O'Connor v SPC Operations Limited
[2010] VCC 1134
•16 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00021
| BRIAN O'CONNOR | Plaintiff |
| v | |
| SPC OPERATIONS LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 26 and 27 July 2010 |
| DATE OF JUDGMENT: | 16 August 2010 |
| CASE MAY BE CITED AS: | O'Connor v SPC Operations Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1134 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act s.134AB – serious injury – injury to the left shoulder – injury to the right knee – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 25 May 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the left shoulder and the right knee.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) of the Act provides that psychologically based consequences are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
12 The plaintiff relied upon three affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged sixty three, having been born on 18 April 1947.
14 The plaintiff commenced work with the defendant in the 1995-96 season as a casual and was made permanent in about August 1998. His position involved operating a palletiser, or a number of them.
15 This job required him to walk six times around a trolley, eight times an hour. He also had to shift pallets on trolleys and straighten them. He was on his feet all day, with constant walking. He was also required to climb stairs from time to time and run up stairs a couple of times a day. Sometimes he had to walk up stairs to clear piles of cans when they became jammed.
16 The plaintiff deposed that prior to the said date, his health was good. He had some problems with hypertension and gout previously. He had not had any problems with his left shoulder.
17 In cross-examination, the plaintiff said that he has had a long time problem with gout in his left foot, for which he takes Zyloprim. He also takes Monopril for hypertension.
18 The plaintiff deposed that he had pre-existing arthritis of his right knee which he believed was aggravated on the said date. He hurt his right knee playing football when he was about twenty two but had had no right knee problems since that time. The only treatment he had was from a trainer at the football club who pushed back his patella.
19 After this injury playing with Shepparton East, the plaintiff did not play football for three years. He then trained with Shepparton United in the Goulburn Valley League and played in the Shepparton United Reserves. He made a complete recovery from the earlier injury and had no limitation or difficulty training or returning to football. He did not continue playing because he lost interest because he was struggling to obtain a permanent position, even in the Reserves.
20 In cross-examination, the plaintiff explained he was unable to play for the rest of the football season and “was not confident about the knee until everything settled down“. It was three years before he was confident enough to play football again. He may have taken some painkillers after that injury. He did not resume football, because he was doing other things and he had taken up other interests.
21 In re-examination, the plaintiff explained he had started doing a lot more shooting and fishing than previously and that was one of the reasons why he stopped playing football. Because of his knee, the plaintiff had problems walking on rough and uneven terrain whilst shooting and riverbank fishing. When he returned to playing football he did not have any problems with his knee. He did not pursue playing for very long, because he “had lost the rhythm of the game” and he “could never get back to where the ball was”.
22 On or about 24 February 2004, the plaintiff dislocated his right patella when on a ladder at work. In cross-examination, the plaintiff explained that in the 2004 incident, he had climbed a ladder to clear a jammed can out of the canning line when his foot slipped and he twisted his knee, and his patella popped out (“the 2004 knee injury”).
23 The plaintiff had some time off work and underwent physiotherapy for a couple of months. He was referred to Mr Critchley, orthopaedic surgeon, who carried out an arthroscopy of the plaintiff’s right knee in August 2004 (“the first operation”).
24 The plaintiff deposed that he had a good result from this treatment and was able to get back to normal work and had no sensation of instability, further dislocation or significant knee problem until the incident. After the first operation the plaintiff made a complete recovery from symptoms, restrictions and limitations and he was doing the substantial walking required in his job with the defendant.
25 The arthroscopy symptoms settled down within about four to five weeks. The plaintiff thought that by October 2004 he would have pretty much recovered and he had stopped taking medication.
26 The plaintiff agreed in cross-examination that after February 2004 he had to take care when walking as his knee felt as if it was going to “pop out”.
27 In re-examination, the plaintiff said that he had made a very good recovery after the first operation. To him, his knee was symptom free, he had no trouble with it at that time and that remained the case until the said date.
28 In cross-examination, the plaintiff said that he returned to normal duties at the palletiser after the first operation and over the following years his income gradually increased. In the financial year ending June 2005, he did a fair bit of overtime, and the following year he did a lot of overtime work on the palletiser, on either Saturday or Sunday, or both days.
29 On the said date, the plaintiff suffered injury at work when he slipped on a walkway which had been recently painted. He lost his footing, with his right knee going from under him. Both legs went into the air and when he fell, he put his left arm down to break his fall and injured his left shoulder, and also injured his right knee (“the incident”).
30 In cross-examination, the plaintiff explained that in the incident he believed his right foot slipped and he twisted his knee as a consequence, causing the patella to “pop out”.
31 Following the incident, the plaintiff was taken to the Goulburn Valley Base Hospital where x-rays were taken of his right knee and left shoulder. He was released that night. Over the weekend following the incident, the plaintiff did very little.
32 Initially, after injuring his left shoulder, the plaintiff had very little movement in the left shoulder and he underwent physiotherapy treatment organised by the defendant. He was absent from work for about six weeks.
33 On his return to work, he was certified fit for light duties which he performed until November 2007.
34 The plaintiff had further physiotherapy for another five or six weeks which freed up his shoulder. His attitude at that time was to keep using his shoulder or “he would lose it”.
35 Since the incident, the plaintiff has been under the care of Dr O’Dwyer and other general practitioners at Lister House in Shepparton.
36 The plaintiff denied that he did not mention his shoulder complaint until an attendance on the doctor on 22 June 2007.
37 The plaintiff was referred to Mr Critchley, orthopaedic surgeon, who operated on the plaintiff’s right knee, performing an arthroscopy in November 2007 (“the second operation”). The plaintiff believes that his right knee has now improved as much as it will.
38 The plaintiff saw Mr Critchley one or two weeks after the second operation. He most recently saw him in September 2008 in relation to a right foot fracture suffered when he hit his foot on the tyne on a forklift whilst out shopping.
39 In re-examination, the plaintiff said that when he returned to work after surgery in 2007, his knee and shoulder injury were difficult to deal with initially. It got slightly better, but he was taking anti-inflammatories, initially every second day, then daily. He needed to do so because his knee was still rather stiff and it was swelling up.
40 The plaintiff explained that since August 2007, he had mentioned his right knee when he went to Lister House to get a prescription, but not in the sense that he was seeking treatment for it. He has not been to see Dr Sterling or Dr O’Dwyer at that clinic in recent times for his knee. Since August 2007, he has been back there at least once for a prescription of Indocid tablets.
41 In cross-examination, the plaintiff disagreed that he told Mr Elsner on examination in June 2009 that he did not have shoulder pain at night. If he lies on his shoulder in the wrong position he gets pain, but otherwise his shoulder was not generally painful at night.
42 The plaintiff agreed that as of mid 2009, he was not taking medication for his shoulder and knee, and that when he saw Mr Elsner, he had no knee pain.
43 Complete tears of the supraspinatus and infraspinatus tendons have been diagnosed. When he first injured his shoulder, he could not move it at all and it was extremely painful and immobile. Whilst there has been some improvement, it is very far from recovered and he has ongoing, enduring limitations in respect of its use at work and at home.
44 The plaintiff has quite a restricted range of movement in his shoulder and cannot lift anything from a horizontal position and his main weakness is at forty five degrees to ninety degrees.
45 In these circumstances, the plaintiff cannot lift anything with significant weight, such as in excess of one kilogram, above shoulder height. He finds it very difficult to wash the back of his body with his left arm.
46 The plaintiff has learned to live with his left shoulder injury and when he uses it, it does get sore and painful. He was advised against surgery as a good result could not be guaranteed. Also, the plaintiff has worked very hard with his physiotherapy treatment and a reasonable amount of movement had returned.
47 The plaintiff deposed that his left shoulder is permanently incapacitated and cracks and crunches and these noises are audible when he puts on his clothes. This is unnerving but not painful.
48 The plaintiff deposed that his left shoulder is very weak. His left arm tires very quickly and the muscles in the shoulder are wasted.
49 The plaintiff deposed that he has ongoing left shoulder pain, at times reasonably severe, especially after activity. He tries to rest it as mush as possible. The pain is worse when he lifts anything.
50 The plaintiff can carry bags, such as shopping bags, with both hands, but any lifting to a greater height causes him difficulty and pain.
51 In cross-examination, the plaintiff said that he can elevate his arm above shoulder height without taking any weight. There might be a bit of above shoulder activity in his present job but “it is very minor.”
52 The plaintiff confirmed that his left shoulder feels weak and that if he tries to lift his outstretched hand above ninety degrees at work or at home he does so with difficulty. He has lost some muscle bulk. The plaintiff agreed, that in terms of his left shoulder, he had been relatively pain free.
53 In re-examination, the plaintiff said that the shoulder pain he had at night was five out of ten. Maybe once a month he was woken because of left shoulder pain.
54 If he really stretches his left shoulder it becomes painful and a lot of repetitive use makes it painful. He normally stops before the pain gets too severe. The plaintiff cannot exert enough force to open a door using his left hand.
55 The plaintiff explained, insofar as his shoulder was concerned, he can get on with his life; it is not stopping him from doing a lot of things but “there is just always something [he] knows is there”. For example, he has to lift a jerry can with his right hand because he cannot with his left. Just lifting things in and out of the boat or things at work is difficult. He cannot stack anything over shoulder height.
56 The level of shoulder pain the plaintiff experienced when driving with his left arm extended was about two or three out of ten. He then rested his arm and drove right handed.
57 The plaintiff deposed that he has to be very careful about what he does or his kneecap pops out. His knee is stiff in cold weather and the cold weather does not do his knee any favours.
58 The plaintiff deposed that his knee continues to be painful and restricted in its range of movements. It is very unstable. He is very concerned about osteoarthritis in that knee which he has been informed could require a knee replacement.
59 In his third affidavit sworn on 20 July 2010, the plaintiff deposed that he continues to suffer ongoing symptoms with his right knee. It remains permanently swollen and unstable and he needs to be careful how he walks. He has to keep his leg straight otherwise it feels as though his kneecap will pop out and dislocate.
60 If the plaintiff pivots on his knee it feels like it will dislocate and therefore he does not do it. He is always mindful when on his feet of his knee popping it out because of the feeling of constant instability and he has no doubt it will pop out if he is not careful.
61 From time to time the plaintiff’s knee is especially painful after he has been on his feet. In reality, he cannot squat or kneel and he avoids climbing ladders and prefers not to use stairs if at all possible, because of the pressure to his knee and the feeling of instability.
62 In cross-examination, the plaintiff confirmed that he does not have any tenderness in his knee. His knee is always swollen. It does not lock. The plaintiff agreed that there is no residual pain in his right knee. Sometimes it is uncomfortable but it is not really painful as such.
63 The plaintiff explained that his knee does not seem to affect him doing his work; it is just a bit stiff in the morning. If he stands for a long time it takes a while to loosen up.
64 In re-examination, the plaintiff said that it is uncomfortable just putting his socks on. He has to stretch to put his sock on his right knee, whereas with the left knee he can just bring his foot up. He finds it very difficult to squat or kneel. He does this slowly but the right knee is pretty stiff.
65 When asked what the impact of his knee injury was when he was required to stand all day in his current job, the plaintiff said he “would be only guessing, but he thought it could not be helping it.” His knee is sort of stiff all the time and standing does not help it but he finds that once it gets moving again it loosens up a bit.
66 In 2009, the plaintiff was diagnosed with bowel cancer. He underwent chemotherapy and radiation therapy at Peter MacCallum. As a result of this condition, the plaintiff lost about eight months off work but is now symptom free.
67 The plaintiff presently works fulltime in refurbishment at the defendant’s factory outlet sales department. It is not a very difficult job. He is able to cope with his duties which involve repacking damaged cans for factory sales. He is on his feet most of the day but there is little walking compared to his pre- incident work. This aggravates his pain levels and causes increasing stiffness in his knee.
68 In cross-examination, the plaintiff agreed he was changed from his palletiser work because the defendant wanted him to work in the refurbishment area. The change of job had nothing to do with his knee injury.
69 The plaintiff presently takes Indocid, an anti-inflammatory medication, once a day for his knee and shoulder, particularly if he is working. In cross- examination, the plaintiff said that a prescription is for one hundred tablets. He does not necessarily take Indocid every day, but takes it most days when he is working.
70 The plaintiff had taken Indocid for gout before the incident but he has not had any gout for ten years.
71 In re-examination, the plaintiff said that he last took Indocid for his injury a couple of days before the hearing because he was a bit stiff and sore in the shoulder and knee “and just standing all day the backache starts to ache a bit” which the plaintiff explained “was not what [he] was claiming but that’s just one of those things”. He took Indocid for his right knee initially and then sometimes for his lower back.
72 The plaintiff deposed that his injury has had a detrimental effect on his recreational activities, the main of which is fishing. He has problems casting and manoeuvring boats and other fishing activities.
73 In his second affidavit, the plaintiff deposed that he cannot use his boat by himself as it is very difficult to get it into the water. He will therefore sell it.
74 In his third affidavit, the plaintiff deposed that he has found that driving his boat causes an increase in pain and he is no longer able to drive the boat all day at Dartmouth as he could prior to the incident.
75 In cross-examination, the plaintiff said he thought that he had been fishing once or twice since the incident but prior to the treatment for cancer. Temporarily that cancer treatment impacted on his ability to go fishing and he intends to return to fishing if he could handle his boat and equipment. He owns a 16-foot boat. When he went fishing he backed the car and the boat to the water’s edge and his friend took it off the trailer. The plaintiff has not tried to do that by himself but “he is not saying he cannot”.
76 The plaintiff confirmed he had not been fishing because of his cancer. In re- examination, the plaintiff said that he does not drive the boat all day because his left arm just gets too tired.
77 Prior to the incident, the plaintiff used to walk to the RSL, which he deposed was a mile and a half round trip.
78 In cross-examination, the plaintiff explained that he could walk the round trip which was actually a kilometre and a half. Since the incident, he has walked to the RSL about a dozen times. Prior to the incident the plaintiff walked there probably every week. The plaintiff was not suggesting that normally his knee would prevent him from walking to the RSL.
79 In cross-examination, the plaintiff agreed that he was able to attend to domestic tasks. However, when he engaged in such activities, he used his right hand.
Investigations
80 The plaintiff’s right knee was x-rayed on 13 April 2004. A lateral ligament injury pattern with a second type avulsion fracture was suspected. The possibility of a fracture of the medial femoral chondral was also raised and a CT scan was recommended.
81 The plaintiff underwent an MRI scan of his right knee on 7 May 2004 organised by Mr Critchley. It was noted this was the suboptimal study. There was no evidence to suggest recent patellar dislocation. There was a small partial tear of the medial collateral ligament and a tear of the anterior horn of the lateral meniscus. There was a small ganglion with the suggestion of some loose bodies seen along the anteromedial aspect of the tibial plateau and there was moderate knee effusion.
82 An ultrasound of the right knee was carried out on 14 June 2007. There was a small joint effusion and a complete tear of the medial patellar retinaculum associated with oedema of pre patellar and pre quadriceps tendon soft tissue. The collateral ligaments and meniscus were intact, as were the patella and quadriceps tendons.
83 A left shoulder ultrasound was carried out on 25 June 2007. It showed complete tears of the supraspinatus and infraspinatus tendon.
84 An MRI scan of the right knee was carried out at Mr Critchley’s request on 23 August 2007. It was concluded that the findings were in keeping with recent lateral patellofemoral subluxation-dislocation. It was noted this was evidenced by avulsion fragment, complete tear of the medial patellar retinaculum with associated chondral injuries. It was noted there was most likely a loose cartilage fragment lying beside the medial patellar. There were signs of degenerative change of the knee but no meniscal or cruciate tendon tear was seen.
85 An x-ray of the left ankle and foot was carried out on 15 March 2007. There were degenerative changes seen around the ankle with periarticular osteophytes and a number of small corticated ossicles, which it was noted may be related to old trauma. Otherwise views of the foot showed almost complete arthrodesis of the 1st metatarsophalangeal joint with bony bridging. No normal joint space was seen. There were prominent bone spurs in the dorsum medially and laterally and an old fracture of the 5th metatarsal was noted. Specific features for gouty arthropathy had not been demonstrated.
Treating Doctors
86 Dr Sterling’s notes were tendered relating to attendances between 20 March 2001 and 15 August 2008.
87 On 11 February 2004, it was noted that the plaintiff reported having been up the ladder the previous day and twisting his right knee, dislocating his patella. Reference was made to the plaintiff having dislocated his patella thirty years ago whilst playing football and that “he has always been a bit tentative with it”. The plaintiff was given a week off work and was to be reviewed if his condition was not settling.
88 On examination on 16 February 2004, the dislocated patella remained painful, though not as severe and swollen. Physiotherapy and exercises with rest were planned.
89 On 25 February 2004, there was less effusion, although still significant. The plaintiff was given a certificate until 29 February 2004, and then for alternative duties from 1 to 7 March 2004.
90 On 3 March 2004, it was noted that the plaintiff had reached a bit of a plateau and had “been improving mobility”. His right knee was not painful but still swollen.
91 On 17 March 2004, the plaintiff’s knee remained on a plateau.
92 There was no specific reference to a knee complaint again until 28 May 2007, when the plaintiff complained of the incident and that his right knee was swollen.
93 On the attendance on 22 June 2007, there was a note “? left rotator cuff”.
94 On 29 February 2008, Dr O’Dwyer noted the plaintiff was managing pretty well and occasionally using Indocid only.
95 Dr Sterling provided a report dated 15 August 2008. He advised that he had seen the plaintiff only on a very few occasions, and not since 2004. From information he had received from Dr Albatat and Mr Critchley, and his own notes, Dr Sterling described the first work knee injury and also the incident.
96 The plaintiff attended Dr O’Dwyer on 14 March 2007 when the plaintiff complained of a painful swollen left ankle.
97 On 28 May 2007, the plaintiff attended Dr Albatat and told him of a fall at work that day. It was noted pain was improving and the right knee was swollen. Dr Sterling noted that there were no injury related visits to the practice after 3 August 2007.
98 Dr Sterling diagnosed recurrent right patellar dislocation, cartilaginous degeneration and injured left shoulder. Dr Sterling noted that he had no personal knowledge or involvement in the plaintiff’s management and he could not be more specific about the plaintiff’s condition.
99 On 26 April 2004, Mr Critchley reported in relation to the 2004 knee injury.
100 On that date, Mr Critchley also wrote to Dr Sterling, who had referred the plaintiff to him, following an incident where the plaintiff had stepped onto a moving belt and dislocated his right patella.
101 It was noted, at that stage, having had physiotherapy treatment, the plaintiff’s condition had plateaued following the dislocation of his right patella, his knee remained swollen and there was medial pain, but he had not had any episodes of locking but felt that it may on occasion.
102 On examination, the plaintiff’s knee was stable. He was very tender over both the medial and lateral joint line and there was some patellar apprehension. Mr Critchley thought the knee probably had now stabilised from the point of view of clinical examination.
103 Noting the plain films that had been taken, which showed a variety of abnormalities in relation to the right knee, Mr Critchley thought an MRI scan would be useful to provide more information as to the degree of chondral or bony damage.
104 Mr Critchley wrote to Dr Sterling again on 10 May 2004, having seen the plaintiff with the results of the MRI scan. The scan showed a small tear of the lateral meniscus but little in the way of pathology that would be related to a dislocated patella. Mr Critchley thought there was possibly some cartilaginous loose bodies anteromedially. He noted the plaintiff’s knee still had a sizeable effusion and he was tender over the medial aspect.
105 Mr Critchley advised Dr Sterling that, as they were getting nowhere with ongoing conservative treatment, the plaintiff required an arthroscopy and debridement.
106 Two months prior to the second operation, on 3 September 2007, Mr Critchley wrote to Dr Sterling, having seen the plaintiff that day. Having seen the MRI of the plaintiff’s knee, he advised Dr Sterling that the plaintiff required an arthroscopy.
107 Mr Critchley performed the second operation on 8 November 2007, the details of which are set out in “Investigations”.
108 The plaintiff’s general practitioner, Dr O’Dwyer, reported on 7 June 2010.
109 Dr O’Dwyer described the dislocation of the plaintiff’s right patella in the 2004 work knee injury and the re-dislocation in the incident, together with the left shoulder injury.
110 Dr O’Dwyer noted the plaintiff had subsequently developed residual right patellar instability and aggravation of right knee degenerative change and he also suffered significant residual left shoulder dysfunction with associated loss of movement associated with weakness and stiffness.
111 In Dr O’Dwyer’s view, the plaintiff would no doubt experience continuing problems with both injuries. He thought the plaintiff’s right knee was likely to be persistently painful and restricted in its range of movement and that that would deteriorate over time and was also associated with patellar instability. Dr O’Dwyer thought that was likely to impact quite significantly on domestic and recreational activities and this incapacity would continue indefinitely and, in fact, it would worsen over time with worsening of degenerative changes.
112 Dr O’Dwyer noted that activities such as prolonged sitting were likely to be uncomfortable because of stiffness developing in the knee. Standing, walking and driving were all likely to be inhibited by knee pain and stiffness. Repetitive bending and twisting activities were also likely to be consistently limited and lifting would be limited to some degree by the knee and, in particular, lifting above shoulder height would be rendered almost impossible because of shoulder weakness.
113 Dr O’Dwyer considered those incapacities were likely to continue indefinitely and would in fact worsen over time. In Dr O’Dwyer’s view, the plaintiff’s impairments were likely to significantly limit him in his occupational duties and he was particularly limited by tasks which involved prolonged sitting, standing, walking, bending or lifting.
114 Dr O’Dwyer thought the plaintiff was likely to be limited in his employment to very sedentary occupations. He considered fulltime employment may be appropriate if a suitable sedentary occupation could be found.
115 Dr O’Dwyer concluded there was no treatment appropriate at that stage and that in the future the plaintiff may come to need a knee replacement if his symptoms continued to worsen.
Medico-Legal Evidence
116 On 24 June 2009, at the request of QBE Workers’ Compensation, the plaintiff was examined by Mr Elsner, orthopaedic surgeon.
117 The plaintiff told Mr Elsner of his football injury and the later dislocation of his patella, requiring arthroscopy in 2004. Mr Elsner noted the material with which he had been provided suggested the plaintiff had a patellofemoral cartilaginous degeneration as well as synovitis and presumably the knee was debrided at surgery. The plaintiff told Mr Elsner he had a good result from the first operation and that he was able to get back to normal duties and had no further problems until the incident.
118 Mr Elsner noted the plaintiff came to right arthroscopic surgery again on 8 November 2007.
119 At the examination, the plaintiff complained that his left shoulder was painful intermittently but not at night. He experienced shoulder pain if he overreached or pushed the extremes of the left shoulder. It felt weak, particularly when he tried to lift with his outstretched arm above ninety degrees of flexion or abduction, i.e., above shoulder height. At times the shoulder clicked and cracked and the plaintiff felt he had lost the muscle bulk around it.
120 The plaintiff told Mr Elsner he was then receiving no treatment for his left shoulder and he felt there has not been any significant change in it over the last few months.
121 The plaintiff’s right knee and in particular, right patella, felt unstable. He took great care when he walked, particularly on stairs, to avoid turning or twisting on his right knee, or his patella started to slide laterally but did not actually dislocate.
122 The plaintiff told Mr Elsner that his knee did not swell a lot and there was not really any residual pain in the right knee but it felt stiff. He told Mr Elsner he was doing his normal fulltime duties.
123 Examination of the plaintiff’s left shoulder showed some mild wasting of the deltoid and supraspinatus muscle belly. There was no tenderness. There was some restriction of movement, particularly external rotation of the left shoulder. There was no pain with these movements but there was some rotator cuff crepitus with abduction, suggesting some associated rotator cuff impingement. There was some degree of capsular tightness around the left shoulder.
124 Examination of the right knee showed a moderate effusion and synovitis. There was no tenderness around it but the plaintiff had a somewhat unstable subluxable patella and a positive patellar apprehension test consistent with residual patellar instability. The plaintiff lacked 5 degrees of extension and flexed to 125 degrees compared to his left, which flexed to 135 degrees, which was normal. There was no associated right knee pain with these movements but there was some mild patellar crepitus. The collateral and cruciate ligaments were stable and the arthroscopy scars were well healed and sensation around them and the knee was normal.
125 The right thigh circumference was a centimetre less than the left and there was no discrepancy in the circumference of the calf. There was a mild fixed flexion deformity noted when the plaintiff was lying on the examination couch. Mr Elsner had available to him the ultrasound of the right knee taken on 14 June 2007 and the left shoulder ultrasound of 25 June 2007. Mr Elsner suggested further investigations but was advised by the plaintiff that he was preoccupied with his cancer treatment at that stage.
126 Mr Elsner concluded that the plaintiff had suffered a soft tissue injury to the left shoulder with associated rotator cuff tears with residual left shoulder dysfunction and loss of movement.
127 Further, in his view, the plaintiff had suffered a right knee patellar dislocation, subsequently reduced, albeit with residual right patellar instability and aggravation of the right knee/patellar degenerative changes.
128 In Mr Elsner’s opinion, the plaintiff’s impairment and injuries had stabilised.
129 Mr Elsner did not believe he could make any scientifically based
apportionment between the plaintiff’s current level of right knee impairment
and the level thereof prior to the incident date.
130 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 26 May 2010.
131 The plaintiff told Mr O’Brien that after the second operation he had still been aware of a sensation of instability of the right kneecap, feeling it might pop out at any time. The plaintiff stated that there was some persistent ache in the knee, particularly in the cold weather. The plaintiff also told Mr O’Brien he could not trust his knee.
132 The plaintiff also described the sensation of weakness in his left arm and indicated he was unable to lift any weight. His shoulder was painful after any repetitive activity. The plaintiff told Mr O’Brien that his shoulder movement was reasonable and the pain did not disturb his sleep. On examination, Mr O’Brien noted that the plaintiff appeared to have a right sided limp. The plaintiff attempted to squat, with the production of significant pain, and he was unable to kneel.
133 Left shoulder movement was restricted and painful. Tenderness was noted over the anterior and lateral aspect of the left shoulder and there appeared to be some deltoid and supraspinatus wasting. Active abduction, flexion and external rotation of the shoulder against resistance were all painful and generally the muscle of the left shoulder girdle appeared weak.
134 There was definite wasting of the right quadriceps and general swelling around the right knee with an effusion within the joint. Flexion of the knee was restricted and accompanied by significant patellofemoral crepitus. Tenderness was described along the medial border of the right patella and there was a very positive patellar apprehension test. Cruciate and collateral ligaments were stable.
135 Mr O’Brien noted a report of the MRI scan of the right knee dated 7 May 2004. He was also aware of the ultrasound of the right knee of 14 June 2007 and an ultrasound of the left shoulder of 25 June 2007.
136 Mr O’Brien noted that an MRI scan of the right knee of 23 August 2007 was reported as demonstrating findings in keeping with the recent lateral patellofemoral subluxation/dislocation. There was evidence of avulsion fragments with a complete tear of the medial patellar retinaculum associated with chondral injury, evidence of loose cartilage fragments lying beside the medial patella. There were also signs of degenerative change of the knee but no meniscal or cruciate tendon tear.
137 Having noted these investigation results, Mr O’Brien commented that the MRI findings were of interest, in that there was no apparent evidence of a recent patellar dislocation and, indeed, the arthroscopic findings in July 2004 indicated the presence of patellar degenerative change with articulate cartilage pathology of both the medial and lateral compartments of the joint with extensive synovitis. He noted these symptoms apparently resolved following the arthroscopy.
138 In Mr O’Brien’s view, the plaintiff currently demonstrated signs of rotator cuff pathology, including clinical evidence of impingement and evidence of wasting and weakness in the rotator cuff muscle. In his view, these were signs indicative of a combination of a rotator cuff tear and impingement of the rotator cuff and tendonopathy.
139 Mr O’Brien noted that there were signs of right patellar instability with a very positive patellar apprehension test plus the presence of ongoing synovitis with knee effusion and marked crepitus indicating the presence of osteoarthritis affecting all compartments of the knee joint, in particular the patellofemoral compartment.
140 In Mr O’Brien’s view, the plaintiff sustained a traumatic dislocation of the right patella plus aggravation of pre-existing osteoarthritis in all compartments of the right knee in the incident.
141 In Mr O’Brien’s view, the plaintiff’s condition was stable. He considered there was no indication for any specific further active treatment or, indeed, investigations.
142 He noted, with the progression of pathology, one could not rule out the possible need for surgery as one would anticipate particular progression of the osteoarthritis within the knee which potentially could result in a knee replacement being required.
143 In these circumstances, Mr O’Brien remained very guarded in relation to the plaintiff’s prognosis as he considered progression of pathology of both injuries was indeed a likely scenario.
144 Mr O’Brien considered the plaintiff was moderately disabled in relation to the pathology affecting both the knee and shoulder. He noted the plaintiff was now undertaking fulltime modified duties. He thought the plaintiff would not be able to return to unrestricted employment and that this situation would be permanent. Mr O’Brien considered restriction of duties should involve both upper and lower limb function. He noted the plaintiff was in fact unable to lift, undertake repetitive actions with his left upper limb and basically could not work with it above shoulder height. He was also restricted in all weight bearing function.
145 In those circumstances, Mr O’Brien considered the plaintiff would be permanently restricted to modified duties and he hoped that this could continue on a fulltime basis.
146 In Mr O’Brien’s view, there was no doubt the plaintiff was significantly restricted in relation to his general, social, domestic and recreational activities, and this was a permanent situation.
Claim Documentation
147 By letter dated 3 July 2009, QBE Workers’ Compensation advised the plaintiff’s solicitors that the Victorian WorkCover Authority accepted liability pursuant to Section 93C of the Act for injury to the left shoulder and right knee sustained in the incident.
The Defendant’s Medical Evidence
148 The defendant tendered a number of documents from the plaintiff’s clinical records.
149 Dr Sterling wrote to Mr Critchley on 11 April 2004, referring the plaintiff for treatment in relation to his knee following the 2004 knee injury.
150 Dr Sterling noted, after the past seven weeks, the plaintiff had been having physiotherapy and was actively exercising. He had been able to gain better mobility and reduction in pain but there was a persistent effusion with some ongoing reduction in the range of movement of the knee. The plaintiff felt it had been on a plateau for the past three to four weeks. The plaintiff was back at work on alternate duties but was frustrated at the cessation of progress.
151 The operation note of the arthroscopy performed on 22 July 2004 set out that the patellofemoral articulation showed widespread Grade 2 to 3 change which was debrided, particularly from the patella. The medial compartment also showed some Grade 3 change which was further debrided. The anterior cruciate ligament was normal. The lateral compartment showed two medium sized cartilaginous loose bodies which were removed piecemeal. It was noted there was considerable trauma to the free edge of the lateral meniscus which was stabilised. The articular surface of the lateral compartment was reasonable.
152 On 5 August 2004, Mr Critchley wrote to Dr Sterling, having seen the plaintiff two weeks after the first operation. He noted the plaintiff was progressing well, but he felt he was not quite ready to return to work but he would be fit to do so in another two weeks. The plaintiff was given a prescription for non- steroidal anti-inflammatory aids, also in view of the quite marked synovitis that was present on his arthroscopy. The plaintiff was to be reviewed in two weeks.
153 Mr Critchley wrote to Dr Sterling on 23 August 2004, having seen the plaintiff following the first operation. On that examination, Mr Critchley noted the plaintiff was now much improved. He was still on light duties but he had been given a clearance that day to return to normal duties. At that stage, Mr Critchley had not arranged to see the plaintiff again.
154 Mr Critchley wrote to Dr Sterling on 9 August 2007 after Dr Sterling had referred the plaintiff to Mr Critchley again. Following that initial examination, Mr Critchley suggested an MRI scan be organised.
155 On that examination, the plaintiff’s knee was swollen and there was a small effusion. The plaintiff was very tender over the medial retinaculum. The range of motion was from zero to 110 degrees but the plaintiff did not have significant patellar apprehension. The range of shoulder movement was satisfactory and the plaintiff had minimal disability from what Mr Critchley noted was obviously quite a considerable cuff tear as seen on the ultrasound.
156 The operation of 8 November 2007 detailed an arthroscopy, debridement of the right knee and also removal of loose bodies. The patellofemoral articulation showed widespread Grade 3 change which was debrided. There was a chondral loose body in the lateral gutter which was removed. There was a semi pedunculated bony loose body in the medial retinaculum which was also dissected out and removed. The medial compartment showed extensive Grade 3 degenerative change which was debrided. The appearances of the meniscus were those of one that had previously had arthroscopic surgery but there was no lesion. The anterior cruciate ligament showed some degenerative change. The lateral compartment was essentially intact.
157 Mr Critchley wrote to Dr Sterling on 26 November 2007, having seen the plaintiff that day. He noted that the plaintiff’s shoulder was not giving him pain at that moment. The plaintiff’s knee was also not giving him pain but remained slightly swollen. Mr Critchley noted the plaintiff was keen to return to work on full time modified duties.
158 Mr Critchley again wrote to Dr Sterling on 17 December 2007, having seen the plaintiff that day. Mr Critchley noted it was six weeks since the second operation and apart from occasional swelling of the knee, all appeared to be well. He noted the plaintiff was certainly coping with work and wished to go back to work on normal duties. His rotator cuff tear, which had not yet been operated on, was also behaving itself at that time.
Video Surveillance
159 There was about eleven minutes of video surveillance taken of the plaintiff on 17 October 2009, commencing at 11.18 am and ceasing at 11.40 am.
160 During the film, the plaintiff was shown to walk relatively slowly. There were various gaps in the film and it was not a continuous film of him walking.
161 The plaintiff explained that he does not walk much quicker than was shown on the video but he was able to walk faster before the incident.
Schedule of the Plaintiff’s Earnings
162 The defendant tendered details of the plaintiff’s earnings.
Financial Year Employer Gross Earnings
2003 SPC Limited $35,680.00 2004 SPC Limited $32,102.00 2005 SPC Limited $36,402.00 2006 SPC Limited $37,112.00 2007 SPC Limited $40,086.00 2008 SPC Limited $44,179.00
Overview
163 There is no dispute that the plaintiff suffered a compensable injury to his left shoulder in the incident, suffering complete tears of the supraspinatus and infraspinatus tendons as shown on ultrasound on 22 June 2007.
164 There is an issue however as to whether the plaintiff suffered a compensable injury in relation to his right knee injury in light of his pre incident history of patellar dislocations, the first as early as the 1970s, and the second suffered at work in February 2004, in relation to which he underwent arthroscopic surgery.
165 It was submitted by counsel for the defendant that the plaintiff had failed to establish he had suffered an injury to his right knee in the incident.
166 Counsel for the defendant relied upon the High Court decision of Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, approved by Ashley AJ in Grech v Orica Australia Pty Ltd & Anor (supra).
167 In Ogden (supra), the Court considered the definition of injury under the Worker’s Compensation Act, in particular the recurrence, aggravation or acceleration of any pre-existing injury or disease where the employment was a contributing factor to such a recurrence, aggravation or acceleration.
168 In that case, Kitto J stated that he thought that aggravation meant that an existing disease had been made worse, not that it simply became worse.
169 It was submitted by counsel for the defendant that the plaintiff had not brought the plaintiff’s knee injury in this application within that definition of aggravation as he could not demonstrate what injury occurred in the incident.
170 In this regard, counsel for the defendant relied on notes relating to the first and second operations performed by Mr Critchley which described the plaintiff’s knee problems. It was submitted there was little difference in terms of findings of synovitis and degenerative arthritic change on the later surgery from that found in 2004.
171 It was also submitted that Mr Critchley was in a perfect position to comment on this issue, having seen the plaintiff both before and after both operations, but he did not provide a report in this respect.
172 However, I accept that the plaintiff suffered a compensable injury to his knee, namely an aggravation of a pre-existing degenerative condition of his knee and a further dislocation of the patella as diagnosed by both Mr O’Brien and Mr Elsner. As a result of the incident, there had been a worsening of the plaintiff’s knee condition; it had not simply become worse.
173 As this is an aggravation case in relation to the right knee, the principles in Petkovski v Galletti [1994] 1 VR 436 apply.
174 In the recent Court of Appeal decision in Guppy v Victorian WorkCover Authority [2010] VSCA 164, the Court held that while it was clearly appropriate for the learned Judge to follow Petkovski v Galletti (in a s.134AB application), there was no inconsistency between the decisions in Petkovski and Grech supra, namely, that where there was an aggravation of a pre-existing injury or condition, the applicant is required to establish what injury was caused by the accident.
“An analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long term impairment of body function.”
175 The issue for consideration is therefore whether any aggravation of the plaintiff’s right knee condition in the incident is serious and permanent.
176 Looking at the plaintiff’s condition before the incident, his evidence was that he made a complete recovery from the 2004 knee injury. After undergoing surgery in relation thereto, he was engaged in full activity without pain or limitation. It was submitted by his counsel that he was going “swimmingly” until the incident.
177 I accept that this was largely the case, with the plaintiff not requiring treatment for his knee between the end of 2004 until the incident. However, there was an ongoing issue in terms of the stability of the knee, with the plaintiff agreeing in cross-examination that from February 2004 he had to take care when he walked. Further, Dr Sterling reported in 2004 that since the football injury the plaintiff was always tentative regarding his right knee.
178 I accept, as was conceded by counsel for the defendant, that the plaintiff was a very frank and candid witness. He understood the questions that were asked of him in cross-examination and answered clearly and without hesitation.
179 Further, as to the plaintiff’s credit, in my view, there was nothing in the video surveillance film that showed a level of activity or freedom of movement inconsistent with the plaintiff’s evidence.
180 It was submitted by plaintiff’s counsel, that to the detriment of his case, “if ever a witness had stepped into the witness box in any court and understated his case, it was the plaintiff”. In such circumstances, I was asked to consider his demeanour and evidence compared to what the plaintiff told doctors in histories and medical reports and, to some extent, compared to what he said in re-examination.
181 The plaintiff deposed his right knee continued to be painful and he had ongoing symptoms and that his knee was especially painful at times if he had been on his feet.
182 However, his viva voce evidence was that there is no residual pain and no tenderness. Sometimes his knee is uncomfortable but it is not painful as such and was not painful.
183 This viva voce evidence confirmed the description of pain given to Mr Elsner in mid 2009. The plaintiff’s complaints to Mr O’Brien were not of a dissimilar magnitude describing instability and some persistent ache in the knee, particularly in the cold weather.
184 In re examination, the plaintiff confirmed that his knee was a bit stiff and sore.
185 Whilst I accept the plaintiff has some ongoing discomfort in his right knee and it is swollen, I do not accept that the plaintiff presently suffers a level of pain that is serious. He has problems squatting and kneeling but he can do so slowly. There is no locking of his knee. Further, there is no evidence that the plaintiff’s knee condition affects his sleep.
186 Reliance was placed by counsel for the plaintiff on the sensation experienced by the plaintiff of patella instability and his knee giving way after the incident. However, this was a problem for the plaintiff before the incident and the plaintiff told Dr Sterling in 2004 that it had been a problem since the football injury.
187 The plaintiff has not required significant treatment for his right knee following the second operation.
188 The plaintiff has obtained only at least one prescription for Indocid since August 2007. When he takes that drug, as he explained, it is not only for his knee and shoulder but also for backache.
189 It appears the last visit to the Lister Clinic when the plaintiff mentioned his knee was in mid 2007. On 29 February 2008, Dr O’Dwyer noted the plaintiff was managing pretty well and only using Indocid occasionally.
190 The last word from Mr Critchley was his letter to Dr Sterling on 17 December 2007, six weeks after the second operation, in which he noted that apart from occasional swelling, “all appeared to be well” and the plaintiff wanted to return to normal duties.
191 Considering then any work related consequences of the plaintiff’s right knee injury.
192 Counsel for the defendant relied upon the decision of Chernov AJ in Sumbul Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph 23. It was submitted that without other evidence where, such as in this case, the plaintiff was working full time after injury, it would be difficult to establish serious injury on a pain and suffering basis. In this regard, reliance was also placed on Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12.
193 Whilst the ability to return to work post injury is a relevant consideration when judging the seriousness of an impairment, each case must be looked at in light of its own facts.
194 Following the incident, the plaintiff had a short period of time off work and resumed his normal duties, together with overtime in March 2007.
195 There was no change of duties requested or required by the plaintiff as a result of his knee injury. He was transferred to refurbishment, together with other employees at the wish of the defendant.
196 The plaintiff’s right knee does not significantly affect the plaintiff’s ability to do his present job. He described his knee as being just a bit stiff in the morning and then he moves around and loosens it up. He would be only guessing – standing to do his job does not help his knee.
197 In terms of any impairment relating to recreational activities, a reading of the plaintiff’s three affidavits suggested that he had reduced his fishing activities due to knee pain. However, his viva voce evidence was that he had not returned to fishing because of his bowel cancer.
198 Taking into account the plaintiff’s description of a knee that is a bit stiff and sore together with the plaintiff’s work situation, the lack of medication/treatment, the medical evidence and the plaintiff’s evidence as to other consequences of his knee impairment, I am not satisfied that his knee impairment is serious and permanent.
199 Further, any knee instability that may result in the need for further surgery was a situation that had predated the incident and was a problem for the plaintiff since his football injury in the early 1970s.
200 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s right knee has consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
201 Accordingly, the application for leave to bring proceedings for damages in relation to the right knee is dismissed.
The Left Shoulder
202 As indicated on ultrasound, and not disputed by the defendant, the plaintiff suffered complete tears of the infraspinatus and supraspinatus tendons in the incident.
203 It is the impairment not the injury however that is the relevant consideration in this application.
204 The plaintiff’s shoulder injury was treated conservatively, with the last physiotherapy treatment in 2007. The Indocid the plaintiff takes for his left shoulder is also taken for right knee and back pain.
205 As with the application relating to the right knee, the plaintiff’s affidavit evidence as to his level of pain and disability differs to some extent from his viva voce evidence.
206 The plaintiff deposed that he has ongoing left shoulder pain, at times reasonably severe, especially after activity.
207 However, the plaintiff confirmed in re examination was that in terms of his left shoulder, he could get on with his life; his left shoulder it is not stopping him from doing a lot of things but it was always something that he knew was there.
208 This is not much different to what the plaintiff has told medico-legal examiners whose findings did not support a serious level of disability or restriction.
209 The plaintiff told Mr Elsner his left shoulder was painful intermittently but not at night. On examination in June 2009, there was no pain on movement, nor was there tenderness, although there was crepitus and wasting.
210 The plaintiff told Mr O’Brien that he had left shoulder weakness and it was painful after any repetitive activity. The pain did not disturb his sleep and the range of movement on examination was reasonable.
211 Mr Critchley noted, in December 2007, when he last reported that the plaintiff’s rotator cuff tear was behaving itself at that time.
212 Whilst I accept that the plaintiff has problems with his left arm lifting weight in excess of one kilogram above shoulder height, he can move his shoulder more freely without weight. The requirement to use his arm in this manner weight bearing at work is very minor.
213 The clicking and crunching of the left shoulder experienced by the plaintiff was unnerving, but not painful.
214 The plaintiff is able to undertake domestic tasks because he is right handed
215 The plaintiff ranked the interference with his sleep caused by the left shoulder problems as only five out of ten, and that happened normally once a month.
216 The low level of pain which he experienced when driving with his arm extended could be dealt with by changing to driving with his right hand.
217 Any interference with the plaintiff’s fishing activities to date has resulted from the plaintiff’s bowel cancer.
218 Taking into account all the evidence, I am not satisfied the plaintiff has a serious injury in relation to his left shoulder.
219 Accordingly, the application seeking leave to bring proceedings for damages for pain and suffering in relation to the left shoulder is dismissed.
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