Watson v Gippsland Doors and Windows Pty Ltd

[2017] VCC 1897

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-01061

Matthew Geoffrey Watson	Plaintiff
v
Gippsland Doors & Windows Pty Ltd	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2017
DATE OF JUDGMENT:	15 December 2017
CASE MAY BE CITED AS:	Watson v Gippsland Doors & Windows Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1897

REASONS FOR JUDGMENT
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Subject:  Common Law
Catchwords:   Serious Injury Application
Legislation Cited:  Accident Compensation Act 1985 (Vic)

Cases Cited:Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52

Judgment:  Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr L Allan	Shine Lawyers
For the Defendant	Mr B McKenzie with Ms J Clark	Russell Kennedy

HER HONOUR:

1 Mr Watson applies under s 134AB(16)(b) of the Accident Compensation Act1985 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of a permanent serious impairment or loss of body function of the left knee arising from an injury at work on 25 October 2010 when sheets of glass clamped onto an A-Frame dislodged and fell against his knee. In spite of physiotherapy and arthroscopy in March 2011, he continued to suffer left knee pain. He has continued to work, with some breaks (for example, when he attempted to run his own carpentry business), as a building sub-contractor. He has consistent left knee pain and takes medication daily in order to manage his work. He attends the gym frequently and has continued to engage in strenuous physical activities from time to time, but no longer runs, snowboards, wakeboards, surfs or plays football, indoor soccer or cricket. He is 26 years old and has been told by orthopaedic surgeons that his condition will deteriorate over time and that he will probably require a total left knee replacement at some time in the future.

2       The defendant concedes that the plaintiff suffered a compensable injury, but says that having regard to what the plaintiff has retained, the consequences of his left knee impairment are not more than considerable when compared with other cases in the range of permanent impairments of the knee.

3       The plaintiff was 19 years old at the time he was injured. He obtained his VCE and then worked in restaurants and as a builder. The chronology in relation to treatment may be briefly summarised. He saw a doctor a few days after the incident at work, and was referred for investigations, physiotherapy, and opinions from orthopaedic surgeons (Mr Andrew de Villiers, in November 2010 and Mr Andrew McQueen, in February 2011). The orthopaedic surgeons recommended conservative treatment. In February 2011, the plaintiff was assaulted at work, and left his employment shortly thereafter. He underwent arthroscopy on 29 March 2011 which was funded by the defendant’s insurer. The operation notes revealed “an inflamed anteromedial plica with associated synovitis along the medial margin of the medial femoral condyle”.[1] After the surgery, the plaintiff had further physiotherapy and hydrotherapy.

[1] Plaintiff’s Court Book (PCB) 75

4       He moved to New South Wales in mid-2011 to work as a labourer and, while there, he completed his carpentry apprenticeship. He was having trouble with his left knee at work and saw another orthopaedic surgeon, Mr Edward Bateman, in September 2011, who diagnosed a “compression injury to the central part of the patella”,[2] told him to find a lighter job and referred him for physiotherapy and to another orthopaedic surgeon, Mr Morton, for possible “anteriolising osteotomy of the left tibial tubercle”.[3] Mr Bateman noted[4] that the plaintiff was suffering “debilitating pain” in his left knee and, in 2015, opined that it was likely that the plaintiff “will develop osteoarthritis of the patellofemoral joint associated with the crush injury to the chondral surfaces in the injury”.[5]

[2] PCB 64

[3] PCB 66

[4] PCB 67

[5] PCB 68

5       Mr Morton told the plaintiff he would eventually need a total left knee replacement, and discussed the possibility of another surgical procedure, which had a long recovery period. The plaintiff decided not to undergo the surgery.

6       In late 2011, the plaintiff obtained a desk job at Bunnings Warehouse.

7       In November 2012, the plaintiff contacted Mr McQueen to complain about ongoing left knee symptoms.[6] In December 2012, the plaintiff injured his left thigh while surfing. He required a number of stitches and suffered numbness in his left thigh and knee, which dulled the left knee pain from the workplace injury.

[6] PCB 76

8       In 2013, after completing his carpentry apprenticeship, he set up a carpentry business, but it was not profitable as he had to employ others to do the heavy work. In 2014, he trekked to Everest Base Camp but had to take painkillers the whole time. Later that year, he moved to Queensland where he found work as a building assessor and had further physiotherapy. Even that work aggravated his left knee because of the need to use ladders, drive to and from building sites, and crawl into spaces on site. He continued to take painkillers.

9       The assessing work dried up and the plaintiff then went back to being self-employed as a carpenter.

10      In May 2016, the plaintiff saw an orthopaedic surgery registrar in Queensland about his left knee symptoms.[7]  He was told that nothing could be done for him as he was too young for a total knee replacement, and should continue with conservative treatment.[8] The doctor advised him to consider a career change. The plaintiff continued to take Mobic and Tramadol, Panadol and Nurofen. He would take Panadol and Nurofen each day, Mobic and Tramadol two to three times per day, about 3 or 4 days per week. The Tramadol and Mobic made him feel light-headed and dizzy so he tried to take them at the end of the working day, but if his pain required it, he would take them early in the day, and this affected his work performance.

[7] PCB 88-89

[8] PCB 17

11      In late 2016, he tried to “get off the tools”[9] and set up his own carpentry business, intending to employ people to do the heavy work. This did not work financially, and he has returned to working as a subcontractor in the building industry, performing heavy work.

[9] PCB 17

12      As at the time of his second affidavit sworn on 29 November 2017,[10] the plaintiff stated that he continues to take the medication referred to in paragraph 10 above. He takes Tramadol and Mobic each night to dull the pain so he can sleep. During the day, he takes two tablets of either Panadol or Nurofen, three times per day. Some Sundays, if he is at home not working, he does not take any medication.

[10] PCB 16

13      He has a self-management routine for the left knee which involves morning stretches, exercises recommended by the physiotherapist, stretches at work, as well as frequent attendances at the gym. He has made inquiries about seeing a pain management specialist but does not have the funds for this now that WorkCover has ceased paying for any medical expenses.

14      He suffers from constant left knee pain which is only relieved by complete rest. After a day’s work, however, it is very painful and interrupts his sleep. He finds it painful to bend, squat, sit, walk or stand for long periods. The left knee often clicks, and sometimes “catches” and gives him a pang of pain. He finds it painful to climb stairs. On occasion, when the pain is really bad, he limps a bit. He cannot take on overtime work because of how sore his left knee is at the end of the day.

15      In early 2017, he was feeling depressed about his ongoing left knee symptoms and was referred to a psychologist. His local doctor suggested that he see a pain management specialist. He is upset at the prospect of having to give up an occupation he likes and for which he is trained. He has had to give up surfing, playing football, indoor soccer, indoor cricket, running and jogging, because of the left knee injury, as these activities cause him left knee pain and swelling.

16      At the hearing, the plaintiff was cross-examined at length. He was shown video surveillance footage of himself at work on 20 December 2016, and agreed it showed him standing, walking, talking, squatting, crouching, lifting and bending. He said the work performed on that day was very light work, that he enjoyed work, and that squatting enabled him to stretch out his left knee. He was shown video surveillance footage taken on 3 June 2017 of him balancing on a surfboard suspended in the trees and said that he likes to have fun and tries not to let his left knee injury affect him.

17      The plaintiff agreed that he has undertaken a number of strenuous physical activities since his left knee injury, including: surfing; white water rafting (in September 2012 in Austria); riding a motorbike up a volcano (in September 2013 in the Philippines), walking to Everest base camp (in August 2014); snowboarding (in July 2015); trail bike riding (in June 2015); and using a high ropes course (in June 2017). He said that he had not surfed or snowboarded since 2015 because of the pain caused to his left knee; that he took painkillers on the Everest hike; that he has a very strong upper body and that he likes to do things outdoors regardless of whether he is in pain; and that at work he tries to avoid the most strenuous jobs, like building decks. He said that all the surgeons have told him to put up with his condition, and he does so, by taking painkillers.

18      The plaintiff insisted that he had been provided with Oxycontin after his surgery; that he continued to obtain prescriptions for Mobic and Tramadol thereafter, over and above those recorded in the clinical notes put to him. He said he was able to obtain painkillers over the counter in Asia, and had painkillers left over from his left thigh incident in December 2012, and also obtained prescriptions from various doctors.

19      In re-examination, the plaintiff said that he goes to the gym each day, but modifies what he does, and favours his right leg. His left knee pain has worsened since the numbness associated with the laceration to his left thigh has resolved. He said that he would not be able to work, or engage in his thrill-seeking activities, without taking painkillers, but that he is determined to keep living his life as fully as he can.

Radiology

20      MRI scan dated 22 November 2010[11] was reported with the following conclusion:

Bone bruising of patella with fraying of the cartilage. The cruciate ligaments are intact. The possibility of disruption of the posterior capsule attachment to the back of the lateral meniscus as it approaches the intercondular area is raised.

[11] PCB 48

21      X-Ray of the left knee dated 18 February 2011[12] was reported as revealing no abnormality.

[12] PCB 49

22      CT scan of both knees on 5 October 2011[13] revealed, on both knees, “degenerative changes in the patellofemoral joints are noted with osteophytes noted”. On the left knee, the report noted “central subchondral lucency at the patellar central ridge compatible with chondromalacia”.

[13] PCB 50

23      MRI scan of the left knee dated 26 May 2016[14] was reported with a diagnosis of “focal damage to the patella cartilage with an adjacent subchondral cyst but no internal derangement of the knee identified”.

[14] PCB 51

24      X-ray of the left knee dated 14 June 2016[15] was reported as revealing no abnormality.

[15] PCB 53

Medico-legal reports

25      Dr John Morris, orthopaedic surgeon, performed an impairment assessment of the left knee on 18 November 2015[16] and reported finding a full range of movement of the left knee, with retropatellar crepitus. He diagnosed work-related “bruising to the rear surface of Mr Watson’s patella”[17] but found no objective signs of long term pathology. He felt that the patella continued to be the source of the plaintiff’s ongoing symptoms, which were likely to be permanent.

[16] Defendant’s Court Book (DCB) 18

[17] DCB 27

26      Associate Professor Bruce Love examined the plaintiff on 28 June 2017. The plaintiff complained to him of anterior knee pain, intermittent swelling, and a sense of instability with clicking. He was taking Nurofen daily, was not having major difficulties with household chores but found squatting and kneeling troublesome. Associate Professor Love noted that the mechanism of injury was “a high impact injury with both a direct blow and hyperflexion contributing to the impact”.[18]  He stated that the MRI scan of June 2016 showed “severe changes in the trochlear groove particularly on the lateral aspect”. Associate Professor Love diagnosed an “injury of the patella-femoral joint and in particular the trochlear aspect of that joint” resulting from the injury on 27 October 2010.[19]  Associate Professor Love stated that it was difficult to treat the plaintiff’s problem, and that the plaintiff was restricted in sitting, standing, pushing, pulling, driving, prolonged and repetitive bending and twisting. In terms of future employment, the plaintiff should “be given work that does not involve prolonged standing, squatting or walking long distances or climbing ladders and stairs with frequency”.  He concluded that the plaintiff’s condition will deteriorate over time and would ultimately require consideration of knee replacement surgery.

[18] PCB 92

[19] PCB 92. This appears to be a typographical error regarding the date of the plaintiff’s workplace injury of 25 October 2010

27      Dr Joseph Slesenger, occupational physician, examined the plaintiff on 29 June 2017 and reported to the plaintiff’s solicitors[20] of receiving complaints from the plaintiff of constant, aching pain in the left knee, aggravated by prolonged standing, by squatting, climbing, walking up and down stairs, occasional swelling and locking of the knee as well as a grinding sensation. The symptoms were relieved by medication (Tramadol and Mobic), but the medication made him tired and dizzy. On examination, Dr Slesenger noted crepitus throughout the range of left knee movements.

[20] PCB 97

28      Dr Slesenger noted the evidence of a direct contusion to the left knee and left knee symptoms which had been present for 7 years and which responded poorly to operative and non-operative intervention and which have left the plaintiff with residual pain and functional limitations. Dr Slesenger noted that the most recent MRI scan was reported as showing no abnormality, and concluded that the contusion injury developed into “cartilaginous injury and chronic pain disorder”,[21]  that the plaintiff was able to manage his activities of daily living and household tasks, but that he could not return to performing his pre-injury duties, and should limit himself to “perform lighter tasks”, and not engage in prolonged squatting and kneeling or lifting over 15 kg. He recommended that the plaintiff consult a pain specialist to address his medication needs. He expressed his concern that the plaintiff “may note a deterioration” in his condition over time.[22] 

[21] PCB 106

[22] PCB 108

29      Dr Slesenger viewed the DVD surveillance footage dated 20 December 2016 and provided a supplementary report to the plaintiff’s solicitors on 22 August 2017.[23] He noted that the footage predated his assessment by about 6 months, but was “broadly consistent” with the history given to him by the plaintiff, apart from the plaintiff’s demonstrated ability to squat and the absence of a limp. As a result of viewing this material, Dr Slesenger increased the weight restriction to 25 kg, and noted that the plaintiff may be able to continue his current duties into the foreseeable future.[24]

[23] PCB 110

[24] PCB 113

30      Dr Dominic Yong, occupational physician, reported to the defendant’s solicitors on 23 October 2017[25] that the plaintiff told him that, on a weekly basis, he takes 2-3 Tramadol tablets, 2-3 Mobic tablets, and 10 Nurofen tablets. He is going to the gym 3-4 times per week, and uses  weights, the exercise bike and the running machine there. He runs his own building company, supervises his 3 staff members, and sometimes helps install frames, cladding and eaves, and cut wood. He works on ladders but avoids repeated squatting tasks. He also does administrative work. At home, he is able to do chores apart from scrubbing floors. He is able to stand for up to 2 hours and walk for over an hour. He is unable to do his hobbies of wakeboarding and snowboarding. At the time of examination, he had a slight limp, his left knee was minimally swollen and there was evidence of crepitus. Dr Yong concluded that the plaintiff is capable of working with restrictions: no repeated squatting or kneeling tasks and no repeated firm pushing or pulling duties. Dr Yong noted the plaintiff’s pre-injury occupation as installer and fitter of windows required activities which exceeded the recommended restrictions, and concluded that the plaintiff could not return to that employment, but is managing his current employment.

[25] DCB 32

31      Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 24 October 2017 at the request of the defendant’s solicitors. He reported[26]  that the plaintiff “sustained a soft tissue injury” to the left knee in the workplace incident. He noted that the MRI in 2016 showed some “focal changes over the lateral facet of the patella”. He noted that chondral changes such as these “would not be unusual in an active man in their mid twenties”.[27] He concluded that the “constancy and intensity of his ongoing left knee pain and his described disability are greater than one would expect to see for his organic condition” and that he has “had a psychological reaction to his situation and that this reaction significantly influences his ongoing symptoms”.[28]  Mr Dooley accepted that the plaintiff may have restrictions in his leisure activities and working life. Mr Dooley considered that no surgery was necessary, that the plaintiff should continue his exercise and fitness programme, and that he is not at greater risk of developing osteoarthritis in the left knee than any other person of his age.

[26] DCB 45

[27] DCB 47

[28] DCB 47

Legal principles

32      On the authorities, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[29] Apart from the capacity to work, assessing the extent to which pain interferes with the ordinary activities of daily life will generally involve consideration of its effect on the plaintiff’s sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[30] The whole of the evidence is to be considered, and the court must consider what the plaintiff has lost by virtue of the injury and what has been retained.[31] A successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[32]

[29]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199]

[30]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011]

VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46

[31] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95]

[32] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

Findings and reasons

33      I found the plaintiff to be a straightforward witness, and I accept his evidence as to the pain and restrictions flowing from the work-related left knee injury suffered on 25 October 2010. I do not consider that the video surveillance footage detracts from his credit, as he conceded in his viva voce evidence that he does not limp all the time, and is able to squat. I consider that he is a fairly stoic young man, who is determined, in spite of his impairment, to make the most of his working and recreational life.

34      Apart from Mr Dooley, to whom I will return, there was general medical consensus, and I therefore find, that the plaintiff suffered a compression injury to the patellofemoral part of the left knee on 25 October 2010 with fraying of the cartilage and synovitis. That injury resulted in acute symptoms which led to surgery in the form of arthroscopy. At arthroscopy, the surgeon noted “an inflamed anteromedial plica with associated synovitis along the medial margin of the medial femoral condyle”.[33]

[33] PCB 75

35      Although after arthroscopy the acute pain suffered by the plaintiff was relieved to a degree, and he was able to return to work, he has suffered constant left knee pain requiring ingestion, on a daily basis, of significant amounts of prescription and over the counter analgesics and anti-inflammatories. Given the persistence and extent of his symptoms, the medical consensus, apart from Mr Dooley, is to the effect, and I therefore find, that the plaintiff has suffered a permanent impairment of the function of the left knee. No treating or examining expert, apart from Mr Dooley, questioned the organic nature, or extent of the symptoms suffered by the plaintiff, and I therefore put Mr Dooley’s opinion in this regard to one side. The weight of the remaining expert evidence was to the effect that the plaintiff can expect his left knee condition to deteriorate over time, and that, apart from a total knee replacement, which is to be delayed as long as possible, there are no other treatment modalities available apart from ongoing conservative treatment with medication.

36      The plaintiff is a 26 year-old man who, as a result of his left knee impairment, lives with constant left knee pain which requires ingestion of substantial amounts of medication on a daily basis, more on work days. The pain interrupts his sleep, and interferes with his ability to work as a carpenter. He has been assessed as being permanently unfit for his pre-injury duties by reason of his impairment, and as needing to look for lighter work, yet continues to do heavy work  because he is a carpenter/builder by training and vocation and because the work requires it. In addition, because of the left knee pain, he can no longer engage in many activities he did prior to his injury: snowboarding, wakeboarding, football, indoor soccer and cricket, motor bike riding. On the medical evidence, he will continue to suffer these symptoms permanently.

37      In all the circumstances, I consider that the pain and suffering consequences of the plaintiff’s left knee impairment are more than considerable when compared with other cases in the range of permanent impairments of the knee.

Conclusion

38      Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of his work-related injury.

39      I will hear counsel on the appropriate form of orders.