Masterson v Cranbourne Carpet and Vinyl Pty Ltd
[2009] VCC 134
•4 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00207
| GREG MASTERSON | Plaintiff |
| v | |
| CRANBOURNE CARPET & VINYL PTY LTD and | Defendants |
| VICTORIAN WORKCOVER AUTHORITY |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 5 February 2009 |
| DATE OF JUDGMENT: | 4 March 2009 |
| CASE MAY BE CITED AS: | Masterson v Cranbourne Carpet & Vinyl Pty Ltd and Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0134 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.134AB Accident Compensation Act 1985 for leave to bring proceeding for pain and suffering damages – whether plaintiff’s current symptoms caused by subject injury or by pre-existing degenerative change – whether current impairment is “serious”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh | Ryan Carlisle Thomas |
| For the Defendants | Mr J.L. Parrish SC with | Hall & Wilcox |
| Mr C E Hangay | ||
| HER HONOUR: |
1 The plaintiff, Mr Masterson, makes application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for the recovery of damages. He claims that on 18 November 2001 he suffered an injury to his right knee arising out of, or in the course of, his employment with the first defendant, which has given rise to a permanent impairment which is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” in s.134AB(37) of the Act. The plaintiff claims that the consequences of the impairment are serious with respect to pain and suffering.
BACKGROUND
2 The plaintiff is presently aged 55 years, having been born on 17 March 1953. After completing school in Year 9 he began work as a carpet-layer at the age of 16 years, and this has been his occupation all of his working life.
3 On 8 November 2001, whilst attempting to lay a piece of carpet while working for the first defendant, the plaintiff’s feet became entangled in the carpet and he flew forward, striking his right knee on the concrete floor and also striking his back against a door jamb. He suffered severe pain in the knee and took the next day off work, but worked the following week, during which time the pain worsened.
4 He saw a general practitioner, Dr Everett, on 20 November 2001. He was sent for an X-ray, which showed prepatellar swelling but no fracture. He was prescribed anti-inflammatories and referred for physiotherapy, and given time off work. The physiotherapist, Mr Friend, found swelling and restriction of movement.
5 The plaintiff then went to see his usual general practitioner, Dr Klein, on 11 December 2001, and was referred for an ultrasound on 12 December 2001 which demonstrated a fluid collection consistent with an organising haematoma.
6 On 14 December 2001 he was referred to an orthopaedic surgeon, Mr Griffiths, who diagnosed prepatellar bursitis. Mr Griffiths aspirated fluid from the knee and administered a steroid injection to the prepatellar bursa. The plaintiff’s ongoing pain and difficulty kneeling caused Mr Griffiths to order an MRI scan on 19 March 2002, which showed several areas of articular cartilage involving the medial femoral condyle and lateral femoral condyle. Subsequently, on 28 June 2002 Mr Griffiths performed an arthroscopy on the knee, and a local debridement and shaving was performed.
7 The plaintiff continued to experience symptoms, and he was referred to a rheumatologist, Dr Engel, on 20 January 2003, who, in turn, referred the plaintiff to a rehabilitation program at Cedar Court. The plaintiff undertook an outpatient rehabilitation program between 25 March 2003 and 6 May 2003. Although some improvements were noted, he still had a pronounced limp, and restrictions in his capacity to lift, and to tolerate standing, walking, sitting, and driving.
8 On final review from Cedar Court on 29 July 2007 it was noted that the plaintiff was reporting increased flare-ups of pain and reduction in ability to complete domestic activities. It was thought that his pain levels remained relatively static, and he was likely to experience flare-ups which required intermittent contact with medical practitioners, physiotherapists, and occupational therapists.
9 The plaintiff had remained off work since late 2001, but in October 2005 returned to some work with a former employer, Terry Brown, who runs a carpet-laying business known as Colstans. According to the plaintiff, he is accommodated by his employer, who gives him the lighter work to do and, where possible, provides assistance to carry out the work. According to the plaintiff’s evidence, at the present time he works four days a week, from Tuesday to Friday, and on each of those days he works approximately 4 to 5 hours, but on occasions he has worked up to 8 hours.
10 The plaintiff’s employer also accommodates him by not requiring him to work Mondays, as he attends physiotherapy on Monday. The plaintiff has continued to attend the same physiotherapist since 2001, and his evidence is that this is necessary to enable him to maintain employment, as he continues to get pain in his right knee and some restriction of movement. He states that the knee swells regularly, particularly after work, and there is some crunching and grinding. The knee also gives way from time to time, and he has difficulty walking long distances, negotiating stairs, walking on uneven ground, and crouching and kneeling.
11 The plaintiff takes the maximum of eight non-prescription painkillers per day, in addition to continuing with his physiotherapy. He also undertakes stretching exercises at home, and swims regularly.
12 The plaintiff says that he struggles to keep up with his work, and generally has to contend with his right knee being swollen at the end of a day of work activity.
13 The plaintiff states that he has had to give up playing a pool game known as “eight ball” which he had played at an elite competition level in both B grade and A grade and for which he won titles including state championships. He also has difficulty travelling in a car for more than about 45 minutes because of increased pain in his knee and also his low back. Since the incident on 8 November 2001 he has continued to suffer low-back pain, but says it has been worse with the altered gait of his right leg. He suffers from broken sleep, and his intimate relationship with his wife has deteriorated, as has his relationship with her generally, such that he now lives part-time at their holiday house on Phillip Island.
14 The plaintiff contends that his ongoing pain and restriction of movement in his right leg, necessitating daily painkilling medication and weekly physiotherapy, and the restriction of his work capacity and capacity to enjoy life, constitute consequences of the impairment to his right knee function which are serious.
ISSUES
15 There is no issue that the plaintiff suffered a compensable injury arising out of his employment with the first defendant on 8 November 2001. The issues are:
(1) Whether the right knee injury on 8 November 2001 continues to have consequences at the present time or whether the plaintiff’s current symptoms and limitations are a manifestation of underlying degenerative change which would have occurred in any event.
(2) If the injury to the right knee on 8 November 2001 has given rise to a permanent impairment, do the consequences of such impairment satisfy the test of seriousness? THE ISSUE OF CAUSATION
16 In contending that the effects of the right knee injury on 8 November 2001 had ceased, the defendant relied upon the report of Mr Kudelka dated 30 July 2004 in which he states, “I consider that this patient’s persistent
symptoms of pain in the right knee and pain in the back are now age-related
and the accident at work 8.11.20021 (sic), which aggravated the pre-existing
degenerative changes in the right knee and the lumbar spine, has now
subsided.”
17 Mr Kudelka gives absolutely no reasons for this opinion. The report dated 30 July 2004 is supplementary to a report dated 5 July 2004. There is no indication in his report dated 5 July 2004 that he even examined the plaintiff. Also, his earlier report dated 12 August 2003 contains a curious inconsistency. On page 1 he states “on 11 8 2003 the plaintiff told me that he had not improved”, and yet on page 2 of the same report he states “the
patient’s current medical condition is that his right knee has improved but his
back pain has worsened”.
18 Mr Parrish of senior counsel for the defendants conceded that Mr Kudelka was the only doctor who suggested that the plaintiff’s current symptoms are no longer materially contributed to by the injury of 8 November 2001, and that the general consensus of other opinions is that his present symptoms are caused by the incident which occurred on 8 November 2001, whether the explanation be that of an ongoing traumatic injury or of an aggravation of pre- existing asymptomatic degenerative change. Given the lack of reasons supporting Mr Kudelka’s conclusion, I prefer the other medical opinions which have been tendered in evidence.
19 I do not consider it to be of importance that Mr Dooley in his report dated 15 July 2008 found thickening of the prepatellar region on both sides, and bilateral patello-femoral crepitus and grating. It is, I suppose, possible that carpet-laying generally could adversely affect, that is, advance, degenerative changes in the knee joints. However, the uncontraverted evidence is that the plaintiff has suffered painful and restricting symptoms in his right knee since the subject accident and has not and does not have any symptoms in his left knee.
20 The plaintiff impressed me as an honest witness who gave his evidence in a straightforward way. This is not a case where there has been any suggestion of embellishment of symptoms or, indeed, any attack on his credit. His evidence is that he had no symptoms in his right knee prior to 8 November 2001. He says that since that date he has continually suffered symptoms in his right knee, such that more than seven years after the incident he still requires physiotherapy on a weekly basis. This evidence is unchallenged. Accordingly, it seems to me to be an inescapable conclusion that the symptoms in the plaintiff’s right knee at the present time are a result of the incident which occurred on 8 November 2001. I find that the injury resulting from that incident is most likely a combination of aggravation of pre- existing asymptomatic degenerative change in the right knee as well as traumatic injury to the right knee.
THE ISSUE OF WHETHER ANY IMPAIRMENT IS SERIOUS
21 The plaintiff contends that his ongoing symptoms, treatment, and diminution of work capacity and enjoyment of life represent pain and suffering consequences of the impairment to his right knee which are “serious”. In response the defendants argue as follows:
(1)
The plaintiff has admitted that his back symptoms play an ongoing role in the activities in which he claims restriction as well as the need for physiotherapy and painkillers, so that all of these matters cannot be attributed to the plaintiff’s right knee injury.
(2)
Although the MRI scans of the plaintiff’s right knee show degenerative changes, the bulk of the medical evidence is to the effect that the movement of the plaintiff’s knee is good, that it is stable, that no effusion has been observed, and that there is no wasting. The defendants submit that the medical evidence overall is consistent with a mild loss of function, not one that is serious.
(3)
The plaintiff manages to carry out a carpet-laying job, usually for 4 or 5 hours on four days per week. Mr Parrish submits that it is difficult to imagine a job which is more demanding on the knees, given that it involves kneeling, and moving around while kneeling, in order to undertake tacking, hammering, and stretching of carpet. He submits that this is an indicator of the plaintiff’s capacity to use his right knee which shows that the consequences of any impairment to the knee could not be described as serious.
(4) Video surveillance of the plaintiff taken on 27 July 2008 shows the plaintiff engaging in his hobby of racing remote-controlled miniature motorboats. He is seen to engage in this activity for a lengthy period of time, and admits going out fortnightly to engage in it for some 5 or 6 hours. This is an indicator that his diminution of enjoyment of life cannot be said to be serious.
22 As I have already stated, under cross-examination the plaintiff’s evidence was not challenged and I accept him as a credible witness.
23 The latest MRI scan of the plaintiff’s right knee taken on 23 July 2007 is reported upon on 24 July 2007 as showing mild right knee joint effusion, mild medial compartment degenerative changes with generalised chondral thinning, minor intra-substance degenerative changes of the meniscus, and moderate patello-femoral joint degenerative change.
24 As I have already stated, with the exception of Mr Kudelka’s opinion, the medical evidence is that the plaintiff’s ongoing right knee symptoms relate to either prepatellar bursitis or aggravation of pre-existing degenerative change in the knee. Most doctors have found mild patello-femoral crepitus, no quadriceps wasting, and either no effusion in the knee or a small effusion in the knee. All have commented that the knee was stable on examination. The prognosis generally is for slow progression of the degenerative disease which will require ongoing treatment by way of analgesics, anti-inflammatory agents, pain management, and physiotherapy. One orthopaedic surgeon, Mr Miller, places the plaintiff at significant risk of requiring a repeat arthroscopy and a knee replacement. Another, Mr Simm, states that a total knee replacement may be ultimately required, but present radiological findings do not indicate that this would need to be immediate.
25 Although most of the doctors refer to the plaintiff as having a good range of movement in the knee, the plaintiff’s chief complaint is not that he is unable to move the knee, but rather, that movement causes pain.
26 Although the most recent MRI scan does not demonstrate such florid degenerative changes as to indicate the need for immediate surgery, it is trite to say that there is not necessarily a direct correlation between what is seen radiologically or on MRI scan and the level of pain reported by a patient. All doctors are agreed that the degenerative change in the plaintiff’s right knee is likely to progress, leading to further deterioration of symptoms.
27 Given that I have accepted the plaintiff as a believable witness, I am satisfied that he does suffer constant pain in the knee which is aggravated by activity, and that this pain does affect him in the way that he has deposed to in his affidavits and oral evidence.
28 In paragraph 26 of his affidavit sworn on 14 June 2007 the plaintiff stated, “I am really struggling with my current employment even though my boss is so good to me.” The distinct impression that I gained was that if it were not for him taking seven or eight tablets of either Nurofen, Panamax, or Mersyndol each day, as well as anti-inflammatory medication and glucosamine, in addition to undertaking weekly physiotherapy each Monday, he would not be able to cope.
29 The plaintiff frankly admitted under cross-examination that there were smaller jobs that he did on his own, and in all of his work he has to bend his knees and kneel on his knees for lengthy periods. However, he said that throughout the day he has constant pain in the knee, and, on occasions when he has tried to work immediately after undergoing his physiotherapy treatment, he has found himself in trouble and needed physiotherapy treatment later on in the week.
30 The plaintiff said that by the end of the 3 or 4 hours which he usually works he has a stabbing pain inside the knee, and the knee is swollen. He said the knee affects his back injury, and he gets increased pain in the back, and he also has problems with the knee collapsing for no reason, about two or three times per month, without warning. He said that, on occasions, he had worked an 8-hour day and found that he was very very sore, and he simply could not sustain that level of activity. He also said that there are some days when he has been so sore that he could not go in to work, and other days when he was sore and needed someone to help him even on small jobs.
31 The plaintiff’s employer, Mr Brown, swore an affidavit on 1 October 2008, in which he states that he had employed the plaintiff for six years prior to the plaintiff taking up employment with the first defendant. He said that during that period the plaintiff was a very capable floor installer and he had no issue with his work. However, now he must be very careful about the type of work he gives to the plaintiff. He said that he assigns him only lighter-weight carpet jobs, and not two-storey jobs, and ensures that he is placed with a physically fit young person to undertake the more demanding tasks. He states that when the plaintiff has undertaken the more physically demanding work he has often observed that the plaintiff looks drawn as though in pain over the next day or so, and that he often receives a call from the plaintiff saying that he cannot continue because of his pain and needs to go home to rest. He said that the plaintiff may work between two and four days per week and at times may only work two or three hours per day. The defendant did not seek to cross-examine Mr Brown. His evidence is thus, unchallenged and it is corroborative of the difficulties which the plaintiff claims.
32 The defendants submit that a person like the plaintiff, who continues to perform work which involves kneeling for 4 or 5 hours laying carpet, could not be said to have a serious injury to his knee. Mr Parrish submits, in accordance with the comments of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph 24, that where there is such demonstrated capacity to return to employment it would ordinarily be difficult to conclude that the pain and suffering consequences of the impairment to the knee are serious.
33 At first blush, Mr Parrish’s contention may appear to be correct. However, having seen and heard the plaintiff give evidence, I do not consider that the plaintiff continuing to work is so much a demonstration of capacity as a demonstration of determination and stoicism on his part and a very sympathetic attitude on the part of his employer. He is a hardworking man who has known only the work of a carpet-layer all his working life. I find that the plaintiff only manages to continue in his employment because he is able to take Mondays off work in order to have physiotherapy treatment, which helps him to maintain the function of his knee, and because he is prepared to persist with his work in spite of the pain and the fact that his knee is swollen at the end of each day and because his employer is prepared to accommodate him. The fact that his employer allows him to work part-time, gives him the lighter jobs and provides assistance to him where possible, and also permits him to take time off work as needed, I find to be crucial supports without which he would be unable to continue in his work.
34 Leaving aside his work, the plaintiff said that he has trouble walking distances on hard surfaces which have a jarring effect on the knee and, when he has increased pain and swelling in the knee, his lower back becomes painful. He considers his knee symptoms to be worse than his back symptoms. He said that the level of symptoms in his knee necessitate him getting out while driving the car in order to move around and have a rest. He stated that on the weekend prior to the hearing he had driven from his home to Yarrawonga, which should have been a 3-hour drive, but it took him 4½ hours because he had to stop and stretch approximately every 50 minutes.
35 Surveillance film taken of the plaintiff on 27 January 2008 was shown during cross-examination of the plaintiff and tendered in evidence. The tendered film ran for approximately 1½ hours, but purported to cover a period from approximately 9.00 am until 3.30 pm, almost 6½ hours. There was no explanation provided by the defendant for gaps in the film.
36 The film shows the plaintiff at a location beside a lake where he is taking part in a meeting of the club of which he is a member, which races model speedboats operated by remote control. I must say that I did not find the film particularly illuminating. It shows the plaintiff conducting himself in a very sedentary manner. He is seen to walk for short distances and, at various times, to climb or descend a set of approximately ten steps which lead to a platform near the lake. He is seen at various times standing on the platform and operating a remote control, presumably racing his model speedboat. The plaintiff walks slowly, and mounts and descends the steps relatively slowly, at times hanging onto the hand rail for support. He is not visible for substantial portions of the film where he enters a shade-tent area and appears to be doing something to his model boat. For much of the time shown on the film he is standing around talking, but he does not stay in the same position for very long and he does not walk for other than short distances. On a number of occasions when he was walking slowly, it appeared that he limped or slightly “threw” his right leg. At other times, when he was standing, he had his left leg straight but his right leg outstretched and slightly bent. On the occasions that the plaintiff went to the water’s edge to pick up his boat he bent down from the waist with minimal or no bending of the knees. He certainly did not squat, which one might have expected would be the easiest way to retrieve the boat.
37 Overall, the film did not depict the plaintiff doing anything that he said he was unable to do, and showed him to conduct himself in a slow, sedate way. The most athletic thing which it showed was him emerging backwards from the rear of his covered utility on his knees. This was fleeting footage, and, given that the plaintiff has given evidence that he is on his knees regularly in the course of his work, I regard it as being of little significance.
38 When cross-examined about the film, the plaintiff said that it did not depict a normal meeting of the club, as that particular meeting was the week before a race meeting, so there was a lot more testing of boats. He commented that on the day shown in the film he had gone back to his vehicle in order to sit on the tailgate and rest, because he finds that after being on his feet for a time the pain increases, and he gets swelling in the knee. This was not shown on the film which had gaps totalling 5 hours. The film is thus an incomplete picture of the activity or lack of activity of the plaintiff over the relevant period.
39 Mr Parrish relied upon the film as demonstrating that the plaintiff is able to engage in an enjoyable hobby for hours on end. I do not consider that the plaintiff’s ability to stand around and move around in the sedate manner depicted in the film, in any way detracts from the evidence as to the seriousness of his knee injury.
CONCLUSIONS
40 I have already found that the plaintiff’s work on 8 November 2001 is responsible for an ongoing injury by way of prepatellar bursitis, as well as aggravation of pre-existing asymptomatic degenerative change.
41 I am satisfied that the injury suffered by the plaintiff results in an impairment where he suffers constant pain in his right knee which is made worse by activity, particularly sitting or standing or walking for any considerable length of time. Some seven years after the incident, the plaintiff still requires regular non-prescription painkilling medication to the advisable daily limit, and physiotherapy once per week.
42 The plaintiff injured his back in the same incident, but this is not the subject of an application before me. He concedes that the pain in his back plays a role in the restrictions which I have just mentioned, and that the medication and physiotherapy treatment are for his back as well as for his knee. However, he states that the knee is the more dominant problem, which I accept, and his long-term physiotherapist, Mr Friend, in his report dated 24 July 2007, states, “Unfortunately, the limping gait induced by the knee problem continued to significantly aggravate his lumbar spine problem.” Given the lengthy period of regular treatment provided by Mr Friend to the plaintiff, I place considerable weight upon Mr Friend’s opinion.
43 In these circumstances, I do not consider that it would be just to determine that the status of the plaintiff’s back injury detracts from the seriousness of his knee injury.
44 It is true that most doctors have found the plaintiff to have a reasonably good range of movement in the knee, and that they describe the degenerative changes seen on MRI scan as being either mild or moderate. However, I have accepted the plaintiff as a truthful witness, and find that he does suffer the pain and swelling and giving way of the knee which he describes. Mr Friend, in his report dated 24 July 2007 corroborates the plaintiff’s evidence. He states:
“His right knee continues to swell and become inflamed with any activity other than gentle walking, although he now has almost full range of movement in the knee. He must continue to be extremely careful with all activities of daily living – especially work related – to avoid significantly aggravating his knee situation any further.”
45 In his most recent report, dated 22 September 2008, Mr Friend noted repeated episodes of the knee giving way and “bigger flare ups” and that the plaintiff is not coping as well now as he did approximately twelve months ago. I find that the likely future for the plaintiff is of continuing deterioration and increased pain. This is so whether or not he actually comes to a knee replacement operation, which neither Mr Simm nor Mr Miller, both respected orthopaedic surgeons, cannot rule out.
46 The knee joint is a crucial weight-bearing joint. To be restricted in one’s ability to walk or stand because of pain and swelling in that joint is a restriction of a crucial human function. Certainly, at the present time, the plaintiff is able to usually work between 3 and 5 hours per day as a carpet-layer, and he is able to engage in his hobby of model motorboat racing, which he enjoys. However, the fact of the matter is that pain in his knee permeates his existence every day. It interrupts his sleep. It has affected his relations with his wife, such that he chooses to now live apart from her for a substantial portion of each week. He works dramatically reduced hours, and does lighter work than before the injury, but this is only achieved because of his strong will power in the face of pain, and the goodwill of his employer.
47 The plaintiff is presently earning more income for doing less work than before he was injured. However, he is understandably concerned about his ability to continue working in the only job that he has ever known since leaving school. In my view the indicators are that the plaintiff is unlikely to be able to continue to perform the work that he now does, for the hours that he does. Already he suffers swelling at the end of each day at work which necessitates him going home to relax his knee by using electric soda, (some form of bath salts) and his knee gives way periodically. He is prone to flare-ups, and the prognosis is that his condition will deteriorate.
48 Although the plaintiff does not contend that he satisfies the stringent 40 per cent loss of earning capacity test under s.134AB(38), it is plain that he has, in fact, lost a very considerable degree of earning capacity. Moreover, his reduced ability to perform the only work he has ever performed, is an important diminution of that sense of worth and fulfilment that comes with being skilled at an occupation which one enjoys.
49 In order to be able to function at the level at which he presently functions, the plaintiff is having to attend physiotherapy one day per week, generally to take eight analgesic tablets per day, and also to spend time performing home exercises and going swimming. This is time devoted to trying to maintain his level of function which could otherwise have been spent on chosen recreational pursuits. In addition, he has lost the ability to play eight ball, a game in which he competed at a relatively elite level.
50 All of the matters which I have mentioned in the foregoing paragraphs under the heading “Conclusion” satisfy me that, in spite of the plaintiff being able to continue to work in his chosen occupation at the present time, there is, to use the words of Chernov JA in Sumbul at paragraph 24, “other evidence that
show[s] that he experience[s] significant pain or that he otherwise significantly
suffer[s] physically from the injury.”
51 In all of the circumstances I am satisfied that the impairment to the plaintiff’s right knee is permanent, and that such impairment gives rise to pain and suffering consequences which are serious when judged by comparison with other cases in the range of possible impairments or losses of a body function, such that they are consequences which are fairly described as being more than significant or marked, and as being at least very considerable.
52 Accordingly, the plaintiff has succeeded in his application. It is the order of the court that the plaintiff be given leave to bring proceedings to recover damages for pain and suffering in respect of the injury arising out of, or in the course of, or due to the nature of, his employment with the first defendant on 8 November 2001.
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