Weis v Alcoa Portland Aluminium Pty Ltd
[2021] VCC 1686
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04487
| BRIAN RAYMOND WEIS | Plaintiff |
| v | |
| ALCOA PORTLAND ALUMINIUM PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne (via e-hearing) | |
DATE OF HEARING: | 29 and 30 September 2021 | |
DATE OF JUDGMENT: | 5 November 2021 | |
CASE MAY BE CITED AS: | Weis v Alcoa Portland Aluminium Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1686 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pre-existing left knee condition aggravated in workplace incident – nature and extent of aggravation – eventual total left knee replacement – assessment of “without injury” earnings – admitted capacity for alternative employment – capacity, measured in gross income, for alternative employment – issue as to the gross wage from alternative employment – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s326; s325(2)(f)(ii)
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Ms B A Myers with Mr T Storey | Hunt & Hunt |
HIS HONOUR:
Preliminary
1Mr Brian Weis has had problems with his left knee going back many years. When he was fifteen or sixteen, he jumped off a vehicle and injured the knee. A surgeon, Mr Fiegalman, performed an arthroscopic procedure to remove some bone chips. The defendant’s medical records refer to some ongoing problems with the knee.[1]
[1]Defendant’s Court Book (“DCB”) 243
2In 1994, Mr Weis was referred to Mr Barney McCusker, orthopaedic surgeon, who said that an x-ray of the knee was relatively normal, with some wear and tear. It would appear that Mr McCusker performed further arthroscopic surgery in the 1990s.
3Mr Weis saw another orthopaedic surgeon, Mr Nagendra Sundaram, in February 2000 complaining of the onset of pain in the knee. Slight wasting of the quadricep was noted. An x-ray suggested a loose body in the joint. Exercises were recommended. No surgery was suggested. Mr Weis has little recollection of the attendance.
4Mr Weis reported pain in the left knee to work colleagues in March 2015. There was no particular incident.[2] There is no evidence of any treatment at that time.
[2] DCB 238
5Despite these ongoing problems, Mr Weis maintained full-time employment and continued playing competitive football, until 2005, when a shoulder injury sent him to retirement. There is little doubt that Mr Weis had an ongoing degenerative condition in the knee to the time of the workplace incident. However, I am of the view that over the years after 2000, he had little in the way of symptoms or restriction in the knee.
6He commenced with the defendant (“Alcoa”) in 1988. He worked in the carbon bake section of the smelter at Portland. The duties were heavy.
7On 12 June 2015, he twisted the knee at work on a piece of carbon as he walked backwards. He described the pain as “excruciating”.[3] He reported the incident, although kept working to finish his shift. He said the knee was sore and became swollen.
[3] Transcript (“T”) 77, Line/s (“L”) 7
8He went to see his general practitioner, Dr Jesse Das, and he was referred to Mr Robert Wood, orthopaedic surgeon, in July 2015. An MRI scan taken at the time showed a meniscal tear and chondral damage. Mr Wood undertook an arthroscopy in August 2015 and trimmed the lateral meniscus. Loose bodies were removed. Mr Wood considered Mr Weis had fully recovered from the surgery.
9Up to that time, Mr Weis had been back working full time at Alcoa with some restrictions. Later that year, in October 2015, he travelled to Hawaii on a prebooked holiday.
10In October 2016, Mr Weis applied for and was granted redundancy from Alcoa. According to his affidavit, he said he felt he could not last much longer in that employment because of knee pain. In cross-examination, Mr Weis said he believed he was “in the gun”[4] with his employer, as he had been a union representative. He completed an expression of interest form.[5] He received a substantial lump-sum payment. Around October 2016, he went on a family holiday to the United States for about a month.
[4] T43, L15
[5]DCB 213
11Mr Weis’ earnings for the year ended June 2016 were $106,683 gross per year or $2,051 gross per week.[6] There is a dispute as to whether this sum reflects Mr Weis’ “without injury” work capacity.
[6] Plaintiff’s Court Book (“PCB”) 107
12In about the middle of 2018, Mr Weis obtained employment working for a local “blue gum harvester”. The work involved sharpening industrial chainsaws and delivering large drums of fuel to timber cutters in the forest. It also involved considerable driving. The work lasted six or seven months.
13Since the work incident, Mr Weis claims his knee deteriorated to the point where he was referred to another orthopaedic surgeon, Mr Nick Russell, in mid 2018. That practitioner recommended a total left knee replacement. This was performed in October 2019.
14For a long time, Mr Weis has had an interest in training and racing greyhounds. He said he has a limited number of dogs, mainly his own, and trains them on his property at his own pace. It gives him something to do. He was disqualified for six months in late 2018 for doping.
15He currently has about eight to ten pups to look after. He has several dogs in race work. He goes to greyhound race meetings in various places, including Warrnambool and Horsham. The enterprise earns little money. Surveillance video was taken of Mr Weis with his greyhounds at race meetings. I will analyse that shortly.
16Mr Weis is not currently employed and has no plans to obtain employment. In cross-examination, he said he did not think he could work full time because of the ongoing pain in his knee. He is not proficient with computers and has never done sedentary work. He has worked only for Alcoa over the last thirty years in manual unskilled employment.
17He says he has ongoing pain in the knee. It is difficult to bend his leg. He cannot kneel and regularly experiences swelling. He takes no prescription medication, but takes Panadol Osteo every few days.
18His sleep is affected by his knee problem. He says driving a manual vehicle is difficult, although in cross-examination, accepted he drove a manual farm ute about his property and sometimes beyond. The heavier maintenance chores around the house cause increased knee pain. He can still chop wood with a chainsaw but his wife helps him load the timber. He is able to do welding, but struggles if he has to kneel down. He keeps a vegetable patch but does not do the heavier digging work.
19When he is not looking after his greyhounds, he watches television at home.
The application
20This is a serious injury application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity. The body function said to be lost or impaired is the left leg.
21Having received written submissions from counsel for the parties, the issues in this application are:
· The reliability and credibility of the plaintiff (“Credit”)
· What was the nature of the aggravation of the plaintiff’s left knee condition in the workplace incident and to what extent did it contribute to the knee replacement surgery? (“Causation”)
· What is the plaintiff’s “without injury” earning capacity in the three years before and after injury (“Without injury work capacity”)
· What is the plaintiff’s earning capacity for suitable employment at the present time (“Present earning capacity”)
Credit
22Ms Myers, counsel for the defendant, made submissions as to Mr Weis’ reliability and credibility. She said Mr Weis’ credibility was significantly affected, and I ought to have reservations in accepting his complaints of pain and disability in the left knee.
23Generally, I was impressed with Mr Weis as a witness. He gave evidence in a frank and forthright manner. I accept the submissions of Mr Brett, Counsel for the plaintiff, that he made concessions against interest on a number of issues.[7]
[7] Plaintiff’s written submissions, paragraphs 1-2
24Ms Myers said Ms Weis had a significant pre-existing left knee condition, and was less than frank in his affidavits in describing the nature and extent of that condition, and the treatment, including surgery, which he had undergone.
25His affidavit refers to problems with his knee going back to 1983 and arthroscopic surgery performed by Mr McCusker.[8] Mr Weis did not disclose some of the treatment as recorded in clinical notes, including a further arthroscope to the knee, but I am satisfied that the failure was not intended to cover up the treatment, but is explained by an understandable lapse of memory for events many years ago.
[8]PCB 2
26In terms of the more recent problems, he could not recall seeing Mr Sundaram in 2000, but that is not unexpected given there would appear to be only one attendance.[9] The reference to left knee problems in the employer’s material in March 2015 appears fleeting.
[9] DCB 190
27Mr Weis accepted that during the 2000s he would have had swelling, pain and crepitus in the knee. When asked about it, he said “I presume so”.[10] His evidence, however, was vague and inconclusive. Further, it is uncertain whether he has had two or three arthroscopies to the knee. Moreover, a measure of the modesty of the symptoms and restriction over the twenty years prior to the workplace injury is that Mr Weis was able to play competitive football, at least until 2006, and worked in manual employment.
[10]T33, L20
28I am not satisfied Mr Weis’ credit is significantly affected by any failure to disclose pre-existing left knee symptoms and treatment.
29The defendant further alleges that after the workplace incident and the arthroscopy performed by Mr Wood in August 2015, Mr Weis successfully returned to work with few ongoing knee problems and that his redundancy in October 2016 was not related to any difficulty in performing his workplace tasks. This stands in contrast to the statement in his affidavit that he could not last much longer at work because of the left knee problems.[11] Mr Weis was certified as being fit for pre-injury duties from 28 September 2015.[12]
[11]PCB 4
[12]DCB 222-3
30The Alcoa medical records of 1 October 2015 indicate Mr Weis continued to experience intermittent pain when weightbearing. He did not require analgesia and there was no locking, clicking nor giving way in the knee. According to the notes, Mr Weis said he might have difficulty crouching, although was happy not to have formal restrictions to his duties, with the capacity to stop any task which caused pain.[13] In evidence, he said that he presumed he returned to full-time pre-injury duties, except for the work he was doing at the time he had the fall in the carbon bake area.[14] Nonetheless, he was able to work twelve-hour shifts, and did not return for medical treatment until his redundancy.
[13]DCB 248
[14]T41, L16
31Despite claiming in his affidavit that he did not think he could last much longer at work with the ongoing pain and restriction in his knee, in fact, Mr Weis applied for the redundancy, which was voluntary, and had some disagreement with his supervisors, as he had been a union representative. He was paid a package of $170,000 and did not work between October 2016 and mid 2018.
32I am satisfied there were a number of causes for Mr Weis accepting a redundancy payment in October 2016. I will analyse the medical evidence in that regard shortly. No doubt the amount of money involved was substantial and therefore attractive. I accept that he did have some disagreements with his supervisors and that played a role. However, I am satisfied that the ongoing pain and restriction in his knee, which I accept was present over this period, even although he sought little treatment or medication, was such as to make the more difficult tasks in the anode room more difficult given the pain in his knee. It was heavy employment and since the incident he had arthroscopic surgery and other treatment.
33While Mr Weis’ affidavits did not disclose all of the reasons for taking the redundancy, I did not form the view this was a major credit issue which would cause me to have significant reservations about his credibility. As stated, I am satisfied the knee played a role in the decision.
34The defendant was critical of the evidence of Mr Weis as to his involvement with greyhounds. In his affidavits, he described it as a hobby. In fact, says the defendant, it is a large undertaking requiring significant time and effort. Over recent years, he has had up to eighteen dogs, including pups, to look after. He is required to feed them, clean their kennels, prepare them for racing with exercise, and take them to various greyhound tracks, including around Warrnambool, and beyond to Adelaide and Melbourne. The defendant produced a record of the greyhounds entered at various tracks trained by Mr Weis.
35Surveillance film was shown of Mr Weis at various greyhound race meetings over a number of days in April, May and July 2021. In the course of cross-examination, Mr Weis said that since his knee replacement surgery, he always walked with a limp.[15] It was suggested there was no evidence of a limp in the film. He disagreed.[16]
[15]T11
[16]T63
36At the various racetracks, Mr Weis walks around in what appears to be a relatively free and unimpeded manner. He is seen to lift a greyhound into the back of his vehicle on one occasion. In July 2021, he appears to be walking around and standing at a racetrack for about an hour and a half. He carries a 20-kilogram bag of dog food to the dog trailer. He said he did not have any difficulty in doing so. There is considerable driving to and from the various racetracks.
37Mr Brett contended that the video film does show signs of limping, or walking in a manner which favours his left leg.[17]
[17]Plaintiff’s written submissions, paragraph 6
38Having observed the surveillance film, it is difficult to say whether Mr Weis does walk in some way favouring his left leg. On some occasions, he appears to stride normally. On other occasions, he is walking in a slow and measured manner. I am satisfied on several occasions, he appears to limp slightly, or favour the left leg, although it is not at all pronounced.
39In relation to his involvement with the greyhounds, I am satisfied his involvement is quite extensive. It may be a hobby, in that he is mainly involved with his own dogs, and does not provide any real financial return, but I accept it does take considerable time to feed and care for the dogs and then transport them to the race meetings. He has been a regular attendee at many tracks around Warrnambool and to many other locations, including Melbourne, Horsham and South Australia. These attendances necessitated driving for long periods.
40I am satisfied he did not disclose in full his involvement with the greyhounds in his affidavits and to the various treating and consultant doctors. Even although Mr Weis swore the contents of the affidavits to be true, they would have been prepared, like most affidavits in these applications, by his solicitors.
41I accept these matters do affect his credibility; however, do not cause me to reject his evidence out of hand. However, I accept I should take care with his claims as to the present issues with the knee.
42The clear fact is that the state of his knee has required a total knee replacement, which is major surgery, and the effect of that upon a man who has worked in manual employment all his life would be significant. I accept that as a result, he does suffer ongoing pain and restriction in the joint.
Causation
43I accept Mr Weis suffered an injury to his left knee on 12 June 2015. The injury was reported immediately, and he promptly consulted his general practitioner, Dr Das. Mr Wood performed an arthroscopy on the knee within a month or two. Even notwithstanding his history of left knee problems going back many years, I am not satisfied he was suffering any significant issues with the left knee in the years leading up to the incident. In 2000, Mr Sundaram found a full range of movement, received a history that his symptoms had improved and suggested exercises, although said he had arranged to see him again. There is no report this occurred.
44I view the report of pain in the left knee to his work colleagues in March 2015 as no more than a transient event. There is no evidence to suggest he sought any significant medical treatment.
45Even accepting there was a degenerative process active in the left knee at the time of the incident, I am satisfied the symptoms Mr Weis was suffering from were modest and, up to 2006, did not restrict his football career to any great extent, nor prevent him from working in physically demanding employment.
46I will examine the various medical opinions on the issue of causation.
47Mr Weis saw Dr Das on 15 June 2015, complaining he had jarred his left knee in the workplace incident. The presentation was sufficient for Dr Das to refer Mr Weis to Mr Wood, the orthopaedic surgeon, in July 2015. Dr Das noted that Mr Weis had recovered well from the arthroscopy on 10 August 2015 and had returned to his normal duties on 28 September 2015.
48Mr Wood received a history that Mr Weis’ left knee had been troublesome for some time, but in the June incident, he felt immediate pain which increased over the next two or three days. On examination, there was a significant amount of clicking. An MRI scan showed a meniscal tear and chondral damage, with a few loose bodies. Mr Wood said Mr Weis had suffered a meniscal tear with some preceding chondral issues. He considered future treatment would likely involve a total knee replacement as the knee was degenerating.
49Following the arthroscopy, Mr Wood said he would expect Mr Weis to fully recover. He described the damage to the chondral surfaces as modest. He thought Mr Weis would return to full duties within six weeks and he would have the capacity for full employment. He said:
“1.The diagnosis here is one of medial meniscal tear in a knee with some preceding chondral issues of mild severity.
There is also an osteophyte on the patella and some mild patellofemoral degenerative change as well.
In the course of his employment he may well have torn the cartilage with respect to the symptom profile above.
…
There have been several contributing factors with respect to this degeneration including his age and past sporting pursuits, but there may have been some contribution from this fall at work and it’s (sic) damage to the medial meniscus, but again this will need to be reassessed if this is the case.
… .”[18]
(emphasis added)
[18]PCB 16
50Dr Nick Russell, orthopaedic surgeon, performed the total knee replacement in 2018. However, Dr Russell does not appear to have received a history of pre-existing left knee problems. Mr Russell, as a treating surgeon, would not focus on obtaining a full history for the purpose of subsequent litigation.
51Mr Russell Miller, orthopaedic surgeon, provided reports of April and May 2021. He received a history of Mr Weis’ earlier left knee problems, including the various arthroscopies. He said:
“The relationship between the left knee and his work is complex and multifactorial which includes the following factors: (i) pre-existing injury (1983) and I note that there were two prior surgical procedures, (ii) the described injury (2015) and (iii) significant physical work over a protracted period of time. The current clinical status is regarded as being substantially work related.”[19]
[19] PCB 41
52Dr Joseph Slesenger, occupational physician, provided a report in April 2021. Although he did not analyse the pre-existing problems to any real degree, he accepted that the incident caused a soft tissue injury to the knee including a meniscal tear and aggravation of the underlying degenerative condition, with chronic knee pain.[20]
[20] PCB 55
53Dr Dominic Yong, occupational physician, examined Mr Weis in July 2021. He received a range of relevant documentation and reports. Dr Yong obtained a relevant past medical history, including an initial knee injury, when Mr Weis was fourteen, several arthroscopies, and Mr Weis’ sporting and employment history. He noted an incident six months prior to the workplace injury where Mr Weis suffered some left knee pain which was treated by an icepack. He did not see a general practitioner or have any scans. Dr Yong said:
“Mr Weis described standing on some rubble when he had the acute onset of left knee pain with a banging sensation and a click in 2015.
This would reasonably lead to the onset of the left knee condition. Therefore, this is consistent with the stated cause.
…
As described above, Mr Weis has had an aggravation of a degenerative left knee condition from the incident on 12/06/15, which also included degenerative meniscal tear which was treated surgically.
He reported that after the arthroscopy, the symptoms persisted; and never resolved.
…
It appears that there was a deterioration in his left knee condition after the incident and the subsequent arthroscopy, and this required the total left knee replacement.”[21]
[21]DCB 102
54Professor Max Esser, orthopaedic surgeon, examined Mr Weis in December 2020. He considered Mr Weis had had an excellent result from the knee replacement surgery. He noted Mr Weis was active in retirement, breeding and racing greyhounds. He received an extensive history of past left knee complaints. He said:
“I think the episode that occurred on the 12.06.2016 was almost certainly a torsional injury to his left leg, which could well have been sustained in the mechanism he describes above, stepping on some loose carbon near the anode.
This is in a man who has had at least two previous arthrotomies, a previous operation on his left knee, this first occurred when he was 16 or 17 years of age, and the second when he was 22 or 23. …
I think this man’s left knee may well have sustained further injuries as a result of football, which he said played up until what he said was 2005. At that time, he had a left shoulder operation performed by Mr Andrew Bennett, in Ballarat, and said he stopped playing football since that time.
…
It is possible the episode on the 12.06.2015 could well have contributed to significant exacerbation of degenerative disease of the left knee, which may have been present as the result of his previous injury.
…
It is very difficult for me to say if he needs to have a knee replacement or not, as a result of the episode on the 12.06.2015. Without precise contemporaneous description of this man’s left knee prior to the 12.06.2015, I cannot identify the status of his knee at that time.”[22]
[22]DCB 142-143
55Dr Graeme Doig, orthopaedic surgeon, examined Mr Weis in September 2020. He had first seen Mr Weis in September 2017. In his second report, he was provided with additional documentation which he said clarified a longstanding left knee problem, commencing from when Mr Weis was a teenager. He noted medical imaging taken in 2015 showed significant pre-existing articular cartilage damage. Dr Doig said:
“It is my opinion that the worker’s left-knee osteoarthritis is unlikely to have been altered by the minor incident of 2015.
…
The minor incident of 2015 has not led to the necessity for him to undergo total knee replacement surgery.
…
The torn meniscus noted by Mr Wood at the time of surgery most likely was degenerative in nature and there is a high probability that it was pre-existing. Meniscal tears are often identified on MRI scanning of arthritic knee joints.
…
In the presence of long-standing left-knee pain, swelling and regular consultations with the treating general practitioner, in addition to the history of prior injury necessitating surgery, it is my opinion that the underlying osteoarthritis was most likely the cause of the symptoms following the alleged incident of 2015. There was no acute, torsional mechanism to the left knee which may have predisposed towards an acute meniscal tear, as far as I am aware.
It is my opinion that the symptoms associated with the minor incident of 2015 were relatively modest and self-limiting and a consequence of the underlying osteoarthritis of the joint.
…
In view of the long history of left-knee problems pre-dating 2015, with medical imaging in that year revealing significant, pre-existing osteoarthritis of the joint, there is a strong possibility that total knee replacement surgery would have been inevitable at some stage. It would be difficult to state with any accuracy when the need for arthroplasty surgery would be required. ...
... .”[23]
[23]DCB 146-147
56Dr Doig had come to a different conclusion in his earlier report, where he considered the incident resulted in a further tear of the meniscus requiring arthroscopic surgery.[24]
[24] DCB 182-183
57He is the only practitioner who has come to the conclusion (in his later report) that the incident of June 2015 was relatively minor and unlikely to have significantly altered the course of the deterioration of Mr Weis’ left knee. He refers to “regular consultations with the treating general practitioner”[25] prior to the workplace incident. There is no evidence to that effect.
[25] DCB 146
58Dr Doig’s opinion does not appear to take account of the history of pain suffered immediately after the incident, nor the fact that while undoubtedly Mr Weis’ left knee problem was of longstanding, he had not suffered any significant symptoms nor disability for a considerable period before it. In those circumstances, and bearing in mind the other medical opinions, I do not accept Dr Doig’s opinion.
59Medical Panels, which included orthopaedic surgeons, provided two opinions, the first of January 2018 and the second of April 2019.
60In the first opinion, the Panel received a history from Mr Weis of the incident and the onset of an increase in pain and swelling to the knee. Mr Weis complained, at the time he was interviewed by the Panel, of ongoing aching in the lateral aspect of the knee. He said he could not run or dash across the road and complained of occasional locking and symptoms which affected his sleep. He told the Panel that he could walk on the flat for as long as he liked. The Panel was provided with a past history of left knee surgery into the 1980s. It concluded:
“The Panel concluded that the worker is suffering from ongoing dysfunction of the left knee following surgically treated tears of the medial and lateral menisci, and aggravation of underlying degenerative joint disease relevant to the accepted left knee injury. The Panel considered that the worker’s left knee condition is stable.”[26]
[26]PCB 96
61The Panel accepted Mr Weis’ explanation that he had made a full recovery from the surgery which had been conducted in the 1980s and had made a full return to activity, including playing football for many years. The opinion continued:
“On the basis of its collective experience and expertise, the Panel is not satisfied that previous left knee problems in the 1980’s (sic), or the pre-existing radiological change in the medial compartment are evidence of a functional or unrelated impairment of the left knee, as these resulted in no functional incapacity to the worker in his ability to perform his usual work duties.”[27]
[27]PCB 97
62The defendant is critical of the opinion on the basis that the Panel did not receive a full history of Mr Weis’ previous left knee problems. While the Panel did not refer to the attendance upon Mr Sundaram in 2000, and the left knee pain recorded in the employer’s medical notes, nonetheless the Panel was made aware of problems going back to the 1980s, including arthroscopic surgery. Further, the Panel had available the operative notes of Mr Wood and his findings as to pre-existing changes, and the associated radiology. I am not satisfied the opinion can be criticised on the basis of failing to obtain a comprehensive history.
63In the second opinion, as to the causative relationship between the workplace injury and Mr Weis’ left knee condition, and having obtained the history of Mr Weis’ extensive left knee history, the Panel concluded:
“Based on its examination of Mr Weis and its consideration of the medical imaging provided in conjunction with the history of injury and the nature of Mr Weis’ pre injury duties, including a clearly identifiable work-based incident associated with his onset of left knee symptoms, the Panel concluded that Mr Weis’ aggravation injury to his left knee resulted from, was and still is materially contributed to by his claimed left knee injury, surgically treated.
… The Panel concluded Mr Weis has a left knee aggravation injury clearly linked to his accepted left knee injury, which has aggravated his underlying osteoarthritis. He has had ongoing symptoms without resolution since the aggravation injury, which now interfere with his confidence in mobilising and impair his quality of life. … .”[28]
[28]DCB 166
64The Panel determined, in the circumstances, the left knee replacement was an appropriate treatment.
65In considering the relationship between Mr Weis’ current left knee condition and the incident, it is significant, in my view, that there was a close temporal relationship between the incident, Mr Weis’ attendance on his general practitioner, Dr Das, on 15 June 2015, the referral to Mr Wood, who he saw on 31 July 2015 and then the surgery on 10 August 2015. Further, I accept the evidence of Mr Weis of the onset of pain and swelling at the time, which increased over the following days. This all points to the incident of 12 June 2015 as being significant. After a period off work, he then returned to normal duties, albeit not undertaking the same work in the anode area as he was doing at the time of the fall.
66Even accepting I have some reservations about Mr Weis’ credibility, I do accept that in the history of his left knee disability, this incident was significant, and I accept the opinion of most doctors, with the exception of Mr Doig, that while no doubt his pre-existing degenerative condition played a role, the incident itself brought about a significant deterioration in the state of the knee, to the point where knee replacement surgery was necessary.
67While Mr Miller said the relationship between the work incident and his left knee problems was complex and multifactorial, the incident played a major role in the onset of his symptoms, which had been largely dormant over twenty years, and the eventual total knee replacement.
68I accept the plaintiff’s submissions that it was extremely likely that Mr Weis was suffering significant symptoms in his left knee between the time of the arthroscopy of August 2015 and then the total knee replacement. It follows that he was following those symptoms at the time of the redundancy. Again, I accept that the condition of his knee and the restriction that imposed was one of the reasons he took the payout. Further, even accepting some reservations about Mr Weis’ credibility, I do accept his evidence that despite working full time until the redundancy, he was suffering pain and limitations in the knee. Of significance are the opinions of the Medical Panel, which were definitive in attributing the knee replacement surgery to the workplace incident.
“Without injury” work capacity
69At the time of the incident, Mr Weis was earning $106,683 gross per annum. Sixty per cent of that figure is $64,000 gross per year or $1,231 gross per week.
70Section 325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) defines “without injury” earnings as:
“(i)…
(ii)the gross income … that the worker was earning or was capable of earning from personal exertion … during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
… .”
71It was put to Mr Weis in the course of cross-examination that he was extremely well paid at the smelter. He disagreed, and said he had to work the twelve-hour shifts he worked and had to work public holidays and weekends.[29]
[29]T23, L15-23
72The defendant’s contention is that Mr Weis “took himself” out of his high-paid employment by taking the redundancy payment, which he did for reasons unrelated to his injury. The defendant contends:
“Having taken himself out of the higher paid environment of the smelter – not due to injury – the appropriate comparator and the earnings which most fairly reflect earning capacity, absent any restrictions which could be said to be attributable to injury caused in the incident, are those for the plaintiff’s skillset in employment other than for Alcoa.
The unchallenged evidence of the defendant is that the without injury earnings of the plaintiff in suitable employment away from the smelter is in the range $57,876 to $77,532 … .”[30]
(Footnote omitted.)
[30]Defendant’s written submissions, paragraphs 55-56
73The Act requires the comparison to be made between “without injury” earnings and earning capacity as at the date of the hearing of the application. “Without injury” earnings is assessed according to gross wages in the six-year window “as most fairly reflects the worker’s earning capacity”.
74Mr Weis had worked at Alcoa for thirty years. While he was well paid, as he states, he had to work long shifts across holidays and weekends in a difficult and arduous job. The phrase “as most fairly reflects” attaches to the six-year period. The Act does not contemplate an exercise in determining what someone with a worker’s skills and abilities would earn in an open employment market.
75The defendant’s contention should be rejected. The plaintiff’s “without injury” earning capacity should be assessed as reflecting his gross earnings as at the time of injury.
Present work capacity
76I am of the view Mr Weis does not have the capacity to return to his pre-injury employment. While he did return after the first arthroscopy, until the time of his redundancy, he said he did not undertake the work he was doing at the time he suffered injury. Further, and significantly, since that time, he has had a total left knee replacement. Generally, medical opinion was to the effect that Mr Weis could not return to his pre-employment duties.[31]
[31]See reports of Mr Miller at PCB 41; Dr Slesenger at PCB 56; Dr Dominic Yong at DCB 103-104 – Dr Yong did not give a direct opinion as to whether Mr Weis could return to pre-injury employment, although in my assessment, it is clear from the restrictions he placed on work activities, that a return to previous employment would not be appropriate; Professor Max Esser at DCB 143.
77Affidavits tendered on behalf of the defendant from Mr David Hein, sworn 8 May 2021, and Mr David Arnott, affirmed 4 May 2021, each refer to other employers of the defendant who work at the Portland smelter having had total knee replacements in one or both knees. I do not see that evidence as particularly relevant. Some people have successful knee-replacement surgery and some do not. There may be many people who resume employment after such surgery, but in my experience there are many, particularly in heavy industries, who are incapable of manual work.
78Extensive vocational assessment reports of Mr Bill Radley, psychologist and vocational assessment specialist, on behalf of the plaintiff, and Ms Hannah Attard, occupational rehabilitation consultant, on behalf of the defendant, were tendered. Those reports analyse, in significant depth, a range of alternative areas of employment said to be available for Mr Weis, and for which he is said to have the capacity to undertake.
79I am satisfied that Mr Weis has the capacity for suitable alternative employment. That is the opinion of many of the doctors. Further, Mr Weis’ involvement with his greyhounds speaks of a capacity for employment. The various medical reports describe a range of restrictions which should be imposed. For the purpose of this judgment, it was not necessary for me to analyse the areas of employment in any significant detail. I will assume Mr Weis has the capacity for all the areas of employment referred to in the respective vocational reports.
80Given my assessment of Mr Weis’ “without injury” earning capacity at the relevant time, the onus is upon the plaintiff to prove that he has suffered a 40 per cent loss of earning capacity, as measured by gross income from suitable employment at the present time. Thus, if Mr Weis has the capacity for any employment with a gross weekly income of greater than $1,231, he fails to meet the statutory test. I shall assume the employment referred to in the vocational assessment reports is suitable employment and that Mr Weis has the capacity to undertake it at the present time.
81The only two occupations identified by the defendant with an income greater than $1,231 gross per week are those of weighbridge operator and general caretaker. The report of Ms Attard made reference to a number of other areas of employment – forklift driver, auxiliary operator, courier, retail assistant and earthmoving plant operator ꟷ as having a gross yearly income of between $57,000 and $77,000 per year. These areas of employment were referred to as representing the income of an unskilled labourer in southwest Victoria, absent Mr Weis’ injury.[32]
[32]DCB 288-290
82Both Ms Attard and Mr Radley were called to give evidence and be cross-examined. Ms Attard’s evidence was that weighbridge operator could earn a gross weekly wage of $1,886 and a caretaker $1,299. The evidence of Mr Radley was that a weighbridge operator could earn $865 and a caretaker, $755.
83Having heard from both witnesses, I am left in little doubt that the evidence of Mr Radley is to be preferred. Ms Attard was cross-examined at length about how she came to the assessment of wages in respect of these areas of employment.[33] It is unnecessary for me to deal with Ms Attard’s evidence in detail. I accept the submissions on behalf of the plaintiff that there were a number of areas in Ms Attard’s assessment of the wages of weighbridge operators and caretakers which were incorrect. She used median, rather than average figures. Her assessment of the wage of a weighbridge operator was in fact an average of a wide range of other areas of employment. Further, Mr Radley took the view, correctly in my assessment, that someone like Mr Weis, who had no experience in either area, would start at a more modest salary than those referred to by Ms Attard.
[33]T112-113
84On the other hand, Mr Radley was an impressive witness, well experienced in the area, and his assessment of the availability of these jobs and their remuneration was far more persuasive. I accept the correct allowance for the wage of a caretaker is $755 and for a weighbridge operator, $865.
85In those circumstances, none of the suggested areas of employment, assuming Mr Weis has the capacity to work full time in those jobs, produces a gross income of more than 60 per cent of Mr Weis’ “without injury” earnings.
86Thus, I am satisfied that, as a result of his injury, Mr Weis has suffered a loss of earning capacity of more than 40 per cent.
Conclusion
87I am satisfied Mr Weis suffered a significant injury to his left knee in the course of his work duties on 12 June 2015. While undoubtedly, he had an underlining degenerative process in the left knee with treatment and surgery from time to time, over a period of approximately twenty years prior to the incident, he was able to play competitive football until 2006 and then work in a heavy manual job up until the incident.
88While he returned to full-time duties, he was restricted in what he could do, and even though there were various reasons for him accepting a redundancy in 2016, significant among them was that he had ongoing pain and restriction in the knee.
89While undoubtedly, again, there were multiple factors as to why he came to total knee replacement, at the very least the workplace incident caused a significant acceleration of the degeneration.
90Accepting that he has a present capacity for a range of more sedentary employment, there is no suitable employment to him at a gross salary more than 60 per cent of his “without injury” earnings.
91I will grant leave to bring proceedings for economic loss. Given that he has suffered more than 40 per cent of loss of earning capacity, the authorities make it clear that, in addition, he meets the criteria for pain and suffering.
92I shall make consequent orders.
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