Sofranko v Compass Recruitment Australia Pty Ltd
[2012] VCC 371
•30 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00488
| MISO SOFRANKO | Plaintiff |
| v | |
| COMPASS RECRUITMENT AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 15 February 2012 | |
DATE OF JUDGMENT: | 30 April 2012 | |
CASE MAY BE CITED AS: | Sofranko v Compass Recruitment Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 371 | |
REASONS FOR JUDGMENT
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Catchwords: Application for leave to bring proceeding for pain and suffering damage pursuant to s.134AB Accident Compensation Act 1995 – Issue of whether aggravation of underlying degenerative change in the knee of the plaintiff by work duties still materially contributing to symptoms or whether they are due now to constitutional degeneration – Issue as to whether consequences of impairment are serious.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R N Morrow | Slater & Gordon |
| For the Defendant | Mr R H Stanley | Lander & Rogers |
HER HONOUR:
1 The plaintiff, Mr Sofranko, makes an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings against the defendant for the recovery of damages.
2 The plaintiff’s Originating Motion seeks such leave “for damages for pain and suffering in respect of the injuries (sic) sustained in the course of his employment with the defendant”. The Particulars of Injury dated 23 May 2011 specify one injury, namely, “right knee injury”. In an affidavit in support of his application sworn on 4 October 2010, the plaintiff states in paragraph 4 that “in or about 2003” he was employed by the defendant and was contracted to work for Belandra Pty Ltd as a labourer. He states “I continued to work in that capacity until being forced to cease work in December 2004 because of severe knee pain.”
3 I infer from the aforementioned documents that the application is in respect of an injury which occurred over time, rather than as a result of a specific or isolated incident, notwithstanding that some of the evidence refers to a date of 29 April 2004. This appears to be the date upon which the plaintiff first experienced symptoms of pain in his right knee, albeit that he worked on with symptoms (except for an undefined period off work in July 2004 because of the knee symptoms) until December 2004.
4 It is common ground that the defendant accepted that the plaintiff suffered a compensable injury to his right knee and that it gave rise to entitlements of weekly payments of compensation, medical expenses and a permanent impairment benefit under the Act.[1] It is also common ground that the injury is an aggravation of pre-existing but asymptomatic degenerative changes in the plaintiff’s right knee.
[1]T20, lines 11-13.
Issues
5 The issues to be determined are:
(a) whether the injury continues to be a cause of the plaintiff’s current symptoms and impairment or whether such symptoms and impairment are attributable to pre-existing constitutional degenerative changes in the knee;
(b) whether the plaintiff’s present impairment of his right knee has consequences which are “serious” in accordance with the test in s.134AB(38)(c) of the Act.
The plaintiff’s case
6 The plaintiff is presently aged 66 years, having been born on 9 June 1944. He was born in what was then known as Yugoslavia, where he was educated to Year 8 level. Since leaving school he has always worked as a labourer in the meat processing industry. He migrated to Australia when he was 21 years old, and the work which he has performed in Australia has also been heavy labouring work in the meat industry. He speaks imperfect English and has poor skills in reading and writing English.
7 In 1988 the plaintiff suffered a back injury whilst working at Segal Meatworks and remained off work for almost three years. However, in 1991 he returned to full-time employment as a labourer in the meat industry. In or about 1998, he commenced work at the Belandra Abattoir full-time doing rigorous physical work until 2002, when the abattoir closed down for one year as the result of a fire. In 2003 he was employed by the defendant, a labour hire business, and was contracted to work again at Balandra in his previous role.
8 The plaintiff’s work at Balandra initially involved being rotated through a number of labouring tasks. However, in February 2004 the system of rotation between tasks ceased and he was placed full-time on pulling the skin off carcasses of sheep. Although there was a skinning machine, it was very often broken down and the plaintiff, on an average day, without assistance, would manually remove skins from approximately 200 carcasses. This involved taking the weight through his knees as he braced himself to remove the skins. He would have to work rapidly to pull the skins off eight carcasses per minute. In the course of his employment he had one or two incidents where his knee twisted whilst he was performing his work duties, causing knee pain.[2]
[2]The dates of such incidents are not specified in the plaintiff’s affidavits, although Mr McLean in his report dated 4 October 2010 refers to the plaintiff having twisted his knee on 29 April 2004 and, again, on 6 October 2004.
9 The plaintiff commenced experiencing pain and swelling in his right knee in or about April 2004. He saw his general practitioner, Dr Chua, about one week later on 5 May 2004. He prescribed rest and anti-inflammatory gel and, later, Voltaren tablets. Apparently, he continued to do his usual duties but his pain worsened.
10 In July 2004 the plaintiff was referred by Dr Chua to Mr Hooper, orthopaedic surgeon, who injected his knee. The plaintiff had a short period off work and returned to his usual duties but his knee pain continued. Mr Hooper recommended and performed an arthroscopy on the knee on 9 December 2004.
11 The plaintiff’s case is that since undergoing the arthroscopy in December 2004 he has had ongoing pain in his right knee which is made worse by walking, prolonged standing and the cold weather. He continues to have trouble going upstairs or up a hill, and squatting and kneeling are painful and difficult. The difficulties with his knee caused him to give up his employment as a meat labourer in December 2004. He was then 60 years of age, and he has not worked since. The plaintiff claims that, prior to the knee injury, he had no intention of ceasing work. Although he does not make a claim for leave to bring proceedings for loss of earning capacity, he relies upon the inability to perform his life-long work as a labourer in the meat industry as a loss of enjoyment of life as he loved the physical nature of the job and the camaraderie of his workmates. He also relies upon his ongoing pain and restrictions occasioned by the knee injury. These include a limitation on activities such as gardening and playing with his grandchildren. Further, he has been advised to undergo a total knee replacement operation. He is putting off such surgery as long as possible, but says that, on the balance of probabilities, he will have to undergo such surgery in the foreseeable future. He says that, overall, the consequences of the impairment to the knee satisfy the test of serious pain and suffering consequences.
The defendant’s arguments
12 In response to the case of the plaintiff, the defendant submits that the medical evidence in this case is that the plaintiff had constitutional degenerative change in his right knee prior to the development of symptoms at work in 2004. Given that he has not worked for six years, any aggravation to the underlying constitutional degenerative changes by his work has ceased, and any symptoms he now suffers are related to that underlying degeneration, and not caused by his work. In particular, the defendant relies upon the reports of the plaintiff’s treating orthopaedic surgeon, Mr Hooper. In March 2006, Mr Hooper had noted that the plaintiff reported that his knee had settled down and he was coping quite well and that the indications for surgery would be determined solely by his symptoms. In September 2006 Mr Hooper noted again that the plaintiff was coping well and his knee was not bad enough to do anything about it and he just needed to review him periodically as the need arises. In January 2009 he noted that the plaintiff said he was coping moderately well and was not anxious to have any further intervention at that time. In his report dated 28 April 2010, Mr Hooper stated: “This man has constitutional degenerative changes in his right knee. This has been aggravated in the course of his work, but as he has not worked for six years or so now this aggravation can be regarded as having ceased.”
13 Mr Stanley, on behalf of the defendant, also relied upon the opinions of Mr Polke, orthopaedic surgeon, Mr Clive Jones, orthopaedic surgeon, and Dr Wyatt, occupational physician, whose reports support the lack of work relationship to the plaintiff’s current knee condition.
14 On behalf of the defendant, Mr Stanley submits that, even if the court is satisfied that the plaintiff still has symptoms which are causally related to his work, as the court is solely reliant upon the plaintiff’s own account of the severity of his symptoms, there are a number of matters which should cause the court to be concerned about the veracity of such account. These matters include the fact that there was a substantial gap in treatment from his general practitioner between July 2007 and December 2008. Also, he has been, and still is, attending to do work at a leather goods stall, which is run by his family at the Victoria Market. This latter matter was not mentioned in either of the plaintiff’s affidavits (sworn on 4 October 2010 and 12 January 2012 respectively) or to any doctors. Further, the plaintiff failed to reveal in his affidavits or to doctors that he had had the previous back injury which caused him to be off work between 1988 and 1991. Moreover, the plaintiff had been involved in a transport accident in February 2010, which was not mentioned at all in his first affidavit and only fleetingly mentioned in his second affidavit. Mr Stanley submits that this is of significance in the light of the plaintiff’s evidence that, in that accident, he had sustained broken ribs and a whiplash injury to his neck and a blow to his head. In his oral evidence, under cross-examination, the plaintiff mentioned that he had a substantial laceration to his head and suffered ongoing headaches which required painkilling medication, as well as nightmares about the accident. He showed visible distress in talking about the accident, which he had described in his affidavit as having had “residual psychiatric effects”.
15 Mr Stanley submitted that in cross-examination the plaintiff’s explanations for these omissions in his affidavits and histories to doctors were evasive and unconvincing and that they damaged his credit to the point where the court should have reservation about accepting his evidence concerning the extent of his current symptoms. These matters, together with a relative lack of treatment and the fact that the plaintiff had not undergone knee replacement surgery, even though it had been suggested many years ago, should cause the court to conclude that the consequences of any impairment to his right knee did not meet the high test required for serious injury. Mr Stanley submitted that this is so, particularly having regard to the capacity which the plaintiff retains to attend the family stall at the Victoria Market, where he assists with packing and unpacking. Also, the plaintiff admitted being involved with some 12 family investment properties on which he sometimes does some light maintenance.
The plaintiff’s credit
16 Given that the plaintiff’s solicitors in the current application are the same solicitors who have been representing him in relation to the transport accident which occurred in February 2010, it is surprising that they did not ensure that details of, at least, the recent car accident were included in the plaintiff’s first affidavit. I must say that the drafting of the plaintiff’s affidavits leaves a great deal to be desired in terms of detail and clarity of the tasks performed by the plaintiff both prior and subsequent to April 2004 and any incidents at work thereafter. There is also a lack of specificity as to the nature and extent of his symptoms and treatment and time off work after April 2004.
17 One might have expected the plaintiff to mention the transport accident, particularly to Mr Polke whom he saw three months later[3] and to Mr McLean, whom he saw eight months later in October 2010.[4] Apparently, neither of these doctors was told by the plaintiff that he had seen his general practitioner after that accident, initially for prescriptions of Panadeine Forte, and, later for prescriptions of Panamax, for neck pain and headaches. However, I do note that the clinical notes of his general practitioner show no prescription of Panadeine Forte after 11 March 2010 and no prescription of Panamax after 12 May 2010, which is that last note of any headache. On 4 August 2010, there is a note of some right chest wall pain but the only prescription is for Voltaren, which had been an ongoing prescription for his knee since about November 2004. Unfortunately, there are no further clinical notes in evidence beyond 4 August 2010.
[3]Mr Polke recorded in his report dated 18 June 2010 that the plaintiff “has no past history of any other injuries and his general heath is pretty good.”
[4]Mr McLean in his report dated 4 October 2010 records a history that the plaintiff is healthy without other joint problems and requires no other medications.
18 The plaintiff, under cross-examination, said that when he saw doctors he simply answered the questions put to him and, if anyone had asked him about the transport accident, he would have told them. He stated, in effect, that, had he injured his “work leg” in that accident then he “should say this”, but he injured a “completely different” part of the body[5] and the ongoing consequences were headaches and nightmares. In re-examination he said that he did not like talking about it. He became distressed while in the witness box, stating that he thought he could have died, as he saw the semi-trailer in his rear vision mirror about to crash into his car.
[5]T62.
19 The transport accident was obviously a subject that the plaintiff did not like talking about. It is possible that he has ongoing post-traumatic stress symptoms relating to it. However, there is no evidence that the transport accident in any way impacted upon the plaintiff’s right knee injury. Thus, although it would have been prudent of the plaintiff to mention that accident in his first affidavit and to doctors, I do not consider that there is anything sinister in his having failed to do so. I note that, in fact, he did mention it to Mr Jones, whom he saw on 23 March 2011. In the circumstances, I do not consider that an adverse inference should be drawn against the plaintiff for failing to mention the transport accident in his first affidavit or to other doctors.
20 Nor do I consider that an adverse inference should be drawn from the plaintiff’s failure to mention the injury to his lower back, which occurred in 1988. In the defendant’s court book, a report from Mr Billett dated 6 February 1991 states that the plaintiff had no problems with his back at that stage and there was no reason why he could not return to work on a full-time basis. A report from Mr Swanney dated 2 September 1992 also expresses the view that he has recovered from his back injury. This is consistent with the plaintiff’s evidence that he was able to return to full-time heavy labouring work in 1991 and that his back was not an ongoing problem for him as he continued to do heavy labouring work for the next 13 years right up until the pain and swelling in his right knee began in 2004. Indeed, his general practitioner’s notes do not reveal any mention of problems with his back from 2004 onwards after treatment for his right leg problems commenced. In these circumstances, I consider the plaintiff’s back injury in 1988 to be irrelevant to his present claim.
21 Considerable emphasis was placed by Mr Stanley upon the failure of the plaintiff to mention in his affidavits or to doctors anything about his activities at the family leather stall at the Victoria Market or in relation to the investment properties owned by his family.
22 I agree with Mr Stanley that I would have expected the plaintiff to mention these matters in his affidavits even if, as he claims, his contribution to such activities is a fairly minimal one. I would also have expected it to be mentioned to doctors when they enquired about his daily activities. I would have expected the plaintiff, who had made a compensation claim for his back injury and been off work for three years, to know the importance of revealing anything that might suggest that he may be involved in any work. However, that the plaintiff has not been forthcoming about such matters does not mean that I should automatically conclude that he is involved in a level of activity inconsistent with the pain and restriction that he claims. Indeed, the defendant admitted that it had had the leather stall at the Victoria Market under surveillance for two days in February this year, namely, a Saturday from 7am to 3pm and a Sunday from 10am to 5pm. On neither of those days was the plaintiff sighted at the stall. This would tend to support the plaintiff’s evidence under cross-examination that he does not regularly attend the stall on the four days on which it operates. He said he occasionally might attend on four days but it might be only one or two.
23 Moreover, I see no reason to disbelieve the plaintiff’s evidence that the stall has been run by the family for something like 20 years and that his two daughters and wife used to attend regularly to run it up until last year. In fact, he states that, up until last year, the stall was the sole employment of one daughter. Further, his son, who has now left school, took over the full-time running of the stall last year. The plaintiff said that the setting up of the stall involved unpacking some two or three hundred leather jackets from a van and hanging some of them up around the stall. The packing up of the stall involved a reverse process. He said that on the day or days that he attends, he assists with some of the setting up or packing up but, during the time that the stall is operating from 8am to 2pm, he spends the day essentially sitting on a chair and would spend only about one hour, in total, on his feet.
24 The defendant did not rely upon the plaintiff’s participation at the stall as evidence of work capacity, but rather as going to his credit because he had not told anyone about it. However, the plaintiff did reveal the income from the market business in his tax returns (it having always run at a loss). Hence, it was always a matter that the defendant was likely to discover. It was never actually put to the plaintiff in cross-examination that he engages in physically arduous work at the market. It seemed to me as though the more physical work involved in running the stall is very largely undertaken by four other members of his family. The plaintiff gives some assistance to them when he attends the stall. On the evidence I find that the plaintiff’s role at the stall is of a sedentary nature consistent with the pain and restriction which he has described in his affidavits and oral evidence.
25 In this context I note that the defendant admitted that it had had the plaintiff under surveillance on 10 January 2005 from 7am to 4pm, during which time two minutes and 34 seconds of film was taken of him. He was also under surveillance on two other days when he was sighted briefly, but no footage was taken of him. This was from 7am to 2pm on 11 December 2010 and 11am to 3pm on 17 December 2010. Further, he was placed under surveillance on 9 January 2012 from 6am to 1pm, during which time two minutes and 53 seconds of film was taken of him. No evidence was called from the person or persons who had conducted the surveillance and no film was produced and shown to the court of such surveillance. In these circumstances, I conclude that evidence of such surveillance would not have assisted the defendant’s case and I can more readily accept the evidence of the plaintiff as to his level of activity and the pain and restriction suffered by him.
26 Finally, on the issue of the plaintiff’s credit, there was considerable cross-examination about the plaintiff’s family owning some 12 investment properties. The evidence is that 11 of these were owned prior in time to the emergence of the plaintiff’s right knee symptoms in 2004. Moreover, they are essentially managed through an agent who organises repairs on the properties. The plaintiff said that he had sometimes carried out some small maintenance tasks such as cleaning a window. There is no evidence to the contrary which would enable me to conclude that he had been engaged in physically arduous work associated with the investment properties inconsistent with the symptoms he claims to suffer in his right knee. Thus, I consider the fact of his family’s involvement in such investment properties to be of no significance to the matters which I have to determine.
The Medical evidence
27 Dr Chua, general practitioner, treated the plaintiff until late 2006 when Dr Chua apparently ceased practice. In his report dated 15 January 2006 he stated that he had first seen the plaintiff on 5 May 2004 with a history that he worked at a “meat factory” where his job was “to pull skin down” and he had started having pain in his right leg and knee about one week earlier, around the end of April 2004. He stated that rest and Orudis gel were prescribed and also Voltaren but the knee got progressively worse. Despite the arthroscopy performed by Mr Hooper, as at 21 January 2006, the plaintiff still had a tender and swollen right knee to which he believed his employment was a significant contributing factor. He said, at that stage, he had no capacity for pre-injury duties. Dr Kamal took over as the plaintiff’s general practitioner and in his report dated 12 May 2010, he expressed the view that the plaintiff still suffers from right knee pain due to the original work injury which, as outlined by his treating orthopaedic surgeon, Mr Hooper, will in the long run require surgery. He stated that the plaintiff did not have any capacity for pre-injury duties and his capacity to work generally and undertake work in the future would depend on the outcome of treatment modalities.
28 Mr Hooper, treating orthopaedic surgeon, performed an arthroscopy on the plaintiff’s right knee on 9 December 2004. He reported the operation as showing that that plaintiff “had Grade II – III changes over the central bridge of the patella. He had minor changes in the groove. He had Grade II – III changes over the medial femoral condyle. The remnants of the medial meniscus was frayed, but not grossly damaged.” Mr Hooper “tidied up” the medial meniscus and performed a chrondoplasty.
29 In a report dated 4 February 2005 to the defendant’s insurer, Mr Hooper stated that the plaintiff was looking at a total knee replacement but the plaintiff did not feel his symptoms were bad enough to warrant them at that time. He stated “If he does require a knee joint replacement I think his problems can be related to the heavy work that he has done over the years.” He considered that constitutional changes in the knee joint had been aggravated by his work. However, as previously mentioned, in a more recent report to the plaintiff’s solicitors dated 28 April 2010, he stated that, although constitutional degenerative changes in the plaintiff’s right knee had been aggravated in the course of his work, “as he has not worked for six years or so now this aggravation can be regarded as having ceased.”
30 Mr McLean, orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 4 October 2010. He took a history of a twisting incident to the right knee at work on 29 Arpil 2004 resulting in a sharp pain to the medial side of the knee. The plaintiff continued to work and swelling occurred the following day. Over a few months the plaintiff experienced variable medial pain and swelling and then a further incident on 6 October 2004 resulting in swelling and bruising the following day. He noted that the plaintiff ceased work in late 2004 because of ongoing problems to his right knee and underwent an arthroscopy on 9 December 2004.
31 Clinically, Mr McLean noted osteoarthritis of the plaintiff’s right knee, particularly the medial compartment, where he appeared to have “bone on bone”. He stated that it is a matter of time as to when the plaintiff would require a total knee replacement. He considered that the plaintiff’s manual-type work, including the incident of 29 April 2004, and the later incident on 6 October 2004, had been a significant contributing factor to the onset of symptoms in his right knee. He stated that the degenerative process has continued (possibly at a slower rate) despite not working for the last six years.
32 Mr McLean organised a weight bearing X-ray of the plaintiff’s right knee on 19 December 2011 and, in a subsequent report dated 22 December 2011, stated that the X-ray films confirmed his clinical impression and showed marked narrowing of the medial joint space with only a one millimetre gap on the standing AP view. His prognosis is for continued and progressive degenerative changes. He considered the plaintiff unfit to return to his former work and his only work capacity would be that of light, sit-down, semi-sedentary type work for which he is not trained.
33 The plaintiff was seen by a number of doctors at the request of the defendant:
34 Mr O’Brien, orthopaedic surgeon, saw the plaintiff in January 2005 and provided a report to the defendant’s insurer dated 28 January 2005. He took a history of the plaintiff working at great speed pulling skins off lambs when he felt pain in his right calf and knee on 29 April 2004. He noted that the plaintiff had continued to do his normal work and the severity of pain increased, with pain every day, worse at the end of the day and associated with swelling. He further noted that the plaintiff had improved with some time off work in July, but, on return to his normal duties, symptoms continued and necessitated the arthroscopy on 9 December 2004. Since the surgery the plaintiff had continued to have significant pain.
35 He stated that the plaintiff’s history indicates that employment is a significant contributing factor to what is obvious aggravation of pre-existing osteoarthritis of the right knee. At that stage, Mr O’Brien noted that there were quite florid signs of joint inflammation secondary to the osteoarthritis, as well as quite marked quadriceps wasting. He stated that the plaintiff was quite disabled because of ongoing knee pathology. He was guarded in relation to prognosis stating that there was certainly a possibility of progression of symptoms associated with the arthritic process, and at that stage, the plaintiff was totally incapacitated and a return to employment was unpredictable and would depend on substantial improvement, and even then, only light sedentary work was likely.
36 Mr Battlay, orthopaedic surgeon, saw the plaintiff in August 2005 and provided a report dated 29 August 2005 to the defendant’s insurer. He took a history that the plaintiff had gradually developed a pain in his right knee and calf which he attributed to the nature of his duties, mainly pelting and taking off excess skin from lamb carcasses.
37 He stated that long-standing patellofemoral and medial compartment osteoarthritis had been aggravated through the general nature of the plaintiff’s duties with the defendant. He considered that the plaintiff was quite markedly incapacitated. He was permanently unfit for manual labour on his feet, although theoretically would have a capacity to return to some sedentary type work, but given his poor English and previous work experience, was probably best considered to be totally incapacitated.
38 Dr Wyatt, occupational physician, examined the plaintiff on 14 July 2006 and provided a report to the defendant’s insurer dated 17 July 2006. She took a history that the plaintiff initially developed knee soreness in 2004 while pulling the skin off lambs downwards. This required some force and, as he would pull down he would need to be on his knees. At some stage he had a fall which also aggravated his pain. She stated that the plaintiff had osteoarthritis of his right knee but his duties would not be expected to cause a long-term knee problem. She regarded the plaintiff as totally and permanently incapacitated for suitable employment.
39 In a subsequent report dated 28 July 2006, she stated that the duties he performed contributed to his symptoms at the time he was working, but at this stage, the employment does not materially contribute to an incapacity for work. She stated, “Alternatively, it may be said that Mr Sofranko would have developed the arthritis, even if he had not worked in that role”.
40 Mr Jones, orthopaedic surgeon, saw the plaintiff in August 2006. In a report to the defendant’s insurer dated 14 September 2006, he noted that the plaintiff was working on the mutton chain at Belandra Abattoir when he sustained a right knee injury whilst manually pulling down partially detached skins. He first became aware of right knee pain on 29 April 2004. He thought he may have slipped and fallen as a result of pulling those skins. He had some time off work, but was keen to return and his knee function continued to decline. He last worked in December 2005 (sic).
41 He considered that the plaintiff’s capacity for work was extremely limited because of degenerative changes in his right knee which were progressive. He thought that the underlying problem was arthritis and that any work-related aggravation was not evident when he first saw him in 2006. He saw the plaintiff again in March 2011 and, in his most recent report dated 26 April 2011, reiterated his view that any aggravation to the plaintiff’s osteoarthritis caused by employment has now ceased.
42 Mr Polke, orthopaedic surgeon, saw the plaintiff in February 2005, shortly after the arthroscopy had been performed, and thought it was too early to assess his response to the arthroscopy at that time, and that he may well settle. The history he took was that the plaintiff had first noticed knee pain while at work pulling sheep skin off carcasses around the end of April 2004 and had continued work until his arthroscopy on 9 December 2004.
43 When he saw him again in August 2005, he noted that the right knee had some effusion and tenderness over the medial joint and under the medial patella facet. He did not think that an indication for an upper tibial osteotomy was strong at that stage. In his most recent report following an examination on 18 May 2010, he stated that the plaintiff suffers from constitutional degenerative changes of his right knee which are still causing pain. He considered it was appropriate to accept that the bending he was undertaking at work at the time his problem developed contributed to his symptoms at that time. However, he considered that any work related aggravation had long passed.
The evidence in support of the application
44 I did not have the benefit of hearing any oral evidence from any doctor. It is clear that the plaintiff had some signs of degeneration in his right knee by the time he first started to feel symptoms in April 2004. X-rays taken on 21 July 2004 showed some early (but minor) condylar and patella spiking, with the film suggestive of minimal medial joint space reduction. When Mr Hooper performed the arthroscopy on 9 December 2004, he found Grade II – III changes over the central ridge of the patella and the medial femoral condyle. Since that time, there has been further progression of the degenerative changes. X-rays on 23 January 2009 showed patellofemoral and tibiofemoral spiking and slightly diminished medial joint space. The most recent X-rays organised by Mr McLean on 19 December 2011 show marked narrowing of the medial joint space with only a one millimetre gap on the standing AP view confirming Mr McLean’s clinical examination which elicited crepitus of bone on bone in the medial compartment.
45 The defendant relied upon Mr Hooper having stated in a brief report dated 10 March 2006 that the plaintiff had told him that “his knee has settled down and he is coping quite well and he does not want to go ahead with the high tibial osteotomy at this time”. This was a report back to Dr Chua, and in a report some days later on 20 March 2006 he stated that “his symptoms have settled and he is coping moderately well at the present time”, however, he went on to say that he believed that further surgery by way of an osteotomy or a knee replacement would eventually be required, but this would be determined solely on his symptoms. Later, in a report to Dr Chua dated 13 September 2006, Dr Hooper stated “He is coping well. His knee is not bad enough to do anything about.”
46 The defendant submitted that these views of Mr Hooper are consistent with the plaintiff’s symptoms having settled for a time after the arthroscopy and that this fits in with him not consulting his general practitioner for a period of some 18 months between July 2007 and December 2008. Hence, it is submitted by the defendant that any later increase in symptoms represent the underlying degenerative changes which have progressed, rather than anything to do with the work-caused aggravation.
47 Having carefully considered the material, I do not believe that I can find that the plaintiff’s symptoms in his right knee ever settled or ceased after they first began to trouble him in April 2004. The plaintiff impressed me as a stoical person who was used to doing very hard work in the meat industry and not someone who would readily complain. Notwithstanding that he now has a right knee where there is “bone on bone” in the medial compartment, his description of his symptoms could hardly be described as exaggerated. Indeed, there is no medical practitioner who in any way suggests that the plaintiff exaggerates his symptoms. The plaintiff’s evidence was that he tried to keep working after first experiencing right knee symptoms in April 2004. This is borne out by a clinical note by Dr Chua dated 13 January 2005. This refers to a letter written by Dr Chua to the defendant’s insurer, concerning a back-dated medical certificate:
“The reason the certificate was backdated is because the patient initially did not want to go on Workcover, thinking that his right leg and knee pain would resolve in a short time. After seeing the surgeon, he realised that surgical intervention was needed and had no option but to go on Workcover.”
48 In the general practitioner’s notes there are various references to ongoing right knee pain and the prescription of Voltaren, but a note dated 24 November 2005 states “Still not keen on tablets”. The plaintiff had clearly been advised that the only other option was to have further surgery. A later note dated 16 February 2006 states “Mr Hooper apparently told him that he will not push him to have the operation as there are no guarantees.” The plaintiff denied that he had ever told Mr Hooper that he was “coping moderately well”. I found the plaintiff to be quite inarticulate and such language is not consistent with the language he used whilst giving evidence.
49 The plaintiff’s evidence is that since he commenced experiencing pain and swelling in his right knee in April 2004, his symptoms have continued to the present time[6] and that he has tried to avoid having surgery if he can but is resigned to the fact that he will require a total knee replacement at some point in the future.[7] Indeed, he stated “I believe I need it because bone starting with bone – there’s nothing between, that’s the problem. That’s really sore”.[8]
[6]Paragraphs 6 and 7 of his first affidavit.
[7]Paragraph 4 of the plaintiff’s second affidavit.
[8]T66.
50 All of the medical reports document that the plaintiff’s symptoms have been ongoing: Dr Chua, in his report dated 25 January 2006, (over one year since the arthroscopy) refers to the plaintiff still having a tender and swollen right knee; Dr Kamal, in his report dated 12 May 2010, refers to the plaintiff still suffering right knee pain which he believes is due to the original injury; Mr O’Brien, in January 2005, referred to quite florid signs of joint inflammation, quite marked quadriceps wasting and the fact that the plaintiff was quite disabled because of his ongoing knee pathology causing very definite restrictions of his activities; Mr Battlay, in August 2005, noted a history that the pain in the plaintiff’s knee had not improved. He, too, noted marked right quadriceps wasting with some swelling around the right knee joint and thought he was quite markedly incapacitated; Dr Wyatt, on 14 July 2006, also noted wasting of the right quadriceps, mild swelling of the right knee and coarse patella femoral crepitus in the right knee. She noted that his problems caused difficulty with long periods of walking or kneeling, squatting or climbing activities; Mr Polke, in February of 2005, also noted moderate quadriceps wasting and tenderness of the medial joint line. Later, in August 2005, he noted the right knee had some effusion, tenderness over the medial joint line and under the medial patella facet. When he later saw him in May 2010, he took a history that the plaintiff still suffers persistent medial pain in his right knee, particularly with standing, walking and using the stairs.
51 Mr Hooper’s report dated 4 February 2005 makes it plain that the plaintiff’s symptoms were not helped greatly by the arthroscopy. He stated, if the plaintiff was unhappy, then he is looking at knee replacement surgery but the plaintiff did not feel at that time that his symptoms were bad enough to warrant it. He went on to state that “If he does require a knee joint replacement I think his problem can be related to the heavy work that he has done over the years which have (sic) aggravated the situation”.
52 In a subsequent letter to the defendant’s insurer dated 20 March 2006, Mr Hooper speaks of the plaintiff’s pain and symptoms in his knee, having settled to a degree that he can cope with. However, he does not say that the symptoms ever disappeared and, indeed, suggests that he should review him in six months and expresses the view that he will eventually require surgery.
53 Mr Hooper’s next report, dated 13 September 2006, speaks of his knee not being bad enough to do anything about it, but says he is not going to get back to work at his age and he will review him periodically. His last report, dated 28 April 2010, states that the plaintiff has been reviewed by him periodically and he was last seen by him in January 2009. He again commented that the plaintiff was coping moderately well and stated that surgical intervention remained a possibility. However, it was clear at that stage that he had not seen the plaintiff again and nor, obviously, did he have the most recent X-rays organised by Mr McLean.
Analysis
54 The onus of proof is clearly upon the plaintiff to satisfy the Court of the nature and extent of any work-caused aggravation of osteoarthritis which he claims is still existing. It is clear that where a plaintiff has a pre-existing condition “an analysis must be made of the extent of the impairment of a body function before and after the relevant injury” and that the aggravation attributable to work must be proved to be a “serious injury”.[9]
[9]Petkovski v Galletti [1994] 1 VR 436 at p.444
55 In my view, although the plaintiff has not made very frequent visits to the general practitioner, (and apparently none at all between July 2007 and December 2008)[10] it is clear that nothing short of surgery is likely to relieve the symptoms from the plaintiff’s now very degenerative right knee joint. In these circumstances, I do not consider that it necessarily follows that the lack of attendances upon a general practitioner is evidence that he does not suffer the symptoms he claims. All of the histories to doctors reveal the presence of ongoing symptoms and restrictions associated with them. Also, I have detailed above the various objective findings upon examination such as swelling, inflammation and wasting of the right quadriceps muscle.
[10]Although the plaintiff in oral evidence stated that he had been given prescriptions of Voltaren for three months at a time and believed that he had seen Mr Hooper during 2008, albeit not very often (T71 and T76).
56 The attitude of Mr Hooper has obviously been to leave it up to the plaintiff to indicate when he has got to the stage that he can no longer cope with the symptoms in his knee and then he will perform surgery. That someone might be able to stoically manage to put up with pain at a higher level and for a longer period of time than someone else, does not necessarily mean that the symptoms are not serious and ongoing. On all of the evidence I am satisfied that the symptoms have been serious and ongoing and, indeed, the most recent examination by Mr McLean and the standing X-rays, provide a sound explanation as to why the plaintiff would be experiencing pain and swelling in his knee and be unable to squat, kneel, or run or walk for only a limited distance.
57 Thus, I accept that the plaintiff does have the level of symptoms of which he complains. It seems to me that the real issue is whether those symptoms are referable purely to pre-existing degenerative change or whether his work in the meat industry for the defendant continues to be a cause of those symptoms and any impairment flowing from them.
58 There is no doubt that the manual labour performed by the plaintiff for the defendant was of a very arduous nature, particularly from February 2004 when he ceased to have the advantage of being rotated to different jobs at the abattoir and was constantly bracing his knee as he engaged in the demanding task of ripping the skin from approximately 200 carcasses each shift. In addition, he had one or two incidents where his knee twisted whilst performing work duties, which caused him knee pain. It seems to me that this is the very type of activity which would likely cause wear and tear on a knee joint. Thus, I am surprised by the statements of Mr Polke and Dr Wyatt in their respective reports that studies “do not suggest that people who work standing and undertake the type of work performed by Mr Sofranko are at a greater risk of developing knee arthritis.” From February 2004 onwards, the plaintiff was not simply standing. Indeed, both of these doctors took a history that his task required some force and, as he pulled down the skin of the animal, he would need to be on his knees. Dr Wyatt even stated that “the majority of studies indicate that people who are repeatedly kneeling or squatting or lifting over 25 kilograms on a regular basis are at a greater risk of developing knee arthritis”. Thus, in this respect her report appears to be internally contradictory and unconvincing.
59 However, the plaintiff’s application was argued on the basis that his work had aggravated existing but asymptomatic degenerative change causing it to become symptomatic, and that those symptoms have continued to the present time. The evidence before me is that prior to April 2004, although the plaintiff would have had degeneration in his knee[11], he had no symptoms. In April 2004, he began to get those symptoms and I have found that they have continued to the present time.
[11]A plain X-ray of the plaintiff’s right knee on 21 July 2004 was reported as showing “Early but minor condylar and patella spiking”.
60 The difficulty I have with all of the opinions which state that the plaintiff’s work is no longer a contributing factor to his current knee condition, is that none of those opinions have analysed the cause of his symptoms or indicated when it was that the work contribution is said to have ceased. As I understand the evidence, the plaintiff’s work was responsible for the onset of symptoms in his knee and, in fact, there has been no cessation of those symptoms since that time.
61 Dr Wyatt states that the knee arthritis would have developed even if the plaintiff had not performed his work duties. This is not to the point because it is the symptoms that have been initiated by those work duties which are the problem, not the mere fact of the existence of degenerative change in the knee itself. It is well accepted that one may have radiological evidence of arthritic change but no symptoms. Thus, to speak of the development of “arthritis” without reference to any symptomatology does not address the issue.
62 Mr Jones asserts that, even if the plaintiff had not been employed as he was, it is highly likely that arthritic change would have become symptomatic. However, this is not the point either because the fact of the matter is that the plaintiff’s arthritic change was rendered symptomatic by the work that he was actually doing. This was accepted by the defendant, whose insurer accepted liability for the partial medial meniscectomy performed by Mr Hooper on 9 December 2004. Mr Jones (indeed, none of the doctors) does not address the impact that this surgery may have had on the subsequent progression of the plaintiff’s arthritic change. That arthritic change is now very marked in the medial joint space. Nor does he say when, in the absence of work causes and the arthroscopy, the plaintiff’s arthritic change would have become symptomatic. He does not state that, regardless of these factors, the plaintiff would be in the same state of pain and restriction that he is in today.
63 Mr Hooper’s opinion I find to be confusing. In his report dated 4 February 2005 he stated that the plaintiff required a knee joint replacement and that this was related to the heavy work that he had done “over the years” which had aggravated his situation. Mr Hooper does not explain what he means by the expression “over the years”. None of his reports contain any work history of the plaintiff. His report dated 4 February concludes: “His condition is due to constitutional changes in his knee that have been aggravated by his work.” As the defendant accepted liability for the arthroscopic procedure performed by Mr Hooper in December 2004, I infer that “his work” is a reference to his work for the defendant. If that was so, it is difficult to know why, in his report dated 28 April 2010, notwithstanding that he still considers that surgery is indicated, he says that work has ceased to be a an aggravating factor. It seems to me that if the work aggravation warranted an operation in 2005, and that same operation is still required five years later, it is logically difficult to say that work is no longer a causative factor. The only reason assigned by Mr Hooper for his opinion is that the plaintiff has not worked for six years. However, in spite of the fact that the plaintiff has no longer had his knee repetitively strained by the forces associated with his arduous work with the defendant, his knee has remained constantly symptomatic all of that time. Certainly there has been a progression of the underlying degenerative changes since the plaintiff ceased work, but Mr Hooper does not comment upon the impact that the work-caused arthroscopy may have had on such progression.
64 In contradistinction to Mr Hooper, Dr Chua makes it clear that the plaintiff’s work (which he says is a significant contributing factor to his condition) was at a meat factory where he had to “pull skin down”. This same history and causation is adopted by Dr Kamal. Mr McLean also commences his report with a reference to the “right knee injury affecting Mr Sofranko as a result of his employment as a labourer with Belandra Pty Ltd, a meat processing factory”. He makes specific referent to an episode of injury on 29 April 2004 as well as the fact that the plaintiff continued to work with “variable pain and swelling over a few months”. He then refers to a further episode of injury on 6 October 2004. He then concludes that “Mr Sofranko’s manual type work, including the incident of 29th April 2004 and 6th of October 2004, have been a significant contributing factor to the onset of symptoms in his right knee”. In my view the context of his report makes it a fair inference to draw that the “manual type work” is the work he was performing at Belandra for the defendant.
65 Had there been a cessation of symptoms and some form of analysis based upon such cessation, then I would be more inclined to accept the views put forward by medical practitioners who say there is now no relationship between the plaintiff’s current knee symptoms and his work. In the absence of such analysis, those views seem to be mere assertions and do not account for the ongoing nature of the plaintiff’s symptoms from the time that he first experienced them at work in April 2004. On the evidence, I am unable to conclude that the plaintiff’s plight in terms of pain and suffering would be identical to what it now is regardless of his work-caused injury, which necessitated the arthroscopic surgery in December 2004. To the contrary, there is a strong temporal connection between the discontinuance of the system of rotating jobs (which saw the plaintiff day in and day out skinning 200 carcasses) and the onset of symptoms two months later in April 2004. Moreover, the plaintiff continued beyond April 2004 to perform his normal work in the presence of pain in his right knee. Indeed, Mr O’Brien, who saw the plaintiff soon after his arthroscopy, had noted in January 2005 that “the severity of the pain increased, with pain every day, worse at the end of the day and associated with swelling.”
66 Thus, I am satisfied that the plaintiff has established on the balance of probabilities, that the aggravating effect of his work with the defendant on the underlying asymptomatic degenerative change in his knee has continued to be a material contributing factor to his knee symptoms and restrictions to the present time.
67 Undertaking the comparative analysis required by Petkovski v Galletti I find that, prior to April 2004, the plaintiff had no impairment of his right knee and was physically fit and capable of engaging in work requiring great strength. He is now effectively unable to work. The evidence is that the plaintiff loved his work and indeed, in accordance with his general practitioner’s notes, was loathe to go on Workcover because he thought that his knee would recover and he would be able to continue his work. This is consistent with the plaintiff’s evidence that he intended to continue his work as a labourer at the meat works. Although it is difficult to prognosticate about how long he would have been able to continue in such job, because there is no evidence before me as to the usual retiring age of abbatoir workers, I am satisfied on the balance of probabilities, that this work injury has prematurely ended the plaintiff’s working life, by a number of years.
68 The truncation of his working life is an important diminution of the plaintiff’s enjoyment of life as someone who had pride in working hard alongside others who were like-minded. However, even if the plaintiff was likely to retire soon after December 2004 (of which there is no evidence), the contrast between his robustness prior to his knee injury and his pain and reduced capability now is a stark one. I consider that for a person to be limping around with a knee which has bone on bone, such that he cannot walk for longer than about five hundred metres without being stopped by pain, is unable to squat or kneel or run, and has difficulty with inclines and stairs, is such an erosion of mobility as to warrant the label of a serious consequence. This is coupled with experiencing sleep interrupted by pain, together with the virtual certainty that he will very soon come to a total knee replacement operation, with all the attendant pain, suffering and rehabilitation.
69 All of these matters satisfy me that the present impairment of the plaintiff’s right knee has resulted in pain and suffering consequences which are, when judged by comparison with other cases in the range of possible impairment or losses of body function, fairly described as being more than significant or marked and as being, at least, very considerable.
70 Accordingly, the plaintiff has succeeded in his application. Leave is granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages, for the right knee injury the subject matter of this application.
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