Patterson v Gunal Pty Ltd (trading as GAM Steel Pty Ltd)
[2014] VCC 1531
•15 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03095
| ANTHONY ROY PATTERSON | Plaintiff |
| v | |
| GUNAL PTY LTD (trading as GAM STEEL PTY LTD) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 September 2014 | |
DATE OF JUDGMENT: | 15 September 2014 | |
CASE MAY BE CITED AS: | Patterson v Gunal Pty Ltd (trading as GAM Steel Pty Ltd) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1531 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral knee conditions
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Melbourne Injury Lawyers |
| Ms V Nadj | ||
| For the Defendant | Mr P Jens | Thomson Geer |
HIS HONOUR:
1 This application for leave is really two applications in the one Originating Motion. A “serious injury” finding is sought for a left knee impairment as well as one of the right knee. Pain and suffering consequences only are relied on for each separate body function. The plaintiff has been in full-time self-employment since 2007 when he accepted a redundancy package from the defendant.
2 The two admitted compensable injuries occurred while working for the defendant. The left knee was injured on 17 March 2006. The right knee was injured on 18 April 2007. The plaintiff underwent arthroscopic surgery to the left knee on 6 June 2006 by Mr J Hooper, orthopaedic surgeon. The plaintiff underwent arthroscopic surgery to his right knee by Mr R Freeman, orthopaedic surgeon, on 23 May 2007.
3 The plaintiff has had no treatment from any doctor or other medical person for about eight years in relation to the left knee. He has had no treatment with respect to the right knee for some seven years.[1] The only evidence of any treatment at all, if it can be called that, is the taking of the non-prescription medication, Nurofen, most nights.[2]
[1]Transcript (“T”) T14, 16-17, 20, 49
[2]Plaintiff’s Court Book (“PCB”) 21, T20
4 The case is primarily put on the basis of pain as the major consequence. It was described by leading counsel for the plaintiff as: “This is a pain case”.[3] As to any other consequence that was relied on, it was said that with respect to the work the plaintiff was currently carrying out, that it was not suitable and there was a limitation in relation to that. Also it was a progressive deterioration of the knees that raised the question of how long he could keep doing that work.[4] In his affidavit evidence, the plaintiff described some compromise of his activities in his self-employed work role as a result of both knees[5] and he said in Court he was able to work at his own pace. He described in his two affidavits that his social and family life has been somewhat restricted in certain activities.[6] A fair reading of his affidavit evidence is that, rather than being prevented from a lot of these activities, he had to be rather more careful as to how he went about them and that certain activity could cause a heightening of symptoms. He described in his affidavits what he considered a deterioration in the condition of both knees.
[3]T10
[4]T10–11
[5]PCB 11
[6]PCB 10
5 The plaintiff has seen a number of general practitioners, starting with a Dr G Bettenay, who referred him to Mr Hooper for the left knee operation. He saw a Dr C Nguyen at a different clinic for his right knee problem and was referred to Mr Freeman for treatment to that knee. He has also been seen for other medical reasons by a general practitioner, Dr C Ferwerda, at another clinic. He facilitated some x-rays but the plaintiff has not been treated by that doctor with respect to either knee. I will say more about that doctor later.
6 It is worth recording some uncontested evidence about the plaintiff’s work situation. After leaving his employment with the defendant in 2007, he moved into self-employment. He has worked in that self-employed business ever since and it involves very hands-on work.[7] The plaintiff performs metal fabrication work, boilermaking work, welding work, forklift driving, delivering gas bottles with a trailer he converted and attending to deliveries in the metal industry.[8] His work involves making products, such as large steel cages and gate frames, steel gates and other metal fabrication work. He works alone and does not employ any labour.[9] He works “on the tools” in terms of producing the steel products. He also attends to the sales, the contracting out of some of the work and the delivery of the products by road himself. On any view, the work that he does is at least as physical as the work he did for the defendant prior to the redundancy, although at stages the nature of his duties there varied between night and day shift work.
[7]T18
[8]PCB 10, T18-19, 28-29, 52, 55, 68
[9]T53
7 His self-employment work places obvious demands on his legs. It even involves at times his stepping up onto a large steel table he made to weld metal products too large to do from the ground.[10] These can involve steel gates 2-metres high and crates of similar size.[11] Of necessity, considerable steel pieces are involved in making such products.
[10]T52, 61-63
[11]T52
8 The plaintiff currently works in this self-employment six days per week, from 6.00am to 5.00pm Monday to Friday and about four hours on Saturday. This amounts to about 60 hours per week without assistance.[12] His work with the defendant prior to his redundancy was about ten hours a day, five days a week. One difference of course is that he can work now at his own pace. It is important to note that there is no evidence that he needs or has ever sought assistance for any of the tasks in his business. He performs all of them himself and has done so since 2007.
[12]T55
9 There have been a number of recent cases that have dealt with the approach to a pain and suffering application in circumstances where the plaintiff has been able to return to work.[13] None of these cases have dealt with a person who has gone from full-time mixed physical duties over a 50-hour week to 60 hours a week still in physical work over a six-day working program. To his credit, that is what the plaintiff has achieved in the years since his injuries.
[13]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
10 In determining the pain and suffering consequences of an injury it is necessary to consider not only what the plaintiff says about the pain but also what he does about pain in terms of treatment. Also what the doctors say about pain and what the objective evidence shows about the disabling effect of the pain have to be considered.[14]
[14]Haden Engineering Pty Ltd v McKinnon (supra); Hawkinsv DHL Express (Australia) Pty Ltd (supra) at paragraph 63
11 The plaintiff was the only lay witness. In essence, he described constant but variable pain in the knees as well as grinding and clicking. The knees were deteriorating. The main theme throughout the plaintiff’s evidence was that he was able to “soldier” on and would continue to do so without treatment.[15] I will say more about his evidence later. There is no lay evidence from any other witness as to any consequences suffered by the plaintiff. While he deposed as to certain restrictions around home and his wife’s observations, no evidence from his wife has been provided.[16]
[15]T61, T80
[16]T78
12 I note the repeal of s134AE of the Accident Compensation Act (“the Act”) in the Second Reading Speech and Explanatory Memorandum that accompanied the repeal. The medical evidence here is quite brief and self-explanatory. There is no need to record it in great detail but some comments are warranted. There is no evidence from the plaintiff’s treating doctors about consequences that support the grant of leave based on very considerable consequences. With respect to his treaters, they are either absent in this case, silent or give opinions quite contrary to a finding of very considerable permanent consequences.
13 The plaintiff’s first general practitioner was Dr G Bettenay at a clinic at the Highpoint Shopping Centre. He reported on 14 May 2012. He has not seen the plaintiff since June 2006. He saw the plaintiff post-operatively on that date following Mr Hooper’s surgery. The general practitioner said:
“I expect the prognosis to be good”.
14 This was, of course, in relation to the left knee injury in 2006 which pre-dated the right knee injury in 2007.[17]
[17]PCB 35
15 From Mr Hooper, there was tendered his operation report and several short letters.[18] The last letter reported that the plaintiff was doing very well following the procedure and that he was pleased with what had been done for him.[19] A formal report from Mr Hooper is dated 29 February 2012. He had no knowledge of the right knee injury as he had last seen the plaintiff on 28 July 2006. He said then that the plaintiff had no functional disability and he was able to participate in all activities of daily living. His opinion could hardly have been clearer when he said:
“His overall prognosis from this condition is excellent”.[20]
[18]PCB 28-31
[19]PCB 31
[20]PCB 32
16 Finally he added:
“I am not aware of any physical problems that this man would have following his left knee injury”.[21]
[21]PCB 33
17 The next general practitioner in the plaintiff’s medical history was a Dr C Nguyen from a Point Cook practice. He is absent in the evidence. No report from him nor any other material from that clinic has been tendered. He clearly referred the plaintiff to Mr Freeman for the right knee condition in April 2007. Mr Freeman reported on 28 October 2013 and recorded Dr Nguyen’s involvement in the referral. Mr Freeman had not seen the plaintiff since a post-operative review in June 2007. The surgeon reported in 2013 that at the time of that 2007 review:
“He did not require any further orthopaedic treatment or review, and I discharged the patient back to the care of his referring doctor and treating physiotherapist. To date I have had no further contact with the patient.”[22]
[22]PCB 54
18 That referring doctor is Dr Nguyen. As stated, no material has been tendered from him. Nor is there anything tendered from any treating physiotherapist. Mr Freeman reported that when he last saw the plaintiff he assessed the prognosis as being good. He said also then:
“…I did not at that time think he required any further treatment or pain management…”
and:
“I was of the opinion that he would be able to make a full return to his normal work duties as indicated in the body of my report.”[23]
[23]PCB 54
19 He could not comment on the left knee injury as he had not been involved.
20 The final doctor in the plaintiff’s medical history is Dr Ferwerda at a clinic in Werribee named Tarneit Road Health Clinic.[24] In a report of 2 October 2013, this doctor made it clear that, while the plaintiff has been seen for a number of other health problems, he had not consulted Dr Ferwerda for any treatment of his knee nor had he sought any referral to any specialist for analysis of knee problems. In fact, Dr Ferwerda said that the plaintiff attended on 24 September 2012, and noted:
“…is going to sue the company he has been working for, needs referral for x ray of his left knee for his solicitor, explained cannot go through Medicare.”[25]
[24]PCB 49
[25]PCB 49
21 That requested x-ray was organised and appears in the material dated 28 September 2012.[26] It is clear from Dr Ferwerda’s short report that the plaintiff has certainly sought treatment for a number of other medical problems. These include a heart attack in 2010, diabetes, hypertension and the doctor listed at least nine different medications.[27] Clearly, the plaintiff had some confidence in this practitioner regarding medical advice and treatment.
[26]PCB 24
[27]PCB 49–50
22 Dr Ferwerda then provided a very brief report on 23 April 2014.[28] He recorded that there had been no new findings since his previous medical report was sent. The plaintiff had not seen him with respect to any knee complaints or requests since the x-ray request in 2012. This doctor is the plaintiff’s current treating local practitioner.[29] He provided no comments at all in relation to any treatment at the Werribee clinic for either knee problem. He offered no comments about any consequences of either knee impairment. From other material it appears this has been the plaintiff’s local practice since about 2010.
[28]PCB 56
[29]T39
23 A bi-lateral knee x-ray dated 21 July 2011 was tendered.[30] That x-ray is addressed to a Dr A Leong at the same clinic in Werribee at which Dr Ferwerda practises. There is no evidence from the plaintiff as to why this x‑ray was obtained and no evidence from any medical practitioner as to why it was obtained. Dr Ferwerda does not mention the x-ray at all. Whether or not it was obtained for medico-legal purposes is unclear but it is dated only a few weeks after the plaintiff lodged a hearing loss claim through his solicitors. If it was for treatment purposes, then there is no evidence that has been tendered to the Court nor given by the plaintiff to that effect.[31]
[30]PCB 23
[31]T78-79
24 Accordingly, in terms of medical evidence, it is really only medico-legal opinion that could lend support to any finding of “serious injury”. That medico-legal evidence commences with a report of Mr J McTeigue, surgeon, who performed an AMA permanent impairment assessment dated 30 May 2012 for the insurer.[32] It is in relation to the left knee only and it recorded that the plaintiff gave a history that he had “… made a satisfactory recovery” after surgery.[33] It also recorded complaints of “… minor persisting symptoms” and clinical examination demonstrated “… a normal range of knee movement with no ligamentous laxity. I consider that the condition is stabilised.”[34] The surgeon thought that:
“The present minor symptoms are likely to continue in the foreseeable future.”[35]
[32]PCB 36
[33]PCB 36
[34]PCB 37
[35]PCB 38
25 On any reading of this report, which followed one examination a little over two years ago, the consequences of the left knee impairment could not fairly be described as very considerable.
26 A report from Mr M Khan, orthopaedic surgeon, dated 14 August 2014 was tendered by the plaintiff. This report is founded on a number of factual errors. For example, Mr Khan, who only saw the plaintiff once, reported that the plaintiff was considerably disabled in relation to his work.[36] This is not consistent with the very wide range of physical activities that the plaintiff carries out unassisted over a 60-hour week. Mr Khan is just plain wrong in this regard.[37]
[36]PCB 63
[37]PCB 10, T18-19, 52-53, 55, 62-63, 68
27 Mr Khan also reported that the plaintiff–
“…continues to need to see his general practitioner from time to time with reference to the after effects of his injuries … requires anti-inflammatory medication as necessary.”[38]
[38]PCB 63
28 The plaintiff has sought no treatment whatsoever for the last seven or more years. He has had anti-inflammatory medication that he has obtained by way of prescriptions from one or other of his local doctors for shoulder and hand problems, but has not received, nor has he sought any script for anti-inflammatories for his knees. Mr Khan’s report is not soundly based.
29 Mr Khan reported the knee injuries affected the plaintiff’s capacity to take part in household chores.[39] There is no direct evidence about this. Mr Khan took a history of what the plaintiff’s wife did under the heading of “Lifestyle Assessments”. About all that is recorded is the plaintiff does limited lawn mowing but hates gardening.
[39]PCB 65
30 Similarly, Mr Khan reported that the knees affected the plaintiff’s capacity in self-care. How knee symptoms could be said to impact on self-care for a man working 60 hours per week in essentially physical work is just not explained. Nor is that opinion based on any evidence.
31 In the end I reject Mr Khan’s opinions on the consequences of the knee injuries as they are not soundly based nor clearly reasoned. Mr Khan’s notes that since being self-employed, the plaintiff has been doing light duties as a storeman and doing some welding is so at odds with the uncontested evidence in this case that it poisons his opinions. He has not recorded anything like a complete history of what the plaintiff does day in, day out at work.
32 Another medico-legal report was obtained from a Mr T Kossmann, orthopaedic surgeon, on 15 August 2014. Mr Kossmann only saw the plaintiff once. He does not have an accurate history of what the plaintiff can do and not do. For example, he recorded the plaintiff tried to avoid work which compromises his knees.[40] The evidence indicates he is really performing a wide range of physical duties on his feet. He welds from a height that involves stepping up on a table, makes large steel products, drives his own forklift and delivery vehicle with gas bottles as well as the steel products. These are jobs that of necessity involve being largely on his legs or using them. He does them all unassisted. He works 60 hours per week. Mr Kossmann further relied on the statement the plaintiff tried to avoid physically demanding work.[41] The evidence is at odds with this. It is recorded the plaintiff “seems to cope with his work”.[42] This understates the evidence regarding a one-man business that brought in revenue of over $161,000 in 2011-2012 and $166,771 in 2012-2013.
[40]PCB 69
[41]PCB 71
[42]PCB71
33 I do not consider Mr Kossmann’s opinion is based on a sound history of the plaintiff’s extensive capacity to carry out full-time, physically-based work.
34 In the end he stated the prognosis was “guarded to poor” and may deteriorate. There may be indication of advancing osteoarthritis. He may become a candidate for knee replacement surgery should symptoms increase. No time could be predicted as to this and he ended on the topic of possible further surgery “… if and when this will occur”.[43]
[43]PCB 71
35 He revisited these topics in the same language. I read his report as largely speaking in terms of possibilities rather than probabilities.
36 In answer to some specific questions, Mr Kossmann said the injuries had substantially stabilised. He said he could not:
“… exclude that he may undergo further surgery. Also … in the worst case scenario he may have to undergo an arthroscopy of one or both of his knees. I cannot give you a time frame if and when this will occur.”[44]
[44]PCB 74
37 He thought it a moderate to high chance that the knee condition will deteriorate in the years to come.
38 Overall, the possibility of deterioration was outlined by Mr Kossmann but his report does not support a finding at the present time of permanent consequences that could be fairly described as very considerable in the range of possible impairments
39 The reports of Mr T Dunin, orthopaedic surgeon, involved only one examination. In May 2013, he reported but was reliant on papers sent to him rather than examination.[45] He then reported that while most people do extremely well after these operations, he really needed to examine the patient.[46] He did so in December 2013. He stated that he only had signs of mild osteoarthritis and did not consider he would need surgery for some considerable time. It was possible but he stated: “I consider his prognosis quite good”.[47]
[45]DCB 6
[46]DCB 8
[47]DCB 11
40 There was a likelihood there would be ongoing pain and the knee would gradually worsen. However, judging the impairment now, as is required, this surgeon does not support present permanent consequences that are “serious”.
41 In relation to the plaintiff’s credit, there is no doubt he is a well-motivated man who is hardworking. However, I did not find his evidence reliable with respect to a number of aspects. His evidence about his not knowing he could make a claim for his knees was very unpersuasive and unsatisfactory.[48] This was particularly so in view of the multiple claims that he had made in the workers; compensation context.[49] In the end, when pressed, he concluded:
“If you get hurt you put in a claim, don’t you”.[50]
[48]T40-45
[49]Exhibit 3
[50]T49
42 The plaintiff’s hesitation about what “suing” an employer meant did not reflect favourably on his credit. In the end, after being pressed, he conceded it “probably” was about money. When further questioned, he conceded it was “certainly” about money.[51]
[51]T45
43 The plaintiff was inconsistent when asked about the lack of treatment. He suggested a number of reasons why he had not sought any. These included being too busy at work to take the time.[52] Yet he found the time to have cortisone injections and obtain prescription medication for a very old shoulder condition.[53] He also has been able to go and obtain anti-inflammatories for a hand injury.[54]
[52]T49, 53, 61
[53]T37-38, 54
[54]T58
44 The plaintiff’s evidence was unconvincing when he attempted to explain the lack of any treatment by saying in effect nothing could be done.[55] He could not say who gave him that opinion.[56]
[55]T34
[56]T46
45 There was also some exaggeration of what he had earned annually with the defendant but I accept that is now years ago.[57] More to the point, when it was suggested he had managed to gross over $161,000 from his one-man business in 2011-2012, he said that was “… the best year he had ever had”.[58] Last year, 2012-2013, he did even better and grossed $166,000. I do not accept he just forgot that the last year for which he has the figures was even better than 2011-2012. They are very recent figures.
[57]T68
[58]T50
46 I did not find the witness entirely reliable and I do not accept his evidence about either knee condition deteriorating significantly nor really impeding his daily life. That evidence is inconsistent with years of no treatment and a stated intention not to seek any for the foreseeable future. I do not find the plaintiff puts up with his knee symptoms due to stoicism. On all the evidence, he puts up with them because they are not serious and do not unduly trouble him at work or away from work.
47 Looking at the range of knee impairments and judging whether these applications reach the requisite level, I find they fail to do so. A number of matters are relevant to that failure:
(a) There has been no treatment on either knee for seven years or more.
(b) He has not sought any further treatment, referrals or advice from his treating surgeons, nor from anyone else to explore what treatment may be available.
(c) He does not even intend seeking treatment for the foreseeable future.[59]
[59]T61
(d) He does not need any prescription painkilling or anti-inflammatory medication to get by at work, at home or on long drives and caravan holidays or indeed at all.
(e) He has not only returned to work involving some of the physical duties that he used to perform, but he works longer hours in work that is probably more physical. While it is more self-paced he is capable of working six days a week when he used to work five.
(f) There is no evidence that the return to work has involved any less enjoyable work. In fact, he now works for himself and this is not a case in which loss of enjoyment from one’s chosen vocation has been prosecuted.
(g) There is no evidence that he needs or seeks any assistance from other people with his work or any aspects of it.
(h) There is no up-to-date evidence from any treating doctor about any present permanent consequences of either knee impairment.
(i) There is no adequate evidence of any significant or special sport, recreation or lifestyle activity that he cannot pursue. There is no evidence of any interest that is a “passion” for him. The evidence indicates he still accommodates his basic lifestyle activities, including his caravanning and long drives up to the Murray. He has bought a new and better caravan recently that is his “pride and joy”.[60] His knees do not prevent him following any major lifestyle interest.
[60]T59
(j) On all the evidence, the plaintiff leads essentially the same life in regard to the type of work he does, his interests and home life that he did pre-injury. For example, he does not usually have any problem sleeping.
(k) The objective pathology of degeneration of itself does not establish any disabling effect of the knee pain or symptoms.
(l) The doctors who comment on consequences are medico-legal experts who have seen him only once. Their opinions, for the reasons described, are not soundly based and do not support permanent consequences that satisfy the test of “serious injury”.
(m) There is no lay evidence from his wife or anyone else to support loss of enjoyment of life from pain or compromised activities.
48 Judging the applications at the present time, I find the plaintiff has not discharged the onus of establishing “serious injury”.
49 The applications must be dismissed.
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