in a shower causing her to twist her left knee.”
[46] PCB37
56 Once again, the physiotherapists who wrote these report s were not called to be cross examined.
57 I found the plaintiff to be an honest and straightforward witness. The history she gave to the medical experts was consistent. It was that the injury she suffered at work in November 2000, was to her right knee. When she was cross-examined about the various discrepancies in the contemporaneous material (Dr Goldman’s notes, the work capacity certificates, the physiotherapists notes et cetera) she remained adamant that she injured her right knee in November 2000 incident.
58 When it was put to her that between November 2000 and December 2002, she failed to report to Dr Goldman that she had pain in her right knee the plaintiff said:
“No it was always the right knee it was always the right knee with Dr Goldman”[47]
[47] T19
59 With respect to the fact that the work capacity certificates from Dr Goldman referred to her left knee the plaintiff said:
“I never saw the left knee until now when I went to see the barrister. He told me that it was the left knee. For me it was always the right knee never the left knee”.[48]
[48] T16
60 The plaintiff agreed she had suffered a previous knee injury at work in the early 1990’s. In addition that she had submitted a WorkCover claim. However, she gave an explanation for not making a WorkCover claim for the first arthroscopy to the right knee. This was that her boss Maria was a friend and there had been a dispute when she took the certificate in. With respect to the second arthroscopy the owner of the nursing home had paid for it.[49]
[49] T17-19
61 The plaintiff swore an affidavit saying that it was her right knee which was injured in the incident at work in November 2000. Her evidence was supported by her husband who in his sworn affidavit stated that:
“I can recall when my wife was working as a personal care attendant with Maria Corimbelly. I can recall that she hurt her right knee. I believe that this was in 2000. I can recall it was the right knee because I would have to help her get out of the car because she could not put pressure on her right knee. I believe that this was some time before she had her first operation on her right knee which I am now told took place in 2001.”
62 The plaintiff’s evidence that she injured her right knee at work in November 2000, is also supported by the fact that the medical procedures following this incident were all to her right knee (the arthroscopies in 2001, February and September 2003 and right knee replacement in 2006). In addition by the fact that Dr Goldman’s attendance notes over this period reveal that her complaints of pain related in main to her right, rather than her left knee.[50]
[50] DCB176,175,174 164
Reasons for Finding that the Plaintiff Aggravated the Degenerative Changes in Her Right Knee in the Fall at Work in November 2000
63 I find that the plaintiff aggravated the degenerative changes in her right knee in the fall at work in November 2000. This finding is supported by the following medical experts:
64 Mr Razif the plaintiff’s treating orthopaedic surgeon who in his report of 20 June 2006 said:
“Mrs Mason had two previous arthroscopies of the right knee, the last being on 30 September 2003 which revealed significant grade 3-4 degenerative changes in the medial femoral condyle which was shaved to encourage fibrocartilage healing. The lateral femoral condyle and compartment showed mild degenerative change consistent with her age There is no doubt that the significant degenerative changes in the medial femoral condyle is the result of direct trauma to this part of the knee aggravated over a period of time. Normal wear of the knee joint is unlikely to result in such significant changes and one can only conclude that her work related injury is likely responsible.”[51]
65 Dr Goldman, the plaintiff’s treating general practitioner, who in his report of 5 December 2005 described the pain and swelling he observed on 6 November 2000 in her right knee as being consistent with an acute knee injury. In addition he reported that he had advised the plaintiff that this was probably a WorkCover injury and that she should claim for it. While she did not claim WorkCover paid his bills and physiotherapy.[52]
66 Mr Michael Fogarty, orthopaedic surgeon, who provided the plaintiff’s solicitors with two medical legal reports (18 March 2013 and 13 January 2014), his opinion being that the plaintiff had “pre-existing osteoarthritis of both knees particularly in the medial compartment with aggravation of this condition occurring in the right knee as a result of the injury described”.(the incident in November 2000)[53]
[51] PCB 53
[52] PCB24A
[53] PCB77-81d
67 Dr Horsley who in her Medico-Legal report of 7 January 2014 stated that
“I believe that Ms. Masson has bilateral pre-existing constitutional degenerative change in her bilateral knees, related to her significant obesity. However, she did sustain an injury to the right knee in November 2000, with documented swelling by her treating doctor, Dr. Goldman. Therefore there was an aggravation of the pre-existing constitutional degenerative change at that time, on the right side.”[54]
[54] PCB 90f
68 Mr Love, who on 01 June 2006, reported receiving a history from the plaintiff that:
“She states in November 2000 she had a fall whilst working as a personal carer in a bathroom. She suffered an injury to the right knee. The knee became painful and swollen.”[55]
[55]DCB 15
69 Then in his report of 11 July 2006, his conclusion was:
“She gave a history of falling while working and further stated the symptoms of pain that developed from the fall of November 2000 had remained with her until this time. In view of the temporal relationship between the moment of onset and the current situation, I am forced to the conclusion that liability must be accepted in that it is the fall of November 2000 that induced the symptoms.”[56]
[56] DCB17
70 In his report of 12 January 2012, he advised the defendant’s solicitor’s that :
“Her knee conditions had been aggravated as a result of the incident in November 2000. Had the incident of November 2000 not occurred, then her knee condition would not be as troublesome as it is now. I cannot say that activity subsequent to the accident has affected her situation.” [57]
In addition that:
“It is probable the incident of November 2000 has aggravated the condition but the concept of “speeding up her degenerative condition” is not a concept that fits within normal pathological processes. That it is probable that the incident of November 2000 brought about the onset of symptoms earlier than what may have occurred by natural process”.[58]
[57] DCB 26
[58] DCB”
71 In his letter of 7 February 2012 to the defendant’s solicitors, Mr Love’s best estimate was that “the incident in November 2000 may have brought the symptoms perhaps five years earlier than otherwise may have occurred.” [59]
[59] DCB27
72 In a letter to the defendant’s solicitor’s dated 22 January 2013[60] Mr Love stated that he had Mr Simm’s reports and the accompanying material. He was in agreement with the opinion of Mr Simm as to the extent of the aggravation. This letter was relied on by the defendant as supporting Mr Simm‘s opinion that the alleged aggravation in November 2000, had not influenced the natural progression of the plaintiff’s constitutional osteoarthritis.
[60] DCB30
73 However, even if this is correct it must be regarded in the light of Mr Love’s opinion in his report of 12 January 2012 that “had the this incident not occurred then the knee condition would not be as troublesome as it is now”[61].
[61] DCB17
74 Turning now to Mr Simm’s opinion. In his reports of 12 June 2012 and 1 August 2012,[62] Mr Simm diagnosed the plaintiff as having bilateral medial compartment osteoarthritis of the knees which condition was constitutional and exacerbated and accelerated by her body weight. Mr Simm accepted that the x-rays of the knees in 2003 showed that the degenerative process was slightly worse in the right knee compared with the left. However, he considered that this was “still consistent with his diagnosis of constitutional osteoarthritis as the condition was frequently slightly more advanced in one side than the other.”[63]
[62] DCB1-14
[63] DCB14
75 However, I accept Mr Razif’s description (see above)[64] that the degenerative changes in the medial femoral condyle of the plaintiff’s right knee were significant. In addition I accept his opinion that these changes were caused by direct trauma to this part of the knee aggravated over a period of time.
[64] Para67
76 In accepting Mr Razif’s opinion rather than that of Mr Simm, I have taken into account that Mr Razif was in better position than Mr Simm to diagnose the condition of the plaintiff’s right knee. This was because Mr Razif actually observed the condition of the right knee when he performed the arthroscopy on 30 September 2000. In addition, I consider that Mr Simm has failed to take into account or failed to attach enough weight to the fact that the medical procedures from 2001 to 2006 were all to the plaintiff’s right knee.
77 While the defendant also relied on Mr Simms, diagnosis of the plaintiff having features of a chronic pain syndrome this appears to relate to her left shoulder rather than the knees.[65] In his report of 6 December 2011, Mr Love also made a diagnosis of chronic pain syndrome. It was clear that his diagnosis related to the left knee.[66] However, given the history of the development of pain in the plaintiff’s left knee and the necessary medical procedures carried out, I am satisfied that any pain syndrome has an organic basis.
[65] DCB
[66]
78 The defendant also relied on Mr Kudelka, where he stated in his report of 15 July 2008 that [67]
“I believe the knee symptoms are due to constitutional arthritis.”
[67] Page 47
79 However, this statement cannot be read in isolation as in this same report Mr Kudelka said as follows:
·I believe that the contributing factors to the plaintiff’s condition has been the physical nature of her work as a Personal Carer, plus her significant obesity which has been perpetuating her symptoms.
·I believe the incidents at work were probably aggravations of pre-existing degenerative changes in the left rotator cuff muscle and pre-existing degenerative osteoarthritic changes in the knees due to her overweight condition.
·The condition has not resolved with respect to the left and right knees nor left shoulder ,and still materially contributes to a significantly reduced capacity for work and the need for treatment services[68]
[68] DCB49
Was the degenerative condition of the plaintiffs right knee aggravated due to nature her work?
80 In addition to the fall at work in November 2000, the plaintiff alleged that she suffered injury to her right knee as a result of the heavy, repetitive and awkward work she was required to carry out as a personal care assistant.
81 In her closing address, Counsel for the defendant submitted that there was no history given to any doctor about performing heavy work or what sort of work the plaintiff was performing which led to knee pain.
82 However, details of the plaintiff’s work duties are contained in a Vocational Assessment report dated 6 May 2013 from Katherine Green. According to this report the plaintiffs role involved caring for aged residents including those with dementia and wheel chair bound.
83 Her duties varied depending on the shift she was working. They included showering residents, assisting with the preparation and serving of meals, assisting residents to the dining room, clearing duties, laundry duties and undressing and putting residents to bed.
84 The physical demands of her duties involved walking ,pulling and pushing trolleys full of linen bags, clothing and the like, squatting, kneeling, bending, supporting clients including during transferring procedures, forward stretching and some overhead reaching.[69]
[69] PCB108a-q
85 The plaintiffs evidence was consistent with the above description of her duties. She also said that one of her main duties was to help the residents shower. She worked an average of 30-35 hours a week. After the incident in November 2000she had two days off work and then went back to her normal duties. The plaintiff said
“I did my full duties, but with pain. I did it, I had to work. I had three kids.”[70]
[70] T25
86 The plaintiff agreed that her duties were similar when she started working for Silver Circle. However, the difference was that she was going to clients homes. It was for an hour and a half then she could have a break and go to another client. It was not like her work for the defendant “continuing all the time”.[71] She only worked from 9 to 2.30 three or four days a week for Silver Circle.
[71] T26
87 As a matter of common sense, I consider that the physical nature of the plaintiff’s fulltime duties with the defendant would not have been ideal for someone with her degenerative condition. However, given the lack of evidence with respect to the effect of such duties on the plaintiff’s right knee, I am satisfied, on the balance of probabilities, that the nature of her work contributed to the aggravation of her degenerative right knee condition.
Pain and Suffering Consequences
88 As I am satisfied that the incident in November 2000 aggravated the pre-existing degenerative condition of the plaintiff’s right knee it is necessary to determine if this aggravation amounted to a serious injury. In deciding this issue an analysis must be made of the extent of the impairment of the body function before and after the incident in November 200 and the extent of the additional impairment must involve long term impairment of a body function. [72]
In addition as the plaintiff suffered a later injury to her left shoulder in accordance with Peak Engineering v Mc Kenzie[73] I will need to separate the consequences attributable to the right knee from the consequences attributable to the left shoulder injury
Nature of left shoulder injury and Consequences attributable to it
[72] See Petkovski v Galetti[1994]1 VR 436.
[73] [2014]VSCA 67
89 Dr Gary Davison diagnosis was:
“The widespread myofascial tenderness supports Dr Patrick’s contention that the worker has Myofascial Pain Syndrome. The worker’s original symptoms developed in the context of employment activity. The worker has apparently adhesive capsulitis. The condition is long since ceased. There is a residual Myofascial Pain Syndrome.”
90 In his opinion:
“Contribution from employment had long since ceased. Probably the Medical Panel determined otherwise and nothing has changed since the opinion was finalised. Her symptoms relate in the main to her sedentary lifestyle, morbid obesity and psychosocial factors. There is no convincing evidence of existing organic injury in his opinion.
She will not return to pre-injury duties and I suspect she will never return to paid employment in the future.”[74]
Dr Umberto Boffa
[74] Page 74
91 There was also a report by Dr Boffa dated 14 November 2013.[75] This was in relation, once again, to her shoulder:
“The worker has continuing adhesive capsulitis of the left shoulder that is work-related with the development of osteoarthritis in both hands.”
[75] Page 87A, 87F.
92 This was, in his opinion, not work-related.[76] Her medical condition is an incapacity where aggravation of the left shoulder bilateral knee and now bilateral hand disabilities. He believed:
“The development of osteoarthritis in both hands and possible carpal tunnel syndrome on the right were non-work-related factors that were impacting significantly on her condition and presentation.”
[76] Page 87d
93 In relation to the left shoulder injury he did not believe she could return to her pre-injury duties and hours.
“She found home duties aggravating and had difficulty with her own activities of daily living. She would need to work reduced hours, possibly as few hour on non-consecutive days. She had physical capacity to participate in a vocational assessment and/or retraining.”
94 Dr Sacks a consultant Psychiatrist saw the plaintiff in April 2013.He took a history with respect to her left shoulder as follows:
· The pain in her left shoulder radiated up her neck and was intermittently associated with associated with headaches;
· There was also pain into her left arm
· The pain when severe was associated with severe tension headaches, shortness of breath, palpitations and hot and cold flushes with profuse sweating;
· It precipitated episodic bouts of nausea alternating with constipation and diarrhoea;
· It was aggravated by any activity involving her left arm cold weather, and emotional stress or conflict .[77]
[77] PCB59
The plaintiff agreed in cross examination that since the incident in April 2005
through to the present date she had suffered the following consequences :
· Constant pain in the left shoulder with pain going into her arm, three fingers and left elbow[78]
[78] T27
· Sometimes headaches and shortness of breath[79]
[79] T28
· The shoulder pain is activated by any activity involving her left arm and reaching above her arm ,[80]
[80] T29
· In the last three years the pain in her shoulder was getting worst.[81]
[81] T30
· In the last three weeks she had cortisone injections but they had not made the pain much better.[82]
· She had an arthroscopy on 2 May 2014
[82] T31
95 With respect to palpitations the plaintiff put these down to stress connected with both the shoulder pain and the knee pain.[83]As to nausea, diarrhoea and constipation this was because of all the tablets she was taking [84].She did not remember telling him about hot-cold flushes and profuse sweating.[85] With respect to activities the plaintiff is right handed and is able to do a lot of activities with her right hand .
Consequences Attributable to the Right Knee Injury
[83] T29
[84] T30
[85] T29
96 There is no evidence that the plaintiff was suffering any problems with her right knee prior to the incident in November 2000.She was performing all the activities of daily life and was able to carry out her job as a personal carer with no difficulties.
97 With respect to the plaintiff’s left knee although the report from Southern Health[86] reveals that she suffered pain in her left knee in the 1994 playing soccer there is no suggestion this injury caused her ongoing problems. This is consistent with the Xray which showed an effusion in the left knee but no bony injury. The diagnosis was of a probable tear in the hamstring .While the plaintiff
The experience of pain in the right knee
[86] DCB30a-30b
98 After the incident in November 2000 the plaintiff’s situation changed. Although she returned to work after two days she continued to have ongoing pain and swelling. She has undergone three right knee arthroscopies and one total right knee replacement. The pain in her right knee has continued since the injury in 2000 and she also suffers from pain in her left knee.
The experience of pain in left knee
99 The plaintiff’s case is that the pain in her left knee (from about 2007 ) is as a consequence of the injury to her right knee. This is because she was limping which placed extra strain on the left knee. However, the defendant relies on Dr Simm’s opinion that:
“There is no logical or scientific reason to support the contention that because she was favouring the right knee that the loading of the left knee led to some acceleration of the already established osteoarthritis.
100 He also said:
“One of the knees that was replaced was not injured in the workplace, nor influenced by the other knee injury, so one can conclude that the clinical course of that knee was not influenced by the employment and whichever knee that was, the operation was done within two years of the other knee”.[87]
[87] DCb6
101 In his report of 6 March 2008, Mr Love’s opinion with respect to the left knee was that the plaintiff had osteoarthritis of the left knee which was:
“… probably an aggravation of an underlying degenerative condition. There was an argument to say that the prolonged need to protect the right knee has meant she is putting more strain on the left knee and since the right knee had been considered a work-related matter, the left knee could be considered a work-related matter as a consequence.”[88]
[88] DCB21
102 In his report of 25 February 2008, Dr Goldman said with reference to the effect of her right knee injury on her left knee:
“After many arthroscopies and long-term treatment she eventually had a right knee replacement in July 2006.Leading up to her operation ,and afterwards she had increasing pain in her left knee ,which is due to her altered gait, which has been putting strain on the knee joint.” [89]
[89] PCB26
103 In his report of 18 March 2013 Mr Fogarty says
“I think it likely that the left knee injury has been aggravated by the plaintiff having to compensate to protect her right knee. Her situation of being considerably overweight would have contributed to this. I could not say that the left knee injury was actually caused by the plaintiff overcompensating to protect her right knee but the condition of osteoarthritis may well have been aggravated.”[90]
[90] PCB 70-78
104 Mr Simm is outgunned. I accept the majority opinion of Mr Love, Mr Fogarty and Dr Goldman. This opinion is consistent with the plaintiff’s evidence that as a result of limping she started to notice pain in her left knee and back.[91]
[91] Plaintiff’s affidavit , PCB13
105 The plaintiff has undergone two surgical procedures on the left knee including a unicompartmental knee replacement and revision surgery including a total knee replacement. In his report of 20 March 2013 Mr Bare said with respect to the left knee that the plaintiff complained of ongoing pain in the revised left knee replacement
106 In her affidavit of 24 April 2014 the plaintiff stated that:
“My left knee pain got very bad last year. The left knee cap was very painful and I could feel it moving and grinding. I had to have fluid removed for from my knee in 2011/2012”.
On 06 May 2013, Ms Green reported that the plaintiff described the pain in her knee as feeling like “throbbing in the bone.”[92] On 19 October 2014 Dr Goldman reported that there had been little change in the plaintiffs overall condition since his last report .She continued to suffer pain in both knees especially the left. .The plaintiff is currently taking Panamax and Panandol Osteo. She was taking stronger medication but it affected her stomach and she is taking Nexium for this.
[92] PCB 70-78
The disabling effect of the pain in the right and left knee
107 In her affidavits the plaintiff claims that has difficulty kneeling on either knee or squatting because of increased right and left knee pain. Walking up and down stairs and with prolonged standing and walking. She has difficulty walking, particularly any distance and difficulty standing in one spot. If she sits on one spot her right knee and left knee ache. Her knee becomes sore towards the end of the day, particularly if she has been standing or walking [93]
[93] PCB
108 In her report of 12 March 2013, Dr Horsely’s opinion was that the plaintiff had an ongoing disability related to her bilateral knees which given the length of time since the injury and the ongoing nature of the symptoms were likely to persist. They included that
“The cold weather exacerbates the aching in her bilateral knees. She has more discomfort on the right side than the left side. She can experience swelling over the medial aspect of the right knee at times, particularly at the end of the day. This can occur several times a week. There is regular giving way bilaterally. This can occur up to three times a week .There is no locking. She experiences regular stiffness bilaterally .She is unable to run. She is unable to jump. She has issues with stair and hill ascending and descending” . [94]
[94] PCB87
The plaintiff estimates that she has put on between 20-30kgs since the injury. In Dr Goldman’s opinion her knee pain was “affecting her ability to exercise and therefore increasing her weight. This in turn was making her knee symptoms worst”. Mr Bare was of the opinion that her excessive weight of 130kg would be perpetuating and exacerbating any underlying problems. He recommended lap band surgery on the basis that until her weight was controlled it was unlikely that the knee pain would be controlled .[95]In her affidavit the plaintiff said that she would like to lose weight but was unable to exercise because of her knees.[96]
[95] PCB46
[96] PCB33j-k
The plaintiff is able to cook and do light cleaning avoiding prolonged standing or placing strain on her knees. She relies on her husband and family to take care of the bulk of the housework.[97] She told Professor Doherty (consultant psychiatrist), that she did no mopping, vacuum cleaning, and ironing. While she failed to mention to him that her sleep was disturbed because of the pain in her knees, as well as her shoulder, this was her evidence.[98]
[97] PCB18b
[98] PCB 18b.
When she was cross-examined about these restrictions the plaintiff agreed that:
· She had told Ms Green that she could sit for up to two hours;[99]
[99] T39
· she had told Ms Green that when she was round the house she made the beds did the dishes and swept the floors ;
· She had told Ms Green that in bed at night she slept on her right side to avoid shoulder pain;[100]
[100] T42
· she may have told Ms Horesley that she had a normal sitting tolerance if she could stretch her legs.;[101]
[101] T39
· Mr Bare had advised her that weight reduction might improve her knee pain. and she had discussed having lap band surgery on the public system with Dr Goldman. [102]
[102] 41
· she had claimed that prior to her injury she enjoyed playing Petanque.(a French game a little like bowls) but that her ability to play was now restricted.
· she had not started playing Petanque in 2009. [103]
[103] T34
109 Counsel for the defendant relied on these matter together with what was submitted to be:
· non-responsive answers in cross-examination;
· inconsistencies in her Affidavits;
· inconsistencies in what she said in evidence and told doctors;
· gross exaggerations by the plaintiff ex ”I can’t move .I can’t do nothing .I sit in my house and that is my life now.[104]
[104] T34-35
· refusal to accept hospital records
110 However, although Counsel for the defendant conducted a thorough and comprehensive cross examination, I do not accept that the above matters are a fair representation of the plaintiff. Giving evidence in court is not an everyday experience for most people. It is no doubt a stressful situation . I formed the impression that the plaintiff was an honest witness doing her best to cope with questions related to her a period going back fourteen years.
111 I found there to be only a few inconsistencies in her affidavit material. My only criticism of this material is that it was not detailed enough with respect to the nature of the work she was doing for the defendant and the effect of such work on her knees.
112 With respect to the history she gave to the Medical Practitioners it was essentially consistent with her evidence to the court. Most importantly, she gave a consistent history that she injured her right knee in the incident in November 2000.
113 As to failing to accept hospital records this criticism appears to be related to the plaintiff’s failure to recall the incident back in 1994 when she suffered knee pain playing soccer. I do not draw any adverse inference against her for failing to remember this incident.
114 As to the submission of “gross exaggerations” given the plaintiff’s history of knee pain and the numerous procedures she has undergone I accept that she is probably pretty fed up by now. While I accept that there be some unconscious exaggeration this is most probably related to her chronic pain syndrome .I have accepted on the balance of probabilities that this syndrome is related to her physical condition.
115 In so far as it was suggested by Counsel from the defendants in her closing address that if the plaintiff suffered serious pain in her knees she would have pursued the lap band surgery I take into account that many people are scared to undergo surgery. The plaintiff has already undergone numerous surgical procedures on her knees. They have not all been a success.
Finding Regarding Consequence of right knee injury
116 There is no doubt that the plaintiff’s pain is attributable to both her knees and her left shoulder injury. However disregarding the pain in the left shoulder I am satisfied that the pain in her knees (currently more in the left knee ) is of such a nature that the aggravation to her right knee and consequent effect on her left knee amounts to a serious injury.
117 This is because unlike the left shoulder the knees are involved in numerous activities that enable a person to go about their daily lives. I accept that the plaintiff is restricted in walking, squatting and standing. She cannot run, jump, or in reality do any activity which places strain on her knees. I accept that her left shoulder injury is not as disabling as she is righ- handed and can do many things with her right hand that she could not do with the left.
118 While the plaintiff was able to return to work after her right knee injury I accept her evidence that she was in pain but needed to work as she had three children. Her evidence that she was in pain while working is supported by the fact that she underwent multiple procedures.
119 With respect to her work for Silver Circle I accept that it was lighter work as most of the clients had their partners with them. She managed due to the reduced hours and because she could rest between jobs. While she still had to support people in the shower by the end of the day her knee was aching and she needed a stick. [105]
[105] T48
120 I accept the medical opinion that due to her knee injury alone the plaintiff cannot return to her work as a personal care assistant.I have taken this loss of career into account in my decision regarding pain and suffering.[106]
[106] See PCB 90 Mr Fogarty, Mr Bare PCB50.
121 The plaintiff claims of persisting knee pain are consistent with the histories given to all the medical practitioners. I accept that the restrictions referred to above are permanent and that they will last for the foreseeable future .In addition I accept that it is likely that she will need surgery in the future.
122 I am satisfied that when judged by comparison with other cases in the range of possible impairments, the consequences to the injury to the plaintiff’s right knee, and the resulting impairment, may be fairly described as more than significant or marked, and as being at least very considerable.
Work capacity
123 The case for the defendant is essentially that the plaintiff only ceased working due to her left shoulder injury and that she has a capacity for sedentary work including the roles of telemarketer, ticket-seller and information clerk (T 99).Counsel for the plaintiff submitted that the plaintiff is entirely incapacitated, and is unable to work in the foreseeable future.
124 Where loss of work capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff can establish that as at the date of hearing she has suffered a permanent loss of earning capacity of 40% or more. In accordance with section 134AB(38)(c) of the Act. Further no loss of earning capacity is established if the plaintiff has or would after retraining or rehabilitation, a capacity for suitable employment, which, if exercised, would result in her earning more than 60% of her pre-injury earnings.[107]
[107] Section 134AB(38)(g) the Act.
125 I accept the medical opinion that there is no employment for which the plaintiff is suited by reason of her knee condition The plaintiff is 52 years old and has limited training and little work experience other than factory work or in aged care. She has never done office work or clerical work. The following medical evidence supports this finding :
126 Dr Goldman-“Madeline has no current capacity .She has been seen by the medical board and they have confirmed this. The incapacity is 100% due to her knee injuries. I do not believe that she could be retrained for any suitable work”.[108]The defendant relied on the fact that in his report of March 2014 Dr Goldman was of the opinion that the plaintiff did not have any ability to return to work due to her shoulder injury .However, this report was dealing only with her shoulder injury. I t was written after the after the report concerning her knees and it appears that by this stage her shoulder pain had increased. It does not change his opinion that there is a100% lack of work capacity due to the knees alone.
[108] PCB33d
127 Mr Love In his report of 6 March 2008 Mr Love said as to a current work capacity “She has a knee replacement on the right side and is about to undergo a knee replacement on the left side and has symptoms in the left shoulder. Each of these disabilities combine to produce a significant incapacity. I am not optimistic she will return to work in the foreseeable future.[109]
[109] PCB113
128 Mr Fogarty In theory she might be able to work a desk job but he said “My opinion regarding your clients capacity to engage in work on a permanent reliable and sustained basis in the light of her ongoing disability is that she would not be able to return to her previous work as a personal carer at all “
129 .With respect to Mr Fogarty it was submitted for the defendant that this opinion was outside his area of expertise. I disagree. As an orthopaedic surgeon he made an assessment of the plaintiff’s knees. He had read Dr Horsley’s report and agreed with her assessment as to the plaintiff ‘s functional tolerances. with respect to the knees.
130 Ms Angels (a Human Resource Consultant reported on 7 January 2013 that “ Madeline said she still continues to suffer severe pain and restrictions in both of her knees.”[110]She continues:
[110]PCB 65
“Hypothetically Madeline might have some transferable skills, but even with allowances being made for her restrictions and emotional state, with her disabilities and pain I believe it would be extremely difficult for her to perform productively in the general workplace-------.
“Therefore I do not believe that I would be successful in finding Madeline a suitable alternative position, due to her limited work capacity, physical restrictions/pain and highly medicated state.”[111]
[111]PCB 73-74
131 Having found that there is no occupation which are within the plaintiffs functional capacity I accept that she has a loss of income loss of earning capacity of 40per cent or more and that that loss will continue indefinitely.
132 In addition I am satisfied that no job currently exists which the plaintiff could do in which she would earn 60 per cent or more of her gross income as determined by the formula in sub-paragraph (f)
133 Given her age, education ,skills and work experience and the other matters set out in s 5 of the Act I find that her after injury earnings are nil.
134 I am also satisfied that there is no re-training and rehabilitation that could be appropriate to be under taken by the plaintiff.
135 Accordingly, I find that the plaintiff has a serious injury, in relation to her right knee, and leave is granted to bring common law proceedings in relation to both pain and suffering and loss of earning capacity.
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