Tikfessis v J Hutchinson Pty Ltd
[2018] VCC 2085
•19 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00430
| STEVEN TIKFESSIS | Plaintiff |
| v | |
| J HUTCHINSON PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 November 2018 | |
DATE OF JUDGMENT: | 19 December 2018 | |
CASE MAY BE CITED AS: | Tikfessis v J Hutchinson Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2085 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Left knee injury – injury occurred in the course of employment – pre-existing degenerative changes in left knee – subsequent total knee replacement surgery – radiological evidence of loosening of the implant – whether the consequences in terms of pain and suffering and loss of earning capacity was “serious” – whether a right knee condition was aggravated in the same course of employment – whether it was a concurrent condition to be dealt with consistently with Peak Engineering & Anor v McKenzie – contribution by an unrelated left hip condition to the pain and suffering and loss of earning capacity consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff is granted leave to bring a proceeding for both pain and suffering and loss of earning capacity consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr D Gibson | Ellis Palmos & Co |
| For the Defendants | Mr P Bourke | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff was employed by the first defendant as a multi-skilled construction worker on building sites occupied by the first defendant from 26 September 2011 until about 18 October 2013. He suffered an injury to his left knee in the course of that employment.
2 The actual circumstances of the injury are somewhat controversial, requiring a reasonable summary of important accounts given by the plaintiff relevant to how he came to suffer that injury.
3 The plaintiff submitted that he has suffered a permanent impairment of the function of his left knee with pain and suffering and loss of earning capacity consequences which are at least very considerable.
4 Mr P Rattray QC appeared with Mr D Gibson of counsel for the plaintiff. Mr P Bourke of counsel appeared for the defendants.
The mechanism of the plaintiff’s injury
5 The plaintiff completed a Claim Form signed by him on 13 June 2013. In answer to a question as to how his injury occurred, he wrote:
“HURT LEFT KNEE CARRYING CARPET TILES UP THE STAIRS TO PLANT ROOM FROM LEVEL 6 TO 7 GETTING CRAMPS AND MUSCLE SPASAM (sic), RESTED KNEE FOR A BIT. THEN WENT A STEP LADDER TO REMOVE DUCTING IN CEILING ON THE WAY DOWN THE STEP LADDER KNEE COLLAPSED LOST BALANCE FELL TO GROUND.”[1]
[1]Plaintiff’s Court Book (“PCB”) 177
6 In the plaintiff’s first affidavit sworn 2 October 2017, he deposed to the following:
“1.(c) I injured my left knee as a result of pulling up carpet tiles and carrying the carpet tiles up flights of stairs and then shortly afterwards my left knee gave way on me as I came down a ladder, causing me to fall and further injure my left knee on or about 7 May 2013 … .”[2]
[2]PCB 2
7 Later, in the same affidavit, he added:
“2.(c)I continued to do my normal duties. I was then transferred back to the 707 Collins Street, Melbourne site – this is an apartment block of 8 levels. The building was basically finished. However, a client of the employer did not like the carpet tiles, that had been laid on level 6. I was instructed to remove the tiles … .
(d) It was very difficult to pull up these tiles. I tried using a scraper, a pick, a shovel and other tools to try and lift one corner and then squat and pull as hard as I could to try and remove the tiles. I was tending to put more weight on my left knee due to having previously injured my right knee. After doing this work for a day or so, I started to get pain in both knees, but particularly in my left knee … .
(e)I was then instructed to carry the removed tiles up to the plant room on an upper level; the lift ended at level 6 on so I had to carry these tiles up the fire escape steps to the plant room. I was repetitively going up and down the stairs carrying a load of tiles – we had removed a very large number. My knees, and particularly my left knee, were becoming very painful, whilst doing this work. This work, involving pulling up tiles and carrying them up the stairs, occurred over a period of about four days in early May 2013.
(f)Whilst I continued to have pain in both knees and in particular, my left knee, I was required to use a stepladder to remove some air-conditioning duct from the ceiling. I climbed up the ladder and removed a ceiling tile and then an air conditioning duct from the ceiling and handed them to my supervisor; I then climbed down the ladder; when I put my left foot on about the last step before the floor, my left knee gave way on me, causing me to fall … .”[3]
[3]PCB 4-5
8 A survey of the histories recorded by a number of medical practitioners demonstrates that some understood that it was the work involved in pulling up carpet tiles which was the cause of the left knee injury, but some others were left with the impression that it was rather more the fall off the ladder.
9 Under cross-examination, the plaintiff’s account in his first affidavit was put to him. He agreed that his left knee gave way as he was descending the ladder. He also agreed that he did not suffer any direct trauma to his left knee as a result of the fall when descending the ladder. He added that after descending the ladder, he fell onto his back, hitting his head.[4]
[4]Transcript 15-17
10 It is now necessary to analyse the early medical evidence of the plaintiff’s treatment to determine what injury it is said resulted from the work the plaintiff said he was performing when he suffered the left knee injury.
11 The plaintiff was initially treated by Dr Reid, general practitioner. In his clinical note of 21 February 2013, Dr Reid noted that the plaintiff twisted his knee and fell down a step on 15 February [2013].[5] In his clinical note of 5 June 2013, he noted that the plaintiff injured his knee stepping off a ladder, but he also referred to the plaintiff “carting carpet up flights of stairs”.[6]
[5]PCB 199
[6]PCB 200
12 Dr Reid referred the plaintiff to Mr Lynch, orthopaedic surgeon. It would appear that the plaintiff first saw Mr Lynch on 31 May 2013. In a letter to Dr Reid bearing the same date, Mr Lynch noted that the plaintiff injured his left knee “… whilst at work pulling up carpet up a set of stairs …”.[7]
[7]PCB 90. Mr Lynch repeated the same history in his report dated 7 August 2018 at PCB 91
13 The histories recorded by Dr Reid and Mr Lynch are a version of what the plaintiff wrote on the Claim Form, and in the more elaborate version in his first affidavit. Despite the obvious shortcomings in what they recorded, it is clear enough to me that the relevant identifiable events were recorded by Dr Reid and Mr Lynch, they being the removal of the carpet tiles and the fall from the ladder.
14 In the search for the cause of the left knee injury, it is understandable why a number of medical examiners placed more emphasis on the fall from the ladder as being the event which produced the left knee injury. It presented them with a more obvious cause, because it appeared to be traumatic in nature and an event which could cause the left knee injury.
15 My analysis of this evidence has led me to conclude that the plaintiff always placed significant emphasis on the work involving the carpet tiles as being productive of significant left knee pain. That is very evident in what he wrote on the Claim Form. It is the version of events which he has maintained throughout. It is also a version partly captured by Dr Reid and Mr Lynch. Therefore, I think it is more probable than not that it was the work involving the carpet tiles which was the work which produced the left knee injury and not the fall from the ladder.
16 The plaintiff submitted that Mr Crowe, orthopaedic surgeon, was provided with an accurate history of the work the plaintiff says was a significant cause of his left knee injury, which is consistent with the versions written by the plaintiff on the Claim Form and deposed to in his first affidavit. Mr Crowe recorded the following:
“He was then working on a high rise building at Docklands where he had to climb several flights of stairs numerous times during the day, carrying heavy carpet tiles. He had previously been required to lift up these are (sic) glued carpet tiles from a concrete floor. This was extremely arduous work and indeed his coworker suffered an injury to his back and was indeed off work for a period of time. This was in May 2013. The work involved a great deal pulling squatting kneeling and lifting. This was done over a period of about 4 days and involved over 2000 tiles. He states that he was not given appropriate guidance, assistance or tools to assist with the taking up of these tiles. Going up and down the stairs carrying the tiles was extremely difficult and he commenced to suffer significant pain in both knees, he was then on a 6 foot ladder and fell heavily onto the ground. He cannot remember striking his head but when he awoke he felt severe pain in both knees … .”[8]
[8]PCB 131
17 That history is to be contrasted with the histories obtained by Dr Bloom, occupational and environmental physician, who provided a report to the defendants dated 4 June 2018,[9] and Mr Simm, orthopaedic surgeon, who provided a report to the defendants dated 5 July 2018.[10] The defendants placed significant reliance on their opinions. Dr Bloom obtained a history of both the work involving the carpet tiles and the fall from the ladder.[11] Mr Simm obtained a similar history;[12] however, neither history was as extensive and as detailed as the history obtained by Mr Crowe. The real difference between Mr Crowe, on the one hand, and Dr Bloom and Mr Simm on the other hand, is that Mr Crowe attributed the plaintiff’s work involving the carpet tiles as the cause of a significant left knee injury, whereas Dr Bloom and Mr Simm considered that what they were dealing with was an injury resulting from a fall from a ladder.[13] The significance of this will become apparent later in these reasons.
[9]Defendants’ Court Book (“DCB”) 106-121
[10]DCB 122-133
[11]DCB 108
[12]DCB 125
[13]Dr Bloom at DCB 117-118, and Mr Simm at DCB 131
The plaintiff’s prior knee injuries
18 There is no doubt that the plaintiff suffered problems with both of his knees prior to suffering the left knee injury. The defendants provided me with a very helpful table referring to occasions when the plaintiff complained of knee pain, and received treatment. In summary, the following are occasions when he made such complaints:
· 3 January 1991 - Dr Reid recorded that the plaintiff complained of aching in his right knee. On examination, there was tenderness over the suprapatellar and infrapatellar. He diagnosed patella arthritis.[14]
[14]DCB 279
· 16 December 1998 - Dr Reid recorded that the plaintiff had experienced a sore left knee for three to six months, with collapsing and clicking. He diagnosed chondromalacia patella.[15]
[15]DCB 280
· 24 July 2003 - Dr Reid recorded that the plaintiff was suffering pain in both knees with some reflex collapsing. He diagnosed osteoarthritis/ chondromalacia patella.[16]
[16]DCB 281
· 30 September 2005 - Dr Reid referred the plaintiff for x-rays to both knees. The radiologist reported no bony or articular abnormality, nor any degenerative change.[17]
[17]PCB 51
· 2009 - the plaintiff said in his first affidavit that he suffered mild intermittent right knee pain for a long period of time. He referred to coming off a trailbike on his father’s farm which resulted in an aggravation of his right knee. He also referred to seeing a general practitioner for right knee pain.[18]
· 5 January 2010 - Dr Reid referred the plaintiff for an x-ray of his right knee. The radiologist reported that the only abnormality was slight degenerative narrowing at the lateral femorotibial joint compartment.[19]
[18]PCB 3
[19]PCB 52
19 Additionally, Dr Reid completed a medical practitioner questionnaire dated 12 February 2014 in which he noted that the plaintiff had suffered left and right knee pain on and off since 31 January 1991. He then referred to dates upon which the plaintiff had seen him complaining of knee pain. He added that the pain experienced by the plaintiff resolved with time and the use of anti-inflammatory medication.[20]
[20]DCB 276
20 The plaintiff was candid in recounting his past history of knee pain in his first affidavit. He admitted to suffering right knee pain for some time in the past. He said that he could not recall suffering any left knee pain prior to May 2013. What is evident from Dr Reid’s clinical notes is that the plaintiff did have problems with both knees, but they were not particularly significant, because they did not prevent him from working. His right knee appears to have been more of a problem for him in 2013 than his left knee. He suffered a fall while at work for the first defendant.[21]
[21]PCB 3
21 Dr Reid referred the plaintiff to have an MRI scan which was performed on 25 February 2013. The radiologist reported that it demonstrated a complex tear of the body and posterior horn of the medial meniscus, resulting in extrusion, and there was early osteoarthritis of the medial compartment. Additionally, there was patellofemoral maltracking with chondromalacia of the patellofemoral joint.[22] Dr Reid referred the plaintiff to Mr Lynch. Mr Lynch performed a medial meniscectomy of the plaintiff’s right knee on 23 October 2014.[23]
[22]PCB 54-55
[23]PCB 8 and 57
22 During cross-examination, the plaintiff was asked about the occasions when he sought treatment from Dr Reid for left knee pain. He was unable to recall any of the occasions referred to above.[24]
[24]Transcript 12-14
The plaintiff’s medical treatment – left knee
23 Neither party suggested that there was anything particularly controversial in the plaintiff’s medical treatment. It is for that reason that I propose to summarise it relatively briefly.
24 Dr Reid referred the plaintiff to Mr Lynch because of the plaintiff’s complaints of left knee pain. The plaintiff saw Mr Lynch on 31 May 2013. Mr Lynch considered that the plaintiff’s left knee was his main problem, and I infer that that was said in the context of the treatment Mr Lynch had provided the plaintiff for his right knee. He gave the plaintiff an injection of Depo-Medrol and Xylocaine into his left knee.[25] He then referred the plaintiff to have an MRI scan of his left knee. The radiologist reported that it demonstrated an extensive tear involving the medial meniscus, both at the posterior horn body junction and the posterior route attachment; an extensive and full thickness degenerative chondral loss involving the medial knee compartment with exposure and oedema involving subchondral bone; a moderate sized Baker’s cyst, and moderate knee effusion.[26] Mr Lynch performed a medial meniscectomy on 19 December 2013.[27] He noted that there was widespread moderately advanced degeneration at the patellofemoral joint and an area of advanced degeneration over the weight-bearing surfaces of the medial femoral condyle, and moderate degeneration of the medial tibial plateau. He removed a large loose body in the lateral compartment.
[25]PCB 34, and again in March 2014, at PCB 38, and also referred to in his report dated 7 August 2018 at PCB 91-94
[26]PCB 35-36
[27]PCB 37, and also referred to in his report dated 7 August 2018 at PCB 91-94
25 Mr Lynch saw the plaintiff on a number of occasions through 2014. An MRI scan performed on the plaintiff’s left knee on 19 June 2014 demonstrated severe degenerative changes in the medial compartment, degeneration and tearing of the medial meniscus and high-grade degenerative chondromalacia at the patellofemoral joint.[28]
[28]PCB 39
26 At a review on 15 June 2015, the plaintiff decided to undergo a left total knee replacement, which Mr Lynch performed on 2 July 2015.[29]
[29]PCB 41
27 Mr Lynch reviewed the plaintiff twice in 2015 and 2016, and he last reviewed him on 5 May 2017.
28 When he last reviewed him, Mr Lynch considered that the implants were stable. He considered that the plaintiff’s left knee replacement was functioning well, with only minor symptoms;[30] however, he considered that the plaintiff’s capacity to return to construction work was, and would be, significantly limited.
[30]PCB 94
29 Mr Lynch considered that the plaintiff should not engage in what he described as “performance based behaviour”, such as running, jumping, excessive pushing and pulling or repetitively lifting significant weights from a squatting position. He noted that the plaintiff could not squat fully. He noted that kneeling was difficult because of the scar over the front of his left knee.[31]
[31]PCB 94
The medico-legal assessments
30 The plaintiff relied principally on the opinion of Mr Crowe. There were two reasons for that degree of reliance – firstly, Mr Crowe obtained the correct history of the work the plaintiff performed which he said caused his left knee injury, and, secondly, Mr Crowe was provided with a CT SPECT of the plaintiff’s left knee which demonstrated loosening of the implant.[32] I will return to the importance of the loosening later in these reasons.
[32]PCB 50
31 The importance of each of these two reasons is that Dr Bloom and Mr Simm emphasised the fall off the ladder and not the work performing the carpet squares as the cause of the left knee injury. I think this materially impacts upon the reliability of their opinions in identifying the nature and extent of the injury resulting from the plaintiff’s work with the first defendant. Furthermore, neither were provided with the CT SPECT.
32 Dr Reid referred the plaintiff to Mr McQueen, orthopaedic surgeon. The plaintiff first saw him on 10 February 2016. The plaintiff told Mr McQueen that his left knee was becoming increasingly painful. He referred the plaintiff to have the CT SPECT specifically to determine whether there was loosening of the implant or infection. On his inspection of the CT SPECT, he considered that it demonstrated a loosening of the implant. He considered that it was appropriate to consider revision of the total knee replacement. It would appear that the limitations placed upon the plaintiff by Mr Lynch, referred to by him as “performance based behaviour”, were put to Mr McQueen. Mr McQueen agreed that they were appropriate, and he also agreed that it was unlikely that the plaintiff would be able to return to construction work.[33]
[33]PCB 111-112
33 After considering the history he obtained from the plaintiff and a quantity of radiology, Mr Crowe considered that the “work activities” performed by the plaintiff in early May 2013 caused a very significant and rapid deterioration in the post-traumatic chondromalacia and meniscal problems in the plaintiff’s left knee. He added that without those work activities, there was “… a very, very strong possibility that he would not have required a total knee replacement …”.[34]
[34]PCB 134-135
34 Mr Crowe specifically addressed the appearances on the CT SPECT, and was in no doubt that the implant had loosened, which resulted in impairment of function of the plaintiff’s left knee and significant symptoms of pain and difficulty in movement and weight bearing.[35]
[35]PCB 134
35 Mr Crowe was also asked to comment on the limitations Mr Lynch referred to as “performance based activities”. Mr Crowe agreed that they were appropriate, and he also agreed that it was unlikely that the plaintiff would be able to return to construction work.[36]
[36]PCB 135-136
36 Dr Bloom based his opinion on the trauma caused by stepping off a ladder which he considered resulted in the plaintiff suffering an exacerbation of pain in his left knee in the background of moderately advanced degenerative disease in his left knee. He considered that claimed injury to the plaintiff’s left knee had resolved and that the symptoms from which he was suffering would have occurred in any event had he not suffered what he described as a trivial incident on 7 May 2013, that being the fall from the ladder.[37] He added that he would have needed the surgery that he underwent on his left knee irrespective of the occurrence of that incident.
[37]PCB 117-118
37 Mr Simm expressed a very similar opinion to Dr Bloom. He considered that there was no demonstrated loosening or infection of the implant.[38]
[38]PCB 129-133
38 The only other medical reports which were tendered were those of Dr Slesenger, specialist occupational physician, Dr Rahgozar, consultant occupational physician, and Dr Horsley, occupational physician. They have each expressed an opinion on the work performed by the plaintiff and its implications in the cause of his left knee injury; however, their analysis is not as detailed as that of Mr Crowe. I do not think there is anything in their opinions which impinges upon the opinion of Mr Crowe. Otherwise, their opinions are more directed to their expertise, and that is, the plaintiff’s residual capacity to function generally and to return to alternative or suitable employment.
39 The defendants relied upon a report of Nabenet dated 17 September 2017 in which the author referred to a number of employment options which were proposed as being suitable for the plaintiff. They were:
§ trade scheduler/maintenance planner
§ hire controller/rental assistant
§ administration assistant
§ call centre operator
§ car park attendant
§ trade sales assistant
§ peggy
§ maintenance and facilities coordinator; and
§ administration assistant/support officer.
40 Each of those employment options were the subject of a more extensive description of the duties and physical demands required of someone engaged in those forms of employment in the Nabenet report.[39]
[39]DCB 244-266. There are also other vocational style reports at DCB 207-243
41 Dr Slesenger examined the plaintiff on 2 October 2015 and 18 May 2018. He was not provided with any information relevant to the loosening of the implant. He considered that the plaintiff could return to work as a trade scheduler/maintenance planner, administration assistant, call centre operator, and maybe maintenance and facilities coordinator. He considered that those alternative forms of employment were suitable because they fitted within restrictions which he considered were appropriate - sedentary work; avoidance of pushing, pulling, carrying or lifting over 5 kilograms; avoidance of squatting, kneeling and crawling; climbing limited to one flight of stairs, and walking and standing limited to 30 minutes. He considered a graduated return to work was recommended over an eight to ten-week period.[40]
[40]DCB 72-73
42 Dr Rahgozar examined the plaintiff on 10 August 2016 and 29 August 2018. He was provided with sufficient information regarding the loosening of the implant. He considered that the plaintiff had a capacity for alternative employment not requiring prolonged standing, walking, kneeling, squatting and climbing up and down stairs and ladders. He considered that the plaintiff could work as a trades assistant or a peggy.[41]
[41]PCB 84-89
43 Dr Horsley examined the plaintiff on 3 May 2018. She was not provided with any information relevant to the loosening of the implant. She considered that the following restrictions were appropriate - avoidance of squatting; avoidance of lifting items greater than 8 kilograms except on an occasional basis; avoidance of lifting items up to 5 to 8 kilograms on a repetitive basis; caution walking over uneven surfaces; caution choosing footwear; avoidance of kneeling, repetitive stair and hill ascending and descending, ladder climbing and twisting activities involving the left knee. She took into account his capacity to walk, stand, sit and drive, which were all within the range of 30 to 60 minutes. She also assessed his vocational skills, his age and the nature and extent of his injuries, concluding that the plaintiff was not a realistic candidate for retraining or redeployment in alternative employment.[42]
[42]PCB 124-125
The plaintiff’s consequences
44 The condition of the plaintiff’s left knee reduced the plaintiff’s capacity to work for the first defendant to the point where he ceased working altogether on 18 October 2013. It is clear from the summary of the evidence thus far that he subsequently underwent a left knee meniscectomy and then a total knee replacement. His employment was terminated by the first defendant on 12 May 2017. He has not returned to any gainful employment since.
45 In addition to the impact upon his capacity for work, the plaintiff says that he has suffered other consequences, which I will summarise as follows:[43]
[43]PCB 12-18, and 22-25
· Persisting pain and swelling in the left knee.
· A pinching sensation in the left knee which lasts 30 to 60 minutes.
· A clunking sensation after walking, causing piercing pain in the left knee.
· Stiffness in the left knee.
· An inability to run, jump or squat.
· Interference with an ability to walk, necessitating the use of braces on both knees, and the need to apply icepacks to reduce swelling.
· Difficulty with kneeling on the left knee.
· Prolonged sitting can cause cramping in the left knee area.
· Prolonged standing will cause increased pain in the left knee.
· Difficulty negotiating stairs.
· Interference with sleep, necessitating putting a pillow under both knees.
· The need to use a knee brace.
· Interference with the ability to mow lawns, trim trees using a chainsaw, climbing a ladder, cleaning spouting and performing other work involving the use of a ladder.
· Interference doing handyman work around his home such as gardening and home maintenance.
· Interference with his interest in restoring old cars, attending drag races and driving his utility car to car shows at swap meets at country venues.
· Interference with undertaking simple domestic tasks such as vacuuming, sweeping, and hanging out washing.
· An inability to ride a pushbike.
· Interference with attending social functions, such as christenings, birthdays and Greek functions where dancing is involved.
· Interference with playing social games of sport with his sons and tinkering with cars with them.
· Interference with an ability to undertake personal care, such as dressing.
· Interference with taking his dog for a walk, but when he had a dog.
· Interference with his marital relationship, resulting in a breakdown in his marriage.
· The need to use anti-inflammatory and painkilling medication and ice packs.
46 The defendants challenged the plaintiff’s evidence that he is as disabled as described in the reports of, for example Mr Lynch, Mr McQueen, Dr Horsley, and Mr Crowe. Part of that challenge comprised direct cross-examination as to whether the plaintiff engaged in all of the activities which he says are affected by the impairment of the function of his left knee, and part of it came through film shown to the plaintiff.
47 At this point I should say that I consider that the plaintiff gave a reasonable account of himself and I accept the majority of his evidence relevant to the causation of his left knee injury and the extent to which it currently impairs him; however, the film demonstrated that there are some aspects of what the plaintiff gave in evidence which I do not accept so readily.
48 I do not propose to summarise the film. I propose, instead, to go to those parts the film which have impacted upon some aspect of the plaintiff’s evidence. The film was taken of the plaintiff on 13 and 16 November 2017; 21 and 27 March 2018; 5 and 7 April 2018; 28 April 2018 and 13 June 2018. The plaintiff was cross-examined about the content of the film after a portion of the film was shown to him.[44]
[44]Transcript 49-58
49 The content of the film shows the plaintiff standing, walking, ascending stairs, walking and working around cars and apparently being able to do all of that without any perceptible interference by his left knee injury. The particular film which demonstrated what I considered to be an inconsistency in the plaintiff’s evidence is the film taken on 28 April and 13 June 2018, when the plaintiff ascended stairs without needing to use a railing. He said that he could not do that without the use of a railing.[45]
[45]Transcript 55-58
50 The fact that the plaintiff is able to stand, walk and flex slightly with both knees are innocuous activities, because none of them have been the subject of any particular comment by medical practitioners saying that he cannot engage in those aspects of general mobility. To that end, the vast majority of the film was innocuous.
51 I am fortified in reaching the conclusion that I should accept the majority of the plaintiff’s evidence because of the preponderance of the medical opinions that the plaintiff has an actively symptomatic left knee, with a loosening of the implant, which is an objective basis upon which the likes of Mr Crowe have reached the conclusions which I have summarised above.
Different injuries – concurrent consequences
52 The defendants submitted that the plaintiff suffers from a number of other medical conditions which themselves produce pain and suffering and loss of earning capacity consequences which may militate against a finding that those consequences are “serious”. I will deal with each of them separately.
53 The defendants relied on what was said in Peak Engineering Pty Ltd & Anor v McKenzie[46] that, where two different injuries are concurrently producing pain and suffering consequences, it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of trial. Furthermore, that it was essential to do that when deciding which of the pain and suffering consequences are attributable to which injury.[47]
[46][2014] VSCA 67 (“Peak Engineering”)
[47]paragraph [24]
Coronary condition
54 The plaintiff underwent quadruple coronary artery bypass surgery on 6 December 2016. He was an inpatient for twelve days. He now sees his cardiologist once a year for a checkup.[48] He uses a treadmill, an exercise bike and he walks for exercise as a regime of physical exertion relevant to his heart health.[49] Before the commencement of the hearing, he had last seen his cardiologist in January 2018, who gave him a clean bill of health.[50] In a history recorded by Dr Horsley, the plaintiff informed her that at the time he required the surgery, he weighed 110 kilograms and through exercise he reduced his weight to 75 kilograms.[51]
[48]PCB 11
[49]PCB 12
[50]PCB 22
[51]PCB 118
55 Under cross-examination, the plaintiff said that he walks for about an hour at a time and would cover approximately 5 kilometres.[52] I understood that the walking he undertakes is mostly for exercise relevant to his heart condition, but it is also beneficial for his knees.
[52]Transcript 54
56 There is no evidence which satisfies me that the plaintiff’s coronary condition contributes to any of the consequences which the plaintiff contends result from the impairment of the function of his left knee.
The left hip
57 The plaintiff also experienced pain in his left hip at the time when his left knee was troubling him when he was employed with the first defendant. He saw Dr Reid, complaining of pain in his knees and his left hip; however, the focus of Dr Reid’s treatment of the plaintiff was the plaintiff’s knees, and in particular, his left knee.
58 Dr Reid referred the plaintiff to have an ultrasound of his left hip which was taken on 5 October 2014. It demonstrated moderate trochanteric bursitis.[53] The plaintiff subsequently had a CT-guided injection performed on 11 October 2014.[54] He subsequently had a further ultrasound of his left hip performed on 19 October 2017, demonstrating similar pathology that was shown on the previous ultrasound.[55] He subsequently had a further CT-guided injection performed on 3 November 2017,[56] and another performed on 18 December 2017.[57] He subsequently had an MRI scan performed on 25 March 2018 which demonstrated significant degenerative changes in the hip joint.[58]
[53]DCB 263
[54]DCB 264
[55]DCB 270
[56]DCB 271
[57]DCB 272
[58]DCB 274
59 Mr McQueen noted that the plaintiff complained of some problems with his left hip. He thought that it was as a result of irritability related to his left knee. He referred the plaintiff the have the three injections. He also referred the plaintiff to have an MRI scan performed on 25 March 2018 which showed significant degenerative changes in the hip joint.
60 The plaintiff said that his left hip problem has resulted in him suffering from intermittent pain which is sometimes acute and which contributes to interference with his sleep.[59] Under cross-examination, he was adamant that the pain he experiences in his left hip is pain which travels up from his left knee.[60] Under further cross-examination, a history taken by Dr Horsley was put to him that he suffered chronic pain in his left hip which can be as serious as 9 out of 10 on a visual analogue scale which interferes with his sleep and is increased by sitting.[61] The plaintiff said that he was unable to remember whether he said that the pain was that serious, but he agreed that his left hip interferes with his sleep. He said that he obtained some short-term relief from the cortisone injections.[62] Under further cross-examination, he was asked whether a history he gave Dr Slesenger that he has ongoing moderate to severe pain in his left hip with difficulty lying on his left side and difficulty squatting and kneeling was correct.[63] He agreed, but added the pain in his left hip was due to his left knee.[64]
[59]PCB 18
[60]Transcript 35- 40
[61]PCB 119 and Transcript 37-39
[62]Transcript 40
[63]DCB 59
[64]Transcript 41-42
61 The plaintiff undoubtedly has an actively symptomatic left hip. He has required a significant amount of treatment, including cortisone injections and a recent MRI scan which demonstrates how symptomatic it has been, and how much it has troubled him. It is very difficult to accept that his left hip symptoms are related to his left knee. It may be that aspects of his mobility provoke pain and limitation of movement in his left knee, resulting in him suffering pain and limitation of movement in his left hip.
62 On the plaintiff’s own admission, the left hip problem has resulted in him suffering pain, limitation of movement produced by the pain, and interference with sleep. I infer that if he suffers pain in his left hip, that it probably interferes with his capacity to be mobile, for example it probably interferes with his ability to stand, walk, sit and suffer physical stress and strain on the left hip.
The right knee
63 The defendants submitted that it was open on the evidence for me to find that the right knee problem is not a compensable injury. I understood that submission to be made in the context of the way the consequences of the impairment of the function of the right knee are to be dealt with by reference to Peak Engineering.[65]
[65]Supra
64 There is no doubt that the plaintiff experienced problems with his right knee prior to working for the first defendant. I have set out some of the history of his right knee problems above. The most relevant treatment is the medial meniscectomy performed by Mr Lynch on 23 October 2014,[66] and a medial and lateral meniscectomy and chondroplasty performed by Mr McQueen on 15 April 2016.[67]
[66]PCB 57
[67]PCB 61. The surgery was preceded by an MRI scan performed on 20 February 2016 at PCB 59
65 The plaintiff implicates the work which caused the left knee injury as a cause of the right knee injury. In summary, it was as a consequence of needing to place more stress and strain on his right knee because of the injury to the left knee that he began to experience symptoms in his right knee. That was the opinion of Dr Reid as early as 2014 which he arrived at following a medial meniscectomy performed by Mr Lynch on 19 December 2013.[68] It is also the opinion of Mr Crowe, whose evidence I prefer for reasons which I have already outlined, and principally because I think the history he obtained and his interpretation of the history is more consistent with the plaintiff’s version of how he came to injure his knees.[69]
[68]PCB 65-66
[69]PCB 135-136
66 The defendants relied upon the opinions of Dr Bloom and Mr Simm in support of their submission that the plaintiff’s right knee condition was not contributed to by the plaintiff’s work with the first defendant. They isolated the relevant radiology which clearly demonstrates that the plaintiff had pre-existing degenerative changes in his right knee of some substance. Despite that, I consider that the analysis undertaken by Mr Crowe is to be preferred, and I think I have said enough thus far as to why I think that analysis is the more cogent and persuasive.
67 It was not the intention of the Court of Appeal in Peak Engineering[70] to require a worker to engage in the process of disentangling the contribution of other compensable injuries which occurred through the same work process. Therefore, I find that the plaintiff had suffered right knee problems for some significant period of time prior to commencing work with the first defendant. The subsequent radiology demonstrates longstanding degenerative changes. I do not think that the medical evidence suggests that is at all controversial. After analysing the approaches taken by Mr Crowe, Dr Bloom and Mr Simm, the conclusion I have reached is that the plaintiff suffered an aggravation of the degenerative changes in his right knee which became significantly symptomatic as described by Dr Reid and Mr Bloom. So, the right knee problem is a compensable injury, and the persistent symptoms suffered by the plaintiff since working for the first defendant are contributed to by that work.
[70]Supra
Pain and suffering consequences
68 I will now proceed to summarise the conclusions I have reached based upon the analysis the evidence which I have outlined above.
69 Firstly, I accept the plaintiff’s evidence of the work he says was the material cause of his left knee injury. I do not accept that the fall from a ladder was the only event to be considered. To that extent, the opinions of Dr Bloom and Mr Simm wrongly emphasise that event as the focus of the question of causation.
70 Secondly, I accept that the plaintiff has suffered an aggravation of the pre-existing degenerative changes in his left knee and when added to the need for total knee replacement, and then when added to the loosening of the implant, I consider that the consequences of the aggravation are of themselves “serious”.
71 Thirdly, I accept the plaintiff’s evidence, supported by a number of medical examiners, that the pre-existing degenerative changes in his right knee were aggravated by his work, and by the additional stress and strain on it as the function of his left knee worsened. Therefore, it does not stand to be considered as a concurrent medical condition to be treated in the manner referred to in Peak Engineering.[71]
[71]Supra
72 Fourthly, I accept the plaintiff’s evidence that he continues to be seriously troubled by his left knee injury. I accept Mr Crowe’s opinion that the implant is loosened. It is no doubt a cause of the worsening of the function of the plaintiff’s left knee and the reason why he is presently so seriously troubled by it. Neither Dr Bloom nor Mr Simm were aware of the relevant radiology which demonstrated the loosening of the implant, which renders their opinions far less relevant and persuasive.
73 Fifthly, the plaintiff’s left hip problem does produce pain and interference with sleep. Whilst I do not accept the causal association between the left knee and the left hip as proposed by the plaintiff, I do accept that when the plaintiff’s left knee is playing up, so does his left hip. In reaching that conclusion, it occurs to me that the radiology of the plaintiff’s left hip demonstrates significant degenerative changes. The treatment he has received and the recent MRI scan demonstrate that the plaintiff’s left knee and left hip are separate medical conditions.
74 Sixthly, I propose to address the Peak Engineering issue by excluding the consequence of sleep altogether and assume that it has been caused by the left hip condition only. I have also taken into account the extent to which the plaintiff’s left hip causes him pain. Even after doing so, these reductions do not satisfy me that the consequences of the impairment of the function of the plaintiff’s left knee are other than “serious”.
75 Lastly, I accept the plaintiff’s evidence that the impairment of the function of his left knee is consistent with his evidence, except that I do not accept that he needs to hold onto a railing when ascending stairs. It may be that he needs to do that sometimes, but the film demonstrates that he did not do so on sufficient occasions to persuade me that he can ascend stairs unassisted. Furthermore, I was left with a sense that the plaintiff is probably able to function somewhat better than he deposed to in his affidavit and in his oral evidence, but not so materially as to impact much on his creditworthiness and reliability.
76 Therefore, I am satisfied that the impairment of the function of the plaintiff’s left knee has resulted in pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments or losses of that body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
Loss of earning capacity
77 I am in no doubt that the plaintiff has suffered a major aggravation of the pre-existing degenerative changes in his left knee. The extent to which that aggravation has produced consequences has been dealt with by me above, but those consequences have been increased considerably by the fact that the implant is loosened.
78 I have carefully read the descriptions of the alternative forms of employment referred to in the Nabenet report and the opinions expressed by Dr Slesenger, Dr Rahgozar, Dr Bloom and Dr Horsley relevant to whether the plaintiff has the capacity to take up any of those forms of employment. The conclusion I have reached is that the plaintiff is effectively incapacitated for all forms of alternative or suitable employment for which he is qualified by education, training and experience. I have also reached that conclusion by giving proper consideration to whether the plaintiff has the capacity to undergo rehabilitation and retraining, and his attempts to participate in the same.
79 I do not accept the opinions of Dr Slesenger, Dr Rahgozar and Dr Bloom that the plaintiff is fit for the forms of alternative employment which they referred to in their reports. Firstly, working as a trades assistant or a peggy would require the plaintiff to work on building sites. That work would potentially involve contravening the very restrictions which Dr Slesenger, Dr Rahgozar and Dr Horsley appear to agree should be imposed upon the plaintiff. A trades assistant would work in close association with the tradesman and would probably be exposed to the same arduous physical work as a tradesman. A peggy would probably not be exposed to the same arduous physical work but would nonetheless be involved in working on building sites which may well carry the probability of contravening those restrictions.
80 I think Dr Horsley makes a very good point that the plaintiff is now at an age, with an acknowledged lack of computer and other administrative skills, to preclude him from working in the administrative roles referred to by Dr Slesenger. Furthermore, Dr Horsley did not consider that the plaintiff could be successfully retrained or redeployed.
81 Under cross-examination, the plaintiff was asked about his retained capacity for work and why it is he could not return to alternative or suitable employment, and why he has not made any attempts to return to that type of employment.[72] The plaintiff answered, I thought compellingly, that he had asked the first defendant for light work. He said that he was “knocked back”, and at the time his condition was deteriorating.[73] I infer that his reference to “his condition” was a reference to his left knee. Indeed, he was correct - the loosening of the implant resulted in a deterioration in the function of his left knee for reasons which I have outlined above.
[72]Transcript 65-74
[73]Transcript 66
82 I do not have much doubt that the plaintiff has retained a capacity to function at a particular level. He can walk, stand, ascend steps, drive a car, tinker with a car and go about his daily routine as was observed on the film, but when regard is paid to the restrictions which Dr Slesenger, Dr Rahgozar and Dr Horsley placed upon the plaintiff, it is evident that he is significantly restricted in being able to undertake any work on a building site or in a similar work environment.
83 I accept the plaintiff’s evidence that he has made an attempt to return to work with the first defendant by requesting light work. The first defendant is a building contractor which probably has employees working at different levels. It was not able to offer him any light work.
84 I am persuaded by the opinion of Dr Horsley that otherwise the plaintiff’s age, and the nature and extent of his injuries, do not present the plaintiff as a realistic candidate for retraining or redeployment in alternative employment. Therefore, I conclude that the plaintiff is effectively totally incapacitated.
85 Dr Slesenger and Dr Bloom were aware that the plaintiff had a symptomatic left hip, yet they considered that the plaintiff was nonetheless capable of returning to various forms of alternative or suitable employment. On the basis of their opinions, it must follow that they did not consider that the left hip rendered him incapacitated for alternate or suitable employment. Therefore, the plaintiff’s left hip condition, and any incapacity for work that resulted from it, are not relevant to a consideration of whether the plaintiff is fit for the alternative employment referred to by Dr Slesenger, Dr Rahgozar, Dr Bloom and Dr Horsley.
86 Therefore, I am satisfied that the impairment of the function of the plaintiff’s left knee has resulted in loss of earning capacity consequences which, when judged by comparison with other cases in the range of possible impairments or losses of that body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
Orders
87 I will grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he sustained in the course of, and within the scope of, his employment with the first defendant for both pain and suffering and loss of earning capacity.
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