Tsakiridis v New World Marine Pty Ltd
[2017] VCC 523
•28 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01605
| THEO TSAKIRIDIS | Plaintiff |
| v | |
| NEW WORLD MARINE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2017 | |
DATE OF JUDGMENT: | 28 March 2017 | |
CASE MAY BE CITED AS: | Tsakiridis v New World Marine Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 523 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right knee – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Ms N Crowe | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 3 April 2014(“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the right lower limb. A Chronic Pain Syndrome pursuant to ss(c) was a “fall-back position”, as it was submitted the plaintiff’s impairment was organically based.[1]
[1]Transcript (“T”) 2
5 Whilst pain and suffering was not conceded, counsel for the defendant indicated the main issue in contention was economic loss, primarily in respect of permanency and the plaintiff’s capacity for suitable employment.[2]
[2]T35
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2006) 14 VR 602
16 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
17 The plaintiff is presently aged forty-six, having been born in Melbourne in August 1970. He is married with a nine year old son.
18 The plaintiff attended school to Year 11 and then worked for a number of years in car audio repair businesses. He was also self-employed in that field for about a year in around 2000 carrying on business as TNT Car Sounds. In that role, he telephoned customers, made bookings and sent out invoices. There was no computer use and the plaintiff had no staff. The business ceased as it was not economically viable.[5]
[5]T11
19 Between 2000 and 2004, the plaintiff worked as a picker/packer at a glassware importer, Gempo Glass.[6] He left that job because it was just not for him at that stage and it was time to move on. He then became involved in the marine industry, first working at Bar Crusher Boats.
[6]T12
20 Working in the marine industry was pretty much the same as working in the automotive industry although dealing with different parts and it was not hard to make the changeover.[7] At Bar Crusher Boats, the plaintiff fitted motors and accessories like the GPS tracking system and the steering. He carried out his duties in the workshop and did not have customer contact.
[7]T12
21 The plaintiff worked initially for Bar Crusher Boats for a couple of years. He then went to JB Marine, where he worked as a contractor for a year. He then received a call from Bar Crusher Boats, who invited him back, doing his original job for more money.[8]
[8]T13
22 The plaintiff commenced employment with the defendant on 11 October 2010. This job included going on the water, testing boats.[9] It also involved fitting out boats with accessories such as motors and trailers, the electronics and wiring and fitting out moulds or shelves of premade boats together.
[9]T14
23 Over the years, the plaintiff and his wife were involved in property development. They built two units and sold one about six years ago, having done a bit of work on it. That work involved painting, tiling, a little plastering and landscaping. The plaintiff took time off while at Bar Crusher Boats to finish off the last unit, and never returned to that job. He did not do the actual build, it was organised by a registered builder.[10]
[10]T15
24 Prior to the said date, the plaintiff had not suffered any injury to his right knee.
25 On the said date, while fitting out a boat, the plaintiff moved from the sundeck and pushed himself off the boat, dropping five or six feet to the concrete floor. In doing so, he hyperextended his right knee and knew immediately he had injured it (“the incident”).
26 The plaintiff continued working, but his knee was painful and swollen by the end of the day. The next day he was unable to straighten it. He tried, but could not continue working after three or four days.
27 Because the pain and swelling and restriction persisted, the plaintiff attended his general practitioner, Dr Baum, on 9 April 2014. An MRI scan was undertaken the following week, after which the plaintiff was referred to an orthopaedic surgeon, Mr Anthony Jacobson.
28 In July 2014, Mr Jacobson operated on the plaintiff’s knee (“the first operation”).
29 Thereafter, the plaintiff attempted to return to work, but had real difficulty working more than four or five hours a day. Further, he was harassed by the return to work case manager.
30 The plaintiff continued to have pain and restriction of movement in his knee and a further MRI scan was arranged by Mr Jacobson. The plaintiff later underwent an ultrasound and eventually, Mr Jacobson operated again on his knee in or about April 2015 (“the second operation”).
31 In the meantime, the plaintiff attempted to continue working, but with great difficulty. Even on a rare day, when he was pain free, he could only manage light duties, with restrictions on standing, bending, kneeling and climbing stairs.
32 As of September 2014, the plaintiff was still in pain. The chronic pain and lack of mobility to perform his pre-injury work was getting him down. By late that year, he was struggling to work three or four hours a day.
33 By that stage, the plaintiff had reached the point where he felt he could not go on, and ceased work in late 2014 and he has not returned since. He was in receipt of weekly payments of compensation when he swore his first affidavit in November 2015.
34 The plaintiff then continued to experience constant knee pain. The only relief he obtained was when his knee was elevated and his leg was resting on a pillow or cushion, otherwise the pain got so bad he could break out into a sweat. He relied heavily on his left leg when walking and standing.
35 Every day, the plaintiff had a stabbing pain behind his right kneecap and he had to sit down and put his leg up to relieve the pain. That happened without warning sometimes twice a day and he was unable to fully straighten his knee, even with a brace.
36 The plaintiff had been informed that this was due to a problem with his hamstring. The pain surrounding his knee was constant and he walked with an aggressive limp. His right leg muscles had become wasted as a result of the injury and surgery.
37 In his first affidavit, the plaintiff detailed a number of pain and suffering consequences.
38 The plaintiff woke with pain in his knee every few hours. By 4.00am or 5.00am, he could not stand lying in bed any longer and usually got up and left the house. He and his wife were then sleeping in single beds.
39 The plaintiff could only stand for five to ten minutes and could not straighten his leg completely and had to lean over to the left to try and take the weight off his right leg.
40 The plaintiff was not able to do any gardening, save that he would pull out the occasional weed or do some minor pruning. He and his wife had a gardener who mowed the lawns and looked after the garden about once or twice a month.
41 The plaintiff was unable to do any renovations or minor maintenance work, either around the house or on their developed properties. That business had more or less come to a halt since his injury.
42 Intimacy was painful, and difficult to the point where it was now non-existent.
43 The plaintiff was unable to squat or bend. He was unable to get more involved in sport or activities with his eight year old active little boy, being unable to join in at the school sports.
44 The plaintiff’s wife worked and, consequently, they followed a practice of helping each other around the house. He tried some vacuuming, but was very limited in what he could do. He found it difficult doing hard work like cleaning the bathroom, shower and toilet.
45 The plaintiff had withdrawn from friends and family and did not attend social events due to the pain and embarrassment experienced from limping, or others offering to help him all the time.
46 As a family, they did not go out socially as much as they did prior to the incident. The plaintiff found he could not stand for long and talk to people and he felt silly being the only person constantly looking around for a chair. It worried him not being able to work. He enjoyed the routine of getting up every day and going to work. He prided himself on his good work record and he was also good at what he did.
47 At work, the plaintiff also enjoyed the contact with the public and also with co-workers. It was partly for this reason that he struggled on as long as he did before eventually ceasing work in 2014.
48 The plaintiff worked with the defendant five days a week and often, in summer, some overtime over the weekend. If he was not working on the weekends, he was always active. He did some backyard work. He was otherwise always pottering around his own property and attended to house maintenance tasks without any difficultly. Since the incident, he no longer could do those activities.
49 The plaintiff realised he had a legal obligation to look for alternate work and looked in the paper every day. He also asked friends to keep a lookout for available work. Given his restrictions in his domestic and personal life, he could not think of work he could realistically do.
50 In December 2015, Dr Baum sent the plaintiff to Dandenong Hospital for treatment due to problems with the high dose of medication he was taking.
51 In March 2016, the plaintiff was referred to pain specialist, Dr Lee, whom he has seen a number of times since. Dr Lee recommended a ketamine infusion and has also treated the plaintiff for stomach problems because of his medication.
52 In November 2016, the plaintiff was booked in to undergo the infusion but became extremely worried about what was to be done with the line to be inserted near his heart and he was unable to go through with it.
53 The plaintiff was very nervous about undergoing the ketamine infusion process and it was not explained fully to him. Dr Lee had discussed an alternative method of administration through the veins but the plaintiff did not want to have this type of procedure either. He did not know whether the ketamine was going to help. He had heard it was like a horse-tranquilising drug and he had read a bit about it and, if it did not work, he would have to try it again, so he elected not to go through with it.[11]
[11]T22
54 The plaintiff continues under the care of his orthopaedic surgeon, Mr Jacobson. When seen in March 2016 because of continuing knee complaints, Mr Jacobson referred the plaintiff to Mr Ng, whom he saw on 10 May 2016. Mr Ng arranged for a steroid injection to help with the pain. However, this did not give the plaintiff more than temporary relief.
55 In July 2016, Mr Jacobson requested the insurer approve a turnbuckle splint, which the plaintiff was given, but it did not provide him with much help with his knee stiffness.
56 The plaintiff had been told by Mr Jacobson that he did not think that further knee surgery would help but, in fact, would make his knee movement worse. That advice made the plaintiff very depressed and worried about what he was going to do with his continuing pain and inability to handle day-to-day activities.
57 Not long ago, Mr Jacobson discussed tendon surgery, but he was not too keen on it because he told the plaintiff he might lose complete range in his knee.[12] Further, Mr Jacobson advised that he had spoken to other surgeons who were also not too keen on the straightening procedure.[13]
[12]T23
[13]T23
58 The plaintiff also explained he did not want further surgery as he was actually worse after the second operation than after the first, so he was a little bit sceptical about the release procedure. Also, Mr Jacobson had told him he might lose complete range of knee movement.[14]
[14]T24
59 The plaintiff confirmed Mr Jacobson did not want to operate.[15] The last time he saw Mr Jacobson, the plaintiff was told to stop wearing his brace. Mr Jacobson recommended he continue with the self-paced exercise program, which he did at home. Although attempting these exercises, the plaintiff still is unable to straighten his leg or obtain pain relief, which has caused him to become very depressed. He no longer has hydrotherapy, but uses the tub at home.[16]
[15]T29
[16]T29
60 The plaintiff continues to see Dr Lee for pain management.[17]
[17]T23
61 The plaintiff regularly saw a physiotherapist, Mr Henry Tram, following referral in September 2014. However, treatment ceased as it was aggravating his knee condition.
62 For quite some time, the plaintiff has also been treated by Dr Baum for depression. The plaintiff has become increasingly distressed and concerned at his inability to cope with the continuing knee pain, the failure of treatment to improve his condition and how the injury has ruined his working life and badly affected his family life. Dr Baum has recently decided to refer the plaintiff to a psychologist.
63 The plaintiff takes his nine year old son to and from school. He does not take him to sporting activities.[18] His wife gets their son’s breakfast ready and the plaintiff helps him to get dressed. The plaintiff does the washing and puts the towels in the machine, and he can help around the house. He disagreed that he was not working because he liked being a “house husband”.[19]
[18]T27
[19]T28
64 At present, the plaintiff is prescribed Lyrica, 75 milligram tablets twice a day. He had recently, however, cut back to one a day. He is also taking Mersyndol Forte; Cymbalta, 30 and 60 milligrams; Dothep, 2 milligrams, one at night; Tramal; Diazepam; Palexia, one in the morning, two at night; Gabapentin, 100 milligrams three times a day, and Tramadol, one to two tablets every four hours.
65 The plaintiff agreed he had been referred to an addiction specialist to help with his medication intake and try and reduce it. However, his pain increases when he reduces his intake.[20]
[20]T19
66 Dr Lee put the plaintiff on Gabapentin. The plaintiff had backed off the Lyrica and was taking Mersyndol.[21] He took Panadol Osteo, about four a day, and one Lyrica at night. He takes Diazepam to calm down.[22] About five to six times a day, the plaintiff puts a pillow under his knee to get some relief.[23]
[21]T19
[22]T20
[23]T31
67 For some time, the plaintiff has been applying for jobs in the hope he can find work that he can manage on a part-time basis, but his applications have been totally unsuccessful.
68 The plaintiff had previously cooperated with occupational rehabilitation representative, IPAR, in attempts to find suitable employment which he could handle. These meetings stopped in about July 2016[24] and no other attempts have been made by the defendant’s representatives to try and rehabilitate the plaintiff.
[24]T7
69 The plaintiff then said he only stopped seeing IPAR recently, when they wanted to update his files. He attended IPAR much more than two or three times.[25] He talked to Yanna at IPAR in January 2017 about jobs.
[25]T8
70 The jobs which the plaintiff applied for were found by his wife on seek.com. He also cold called some potential employers. The plaintiff gave the expression of employment interest document and a résumé that was prepared by IPAR to potential employers.[26] That expression of interest letter contained a reference to a particular job having to be in line with his general practitioner’s return to work plan.
[26]T7
71 The plaintiff has a log book from which IPAR obtains his job seeking information when he attends. IPAR has never suggested a job for him,[27] but they have recommended jobs, for which he has applied. He has applied for jobs of the nature suggested by IPAR, such as a fleet coordinator, insurance broker, and quality assistant. He has applied online and in person, and provides the potential employer with his résumé.[28] The plaintiff tailors his paperwork for the type of job applied for.[29]
[27]T25
[28]T26
[29]T17
72 The plaintiff agreed his résumé did not set out the administrative work he had done in his last role. In that role, he also had customer contact, because it was a retail shop.[30]
[30]T18
73 IPAR offered the plaintiff a two-day entry level computer course starting on 17 March, but he had not heard anything further from them.[31]
[31]T25
74 The plaintiff has also applied for jobs in the newspaper such as the part-time real estate administration job he applied for in person the week before the hearing. His application was declined because of his injury.[32]
[32]T16
75 Typical jobs applied for were office work, more towards the actual telephone side of things, in real estate or the automotive industry. A lot of them were part time or casual, and there were a few full-time jobs. The plaintiff thought, with the latter, he might be able to get a foot in if he got an interview.[33]
[33]T17
76 The plaintiff is not the best at emailing, although he knows how to go on Google. He is not very good at things like Microsoft Word, and that is why he gets his wife to do those tasks and to help him out.[34]
[34]T16
77 The plaintiff presently lives on his wife’s wage and does not get Centrelink. He has not asked Centrelink for assistance to find work because he is with IPAR and the Wise Scheme whom he saw not long ago.[35]
[35]T24
78 The plaintiff does not consider he would be able to work full time, even in sedentary employment. If he was able to find part-time sedentary work, he would still have difficulty attending when his knee pain was severe.
79 There are probably about one hundred jobs the plaintiff has applied for. He did not even get a response to some applications. He kept a record of all the applications which he produced to the Court.[36]
[36]T32
80 The plaintiff agreed he would do everything he could to get back to work.[37] He thought, the way he was, he would not last an hour at work before he would experience pain, feeling like it was cutting into his kneecap underneath. He also experienced this pain just sitting, doing nothing. The only way he could obtain some relief was to lie down and put a pillow under his knee and raise it to a certain point and wait until the pain subsided.[38]
[37]T28
[38]T30
81 Whilst he is aware of Dr Baum’s current certification, the plaintiff does not think he could work for more than an hour, as by that time his knee starts to hurt.[39]
[39]T31
82 The plaintiff agreed that in presenting for jobs, he was presenting he was able to do jobs part time. IPAR was pushing him to apply for work. He could try, but he did not think he would be able work. He was prepared to try anything he could, that is why he was making those applications. If he told potential employers he was unfit for work, no one would employ him. He would like to believe and hope he could do some work and he is willing to try at least a part-time role.[40]
[40]T31
Treaters
83 Dr Baum, the plaintiff’s current treating general practitioner, most recently reported in November 2016.
84 Dr Baum advised that the plaintiff had continued to suffer from ongoing chronic right knee pain related to a documented right knee medial meniscus tear and subsequent complications. These included fat pad impingement and also a hamstring muscle shortening, causing inability to extend the right knee joint and also difficulty with full flexion.
85 Dr Baum thought the plaintiff had a secondary Adjustment Syndrome with depression and also had developed a Chronic Regional Pain Syndrome.
86 Dr Baum commented the plaintiff presently has no capacity to return to premorbid employment. He has limited ability to stand and sit for long periods and bend his knee joint. He also had fluctuating moods and was depressed at times.
87 Dr Baum noted the plaintiff was also on regular medications which, together with his chronic pain and, also, mental state, would impact on his cognitive state and ability to concentrate.
88 Dr Baum thought the plaintiff’s right knee pain as well as the physical inability to straighten the knee or fully flex the joints significantly incapacitates him.
89 Dr Baum considered the prognosis was then indeterminate, noting the plaintiff had followed an atypical course after his initial arthroscopic meniscal debridement and failed to improve with ongoing physical therapies.
90 Dr Baum thought the plaintiff may still require further release tendon surgery as the hamstring contraction seems to be the main limitation and no intra articular pathology has been identified.
91 Dr Baum noted the plaintiff has developed a secondary depression due to failure to improve ongoing chronic pain, as well as WorkCover insurance and ongoing family stress. He continues to present for regular reviews and attempts to deal with his chronic pain and, also, his right knee disability.
92 Dr Baum presently certifies the plaintiff fit to work restricted duties, two to three hours a day, up to three days’ a week. These certificates set out the plaintiff cannot weight bear on the right leg currently, due to inability to locked right knee joint. “Cannot fully extend joint, which remains swollen. Can try to do two to three hours a week, involving sitting, with minimal walking, for up to three days a week. Should have fifteen minute breaks incorporated into his work house.”[41]
[41]8 June, 26 October and 2 December 2016, 4 January and 20 February 2017
93 Mr Tram, physiotherapist, reported in February 2016.
94 Mr Tram then noted the plaintiff had reached one hundred weeks’ under WorkCover, with little improvement in his right knee pain and range, which in turn affected his gait. The plaintiff was distressed about his lack of improvement.
95 Mr Tram found himself unable to progress the plaintiff’s exercises due to irritability. He noted the plaintiff was not able to participate in family activities and work, and struggled to find stimulating hobbies.
96 The plaintiff first saw his treating orthopaedic surgeon, Mr Jacobson, on 29 April 2014.
97 Mr Jacobson then diagnosed an acute right knee medial meniscus posterior horn tear. He carried out a right knee arthroscopy on 1 July 2014 and a partial meniscectomy of the torn area was performed.
98 The plaintiff was subsequently reviewed on a number of occasions. As his condition did not improve despite further conservative treatment, he underwent a right knee diagnostic arthroscopy on 11 April 2015.
99 Thereafter, the plaintiff was last reviewed in September 2015. He then continued to have an inability to fully extend his right knee and he also experienced anterior knee discomfort on attempts to fully extend his knee.
100 Mr Jacobson then did not consider the plaintiff had a capacity for pre-injury duties as a boat builder. In the future, he expected the plaintiff to have some capacity to work in a seated job and with light activities not involving prolonged standing, crouching or bending.
101 When last seen in February 2017, the plaintiff told Mr Jacobson that the splint did not help his knee stiffness much. On examination, there was the suggestion of a mild improvement in the plaintiff’s range of flexion to 95 degrees, although his knee extension remained unchanged.
102 Mr Jacobson noted the plaintiff had been reluctant to have the ketamine infusion. He suggested the plaintiff consider this option and noted he had reiterated to the plaintiff he was doubtful that further knee surgery would give him improved movement and, in fact, risked further reducing range.
103 Mr Jacobson noted the plaintiff previously worked as a boat fitter and that required a level of knee motion which he was not currently able to perform. Further, the plaintiff had unsuccessfully managed a return to work plan on modified duties.
104 Mr Jacobson considered the plaintiff may be able to perform a seated occupation. He noted the plaintiff’s knee pain also limited his capacity for work, but may improve with further pain management interventions.
105 Mr Jacobson thought the plaintiff had a significant disability due to his right knee stiffness and pain. He was not able to fully straighten or bend the knee range 30 to 95 degrees. He had difficulty walking, standing, kneeling and managing stairs and obstacles, and this had failed to significantly improve over the last two years.
106 Mr Jacobson believed the plaintiff’s prognosis for full recovery was poor. He thought the plaintiff had a fair prognosis for improvement in pain and a poor prognosis for further improvement in the knee without future surgery. He thought there was no clear intra articular pathology amenable to surgical intervention, noting the plaintiff’s stiffness was thought to be more global in nature, and surgical releases risk further worsening this. In terms of future treatment, he recommended pain management and queried a contracture release.
107 Mr Jacobson thought it remained possible that the plaintiff could regain a level of capacity for seated work in the future, which would need to avoid prolonged standing, walking or bending activities. The timeframe for that was uncertain.
Medico-legal evidence
108 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in December 2016.
109 The plaintiff then described constant pain extending from the anterior and medial aspect of the right knee, across the front of the knee over and below the patella to the anterolateral aspect of the joint. He rated the severity of his pain at approximately 9 out of 10, slightly improved to 8 out of 10 when he took medication.
110 The plaintiff advised that the pain was aggravated by any weightbearing function, such as standing or walking, indeed even prolonged positions, such as sitting. He regularly needed to change his posture to gain some relief.
111 On examination, the plaintiff walked with a marked right-sided limp, with the right knee flexed to approximately 30 degrees. There was 4 centimetres wasting of the right thigh and there was a fixed flexion deformity of 30 degrees, with flexion to 80 degrees, both movements being restricted by the complaint of severe anterior knee pain.
112 Mr O’Brien noted the 2014 and 2015 right knee investigations.
113 In Mr O’Brien’s view, physical signs demonstrated marked quadriceps wasting, but no effusion within the knee, there being a severe fixed flexion deformity of the knee joint, but no evidence of knee instability.
114 Mr O’Brien would conclude that current signs and investigations do not define specific pathology, nor explain the severity of pain or loss of knee function. Thus, he would have to conclude the plaintiff now presents with chronic non-specific right knee pain, to which employment is a significant contributing factor.
115 Mr O’Brien thought the clinical condition was stable and he suggested conservative treatment, considering the plaintiff required a multidisciplinary pain management program and that there was no indication for surgery. He regarded the plaintiff as having a very poor prognosis.
116 In Mr O’Brien’s view, physically, the plaintiff would not be capable of a return to pre-injury work. He noted the plaintiff’s current presentation and marked loss of right knee function would suggest he is physically not capable of suitable employment. In fact, Mr O’Brien would regard him now as being totally incapacitated, and it seemed highly unlikely he would return to gainful employment. Further, the plaintiff remained significantly restricted in his general, domestic, social and recreational activities, and that was likely to be ongoing.
117 The plaintiff was seen by Mr Garry Grossbard, orthopaedic surgeon, in January 2017.
118 The plaintiff told Mr Grossbard of constant pain around the whole of his knee, with the pain being deep. There are sharp episodes that can occur any time and last for about ten seconds.
119 On examination, the plaintiff walked with an antalgic gait. There was 3 centimetres quadriceps wasting on the right and 2 centimetres of calf wasting. The range of knee motion was 25 degrees of fixed flexion through to 75 degrees of flexion without patellofemoral crepitus.
120 Mr Grossbard thought the mechanism of injury appeared to be a direct blow to the front of the knee. Irrespectively, a diagnosis of medial meniscus tear was made and an appropriate meniscectomy undertaken.
121 Mr Grossbard thought, unfortunately, the plaintiff had gone on to develop a significant Pain Syndrome with autonomic symptoms and signs. In his view, the plaintiff was developing a fixed flexion contracture of the knee, and noted the plaintiff was currently undergoing a trial of treatment with a turnbuckle brace.
122 Mr Grossbard considered treatment must remain conservative and he would advise against any further surgery. He thought it would only make the situation worse, noting the plaintiff’s response to his surgery was of major concern and would be associated with a poor prognosis. There were also additional issues, including those of a psychological nature, made no better by the development of depression and the closure of the defendant’s business.
123 Mr Grossbard thought the plaintiff was not in a position to return to his pre-injury vocational activities and required ongoing counselling.
124 Mr Grossbard believed the plaintiff’s condition was comprised of both psychologically and physically-based components interacting with each other. He thought the prognosis for recovery was very poor and the plaintiff would have persistent issues with his knee for many years to come.
125 In Mr Grossbard’s view, the physical consequences alone would probably be sufficient to prevent the plaintiff from undertaking his pre-injury employment. He also thought any other suitable employment would be an extremely difficult and unlikely endeavour.
126 Dr George Wahr, psychiatrist, examined the plaintiff in December 2016.
127 The plaintiff told Dr Wahr he was depressed and not suicidal. Mental status examination showed evidence of a depressed affect and some psychomotor retardation.
128 The plaintiff told Dr Wahr he was anxious, and mental status examination showed evidence of an anxious affect.
129 Dr Wahr diagnosed agitated depression. He thought the plaintiff had no capacity for employment.
Vocational evidence
130 Ms Marlene Tyqin from Employment Professionals carried out an employment assessment with the plaintiff in December 2016 and provided a report of January 2017.
131 From reading the plaintiff’s medical reports and following discussions with him, Ms Tyqin thought the plaintiff’s right knee injury and consequential recurring pain and physical restrictions had had a significant impact on his capacity to perform his pre-injury role as a boat fitter, or any other role, unrestricted, on a full-time or even part-time basis.
132 Therefore, Ms Tyqin reiterated that she would not consider referring the plaintiff for any duties without medical clearance from his doctor clearly stating the hours and duties he may safely perform unrestricted.
Investigations
133 There was an MRI scan of the right knee of April 2014 arranged by the plaintiff’s general practitioner.
134 An MRI scan of the right knee was organised by Mr Jacobson in October 2014. It was reported there was a mildly degenerate posterior horn meniscal remnant, associated chondral changes affecting the medial compartment posteriorly, and no other evidence of internal derangement.
135 An MRI scan of the plaintiff’s right knee was arranged by the plaintiff’s physiotherapist in September 2015.
136 It was reported there was scarring within the Hoffa’s fat pad, with some mild adjacent synovitis, truncation of the medial meniscus with some intra meniscal signal in keeping with previous meniscal tear, mild chondral thinning overlying the posterolateral femoral condyle medial joint compartment and medial patellar facet and no intra articular loose body.
137 It was reported there was an oblique tear within the body, posterior horn and posterior meniscotibial root of the medial meniscus. There was mild chondromalacia within the medial compartment of the knee joint. There was patella alta with chondromalacia patella Grade II.
The Defendant’s medico legal evidence
138 The plaintiff was examined by occupational physician, Dr Dominic Yong, in February 2016 and re‑examined in February this year.
139 On recent examination, the plaintiff complained of persisting right knee pain across the whole of his right knee. He complained of reduced movement and strength, and stated the pain levels continue and wake him at night.
140 On examination, the plaintiff walked with an obvious limp, favouring his right leg. Quadriceps wasting was noted. Range of movement of the knee was 30 to 90 degrees.
141 Dr Yong noted the plaintiff was undergoing further medical management and the prognosis should not be unreasonable. There had been a discussion about further surgery, and the ketamine infusion had not proceeded due to the lack of obtaining appropriate intravenous access. Dr Yong thought employment contributed to the plaintiff’s current position.
142 On a physical basis only, Dr Yong thought the plaintiff had the capacity to perform tasks within the following restriction:
· avoid squatting or kneeling tasks
· avoid firm pushing and pulling tasks
· avoid prolonged standing or walking duties
· avoid climbing duties
· avoid lifting more than 5 kilograms repeatedly; and
· there be a reduction in working hours.
143 Dr Yong thought the plaintiff did not have a current capacity to work in his pre-injury duties.
144 Dr Yong considered the jobs of fleet coordinator and administration officer, quality assurance officer and insurance broker were suitable for the plaintiff to perform. He thought the automotive or boating sales representative role required individual assessment to determine whether it would be considered suitable to perform, with the need to use eBusiness technology and perhaps demonstrate products and equipment, negotiate and prepare contracts, and other tasks requiring a range of skills the plaintiff presently did not have.
145 With respect to working hours, given the period of time out of the workforce, Dr Yong thought a graduated return to work program would be indicated. This would involve working reduced hours such as three-hour shifts for three days a week. This could increase then on a graduated basis, aiming to return back to pre-injury hours over six months.
146 Dr Yong thought the symptoms exhibited by the plaintiff had an organic basis in pain, reduced movement and reduced power.
147 Dr Mary Power-Connon, psychiatrist, examined the plaintiff in December 2015.
148 Dr Power-Connon thought the plaintiff had developed an Adjustment Disorder with Depressed and Anxious Mood in the context of chronic pain. In her view, that condition appeared to be currently in remission and was being treated by his general practitioner with Cymbalta, 60 milligrams. From a psychiatric perspective, she thought the plaintiff could return to pre-injury duties and hours.
Vocational evidence
149 IPAR prepared an NES vocational assessment report in March 2015.
150 Identified suitable employment in order of priority was:
· sales assistant ($800 per week)
· sales representative ($1,198 per week)
· console operator ($800 per week); and
· car park attendant ($41,600 to $52,000 per annum).
151 There was a further vocational assessment report completed by IPAR in January 2017.
152 The following employment goals were identified, based on the plaintiff’s transferable skills, education, and employment history, namely:
· fleet coordinator ($1,245 per week)
· automotive or boating sales representative ($1,197 per week)
· quality assurance officer ($1,560 per week); and
· administration officer ($1,000 per week).
153 The author of this report noted that it appears that employers are generally seeking either part time 15 to 20 hours a week or full-time, up to 40 hours a week, commitment from applicants.
Overview
154 There is no dispute the plaintiff suffered an injury to his right knee in the incident. His Claim for Compensation was accepted and he received weekly payments and medical and like expenses. No payment has yet been made pursuant to s98C.[42]
[42]T35
155 There is no dispute as to the diagnosis, with a right meniscal tear and aggravation of degenerative osteoarthritis in the right knee joint requiring surgery on two occasions.
156 There is no suggestion of any pre-existing knee problem, and there was no submission to the effect the plaintiff’s present knee condition lacks a substantial organic basis.[43]
[43]T35
157 Counsel for the defendant acknowledged that pain and suffering was “borderline” with permanency of any impairment in issue.[44] Whilst it was conceded there was no compulsion to undergo surgery or other medical procedures, it was submitted the plaintiff’s failure to undertake these procedures went to his motivation when no treaters considered the procedures would not be of benefit to him.[45]
[44]T39
[45]T36
158 It was submitted that with a ketamine infusion and the contracture release being discussed and, also, manipulation under anaesthetic, there was some chance of relief or improvement in the plaintiff’s knee symptoms and in these circumstances, there was not sufficient evidence to establish permanency.[46]
[46]T37
159 Whilst it was submitted Mr Jacobson, in his most recent report of February 2017, was supportive of surgery,[47] in my view, this was not the case. He commented that the plaintiff would not benefit from further surgery and he questioned the contracture release. He also thought there was no clear intra articular pathology amenable to surgical intervention.[48]
[47]T37
[48]T42
160 Mr Grossbard also advised against further surgery when he saw the plaintiff in January this year.
161 As the plaintiff’s knee symptoms have persisted for nearly three years with no substantial improvement despite two surgical procedures, given medical opinion as to the limited value of further surgery and the plaintiff’s understandable reluctance to undergo any further procedures, I am satisfied his right knee impairment is permanent.
Credit
162 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[49]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[49](2010) 31 VR 1 at paragraph [12]
163 As I indicated to the parties, there was no issue as to the plaintiff’s credit in this matter. I found him to be an honest, credible witness who did not overstate the level of his pain and restriction.[50]
[50]T41
164 Further, whilst the Defendant’s Court Book index indicates surveillance has been undertaken, no film was shown.[51]
[51]T44
Pain
165 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”[52]
[52](Supra) at paragraph [11]
166 Despite two surgical procedures, the plaintiff continues to experience constant significant pain in his knee when weight bearing, and a daily stabbing pain behind his kneecap, following which he has to sit down and put his knee up on a pillow to obtain relief.
167 The plaintiff stood and sat whilst in the witness box. He explained that when sitting, his knee annoyed him a fair bit and he needed to stand and “sort of straighten it”.[53]
[53]T33
168 The plaintiff is unable to straighten his knee despite the use of a brace, and he walks with an aggressive limp.
169 The plaintiff’s problems with pain and lack of mobility were not challenged nor was the effect the knee injury had on his social life or sleep. It was clear, as counsel for the plaintiff submitted, from the plaintiff’s affidavits, he was suffering significant pain and restrictions that could be described as “serious”.[54]
[54]T46
170 Further, the plaintiff continues to require very strong painkilling medication to deal with his ongoing knee pain.
171 In Kelso v Tatiara Meat Company Pty Ltd,[55] Dodds-Streeton JA said, at paragraph 199:
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[55](2007) 17 VR 592
172 Significantly, as a result of his knee injury, the plaintiff has lost his employment as a boat builder. Whilst he has been prepared to look for alternate employment, his many job applications have all been unsuccessful.[56]
[56]T45
173 The consensus of medical opinion is that the plaintiff is unable to return to his former job as a boat builder, a role he performed for some twelve years, due to his knee pain, the side effects of his medication, and, in particular, his inability to stand or sit for prolonged periods of time.
174 In my view, this is a serious consequence.
Loss of earning capacity
175 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
176 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
177 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
178 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
179 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
180 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
181 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.[57]
[57]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
182 There was no real dispute as to the “without injury” earnings figure, with a figure somewhere in the range of $50,000 to $55,000 being suggested.[58] Counsel for the plaintiff relied on the plaintiff’s earnings of $52,155 gross in the 2012-2013 financial year.[59] Sixty per cent of that sum is $31,293 per annum. or $601 per week.
[58]T4
[59]T4; 2010-2011 - $49,038 and 2013-2014 - $56,053
183 Counsel for the defendant submitted there did not have to be much of an improvement in the plaintiff’s knee condition for him to achieve a more substantial level of work than that presently certified by his general practitioner of six to nine hours per week.[60]
[60]T38
184 Further, Dr Yong thought that within six months the plaintiff would improve to pre-injury hours, which is full-time hours.
185 In those circumstances, it was submitted if the recommended treatment was undertaken, the plaintiff would not just get to the threshold, but would be able to increase his hours to pre-injury full-time hours.[61]
[61]T39
186 Whilst the plaintiff has unsuccessfully applied for numerous jobs, counsel for the defendant submitted his “motivation” needed to be looked at in greater depth. It was submitted the plaintiff applied for jobs on a proforma application, where he did not detail or tailor his skills to a particular role, such as advising of the customer service duties he performed with the defendant.[62]
[62]T40
187 Further, it was submitted the plaintiff had experience in his own business doing invoices and administrative duties, together with customer service, which should have been included in his job applications.[63]
[63]T41
188 In my view, the plaintiff is taking all appropriate steps to try to obtain alternate work.
189 I am not satisfied, having worked for himself for only a year in car audio repair, that the plaintiff has any significant skills to run his own business. Whilst self-employed, he did not use computers at work nor did he employ any other staff. He ceased trading, as the business was not successful financially.
190 I accept that the plaintiff is in constant pain and has very real problems with mobility, being unable to straighten his leg, and has difficulty weightbearing. He also has problems sitting, as I observed whilst he was in the witness box.
191 In these circumstances, I am not satisfied the plaintiff would be a reliable, punctual employee who could work more than a few hours a day, experiencing pain in his knee after only an hour.
192 The general practitioner’s current certification provides limited work of only up to 9 hours per week. He is not optimistic of any improvement in the plaintiff’s condition.
193 Dr Yong shared this view of the plaintiff’s present capacity and thought these hours “could” increase on a graduated basis, “aiming” to return to full-time hours in six months.
194 Further, as counsel for the plaintiff submitted, Dr Yong’s suggestion of a return to work on a gradual basis, would all be very well if the job was with the defendant, the former employer, but this scenario would not be possible in the real world.[64]
[64]T44
195 As counsel for the plaintiff submitted, whilst IPAR suggested a range of jobs – fleet coordinator, automotive or boating sales representative, quality assurance officer and administration officer – employers are generally seeking either part time 15 to 20 hours a week or full time up to 40 hours a week commitment from applicants.[65]
[65]T44
196 Medico-legal orthopaedic examiners considered the plaintiff has a very limited work capacity.
197 Mr Grossbard considered the physical consequences alone would probably be sufficient to prevent the plaintiff from undertaking his pre-injury employment. He also thought any other suitable employment would be an extremely difficult and unlikely endeavour for the plaintiff.
198 Mr O’Brien held a similar view that, realistically, the plaintiff has no capacity for suitable employment.
199 Treating orthopaedic surgeon, Mr Jacobson, was somewhat more optimistic as to the plaintiff’s work future. He thought it remained possible that the plaintiff could regain a level of capacity for seated work in the future, which would need to avoid prolonged standing, walking or bending activities, but the timeframe for that was uncertain.
200 Taking into account all the evidence, I am satisfied that the plaintiff has established the requisite loss of earning capacity and is unable to earn in excess of $601 per week for the foreseeable future.
201 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
202 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
203 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[66]
[66]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
204 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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