Nestorovski, Lazar v Hall Concrete
[2009] VCC 1072
•20 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.
| LAZAR NESTOROVSKI | Plaintiff |
| v | |
| HALL CONCRETE CONSTRUCTION (VIC) | Defendant |
| PTY LTD |
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| JUDGE: | His Honour Judge Coish |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 & 19 August 2009 |
| DATE OF JUDGMENT: | 20 August 2009 |
| CASE MAY BE CITED AS: | Nestorovski, Lazar v Hall Concrete |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1072 |
REASONS FOR JUDGMENT
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.H. Mighell SC Ms N. Wolski | |
| For the Defendant | Mr J.L. Parrish SC Ms J.M. Forbes | |
| HIS HONOUR: |
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") in respect of injury to the left knee and consequential psychiatric injury the plaintiff alleges occurred in the course of his employment on or about 20 November 2006 when he fell onto his left knee.
2 The plaintiff alleges that the left knee injury is a serious injury within the meaning of paragraph (a) of the definition of serious injury and the psychiatric injury, an adjustment disorder, is a serious injury within the meaning of paragraph (c) of the definition of serious injury. The relevant body function in which there has been impairment or loss pursuant to paragraph (a) is the left lower limb. The plaintiff's claim for serious injury is only in respect of pain and suffering. The claim for loss of earning capacity was abandoned.
3 The defendant denies that the plaintiff has a serious injury as defined in respect of both the physical and psychiatric injury.
4 The onus of proof is on the plaintiff.
5 I have had regard to s.134AB(38)(h) which provides:
"The psychological or psychiatric consequences of a physical injury to be taken into account for the purposes of paragraph (c) of the definition 'serious injury' and not otherwise."
6 I am familiar with and have had regard to the series of recent Court of Appeal decisions on s.134AB which commenced with Barwon Spinners Pty Ltd & Ors v. Podolak. I am also familiar with and have had regard to the Court of Appeal decisions on psychiatric injury, in particular Mobilio v. Balliotis.
7 Only the plaintiff gave evidence. The plaintiff's court book containing documentation in respect of his injury and many reports together with various medical records and correspondence from the VWA was tendered on his behalf. The defendant's court book containing court documents, claim forms, medical reports, rehabilitation documents and employer documents, together with video surveillance undertaken on 13 January 2009 and 26 June 2009 was tendered on its behalf. This was a very sensible course to adopt in view of the limited issues in dispute.
8 There is no dispute that:
(1) The plaintiff injured his left knee when he fell at work on 20 November 2007.
(2) He subsequently underwent an arthroscopy for his left knee injury on 8 August 2007.
(3) He has an organic basis for a degree of permanent impairment or loss of function of the left lower limb.
(4) The plaintiff developed a psychiatric condition, an adjustment disorder, as a result of his physical injury.
9 The issues in dispute are firstly whether the impairment or loss of body function of the left lower limb is "serious" with respect to pain and suffering. Secondly, whether the adjustment disorder is a "permanent severe mental or permanent severe behaviour disturbance or disorder" with respect to pain and suffering.
10 Although there was a large body of material tendered in evidence which I have read carefully, it is not necessary to refer to much of this material in these reasons for decision.
11 The plaintiff is 53 years of age having been born on 9 May 1956 in Macedonia. He is married with adult children. The plaintiff only had three years of education at school. He immigrated to Australia in 1970. The plaintiff has worked as a machine operator, baker, construction worker and owner/driver.
12 On 10 August 1994 the plaintiff injured his back in the course of his employment. Following this back injury the plaintiff received weekly payments of compensation for various periods. He was in and out of employment on a sporadic basis over the next ten years. The plaintiff instituted common law proceedings in respect of this back injury. These proceedings were settled in July 2000 for $215,000 plus retention of workers compensation payments. Much of the material in the defendant's court book concerned this back injury and resultant claims.
13 In late 2004 the plaintiff and his wife commenced a cleaning business. He worked in this business on a part time basis on average four to five hours a day six days per week.
14 On 13 November 2006 the plaintiff commenced employment with the defendant as a steel fixer. He still had ongoing back pain but took Panamax for these symptoms. He stated in his first affidavit that "I had some ongoing back pain but thought I would be able to do the work for a while as I tried to get my cleaning business back running."
15 On 20 November 2006 the plaintiff fell at work and injured his left knee. He saw his general practitioner on 21 November 2006 and was referred for an X- ray. The plaintiff ceased work on 27 November 2006. Apart from one unsuccessful return to work in early February 2007 the plaintiff has not worked since November 2006. The plaintiff was referred to Mr S. Doig, orthopaedic surgeon, and he underwent an arthroscopy on 8 August 2007. As the plaintiff developed psychiatric symptoms he was treated by a psychiatrist, Dr Paul Kornan, such treatment commencing in February 2008.
16 In the plaintiff's affidavits he describes his symptoms as constant pain in the left knee. He states that he has had to alter his gait to limit his knee discomfort and this has resulted in increased back pain. Standing causes an increase in pain in the knee. He has problems walking, kneeling and driving a motor vehicle. His symptoms disturb his sleep. The plaintiff's social, recreational and domestic activities have all been adversely affected. He alleges that his sexual relations with his wife have been restricted because of pain. The plaintiff also states that he limps as a result of his left knee injury. He states "I believe that I limp to some degree all the time." The plaintiff's affidavits primarily address his left knee symptoms and their effects upon him. There is relatively little evidence in these affidavits about the plaintiff's psychiatric symptoms and their specific effects upon him.
17 The plaintiff's wife has provided a brief affidavit in support of her husband's application.
18 In cross-examination the plaintiff maintained that he limped all the time, he avoided bending, he avoided squatting as that caused a lot of pain and he always had pain throughout his left leg. He experienced numbness in the leg on occasions and his left leg was painful to touch.
19 During the course of cross-examination the plaintiff was shown video surveillance taken of him on 13 January 2009 and 26 June 2009. On 13 January 2009 the plaintiff was seen relaxing at the Williamstown Beach. He was, in my opinion, walking completely normally. There was, in my opinion, no sign of a limp whilst the plaintiff was walking on flat ground, on sand and in shallow water. The plaintiff bent over on occasions with no apparent restriction. He swam in the sea. He squatted freely and remained on his haunches while his female companion applied sunscreen to his back. He stood on his right leg to remove his left sandal, then on his left leg to remove his right sandal. He sat on the rocks and on the sand and then got to his feet on a number of occasions with no apparent difficulty. There was no sign of any distress in the plaintiff's appearance. Indeed, the overall picture was of an able bodied middle aged man relaxing at the seaside. The video surveillance at the beach extended from 11.40 a.m. to 2.47 p.m. on 13 January 2009 although not all of this period was filmed.
20 On 26 June 2009 the brief video surveillance showed the plaintiff walking and carrying some bags of shopping. In my opinion the plaintiff was not limping, he was walking in a normal manner.
21 I formed a very unfavourable impression of the plaintiff. I do not accept him as a witness of truth. I found him to be an extremely unreliable witness. In my opinion the plaintiff exaggerated the extent of his physical symptoms in both his affidavits and in his evidence in court.
22 I do not accept the plaintiff's evidence of significant and widespread symptoms and resultant limitations in movement of the left knee and back and alteration in gait in respect of the left knee. I have reached this conclusion for the following reasons: (1) The plaintiff's description of his left knee and back symptoms was completely inconsistent with the video surveillance. The plaintiff maintained after he had seen these videos that he was limping whilst at the beach and whilst shopping. This was not apparent to me and his counsel did not seek to argue that the plaintiff was in fact limping in these videos, rather he submitted the plaintiff may have believed himself to have been limping; (2) The plaintiff's range of movements as depicted in the videos in respect of both the left knee and back was inconsistent with his affidavits and evidence in court; (3) The plaintiff was also in my opinion evasive in his evidence in court. This was best exemplified by his initial evidence in cross- examination that his 1996 back injury prevented him from fishing. He subsequently admitted when certain records were put to him that he'd been fishing in the Goulburn River in March 2009 and on occasions before this date; (4) The plaintiff, until the last few months, has chronically abused alcohol. I have therefore exercised great care in carefully assessing his accounts of his symptoms to the various doctors that he has seen.
23 Each side has provided many medical reports which I shall briefly summarise.
24 The plaintiff's treating general practitioner Dr Slesenger in a report dated 5 August 2009 stated "It is clear that while there is a temporal relationship between the onset of symptoms and the injury under consideration the diagnosis is unclear. There is some evidence of a chondral injury to the left knee. There is also soft tissue injury to the left thigh. However, as Dr Thomas has identified there are a number of pain magnifiers operating in this case not least of all Lazar's alcohol consumption." This opinion is particularly unhelpful for the plaintiff.
25 The plaintiff's treating orthopaedic surgeon, Mr Stephen Doig made a diagnosis of traumatic chondromalacia patella. He expressed the opinion that at operation he found some mild chondromalacia patella, he "cleaned up" the chondromalacia. He stated that the operation was "fine from a technical point of view." He commented on repeat MRI scanning which was reported as showing a "possible intra substance tear of the posterior horn of the medial meniscus."
26 The plaintiff was referred to Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. It was agreed between the parties that Dr Clayton Thomas has many years of experience in this area of practice. In his report dated 3 March 2009 Dr Clayton Thomas expressed the following opinions. "On 8 September 2008 I formed the following impressions: (1) He was suffering from a painful left knee. There was certainly evidence of complex regional pain syndrome or the like. (2) He was very distressed at the perceived treatment that he received from his employer. This was clearly acting as a pain magnifier. (3) He was drinking excessively. I did speak to him about attending Dorset Rehabilitation Centre for a pain management program, but the level of drinking that he was performing was excessive, and would preclude his ability to participate in such a program. (4) I was certainly not convinced that pain interventional procedures were likely to be of any benefit to him. (5) This is certainly a case in which there were significant psychological aspects which were acting as major pain magnifiers."
27 Dr Clayton Thomas wrote to Mr Doig on 20 November 2008 and after reviewing the recent MRI scans which showed a possible intrameniscal tear at the back of the medial meniscus he stated, "Mr Nestorovski does need to be given unequivocal advice there is no major pathology within his knee. He is under the expectation that there is. He is under the expectation that there is further surgery that will take place. Until he can be told unequivocally that he is at a relative end point from the surgical point of view his ability to take on board any pain management strategies will be negligible." In my opinion the assessments made by Dr Clayton Thomas of the plaintiff are also generally unhelpful to the plaintiff's case.
28 The plaintiff was seen for medico legal purposes at the request of his solicitors by Mr Russell Miller, orthopaedic surgeon, on 19 January 2009. It is significant that this examination occurred six days after the video surveillance taken of the plaintiff whilst at the seaside. When the plaintiff attended upon Mr Miller his complaints to Mr Miller were, "he has ache, discomfort, pain, swelling and crepitus in the left knee which causes him to walk with a limp. He has difficulty with kneeling and squatting and his symptoms fluctuate. There is no pattern towards improvement." This description by the plaintiff of his symptoms was not consistent with the video surveillance undertaken on 13 January 2009.
29 Mr Miller was of the opinion that the plaintiff had suffered an articular cartilage injury to the left knee involving the patella and femoral trochlea. He felt the plaintiff had significant symptoms and it was likely that there would be ongoing articular cartilage breakdown. Mr Miller was of the belief that the long term prognosis for the plaintiff's knee was only fair. Mr Miller was also of the opinion that as a result of the plaintiff's fall and subsequent chronic limp he aggravated his lumbar spine condition.
30 The plaintiff was seen for medico-legal purposes at the request of his solicitors by Charles Flanc, vascular and general surgeon. In his report dated 6 February 2009 Mr Flanc expressed the opinion that the plaintiff had sustained a significant aggravation of pre-existing but asymptomatic chondromalacia patella of the left knee by rendering it symptomatic.
31 Mr Kevin King saw the plaintiff for medico-legal purposes at the request of his solicitors and in a report dated 19 May 2009 he expressed the opinion that the fall "would have caused damage to the articular surface of the patella femoral joint, and of the lateral joint compartment (as confirmed by Mr Doig in his reports) and would adequately explain the mild but definite laxity of the anterior cruciate and lateral capsular ligaments and would also explain the quite marked wasting of the left quadriceps muscle." Mr King was of the opinion that the plaintiff's left knee injury had left him with a painful, rather weak and rather stiff left knee joint, and the residual impairment of function of the left lower limb was a major problem for the plaintiff.
32 The plaintiff was assessed at the request of the defendant by Mr Russell, Mr Shannon and Mr Dooley.
33 In Mr Russell's report dated 27 October 2008 he stated that his examination "revealed a person who formally moved his left knee in a limited manner, but when testing for crepitus the knee seemed to move quite well in a passive sense without any restriction, or complaint from the patient. The examination did show some features which made the physical condition difficult to be concerned about. Physically it showed good function. He reports some depression. This should be assessed by a psychiatrist. From the physical point of view he has quite good knee function, he should be treated with reassurance." Mr Russell was also of the opinion that Mr Doig had achieved quite a good result from a technical point of view in terms of the surgery performed upon the plaintiff's left knee and the plaintiff's ongoing problems, "may well be more social and physical."
34 Mr Shannon in a report dated 28 February 2008 was of the opinion that the plaintiff had sustained an injury to the left knee with internal derangement particularly chondromalacia of the patella, and also some collateral ligament laxity. The affect of this injury had been significant thigh wasting.
35 Mr Dooley in his report dated 17 August 2009 was of the opinion that the plaintiff had sustained an impact injury to his left knee which had caused some damage to the articular surfaces of the patella femoral joint. Mr Dooley was of the opinion that the plaintiff's ongoing symptoms were out of proportion to what one would expect to see. He expressed the opinion that "the majority of patients following this sort of injury at this point in time would note some ongoing intermittent anterior knee pain. The pain would be aggravated by a lot of kneeling and squatting, or a lot of impact activity. In my view, however, most people of Mr Nestorovski's age would be able to carry out a range for employment, domestic and leisure activities. The sensitivity to light touch around the knee, the generalised tenderness of the knee and the complaint of pain throughout the movement of the knee are more in keeping with a psychological reaction to injury and/or pain than to organic pathology alone."
36 It was submitted on behalf of the plaintiff that even if I found the plaintiff to be an unsatisfactory and unreliable witness there were objective signs of ongoing pathology in the left knee, there was wasting in the left thigh, there was evidence of increased consumption of medication for pain relief, and increased symptoms of back pain as a result of altered gait and accordingly I ought to find this was a serious injury as defined with respect to pain and suffering.
37 I do not accept this submission. I am not satisfied having regard to the provisions of s.134AB(38)(b) and (c) that the pain and suffering consequence is "when judged by comparison with other cases in the range of possible impairments, or losses of a body function, or disfigurements as the case may be, fairly described as being more then significant, or marked and as being at least very considerable." I make this finding for the following reasons. (1) I do not accept the plaintiff's evidence on the nature and extent of his left knee injury and its effects upon him; (2) Further, I do not accept his description of ongoing restrictions in movements of the back, and symptoms of back pain as a result of altered gait; (3) I accept Dr Clayton Thomas' opinion that there is "no major pathology" in the left knee. This is consistent with the recent opinion of Mr Dooley, which I accept, and the opinion of the plaintiff's treating general practitioner. These opinions are also consistent with the unrestricted movements of the plaintiff seen on videos taken on 13 January 2009 and 26 June 2009. Therefore, whilst there is some pathology in the left knee I do not consider this even when combined with the finding of wasting and increased consumption of medication for pain relief justify the finding of serious injury.
38 I have already commented upon the relatively brief reference to psychiatric symptoms in the plaintiff's affidavits. The plaintiff has been treated by Dr Paul Kornan on a regular basis since early 2008 and it is clear that the plaintiff's condition has improved over time. The plaintiff sees Dr Kornan and is prescribed medication. He has received no other form of psychiatric treatment nor is any other form of treatment proposed. Dr Kornan's diagnosis is of an adjustment disorder with anxiety and depression. In his report dated 21 April 2009 he expresses the following opinions. "The prognosis remains quite uncertain. My preferred view is that his psychiatric state will remain at current levels into the future. I see him remaining with a psychiatric condition of chronic moderate intensity long term."
39 The plaintiff was seen for medico-legal purposes by a large number of psychiatrists.
40 Dr Epstein in a report dated 7 July 2009 has expressed the opinion that the plaintiff has developed a chronic adjustment disorder with anxious and depressed mood arising from chronic pain, discomfort and disability from injuries received in a work accident that occurred on 20 November 2006.
41 Dr Nathar in a report dated 17 July 2009 has expressed the opinion that the plaintiff was suffering from a major depressive illness with anxiety and panic disorder as well as a chronic pain disorder involving psychological factors and general medical conditions. Both conditions are moderately severe in degree. Dr Nathar was of the opinion that the plaintiff's psychiatric condition, depression, panic and chronic pain disorder was of such severity that it alone rendered the plaintiff totally and permanently incapacitated for work.
42 Dr Jager in a report dated 16 June 2007 expressed the opinion that the plaintiff was suffering from a major depressive disorder with anxiety, however, at that time he felt the disorder had not stabilised and the plaintiff should fully recover from it.
43 Dr Barry Kenny in a report dated 15 December 2008 was of the opinion that the plaintiff had a continuing adjustment disorder with depressed and anxious mood and the plaintiff until recently had demonstrated significant symptomatic substance abuse.
44 Dr Timothy Entwisle in a report dated 17 July 2009 expressed the opinion that the plaintiff had an adjustment disorder with mixed emotions secondary to his current knee symptoms. He was of the opinion that the plaintiff had a capacity for work when he saw him in July 2009. He felt the plaintiff's prognosis ultimately depended upon the outcome of his knee symptoms.
45 The plaintiff was cross-examined about his daily activities with particular reference to any ongoing psychiatric injury. The plaintiff admitted in cross- examination that he drives from Craigieburn to Carlton three times a week to collect his son so that his son can do cleaning work at offices in Brunswick. The plaintiff helps a little with this cleaning. He attends bingo at Fawkner three to four times a week, these sessions last for a couple of hours, and he has friends that he sees at bingo. The plaintiff also continues to attend a social club, the Vojvodina Club on occasions with his wife and friends. He drives a motor vehicle and helps his wife with the shopping.
46 I accept the opinion of Dr Kornan, the plaintiff's treating psychiatrist, that the plaintiff has an adjustment disorder which is chronic but of moderate intensity. As the plaintiff's treating psychiatrist Dr Kornan is, in my opinion, best placed to accurately assess the nature and extent of the plaintiff's psychiatric condition. I do not accept the opinion of Dr Nathar that the plaintiff's psychiatric condition is of such severity that it renders the plaintiff totally and permanently incapacitated.
47 Having regard to the plaintiff's diagnosis, treatment both past and future, and current activities, I am not satisfied that the pain and suffering consequence of his mental, or behavioural disturbance, or disorder is "when judged by comparison with other cases in a range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more then serious to the extent of being severe."
48 Accordingly, the proceeding is dismissed.
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