Steven Kermeci v West Point (Vic) Pty Ltd

[2010] VCC 1649

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES LIST

GENERAL DIVISION

Case No. CI-09-06222

STEVEN KERMICI	Plaintiff
V
WEST POINT (VIC) PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE MILLANE
WHERE HELD:	Melbourne
DATE OF HEARING:	20 and 21 October 2010
DATE OF JUDGMENT:	25 November 2010
CASE MAY BE CITED AS:	Steven Kermeci v West Point (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 1649

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – aggravation of pre- existing condition in the plaintiff’s right lower limb – whether work-related injury to right knee makes material contribution to consequences and was more than temporary

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Gerald A Lewis S.C.	Mantoo & Co Lawyers
Donald K McIvor
For the Defendant	Michelle Britbart	Herbert Geer Lawyers
HER HONOUR:

Introduction

1 By originating motion filed on 29 December 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.

2          The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's right lower limb by reason of permanent aggravation of pre-existing degenerative changes in his right knee.

3          From April 2003 the plaintiff was employed by the defendant as a storeman/forklift driver. He was employed full-time, working Monday to Friday between 7am and 4am. Sometimes he also worked overtime either an hour prior to or after normal working hours or, on occasions, he worked on Saturdays from 6am to 10am.

4          The plaintiff gave uncontested evidence that his duties were physically demanding and involved a lot of heavy lifting, repeated bending and working in awkward positions. He was required to lift and handle cartons and drums of paint, move and handle pallets, roll large 200 L drums, climb on to and jump down from a forklift and kneel to lift loads from a forklift. This work had to be done at a fast rate and it was usually performed whilst the plaintiff worked on hard concrete floors.[1]

[1]             Plaintiff's Court Book ("PCB") 5.

5          The plaintiff alleges an aggravation injury to his right knee throughout the course of his employment with the defendant and in particular on 20 February 2005 when he was struck on the back of his right knee by the tines of a reach truck driven by a co-worker. The plaintiff said that after being struck he stumbled but did not fall, although as a result of the incident he had pain in his right knee. The incident and injury were reported by the plaintiff to his supervisor on the same day, after which, notwithstanding pain in his right knee, the plaintiff continued performing his normal duties without time off or medical treatment. Essentially the plaintiff's very plausible explanation for continuing to work with pain was that he could not stop work because he needed the money.[2]

[2]             PCB 6 and 45 and Transcript ("TN") 52.

6          The plaintiff had a history of knee pain prior to this incident. For instance, in paragraph 5 of his first affidavit sworn on 26 August 2009 the plaintiff deposed to having developed some pain in his right knee for which, in 2004, treating orthopaedic surgeon, Mr Clifford advised he would require arthroscopy, a procedure the plaintiff said he had not pursued. Rather by his account he continued performing his normal duties without further treatment.[3]

[3]             PCB 5-6.

7          However, in paragraph 2 of his third and most recent affidavit sworn on 12 October 2010 the plaintiff further deposed that for some years prior to 2003 he suffered from "intermittent and occasional and comparatively mild symptoms

from time to time in my right knee. After such symptoms occurred my knee would come good. I believe I never had any medical or associated treatment for my right knee during this period, nor did I take medication. I further believe that I did not lose any time from work and continued to perform normal duties and continued to perform activities described in paragraph 13 of my first

Affidavit."[4]

[4]             PCB 26-27.

8          As it turns out the history relating to problems with the right knee was far more extensive than the plaintiff summarised in his affidavit evidence. Nevertheless, without being able to recall much of this, when taken in cross examination to the clinical notes kept by general practitioner, Dr Esposito as well as the matters reported in correspondence to and from Mr Clifford[5] the plaintiff generally acknowledged the following history.

[5]             PCB 164-172.

9          It appears that from at least the late 1990s whilst employed by an earlier employer as a furnace operator, work he did not consider heavy, the plaintiff consulted a general practitioner, whose name he could not recall[6] for treatment of swelling, locking and pain in his right knee. He was advised that he would need an arthroscopy, a procedure Dr Esposito in 2004 understood the plaintiff had already been waiting to undergo for the past four years. Whilst the plaintiff agreed that the earlier treating doctor had prescribed anti- inflammatory tablets he denied filling the prescription or taking any medication to treat symptoms which, the plaintiff also agreed, were similar to those he presented with to Dr Esposito in 2004.[7]

[6]             This general practitioner apparently worked from a clinic near his mother's home.

[7]             Transcript (“TN”) 44.

10        In July 2004, plain x-ray of the plaintiff's right knee arranged by Dr Esposito prior to referring the plaintiff to Mr Clifford, reported as follows:

“The joint margins and tibial spines are sharpened including the patello-
femoral margins.

No joint narrowing is outlined.

Multiple bony loose bodies are seen with the knee joint in the supra-patellar compartment and in the posterior knee joint."[8]

[8]             PCB 89.

11        Mr Clifford's report to the general practitioner on 20 August 2004 confirms an eight year history of "troubles" with the plaintiff's right knee "with episodes of

locking, giving way and pain in this knee. He does not remember any specific

history of injury at the beginning". On examination and without having viewed the x-ray film or result, Mr Clifford reported finding "a floating loose body in the

suprapatellar pouch which is quite easy to move around. Clinically there is very little else to find in this knee with a good range of movement and no

ligamentous instability..." Following this examination the specialist recommended and referred the plaintiff to Outpatients at the Western Hospital for an arthroscopy.

12        It appears that the plaintiff did not pursue this procedure at any stage prior to ceasing work following work-related injury to his left knee in March 2006. Moreover, in cross-examination he said that he had not mentioned any connection between his work duties and his knee pain because Mr Clifford had not asked him.[9]

[9]             TN 46-47.

13        Accordingly, notwithstanding the impression conveyed by the evidence given in his affidavits, at hearing the plaintiff agreed that he continued to have symptoms on and off, such as locking, swelling and pain in his right knee which had previously caused him to attend doctors in or about 2000 and 2004 and for which arthroscopic intervention had been recommended.

14        The plaintiff is not a highly educated man. He was literal both in his interpretation of the questions asked and the responses he gave during the hearing. These circumstances helped me accept as credible his explanation that when he deposed to never having had any medical or associated treatment for his right knee before 2003 he took “treatment" to mean something active, such as surgery, rather than simply the prescription of medication or a recommendation to have an arthroscopy.[10]

[10]           TN 49-50

15        Between August 2004 and the forklift incident in February 2005 the plaintiff continued working. As I have already noted after the incident, despite pain and a worsening of his knee condition, the plaintiff said that he performed the same heavy duties until 28 March 2006 when, as he was picking up a carton at floor level, he struck and injured his left knee on a pallet. In re-examination the plaintiff distinguished the condition of his knee from before the forklift incident when he said that, following the incident, he had a lot of pain in the back of his knee and "a little bit" at the front of the knee, but he just kept working. However, he also said that because he had been relying on his right knee after injuring his left knee in March 2006 he now has a lot of pain in the front of his knee. [11]

[11]  

16        Following the injury to his left knee the plaintiff ceased work in late May 2006. The condition of his left knee was investigated and treated and on 9 June 2006 the plaintiff submitted a claim for compensation for injury to his left knee which was eventually accepted.

17        Nevertheless, according to the plaintiff, having previously favoured his right knee, following the injury to his left knee he used his right leg more which led to worsening problems with his right knee. On 18 July 2006 he also submitted a WorkCover Worker’s Claim Form in respect to right knee injury suffered on 20 February 2005, in which the plaintiff relevantly acknowledged previous pain/disability in the area of the “present” injury.[12]

[12]

18        It appears that, notwithstanding the receipt of weekly benefits paid in respect to his left knee injury, by 19 December 2006 the claims agent had indicated its acceptance of liability for the right knee injury and, following medical assessment of the degree of impairment, on 28 May 2008 the claims agent also notified acceptance of a claim for compensation pursuant to s98C of the Act.[13]

[13]           PCB 49-51 and 55-61.

19        Whilst the condition of his left knee appears to have improved significantly, the plaintiff claims that his right knee has remained symptomatic and impairment of this knee is the principal cause of his ongoing total incapacity for all employment and of his pain and suffering consequences. Notably, all of the specialists agreed that the plaintiff will eventually require a total knee replacement. The treating orthopaedic surgeon, Mr Steele has foreshadowed that as a temporary measure further surgery by way of osteotomy is also likely.[14]

[14]           PCB 127.

20        To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the right lower limb are more than "significant" or "marked" and at least "very considerable".

21        In summary, the plaintiff is required to establish a compensable injury after 20 October 1999. By definition compensable injury includes the aggravation of previous injury or disease to which his employment was a significant contributing factor. Additionally, he must establish the nature of the injury; that his employment was a significant contributing factor to any pre-existing injury or disease; the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".

22        Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.

23        In this case, where there is pre-existing injury or disease of the right knee I must consider what the evidence disclosed as to the prior condition of the plaintiff's right knee and determine whether any additional impairment resulting from his employment is serious and permanent.

24 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in his earning more than 60% of his pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.

25        The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[15]

[15] s134AB(19)(b).

26        As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.

27 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.

The Areas of Dispute

28 The defendant conceded compensable aggravation of pre-existing degenerative disease of the plaintiff’s right knee both due to the general nature of the plaintiff's duties and as a result of the incident involving a forklift on 20 February 2005. However, it disputed the extent of the injury suffered as a result of the forklift incident and whether, in view of the long-standing degenerative condition affecting the right lower limb, any work-related aggravation and specifically the incident on 20 February 2005 was more than temporary and continued to (and will for the foreseeable future continue to) make any material contribution to the impairment of the plaintiff's right knee and its consequences. In this regard, it relied on the fact that the plaintiff continued with his normal duties without seeking treatment for any right knee symptoms until well after he had reported and ceased work due to injury to his left knee.[16]

[16]           TN 95-99 and DCB187.

29        In her final submissions Counsel for the defendant also indicated to the Court that, should the plaintiff prove his case in respect to the extent of the contribution of his employment to the impairment of his right knee and to its consequences for the foreseeable future, the defendant did not contest the evidence concerning pain and suffering consequences which as I have already mentioned included the likelihood of a total knee replacement.[17]

[17]

30        As my discussion of the medical evidence in particular will demonstrate, the plaintiff was a poor and somewhat confused historian who tended to either overlook or minimise the symptoms and problems experienced with his right knee prior to commencing employment with the defendant and prior to the incident in February 2005. This is a factor I have taken into account when assessing the reliability of the medical opinions. However, I was not persuaded that the plaintiff had reconstructed his evidence or was revisionist in his approach. Indeed, the impression I formed was that, until driven to do so by the circumstance of having also injured his left knee, the plaintiff was a hard-working individual who had not been keen to seek treatment or to stop work.

31        Moreover, when allowing for all of the evidence, the impression I formed was that the plaintiff had endeavoured to explain and describe for the Court the circumstances relating to his employment, the injury and symptoms suffered and the consequences he believed were attributable to ongoing work-related impairment of his right lower limb.

32        These matters notwithstanding, rather than rely on the plaintiff's memory of events over many years, where there was any inconsistency between the plaintiff’s account and any earlier record, I have generally preferred the latter.

The Evidence Called and Tendered

33        The plaintiff deposed to the accuracy of his multiple affidavits sworn on 26 August 2009, 20 May 2010 and 12 October 2010 respectively. He was cross- examined at length.

34        The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed.

35        The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, various clinical notes from Mr Clifford and from general practitioners, Drs Esposito and Prakash and an extract from the defendant's Register of Injuries were added.

36        The defendant also tendered a copy of a signed declaration made by the plaintiff on 21 June 2006 in which, amongst other things, the plaintiff declared that, for about three years before the injury to his left knee, he had a problem with his right knee for which arthroscopy had been scheduled without proceeding to surgery. Consistent with his evidence in this application the plaintiff also declared that he had coped with his right knee condition without it affecting the performance of his duties with the defendant, despite regular bending, stooping and jumping up to and down from a reach truck/forklift.[18]

The Plaintiff’s Background

37        The plaintiff is 43 years of age. He was born in Yugoslavia. At the age of one he migrated to Australia with his parents. He is married with three daughters aged 20 and younger, all of whom live at home.

38        The plaintiff was educated to year nine level. After he left school and prior to commencing his employment with the defendant the plaintiff held various jobs including working for approximately nine years as a spray-painter, for about 2 1/2 years as a labourer, for about two years as a furnace operator and lastly for about 15 months as a storeman/forklift driver. Some of his earlier work apparently involved heavy manual work.

[18]  

The treatment and assessment of one or both knees following the left knee injury

39        As I have already mentioned uncontroversially the plaintiff injured his left knee on 28 March 2006. This injury caused him to cease work from 22 May 2006 and to attend his general practitioner, Dr Esposito for treatment. To the extent that they do not record this, at hearing the plaintiff contested the completeness of the doctor's notes which did not attribute the plaintiff's left knee pain to a work-related injury.

40        This notwithstanding the medical notes and radiological material confirm that on 23 May 2006 Dr Esposito commenced treating the plaintiff for left knee pain and, apart from prescribing anti-inflammatory medication, on 29 May 2006 he again referred the plaintiff to Mr Clifford for an opinion regarding both knees relevantly stating that:

"Mr Steven Kermeci has presented with problems regarding his right knee again and now pain in the left knee. He saw you about 1 year ago with ongoing problems in the right knee and was to be placed on a waiting list for arthroscopy for? loose FB. Unfortunately, this did not happen.

Recently he has pain in the left knee over the lateral joint line for 2 weeks. X- rays were reported as nad . ..."[19]

[19]           PCB 96.

41        In cross-examination the plaintiff said that he was not happy with the opinion received and he did not return to see Mr Clifford. Rather he transferred to another general practitioner, Dr Prakash, who examined the plaintiff for the first time on 31 May 2006.[20] The plaintiff asserted that he told his new doctor about the pain in his right knee which had bothered him a lot, but acknowledged at hearing that he could not recall the date on which he had first mentioned this right knee pain.

[20]           TN 60-61.

42        On 29 June 2006 at the request of the claims agent the plaintiff's left knee was assessed by occupational physician, Dr Bloom. At the time this was the only injured body function for which a WorkCover claim had been made. Whilst so engaged and without having any radiological material relating to the condition of the right knee, Dr Bloom examined and compared the condition of the plaintiff's right knee with his left knee.

43        This specialist noted, for instance, that the plaintiff entered and left the examination with a very slight limp favouring his right leg. For the right knee, he detected quadriceps wasting, an inability to fully extend the knee, pain with movements of the knee and joint crepitus. For the left knee, the doctor's only positive clinical finding was of tenderness to palpitation over the inferolateral pole of the patella.[21]

[21]           DCB 33-34.

44        As the report demonstrates, despite the focus of the examination on his left knee, the plaintiff clearly mentioned matters relating to a history of problems with pain in his right knee, as for example the fact that he remained on a waiting list for an arthroscopy and that the knee was painful and tended to lock at times. This and his clinical findings led Dr Bloom to report an incidental finding of a chronic condition and significant disability in the plaintiff's right knee. In any event, following his second and last examination of the plaintiff in November 2006 Dr Bloom was satisfied that the plaintiff's right knee was the cause of "most of his current problems".[22]

[22]           DCB 41.

45        However, it appears that in reply to a further written request from the claims agent Dr Bloom said that when he first examined the plaintiff in June 2006 the plaintiff had "particularly denied any history of traumatic injury or precipitating

incident, claiming that his right knee condition was chronic and certainly pre-

dated his employment with West Point."[23]

[23]           DCB 45.

46        As we know from the evidence, the plaintiff has conceded that his right knee problems pre-dated his employment with the defendant. However, the plaintiff was not specifically cross-examined on whether, in answer to questions from this doctor, he had denied any history of traumatic injury or precipitating incident. Rather in cross-examination, it was suggested to the plaintiff that he had not mentioned the incident in February 2005 because it did not result in any increase in the pain he had for years in his right knee. In other words, the defendant sought to establish that there was no difference in the pain and restriction suffered in the plaintiff’s right knee before or after the incident involving the forklift.

47        In response to this line of questioning the plaintiff explained that he had not mentioned the incident on 20 February 2005 because he had not thought this relevant to his attendance for examination of his left knee.

48        Accordingly, having read this doctor's reports and allowing for the approach taken in cross-examination, I could not be satisfied that in response to direct questioning about this, the plaintiff actively denied any history of trauma to the right knee.

49        The plaintiff's WorkCover Worker’s Claim Form notifying his claim for compensation for work-related injury to his right knee as a consequence of the incident on 20 February 2005 was submitted to the first defendant on 18 July 2006. Amongst other things, it identified Dr Prakash as the doctor who is or would be providing treatment for the right knee condition.[24]

[24]           PCB 34-38

50        Dr Prakash was not called for cross-examination. His brief clinical notes record attendances on 31 May, 14 June and 5 and 27 July 2006 all of which focus on investigation of symptoms in the plaintiff's left knee and treatment of tendonosis of the distal patellar tendon. The first record of treatment of pain in the right knee which "Increases When He Bends at Work" was made on 17 August 2006. Relevantly, in the clinical notes made on 11 September 2006 this general practitioner recorded, amongst other things, "Joint pain. Joint

stiffness. No deformity. Joint swelling. Restricted movement. ... Bilateral,

knee: tender, swollen, restriction present. ..."[25]

[25]           DCB 185.

51        The letters sent by this doctor in September and December 2006 and in January and November 2007[26] to the claims agent and to the plaintiff’s solicitor appeared to go further than the clinical record. These suggest that when the plaintiff first consulted Dr Prakash on 31 May 2006 he also gave a history of pain in the right knee, having hurt this knee "a few years back". If Counsel is correct in his assertion that there is an error in the punctuation of the December 2006 correspondence, arguably the plaintiff also told Dr Prakash that he could not recall any actual date of injury to the right knee prior to his visit to Dr Esposito in 2004.

[26]           PCB 97-106.

52        Whether or not this is a correct interpretation of the last mentioned letter, I was nevertheless satisfied that, if on his visit to Dr Esposito the plaintiff told the doctor, as was reported, that he had right and left knee pain for assessment of which Dr Esposito had referred him to Mr Clifford, it was also likely that two days later, when the plaintiff changed doctors he made a similar complaint to Dr Prakash about right knee pain. However, when he referred the plaintiff to a new orthopaedic surgeon, Mr Tang, it seems that Dr Prakash only dealt with the immediate problem, namely the assessment of the plaintiff’s injured left knee.

53        Accordingly, I was satisfied that the plaintiff probably has, as he suggested he did, reported ongoing pain in the right knee to Dr Prakash, prior to this being recorded on the clinical notes for 17 August 2006.

54        Relevantly Dr Prakash’s letters, whilst indicating the greater problems the plaintiff had at the time due to swelling, tenderness, pain and restriction in his left knee, nevertheless informed the claims agent that:

• the plaintiff had reported hurting his right knee a few years earlier and that he was suffering similar but not severe pain in this knee;

• the plaintiff reported that he suffered pain if he walked for a long time;

• the plaintiff reported that he was not able to bend his knees due to pain and this was a problem because his work as a forklift driver also required the plaintiff to kneel on the ground to lift and load pallets.

• on examination of his right knee the plaintiff reported tenderness on palpitation of the patellar tendon and pain on flexion but otherwise the right knee was normal;

• apart from prescribing anti-inflammatory medication and recommending rest and physiotherapy the general practitioner referred the plaintiff to orthopaedic surgeon, Mr Tang for opinion and treatment, although subsequently he was referred to orthopaedic surgeon, Mr Steele for treatment of his right knee;

• both knee injuries were preventing the plaintiff from returning to work, although Dr Prakash was of the view that the plaintiff was then fit for clerical work and should be rehabilitated to do some type of clerical job.[27]

[27]           PCB 97-98 and 101-106.

55        The ultrasound and CT scan of the right knee obtained by Dr Prakash on 22 August 2006 relevantly summarised the radiologist's impression in the following way:

"1. Small suprapatellar knee joint effusion.

2. Ossified body identified adjacent to the superolateral margin of the patella. Fragmentation of the lateral femoral condyle. Ossified identified within the intercondylar notch. Whilst these findings are chronic in nature and the features of the lateral femoral condyle suggest previous trauma, features on CT raised the possibility of loose bodies ..."[28]

[28]           PCB 100.

56        All of these matters have satisfied me that in May 2006 the plaintiff's right knee was probably also causing him ongoing problems with pain and restriction which contributed to his inability to continue to perform his duties as a storeman and a forklift driver.

The medico-legal assessments prior to arthroscopy of the right knee in
September 2007

57        At the request of the claims agent orthopaedic surgeon, Prof Marshall examined the plaintiff once on 24 August 2006. After receiving further materials for comment Prof Marshall provided three supplementary reports.

58        Prof Marshall's assessment was specifically directed to examination of both knees. Whilst he viewed the film and agreed with the results of the ultrasound and CT scan for the plaintiff's right knee he did not view the earliest x-ray or the results obtained in July 2004 or the imaging obtained concerning the left knee. This was the case despite Prof Marshall receiving further investigative material from the claims agent and copies of the reports submitted by Dr Bloom.

59        As his report shows, Prof Marshall said he had difficulty obtaining "a coherent history" and, whilst the plaintiff "gave his history in a cooperative manner ...

there was confusion in separating symptoms and investigations in the two

knees, and the timing of injuries in either knee." [29] This observation provides a good indication of the difficulty the plaintiff had in providing consistent and comprehensive background information.

[29]           DCB 20 and 22.

60        Focusing for the moment on the plaintiff's right knee, this specialist appears to have understood from the plaintiff that he "had previous problems from around

August 2004 with pain in his right knee and had seen by Mr Clifford orthopaedic surgeon, for a clicking feeling aggravated by work. No injury was

apparently reported at that stage", that following the forklift incident the plaintiff had not lost work "but had exacerbation of pain in the right knee which has continued" and that prior to 2004 the plaintiff had not had any problems with either knee. [30]

[30]           DCB 20 and 23.

61        Clinically the plaintiff presented with:

• a limp;

• difficulty doing toe-heel stance or walking;

• an inability to squat and rise from a squatting position;

• painful muscle spasms affecting both legs (the left more pronounced than the right);

• much tenderness around both knees;

• an extension deficit of 30° in both right and left knees; and

• an ability to only actively bend at 90° in the left and right knee.

62        In the right knee Prof Marshall noted "marked tenderness and evidence of an

effusion, with tenderness particularly superolateral to the patella where

crepitus was marked on movement, consistent with a loose body" and minor wasting of the musculature of the right thigh and calf, that is a 2 cm differential between this knee and the plaintiff's left knee.[31]

[31]           DCB 22-23.

63        The material subsequently provided by the claims agent does not appear to have expanded Prof Marshall's understanding of the history of right knee problems prior to the commencement of the plaintiff's employment with the first defendant. Nevertheless, I was satisfied based on the information to which he referred and the clinical findings that he was well placed to conclude as he did that the incident on 20 February 2005 had exacerbated pain in the right knee and that this injury would have been sufficient to cause permanent impairment for the plaintiff's pre-injury duties. This conclusion is germane to Prof Marshall's acceptance that there was a continuing relationship between the symptoms reported and noted by him in 2006 and the traumatic incident involving a forklift in 2005.[32]

[32]           DCB 27-28.

64        Arguably, the short report and correspondence from orthopaedic surgeon, Mr Hooper who on 6 February 2007 also examined the plaintiff at the request of the claims agent adds little to the resolution of the application for leave in 2010. He apparently sighted documentation from someone named D P Thomas and from Drs Bloom and Prakash and imaging reports.[33] However, Mr Hooper's summation of the history on which he relied is brief and not particularly informative, although he clearly accepted that the "discomfort" reported by the plaintiff in his right knee was attributable to aggravation of a pre-existing problem in this knee which required further investigation. This notwithstanding, having accepted the plaintiff's report that his left knee was improved, Mr Hooper nevertheless deemed the plaintiff capable of performing light work with restrictions on squatting or bending.[34]

[33]           DCB 15-16.

[34]           DCB 17

65        The bundle of correspondence and reports provided both to the general practitioner and the claims agent by treating orthopaedic surgeon, Mr Steele between May 2007 and March 2008 all indicate that the surgeon wrongly believed that there was no history of prior injury before the incident in February 2005, when the plaintiff was struck at the postero-lateral aspect of his right knee which precipitated ongoing pain and symptoms. For this reason, as was conceded by his Counsel, the plaintiff cannot rely on the treating surgeon's opinion that employment was a significant contributing factor because the site where all the changes were found at arthroscopy was the same location as the direct blow to the plaintiff's right knee.

66        However, Mr Steele did view the early ultrasound and CT scan and on 7 June 2007 he organised the MRI scan which relevantly summarised the results by saying:

"1. At least five calcified intra-articular loose bodies of the knee. There is osteochondral defect at the posterior aspect of the lateral femoral condyle however this does not appear alone to account for all the loose bodies and raises the possibility of synovial osteochondromatosis.

2. Suspect tear of the mid-third of the posterior horn lateral meniscus."[35]

[35]           PCB 94.

67        On 14 September 2007 Mr Steele performed an arthroscopy at which time he found "multiple loose bodies in the right knee with a discoid lateral meniscus

and a large bony body at the postero-lateral aspect of the femur. This body was unable to be completely removed. Adjacent to it was changes of Grade

IV chondral damage. ..."[36]

[36]           PCB 127.

68        In 2008 the surgeon foresaw the prospect of knee replacement in the future, although to buy time for this comparatively young plaintiff Mr Steele also foreshadowed a corrective osteotomy to unload the area of the joint and relieve his symptoms.

69        Relying on the already significant and progressive arthritic changes in the right knee the treating surgeon restricted the plaintiff's work capacity to sedentary occupations.[37]

[37]           ibid.

The Medico-Legal Evidence subsequent to arthroscopy

70        Orthopaedic surgeon, Mr Clive Jones examined the plaintiff at the request of the claims agent on 15th February 2008 and again on 28 January 2009. On the second occasion it appears that the plaintiff gave him radiological images relating to his right knee but probably not the x-ray film or results obtained in July 2004.

71        Without reciting in full the history reported by this specialist I formed the view that, when he assessed the plaintiff, Mr Jones generally understood that:

• prior to commencing his employment with the defendant the plaintiff had problems with his right knee;

• even though he plaintiff could not identify from when he had first experienced pain and swelling in his right knee, the plaintiff had seen an orthopaedic surgeon in 2004;

• subsequently the plaintiff's right knee was injured "when he was bumped by a Reach truck"; and

• the knee had remained painful ever since.[38]

[38]           DCB 47.

72        On each of the occasions he examined the plaintiff, Mr Jones clearly accepted that:

• the symptomatic condition of the plaintiff's right knee was painful and disabling;

• at the very least the plaintiff had no capacity for his pre-injury or labouring work; and

• surgery was likely at some future date.

73        I have placed less weight on the reports submitted by Mr Jones primarily because the opinions expressed in these are difficult to reconcile. For instance, in his first report, notwithstanding the plaintiff's account that the right knee had been painful since the incident involving the forklift, Mr Jones incorrectly assumed that the plaintiff's report of pain was not evidence of employment-related aggravation of the plaintiff's pre-existing right knee condition.[39] No doubt, the defendant also hoped to rely on his further opinion that whilst the underlying pathology remained active, any work-related component was resolved.

[39]           DCB 49.

74        However, in 2009, after receiving advice that employment had been accepted as a contributing factor to the plaintiff's knee condition, Mr Jones altered his initial approach and concluded that there had been work-related aggravation of the right knee condition (albeit not a significant aggravation) during the course of the plaintiff employment with the defendant which was not temporary and continued to contribute to the underlying arthritic condition.[40]

[40]           DCB 52-53

75        In his last report Mr Jones also appears to offer conflicting views about the plaintiff's work capacity. He did this by qualifying his opinion that lighter alternative employment of a sedentary nature might be a possibility "but relevant skills are lacking" with a statement that he did not believe that the plaintiff had a capacity to work "taking into account his right knee".[41]

[41]           DCB 53.

76        On 16 May 2008 orthopaedic surgeon, Mr Deacon examined both knees for the purpose of an Independent Impairment Assessment report. He had available to him extensive background material including the first of Mr Clive Jones' reports. Despite this material on a number of occasions Mr Deacon appears to have confused various dates and events, although he clearly thought it likely that the forklift incident in 2005 had significantly aggravated the condition of osteochondrolysis affecting the lateral femoral condyle in the plaintiff's right knee and that the impairment of the plaintiff's right knee was permanent.[42]

[42]           DCB 13.

77        The report submitted by orthopaedic surgeon, Mr Ian Jones who on 16 November 2009 examined the plaintiff at the request of the defendant's solicitors suggests that this specialist had a good understanding of the background to the plaintiff's right knee condition. However, like all of the other specialists he did not have the opportunity to view or comment on the results of the earlier plain x-rays obtained by Dr Esposito in July 2004, indicating as they did at that time evidence of multiple bony loose bodies in the supra- patellar compartment and in the posterior knee joint.

78        In short, Mr Jones diagnosed long-standing advanced degenerative changes affecting principally the lateral compartment of the plaintiff's right knee with a number of loose bodies within the joint, some of which were removed during arthroscopy. His prognosis for the plaintiff "is one of continuing problems of

pain and restrictions imposed on him by his right knee condition in terms of standing, walking, squatting, kneeling and stair climbing. In the longer term the knee will gradually deteriorate to the point where knee replacement

surgery will be required."[43]

[43]           DCB 57.

79        Relevantly, Mr Jones only envisaged a capacity for restricted employment and duties of a sedentary nature with limits on standing, walking and climbing stairs.

80        Whilst accepting that the plaintiff's work with the defendant and the direct blow to the back of his right knee could have aggravated the right knee condition, Mr Jones’s opinion diverges from the views of most of the other specialists where he says that this was unlikely to be a cause of the right knee complaint or the need for the arthroscopic surgery described by Mr Steele. Moreover, Mr Jones said that he was unable to exclude constitutional factors stating that the

"reported deterioration in the plaintiff’s symptoms and subsequent need for

arthroscopy may have occurred simply with the passage of time."[44]

[44]           DCB 58.

81        The most recent medico-legal reports were submitted by orthopaedic surgeon, Mr O'Brien in July 2010 and by occupational physician, Dr Castle in September 2010 in response to requests from the plaintiff's solicitors.

82        In this application the defendant has submitted that the many omissions and discrepancies evident in the reported accounts of problems with and treatment of right knee symptoms prior to February 2005 undermined the reliability of the opinions expressed in the medical reports. This was one of the bases on which the reports of Mr O'Brien and Dr Castle were challenged.

83        However, I note that the schedule to Mr O'Brien's report and the materials listed in Dr Castle's report indicate that when examining the plaintiff and preparing their reports they both had access to, amongst other things, the history and background information summarised in the plaintiff's first and second affidavits and in a number of reports made by Dr Prakash and Mr Steele. Whilst the radiological evidence provided to these specialists omitted the report and x-ray film obtained on 5 July 2004 they nonetheless had the account of the result of this investigation summarised in Dr Prakash's report dated 28 January 2007.

84        Accordingly, allowing for this material I have inferred that when Mr O'Brien and Dr Castle reported on the condition of the plaintiff's right knee in particular, whatever they may have been told by the plaintiff, at the time they had access to a more extensive history at least to the extent that this was articulated in the plaintiff's affidavits and in the reports of the treating doctors to whom I have referred.

85        In summary then, Mr O'Brien accepted that the arthroscopy performed by Mr Steele in 2007 had not controlled increasing right knee pain. He said that his clinical findings of significant quadriceps wasting on the right side with some degree of valgus of the knee and a fixed flexion deformity with restriction of knee flexion were indicative of the presence of quite severe osteoarthritis.

86        In concluding that employment was a significant contributing factor to a significant injury to the plaintiff's right knee, Mr O'Brien was another specialist who noted that the plaintiff's description of a direct injury to the posterolateral aspect of the right knee was compatible with the area of abnormal operative findings at arthroscopy. However, unlike Mr Steele, I was satisfied that Mr O’Brien was probably privy to a more extensive history than the history apparently recounted by the plaintiff during his examination and briefly summarised by Mr O'Brien in his report.[45]

[45]           PCB 133-134.

87        There is already a substantial loss of function of the knee and, whilst the clinical condition of the right knee has probably stabilised, Mr O'Brien also observed that, with the progressive pathology in his knee, the plaintiff’s symptoms will increase and he too accepted that the plaintiff will require "definitive treatment with a total knee replacement." Without addressing the possibility of an osteotomy, Mr O'Brien predicted that knee replacement surgery would be required sooner rather than later.

88        So far as the plaintiff's employment capacity is concerned, relying on the severity of the pathology and the plaintiff's employment history, Mr O'Brien regarded him as totally and permanently incapacitated for employment. He ruled out any sedentary employment because Mr O'Brien felt that the pathology in the right knee might also cause difficulty with the plaintiff remaining in a sedentary position.

89        Dr Castle examined the plaintiff once in July 2010. Leaving to one side the evident confusion in the dates and the circumstances concerning the left knee injury in 2006, the plaintiff specifically relied on Dr Castle's expert opinion that, taking into account his right knee impairment, the plaintiff has a permanent incapacity for all work. In reaching this conclusion Dr Castle had regard to the likelihood of a gradual deterioration in the condition and function of the plaintiff's right knee and the need for a total knee replacement, which due to the plaintiff’s age he urged be delayed for as long as possible.

90        Dr Castle rejected as unsuitable a number of occupations recommended in a vocational assessment report.[46] These included working as a:

[46]           This report was not tendered.

• supervisor in a warehouse;

• receiving and despatching clerk;

• a product examiner and as a product assembler, each of which would require extended periods of walking and/or standing;

• stock clerk which would probably require handling stock; and

• an order clerk, primarily he said because of the plaintiff's limited education and lack of experience in this kind of work.[47]

[47]           PCB 141-142.

The Compensable Injury

91        In this application, there is evidence of pre-existing degenerative changes in the plaintiff's right knee.

92        Notwithstanding the plaintiff's initial failure to relate the problems with his right knee to his employment, the strong inference in this case is that on and after the commencement of heavy work as a storeman and forklift driver the plaintiff continued using his right knee in stressful circumstances at work and probably aggravated the underlying pathology in this knee before, on and after 20 February 2005. However, the incident involving the forklift proved to be a significant episode of direct injury at the site of the damage to the joint, escalating as he said it did the level of his experience of pain in this limb. Once his previously good left knee was also compromised by a work-related injury it is likely that, as the plaintiff said, he could no longer favour a symptomatic right knee which had been worsened by the forklift incident.

93        Having accepted the plaintiff's account of his experience of pain and symptoms particularly following the forklift incident, this and the medical evidence of many of the specialists satisfied me that the plaintiff’s employment had made a significant contribution to aggravation of this right condition resulting in ongoing symptoms. Presently the plaintiff's condition is probably stable. Moreover, I was satisfied that the compensable injury probably resulted in additional and permanent impairment which probably continues to make a material contribution to both pain and suffering and pecuniary loss consequences.

94 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.

Loss of earning capacity consequence under paragraph (a) of the definition of serious injury

95        The plaintiff alleges a total loss of earning capacity. The defendant contested this claim asserting that the plaintiff has a capacity to perform lighter or sedentary duties.[48]

[48]           TN115.

96 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act (as amended), the plaintiff was required to prove that at the date of hearing, his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.

97        The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred ("the without-injury earnings").

98        The income compared is gross income from personal exertion, expressed at an annual rate.

99        A statement of calculation of the plaintiff's loss of earning capacity was submitted to the Court at the commencement of the hearing. In this application it was common ground that $38,670 gross per annum or $743 per week probably most fairly reflects the plaintiff's earning capacity had the injury not occurred.[49]

[49]           TN 91.

100       Essentially, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the amended definition of "suitable employment" in s5 of the Act elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.

101       As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his right knee permanently restricts employment options. The determination of this issue also takes into account the reasonableness of his attempts, if any, to participate in rehabilitation or retraining and he must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative, further or additional employment and the extent of such inability.

The Vocational Material

102       I have already mentioned that the vocational assessment to which Dr Castle referred was not included in the material tendered. The defendant tendered a Labour Market and Job Analysis Report from CoWork Pty Ltd dated 5 October 2010. This was prepared by an Occupational Therapist and by a Labour Market and Human Resources Consultant at the request of the defendant’s solicitors.

103       The report’s preparation did not involve interviewing the plaintiff, although the makers said that they reviewed a selection of various materials.

104       The Executive Summary to the report, amongst other things, indicates that when recommending that the plaintiff consider the "more sedentary

occupations of Dispatch Clerk, Car Park Attendant and Alarm Centre

Response Officer" CoWork had regard to a number of factors. The first was that the plaintiff was medically assessed as unfit to return to storeman and forklift work or activities that involved weight-bearing, walking and standing and, based on Mr Ian Jones’ November 2009 report, the plaintiff's right knee restricted his ability to stand, walk, squat, kneel and climb stairs.

105       The second factor was the plaintiff’s transferable skills. In the report these were summarised to include:

[50]           This accords with the plaintiff's evidence.

• the plaintiff's literacy and numeracy skills to mid-secondary school level;

• the fact that post injury the plaintiff had completed a short computer familiarisation course, albeit without achieving any real computer or keyboard skills;[50] and

• a Department of Education, Employment and Workplace Relations assessment of the technical skills required for employment in work previously performed by the plaintiff.

In passing it seemed to me that, without having interviewed the plaintiff, the assessment of his technical skills by CoWork involved a considerable amount of speculation.

106       At hearing the defendant only relied on the Dispatch Clerk and on the Alarm Centre Response Officer position descriptions, both of which were deemed to be within the plaintiff's capacity by Mr Ian Jones in a supplementary report dated 8 October 2010, subject to the limitations mentioned in his earlier report.[51]

[51]           DCB 155.

107       I note that the Alarm Centre Response Officer position was incorporated in the description "Security Officer-CCTV Monitoring/Concierge."[52] This position is described as sedentary and it requires occupational retraining to obtain a Certificate II in Security Operations.

[52]           DCB 74.

108       According to CoWork the plaintiff could utilise his "extensive" warehouse and forklift driving experience to transition to work as a Dispatch Clerk and that, despite the plaintiff's lack of confidence in the use of computers, user-friendly software is usually available to allow the recording of stock movements and to manage the paperwork.[53]

[53]           DCB 76.

109       As I have already noted the plaintiff has attempted some retraining funded by WorkCover which appears to have given him a very basic familiarity with computers such that he said he can access e-mails and the Internet, although he cannot type or type documents.

110       The plaintiff has not returned to gainful employment or sought alternative employment. In cross-examination he acknowledged that until about April/May 2006 he had worked sporadically for cash, spray-painting for clients and friends in his own time at his or his father-in-law's home or at a hired spray- painting booth.[54]

[54]           TN 36-37.

111       Currently the plaintiff said he occasionally visits a friend who has a panel beating shop. Whilst he had helped his friend by sometimes taping windows or mirrors he had not engaged in spray-painting.

112       During cross-examination the plaintiff was honest enough to admit that, if his right knee was fixed, presumably by replacement surgery with the possibility being that this may take place some four years in the future, he would try to return to work for example as a supervisor or team leader with a transport company.

113       However, apart from his limited level of education, as the plaintiff's responses in re-examination subsequently revealed, he has no history of report or document writing, he has no real computer skills or comfort in operating computers, and from his own knowledge he was able to say that the work performed by a Dispatch Clerk in his former warehouse environment had involved walking[55] and that supervisors at the defendant's warehouse had also been required to drive forklifts.

[55]           This was an activity Dr Castle emphasised when he rejected the Dispatch Clerk position as suitable employment for the plaintiff.

114       In my view the final report submitted by the treating general practitioner, Dr Prakash, who as Counsel correctly submitted was in a very good position to assess the plaintiff's capacity, placed many of the relevant considerations into perspective. Of the plaintiff's work capacity Dr Prakash said:

"The condition is prone to aggravate if the patient were to undertake any physical activity, due to the buckling of his Right knee and become painful. The pain will indeed radiate to the other parts of his extremity.

He is limited in as far as driving or walking is concerned. He is permanently and totally incapacitated for any type of manual work at present and in the future and does not have any transferable skills for employment in any other vocations; his lack of education and age are indeed impediments to seek any form of employment. He had participated in vocational retraining and Job Seeking Assistance on my advice. ... Injury Management Adviser of Gallagher Bassett Service arranged training course for Mr Kermeci to learn computer skills. He did the course and despite this his rehabilitation prospects are very dim. Due to prolonged sitting in one position he suffered aggravation of pain in the knee. The training was total failure and it did not achieve its objects. I'm convinced after failure of training program that he is not fit to do any type of any, manual, clerical or office job at present or future. He does not have an educated background and all his life he worked as labourer. His prognosis is poor and there is no chance of improvement.

He takes analgesic when required for his pain (sic)."[56]

[56]           PCB 144.

115       The last-mentioned opinion reflects Mr O'Brien's concern that even sedentary work is likely to exacerbate the level of the plaintiff's pain in his right knee.

116       From the evidence before me in this application the potential for relief offered by knee replacement surgery, to be delayed as long as possible into the future, or indeed an interim measure such as osteotomy, of itself does not preclude a finding that the impairment of the plaintiff’s right lower limb is permanent in the sense that it is likely to last into the foreseeable future.

117       In summary based on all of the evidence due to impairment to his right knee:

a)	the plaintiff probably has no current capacity to return to his pre-injury or heavy manual employment;
b)	for the reasons already articulated, it is unlikely that the two job options mentioned in the Labour Market and Job Analysis Report represent suitable employment for this plaintiff; and
c)	having regard to, amongst other factors, the plaintiff’s incapacity, pre- injury employment, age, education, skills and work experience he is probably not capable of earning in suitable employment in accordance with the amended definition contained in s5 of the Act.

118       Accordingly, applying the tests under the Act, by reason of the ongoing impairment of his right lower limb:

• I find that the plaintiff has a loss of earning capacity of 40% or more and that he will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more;

• I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment or to improve it to a level that would take him over the statutory threshold; and

• the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, his loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable.

119       As the plaintiff is entitled to leave in respect to his loss of earning capacity consequences I am not required to separately determine the pain and suffering consequences aspect of this application.

Orders

120

In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect to pain and suffering and pecuniary loss damages for injury to his right knee suffered throughout the course of his employment with the defendant and in particular on or about 20 February 2005. I will hear from the parties as to the making of appropriate orders.

TN 80.
PCB 34-38.

TN115.
Pages 39 to 42 of the Plaintiff's Court Book.