Sargent v VWA

[2018] VCC 1574

Are you its estimates of the for a moment

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No.CI-18-01072

GARY CRAIG SARGENT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24,25,26,27 September 2018
DATE OF JUDGMENT:	1 October 2018
CASE MAY BE CITED AS:	Sargent v VWA
MEDIUM NEUTRAL CITATION:	[2018] VCC 1574

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury- right knee
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:            
Judgment:                Leave granted to bring proceedings for recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie QC with Mr N Dunstan	Slater and Gordon
For the Defendant	Mr D McWilliams	Wisewould Mahony

HIS HONOUR:

1. Impairment of the right knee is relied on and leave sought for pain and suffering consequences as well as loss of earning capacity. This fifty four year old injured his knee in an incident on 8 May 2010 when working on the waterfront for QUBE Ports. He stepped down a hole in a ship while walking in the dark. He had to be lifted out by a crane. Then on 18 July 2012 he aggravated it while working for the same employer.

1. There had been right knee symptoms and treatment back in 2006 but they had resolved and he returned to full pre-injury duties.[1] It was not even suggested in cross-examination that there were any ongoing symptoms from the 2006 knee history as at 2010, let alone now. It is not relevant.  

   [1]Plaintiff’s Court Book(PCB)13

1. Since the incident in 2010 his treatment has been very extensive. It is not easy  to  follow the chronology of all his treatment and diagnoses. That is not helped by the fact that at times he has really been sent on about three different treatment journeys in one sense. But I will deal with that later.

1. The defendant responsibly admitted that both the knee injury in 2010 and the aggravation of it in 2012 were  compensable injuries under the Act.[2] The issues were articulated as being a resolution had taken place of any knee symptoms caused by the 2010 and 2012 events at work so no present consequences flowed from those events now. Further the plaintiff failed to disentangle the organic from the non-organic. If there were still consequences causatively connected they did not satisfy the “serious injury” test. He still had a residual capacity in any event for two alternative jobs that would mean the 40% or more loss of earning capacity was not proved. [3] Also credit was in issue.

   [2]Transcript(T)43

   [3]T43-44

1. Initially on 8 May 2010 Mr Sargent  was taken to Epworth Casualty where x-ray and analgesia was ordered. Then two days later he attended the employer’s local clinic  at Bridge Street Port Melbourne. Anti-inflammatories as well as  analgesics were prescribed and he was certified for modified duties only. On 14 May 2010 he had a certificate for normal duties but he never got back to those duties and he remained on modified or restricted duties thereafter. Symptoms of pain, swelling and heat in his right knee continued and then he underwent a number of cortisone injections. In addition he had regular ice treatment and some physiotherapy as well as the medication.[4]

   [4]PCB13-16

1. There was a particularly demanding work day on about 18 July 2012, when he worked on full duties  as opposed to his usual restricted stevedoring duties. They required  him to unload rice bags. It was the first time he had been on strenuous duties over a prolonged period since his injury in 2010. He had to kneel on rice bags in order to hook them up and he paid the price  in terms of symptoms. His “right knee pain was un-bearable and I was unable to work.”[5] After this day in July 2012 his treatment followed a few different routes.

   [5]PCB14

1. He was then sent for an MRI by the employer’s work clinic at Bridge Street Port Melbourne  and was also referred to a specialist orthopaedic surgeon, Mr E Raleigh. That surgeon referred him on to a sports physician, Dr P Bloom, for PRP (“platelet rich plasma” i.e. blood infusions) injections. He saw Dr Bloom probably around 27 August 2012 but he could not perform the PRP injections for six weeks. [6] Dr Bloom ultimately administered them on 8 October 2012. [7]

   [6]PCB76

   [7]PCB72,78

1. About this time in late August 2012 he was taken to the Epworth Emergency because of a severe flare up of pain and swelling where he  had a further injection. Epworth then referred  him to a rheumatologist, Dr G Markov. He got in to see Dr Markov on 27 August 2012 before Dr Bloom had given the PRPs. Dr Markov thought PRP injections were “an expensive form of unproven treatment.”[8]  His advice was to try prednisolone anti-inflammatories but he noted how the patient was also getting further medical opinions.

   [8]PCB82

1. Again around this same time his local doctor, Dr R Ellis-Jones, from the Eastbrooke Family Clinic at Essendon North referred him off to an orthopaedic surgeon, Mr P Burns. The patient saw Mr Burns on about 22 October 2012. Somewhat different views about diagnosis and the treatment advised again took place.

1. Major symptoms had been ongoing and he had also been taken by ambulance to the Royal Melbourne Hospital with a severe flare up and was admitted for about four days in September 2012. In January 2013 a further MRI took place. In March 2013 he was admitted again to the Royal Melbourne Hospital due to blood clots behind his right knee and he was in hospital for four or five days. A mild stroke had been suffered apparently in early 2013. Not surprisingly pulmonary embolism became the major concern and focus of treatment at one stage. A diagnosis of gout was also made.

1. What is important is that knee symptoms including constant daily pain have persisted right through. It has to be said, treatment for his knee was extremely extensive and more wide ranging than in the usual knee trauma cases seen in these courts. There have also been a number of other significant health problems needing attention. These have included treatment for a melanoma in April 2016 and left shoulder problem in February 2017.[9] 

   [9]PCB13-16

1. He attempted returns to work with treatment and self-managing his knee as well as only performing light duties. He last actually worked in February 2013. The employer then terminated his job by letters in January and  February 2014.[10] They are informative. He was finished up with the employer because his medical incapacity meant he was unable to perform his pre-injury duties and there were no more “light duties” available.[11]  It is pertinent that after years on the waterfront he could not be accommodated in terms of employment by a company that has provided no evidence critical of his work over the years. I infer he had been a satisfactory worker.

   [10]PCB171,172

   [11]PCB172

1. Major symptoms have continued including constant daily pain. Many activities of daily living have been impacted.[12] Regular treatment has also gone on up to the present day  involving seeing his local doctor every few weeks and the  Royal Melbourne Hospital pain clinic about every six to twelve months. He takes prescription drugs, some narcotic, for his knee as well as for other health problems.

   [12]PCB16-17,19-20

1. At present “My major problem remains my right knee pain.”[13] Importantly in a case where residual employment capacity has to be judged, I accept his evidence that “My right knee pain is aggravated by activity including any prolonged standing, sitting or walking.”[14] For a middle aged man with no qualifications and only year eleven at high school, the reality is he is basically only suited to manual labour and that has been his work history.

   [13]PCB18

   [14]PCB19

1. He has undergone a lot of radiological investigations of the knee including four X-rays, ultra-sound, at least two MRIs as well as or venous vascular testing.[15] I am satisfied the plaintiff has proved a permanently impaired right knee suffered in the course of his work with QUBE. While different views exist among the doctors about the precise pathology the best description is probably injury to the quadriceps tendon involving tearing to it as well as aggravation of underlying tendinopathy and enthesopathy. In addition there have been the very unfortunate consequences of aggravation of gouty arthropathy and the disturbing development of  a deep vein thrombosis. Fortunately, both these last two conditions are reasonably well controlled now by treatment including daily medication.

   [15]PCB 21-29

1. The plaintiff was the only witness who was called. He is not a sophisticated man. He was a compliant witness who admitted matters at times against interest and if something was in a medical report, when it was clear he had no real memory of it, he was quite willing to accept that he must have made the particular statement. There was no exaggeration in his evidence. In fact for a 54-year-old man with the amount of health problems he has had he was fairly stoical about his knee impairment and life generally. I found him reliable.

1. His credit was attacked. A lot of cross examination concerned his involvement in harness racing as a  trainer and  owner. A great deal of attention was given to his 5% interest in a horse that was the subject of  a banned substance determination as well as to his attendance at the stables of a Mr Galea at Rockbank where 30-40 horses were involved daily.[16] The reasons he was asked to give evidence before some stewards’ or like racing inquiry and who it was that actually received suspensions were also examined.

   [16]T65-87

1. Any fair reading of more than twenty pages of transcript on these racing topics   amply indicated the difficulties the plaintiff had recalling dates and details years earlier. He was a fairly vague but a compliant witness. Suggestions that were put to him did not really clarify  these peripheral  matters very much. For example, it never became clear if he was suspended for any particular period, and if so for what offence, and more importantly just when if at all this fitted in with the May 2010 fall into the ship. This cross-examination also demonstrated how he found it difficult to follow basic paperwork put to him in court. [17]

   [17]T70

1. The intended thrust of all this  was  there was some inconsistency with what he was saying in court and what he had sworn in his affidavit. [18] He had  sworn that he had to give up his training as a consequence of his right knee injury in 2010 and it was put that he had lost his license for other reasons at some stage around that time. This cross-examination evidence never really went anywhere in terms of specific facts and the relevant time. I give only limited weight to a one page report extracted from  some racing web site.[19]

   [18]PCB16

   [19]Defendant’s Court book(DCB)159

1. In the end I did not find his evidence inconsistent. I accept the limitations on his knee, particularly  problems bending it and its general mobility would mean he could not drive or train a horse sitting in a trotting sulky with both legs cocked up and bent in the fashion required in harness racing .

1. A number of other topics were traversed as to credit. They included the shopping he did as well as  housework, driving  and involvement in sports. Also he was tackled about a neck complaint, whether or not he limped all or some of the time what he had said to doctors in that regard. Again there was nothing in those matters that would indicate inconsistency or unreliability although it has to be said that his memory as to details and when he started this activity or that activity, how much sport he played and when it was in the past he had given it up, were all fairly oblique. This was understandable given that he is a relatively simple fellow and he was being asked about events some of them eight or more years ago.

1. Lengthy cross-examination also sought to show he was inconsistent about when he limped. Absence of this in his affidavits was relied on. It needs to be remembered a very basic individual like Mr Sargent does not draw up his legal documents. He even had problems following one page documents given to him in the box. Similarly the absence in the affidavits of reference to his knee  worsening is another area where I am not prepared to draw an adverse inference against him just because it is not in his two affidavits. At the end of the day these are drawn by his lawyers.

1. It is worth remembering that a medical report in June 2018 records a complaint that the knee was “progressively worse.”[20] Also of note were recorded findings at examination by the only specialist who saw him in 2013, 2014 and 2018 in the context of a complaint of limping and of a worsening impairment. In 2013 Mr McLean did not note any limp at his detailed examination but then he recorded limping when he performed  thorough examinations later on in both May 2014 and again in June 2018.[21]  

   [20]PCB121

   [21]PCB115,123

1. The criticism of the plaintiff’s reliability regarding his coming to court with some medicine boxes on the third day of the hearing is not persuasive. His offer to bring tablets in was in a context of a challenge on day two about Tramadol and he brought that to court.[22] The fact that he did not bring the Endone box on day three was neither here nor there on credit. On day four he did produce a box consistent with the Western Hospital prescribing it on 2 February 2017. His confusion was no surprise as it is clear he has had prescription pain killers for knee pain from a number of public hospitals as well as a number of doctors in private practice.

   [22]T128

1. He was not only a compliant witness who did not seek to explain away matters that  might have seemed to potentially harm his case, but he candidly made admissions against interest. One example was he told the court he had gone by car as a passenger as far as Wangaratta to see his daughter play football.[23]

   [23]T119

1. He was shown three DVD films taken on 19 April 2014, 24 February  and 8 September 2018.[24] These were no more than a few minutes of snapshots of the last eight or so years since the 2010 injury. A number of comments are pertinent. All three have significant unexplained gaps in what has been shown. The plaintiff is often clearly in view and then the film suddenly jumps some minutes without explanation and without showing when or how the subject disappears from being clearly in view.

   [24]Exhibit 3

1. He said he limped at times in those films but more to the point he has medication such as Tramadol with him.[25] There does appear to be slight limp at one stage but save for jogging a few steps to avoid traffic on a roadway at one point, it is a fairly slow measured walk that is in no way fast or inconsistent with a person with a knee problem and taking care.

   [25]T124

1. No vigorous action was depicted and nothing that was sustained activity beyond some short periods standing and sitting.  Nothing that puts any real strain on his knee was shown. He did not bend or crouch nor carry anything of note. When he went up some stairs at a railway crossing he held the handrail unlike other pedestrians who were walking up the stairs. These short snapshot films of a few minutes did not adversely impact on credit. It is admitted there has been no less than 45 hours of surveillance carried out. I reject the defence suggestion he exaggerated or sought to mislead the court as to his knee difficulties.

1. His motivation was also challenged in that he had not looked for work since being terminated from the waterfront in 2014. I accept his evidence as both realistic and reasonable on this topic. His evidence is the knee condition has worsened in terms of pain and limping. [26] Given his age, background and lack of qualifications, the constantly painful right knee impairment he has been living with for almost eight and a half years makes it pointless to look for work.[27]

   [26]T113,132

   [27]T133

1. Mr Sargent has been in employment of one form or another since he was eleven years old. [28] His work record indicates a man willing to work and I reject the suggestion he is not working out of some lack of motivation. I accept him as accurate when he put it simply “…if my knee was good, I’d be working”.[29]

   [28]T169-170

   [29]T113

1. At times in the witness box he became very confused. Ready comprehension was often was lacking. He was often quite mixed up and overawed by the court environment.[30] Just one example was when he was trying to explain his medications, when they had been prescribed, by what doctor or  organisation and some of the adverse effects including ongoing headaches that had resulted.[31]

   [30]T154,159

   [31]T126

1. What is beyond doubt is that he has had been following a number of extensive treatment regimes provided on the advice of various practitioners for his right knee pain. For a man to be following three different treatment paths involving referrals off to different specialists and attendance on them and undertaking treatment at their hands, indicates a serious level of symptomology. It also demonstrates a real desire to get well again and get back to work.

1. He has also had other health problems together with adverse physical effects from some of those treatment medications that have caused headaches. I accept his evidence that it was the painkillers he took for his knee that have led to his headaches. There may be other tablets that are now linked to his headaches but I accept him when he repeatedly said words like “When I took painkillers for the knee, headaches came straight  away.”[32]

   [32]T162,164,165,168

1. He still takes Endone or its equivalent in Oxycodene for severe knee pain. As defendant’s counsel conceded this is at the highest end of painkilling drugs. For lesser pain he takes Tramadol and other times it is anti-inflammatories such as Ibuprofen. The need for this type of narcotic medication when he is likely to have to walk or go somewhere is indicative of a level of symptoms that is very considerable.

1. In addition and understandably, psychological or emotional consequences flowing from his ongoing knee pain, lost job and the failure of all these medical suggestions to improve his lot, have appeared in time. In that context I accept his evidence that his knee pain has worsened since he  was injured and is still worsening. Some frustration, disappointment and confusion is understandable as even a cursory perusal of all his records shows how he has been taken in different treatment journeys and along different medication routes  by different practitioners in the last eight years  and he still has constant knee pain.

1. In the end and after carefully observing and listening to him I am satisfied he was accurate when he said “ I suffer from constant daily pain in my right knee. This pain never goes away. The level of pain I get in my right knee fluctuates depending on what level of activity. My right knee pain is aggravated by any prolonged sitting, standing or walking. I avoid any repetitive bending, kneeling or squatting.”[33] For a man with only a potential and history of manual work, at his age he is effectively unemployable when the realities of the open employment market are kept in mind.

   [33]PCB16

1. Leaving aside pages of clinical notes and radiology reports, there have been about fifty medical reports and documents tendered. A large number of medical reports and documents are now quite date. An evaluation of the plaintiff’s credit  is crucial in an application such as this and I found him reliable and accurate. He was burdened by the  lack of memory for detail including dates and conversations with doctors from years ago that is often seen with manual workers with only basic education.

1. Turning to the medical material the more recent documents are most helpful in  assessing an impairment now, nearly eight and a half years after the trauma. Starting with the radiology a specialist consultant radiologist, Dr A Kam, has provided a report about the pathology due to some controversy about what the x-ray, ultrasound and MRI scans show.  After reviewing these actual images as well as the reports of radiologists, he diagnosed the last MRI as showing “persistent tendinosis of the distal quadriceps tendon  together with enthesophyte formation at its patellar insertion.”[34] I  accept that diagnosis.

   [34]PCB130

1. His usual doctor at North Essendon, Dr Ellis-Jones, is now deceased. A Dr B McClure gave the last two reports from that clinic and they were in 2018. His last knee diagnosis was in June 2018 when he said his patient “…had a work related knee injury in 2010, and he continues to have significant right knee pain.”[35] The earlier out of date reports do not help much.

   [35]PCB36

1. It is worth noting in an exercise that requires me to assess the situation now, many years after the injuries, that the last note in the clinical records of his local doctor in Essendon reads “R knee still causes problems and takes tramadol.”[36] This is a doctor probably treating what is an organic knee pain still causing real problems for the patient.

   [36]PCB56f-g

1. The last comment from the employer’s Bridge Street Clinic in Port of Melbourne was in 2014. A number of doctors as well as physiotherapists had attended him there. A Dr M Gross reported in the final report that the condition he was Mr Sargent treated for involving right knee pain was diagnosed as “supra  patella bursitis but subsequently, on further investigations, due to quadriceps enthesopathy  plus a partial thickness tear.”[37]

   [37]PCB70

1. Mr Raleigh saw him in August  2012 when he recorded a management problem of quadriceps inflammation secondary to a tear. He took the history of the hyperflexion trauma in the 2010 fall down a hole in a ship. The knee  was “highly tender” and MRI showed “heavy inflammation of the distal quadriceps insertion with a partial tear”. He referred him to Dr Bloom for PRP injections. [38] Surgery was not an option. He has not seen Mr Sargent since.

   [38]PCB72

1. Dr Bloom reported in December 2012 that the PRP injection of platelet rich plasma into the quadriceps tendon took place on 8 October 2012 and there were minimal symptoms and improvement. But he also is out of date and he has not seen the plaintiff for six years or so. [39]

   [39]PCB77,78

1. Dr Markov examined the worker in August 2012 and he had different views about diagnosis as well as about the efficacy of PRP injections. What is clear is that at examination he recorded the knee as “...swollen with quite marked erythema and warmth  over the insertion of the right quadriceps tendon into the superior pole of the patella and there appeared to be a secondary suprapatellar bursitis present as well.”[40] He also raised the prospect that there may have been bursitis due to gout as a complication. Significantly he concluded by saying “In any event, his current symptoms are quite readily explained by the examination findings and imaging abnormalities found.”[41]

   [40]PCB82

   [41]PCB82

1. Mr G Burns, the other treating specialist, is also out of date and last reported in 2014.  He also diagnosed the knee injury differently. He found the objective sign of wasting of the VMO muscle which is part of the quadriceps. He gave a couple of diagnoses, they  being gouty arthropathy and an acute chronic quadricep enthesopathy/tendinopathy. He thought injection treatment was appropriate and surgery was not an option.[42]

   [42]PCB96,99

1. He was in no doubt as to causation and said that the hyperflexion injury in 2010 resulted in a combination of some tearing of the tendon and an aggravation of underlying quadriceps tendinopathy and enthesopathy. Then the  2012, repetitive kneeling on bags of rice had  placed significant strain on an already abnormal quadriceps tendon further aggravating the situation. He needed preventative treatment for his gout, and as far as  quadriceps pathology was concerned, an ongoing exercise program and modification of his activity to avoid placing undue strain on the tendon on was advisable. This would preclude any high-impact activities or bending the knee such as squatting, kneeling or ladder climbing.

1. So  again this was a different treatment approach with some differences in diagnoses but I accept, as I do with the other treaters, they were for an organically based knee impairment. Some of the diagnoses were just different about that precise organic condition. He concluded by saying he agreed with the report of Mr Iain McLean, medico-legal orthopaedic surgeon. I will deal with him later.

1. John Keller was a treating physiotherapist. His reports are also out of date being 2013 and 2014. His diagnosis was basically “…a combination of both the patella tendinopathy, coupled with both patellofemoral joint syndrome and some chondral changes in the right knee were the likely cause of his symptoms.”[43] He recorded how in early 2013 there had been an admission to hospital with a DVT the which he feels was related to the PRP injections. He did not feel the position was permanent when he last saw Mr Sargent and that seems to have been about five years ago 2013.

   [43]PCB101

1. The sole report from Epworth is dated 22 August 2012 and is the referral letter to Mr Markovic following an attendance in the Emergency Department. The plaintiff was suffering severe right knee pain with a history of hurting it two years ago at work. The knee was drained and mention was made of gout. A recent MRI “demonstrated an acute–on-chronic distal quadriceps enthesiopathy, tendinopathy and partial-thickness tear.”[44]

   [44]PCB80

1. The report goes on to say “…admission due to intolerable pain and poor responsiveness with opiate analgesia in ED.”[45] The fact that Mr Raleigh had said surgery was not an option was mentioned and thus the referral off to Dr Markovic took place. It all points to an organic injury.

   [45]PCB80

1. A raft of Royal Melbourne Hospital documents were tendered but a number  are very dated.[46] Some of these are in hand writing and some typed. What they do point to is an organic knee injury that has produced pain and consequential immobility which caused the DVT.[47] Emergency treatment in March 2013 was needed  and a requirement for pain management involving multiple medications for the knee pain as well as the very major vascular consequences. I read these public hospital materials as all relating to organic consequences from an organic knee impairment.

   [46]PCB48-51,83-95

   [47]PCB83,84,85,86,87,95

1. From the medico-legal reports the plaintiff tendered I have already referred to the consultant radiologist Dr Kam. The orthopaedic surgeon Mr McLean has the distinct advantage over all other specialists in this case on both sides in that he examined Mr Sargent three times, 2013, 2014 and 2018. I will not repeat his very comprehensive reports as they speak for themselves about a knee impairment that he clearly considered organic.

1. In 2013 he called it an “acute injury” and diagnosed physical damage.[48] The knee condition “precipitated his recurring  gout in the right knee”.[49] Causation was not an issue and he thought that Mr Sargent could get back to work in time but with very real restrictions for a manual worker being lighter activities with no repetitive bent knee actions such as squatting, climbing and lifting. Unrestricted manual work was beyond him due to the knee impairment.[50]

   [48]PCB108

   [49]PCB109

   [50]PCB110

1. When he saw him a second time in 2014, things were worse . He was limping. Importantly there was the objective sign of organic injury being “definite quadriceps and VMO wasting”.[51] Mr McLean now noted a psychological aspect had developed but that did not take away the fundamental organic cause of disability and symptoms.

   [51]PCB116

1. In June 2018 progressive worsening was also recorded with wasting again noted at this third consultation.[52] The worker was now in a vicious circle of associated with “progressive symptoms of pain, apprehension and limited mobility”.[53] A psycho-emotional response had also occurred.

   [52]PCB121,123

   [53]PCB124

1. But without hearing from Mr McLean I read his report as saying the organic cause of his pain and symptoms has remained and will be there for the foreseeable future. Given the plaintiff’s predicament and ongoing failure of his treatment an emotional response was predictable. It does not take away the underlying physical cause of his pain and disability. I accept Mr McLean’s well argued opinions based on three examinations spread  over some five years.

1. Professor M Pain, thoracic physician, commented on the very significant pulmonary embolism with clots in both lungs. I accept his analysis about what the inactivity due to the knee injury had caused. “I would accept that the inactivity imposed upon Mr Sargent would predispose him to deep vein thrombosis and pulmonary embolism. Therefore, I would accept that the pulmonary embolism is a work related event. Mr Sargent has made a good recovery from the pulmonary embolism and there is no detectable residual impairment from this event”.[54] This has been a most unfortunate and severe consequence of his organic knee condition but at present it is well controlled by medication. That control, effected as it is  by drugs, does not diminish the seriousness of a condition as potentially dire as a pulmonary embolism.

   [54]PCB132

1. A  vocational assessment from Mr P Hartley was tendered by the plaintiff but it is from 2014 and is well out of date.[55] It is comprehensive and thorough but too long ago to carry significant weight. In contrast to the Recovre report the defendant tendered, Mr Hartley went to the trouble of personally  interviewing the worker. Recovre did not.[56] Mr Hartley also had a number of medical opinions from doctors on both sides. For some reason Recovre were only sent one report from one doctor the defendant engaged. Neither vocational assessment report took the case very far, but even as far out of date as Mr Hartley is I give it more weight than the unbalanced Recovre opinion about a plaintiff it never even laid eyes on.

   [55]PCB134-160

   [56]DCB102

1. The defendant tendered  a report from Dr Lipp dated July 2013 but the last time the patient had been seen was February 2013.[57] Even back then a long list of work restrictions were in order.[58]  These are physical limits directed to a physical disability and not to any mental or psychological problem. This opinion is in very early days and of limited assistance. But it reads as though it is a substantially organic knee problem being treated.

   [57]Exhibit 1,PCB60-62

   [58]PCB62

1. Mr M Shannon, surgeon, saw the plaintiff only once and it was six years ago in 2012. Twice he noted that the plaintiff was genuine and repeated that in saying “he seems entirely genuine in his complaints which I think are at least in part work-related.”[59] He found crepitus which is an objective sign of organic knee pathology. His opinion was also that gout may well have been flared up following the work injury. It is a very old report but supportive of a physical injury back then.

   [59]DCB13

1. Dr G Davison, occupational physician,  examined the plaintiff well over five years ago in May 2013. He found Mr Sargent was pleasant and cooperative at examination but he could not give a specific diagnoses. I read from the word “specific” that he was satisfied there was some problem of an organic nature in his knee as he stated that the worker could not do his old job. [60] In July 2013 he wrote a brief letter agreeing with Mr Shannon that a soft tissue diagnosis was involved and that it is an organic injury.[61] The report however is years out of date and is not particularly helpful now.

   [60]DCB19

   [61]DCB26

1. Mr I Jones, surgeon, recorded in 2014 that the complaints were “somewhat out of proportion” from what Mr Jones considered was the injury but nevertheless he found the plaintiff was straightforward.[62] He also said that he was not capable of his old job and again I read that as being the result of an organic knee impairment as there was no mention made of any functional component.

   [62]DCB35

1. He saw him again in February 2018 where he noted a limp and wasting although we thought the prognosis was good.[63] He repeated that he thought there was a disproportionate level of pain and function and he now suggested a “functional component” which had never been mentioned by him four years earlier in 2014.[64] This is consistent with the development of an emotional or psychological reaction to his predicament, ongoing knee pain and the fact that in spite of a good deal of treatment he had a worsening condition. That development does not detract from a substantially organic cause of his knee pain that still continues to the present time. Mr Jones dismissed gout as being relevant in terms of any current impairment.

   [63]DCB41,43

   [64]DCB43

1. Mr R Simm, orthopaedic surgeon,  examined Mr Sargent just on two years ago. He did not think gout was related to work but he could not provide any “single diagnosis”.[65] Without hearing from here it is difficult to know precisely what he was saying. But his report does not dismiss their being a physical diagnosis but it was one that he could just not pinpoint. I do not accept that he supports a psychologically based impairment or symptoms.

   [65]DCB55

1. Mr S Elder, consultant, really only provided an AMA% impairment report. It is based on a fundamental error, never corrected, that a Medical Panel opinion stood when it was apparently overturned by the Supreme Court. The defendant maintained it was observations at Dr Elder’s examination it relied on. At examination he found the objective sign of crepitus and he also noted a limp.[66] Dr Elder did not advance either side in the end.

   [66]DCB59,60

1. Dr Mutton, occupational physician, reported in January 2018 on a “deteriorating” condition. It is  a curious report. Somehow he thought the plaintiff could do the two Recovre jobs suggested but this was after he had noted the plaintiff was “computer illiterate”. [67] Both those two jobs have a number of computer demands obvious from just looking at the photos without even reading the report which one would expect Dr Mutton  to read if he was going to give any informed opinion.[68] I place little weight on Dr Mutton . His inconsistency was not explained and his appears to be an opinion not based on a thorough consideration of all the materials sent to him.

   [67]DCB79,81-82

   [68]DCB104,107,108,110,113,114,115

1. Mr C Flanc, general and vascular surgeon, saw the plaintiff in February 2018 and his attention was obviously directed mostly towards the question of gout, DVT and pulmonary embolism . He seemed to be somewhat equivocal about the causative link between work and these conditions but it appeared that the immobility following a physical knee injury probably caused the DVT and pulmonary embolism.[69]

   [69]DCB99

1. What he was clear about was his acceptance of an organic condition. After referring to quadriceps tendinopathy and mild arthritic changes he said “His clinical examination suggested that he has also developed a chronic pain syndrome in which there is a sensitisation of pain pathways causing pain which is greater in severity than that expected from the physical injury alone. It is difficult to quantify this and I suggested that this be discussed with the rheumatologists and orthopaedic surgeons.”[70]

   [70]DCB94

1. This is a diagnosis of an organic problem. Rheumatologists and orthopaedic surgeons deal with physical injuries and organic conditions. If he saw some mental or psychological pain “syndrome” then it would have been psychiatrists or psychologists that were needed to discuss this matter and not the physical specialists. In relation to the DVT and the pulmonary embolism he thought the prognosis was good and there had really been resolution. There were no ongoing residual problems from these controlled conditions but on the probabilities he saw some link back to an organic knee condition. When Dr Mutton described a “severe incapacity” he said that refers to his painful right knee.[71]

   [71]DCB99

1. It is common ground amongst all the doctors that Mr Sargent could not do his old stevedoring job on the wharf because of his knee condition which has been proved to be substantially organic. A realistic approach to the open employment market is required in looking at suitable employment. When all the considerations required by the Act in dealing with “suitable employment” are considered, I am satisfied this 54-year-old unskilled, manual labourer has no real capacity for any form of employment.

1. After almost eight and a half years this situation of constant knee pain that still requires major drugs for relief will remain with him for the foreseeable future. I am satisfied that he has suffered a 40% or more permanent loss of earning capacity as he has effectively suffered a virtual total loss out in the real employment world.

1. Accordingly  I grant leave for the recovery of pecuniary loss damages and in accordance with practice leave for pain and suffering damages also.