Wicklander v Transport Accident Commission
[2010] VCC 1307
•8 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04934
| DAVID GARY WICKLANDER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 August 2010 |
| DATE OF JUDGMENT: | 8 September 2010 |
| CASE MAY BE CITED AS: | Wicklander v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1307 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Section 93 – serious injury – injury to the right knee – aggravation – leave granted under s.134AB of the Accident Compensation Act for earlier right knee injury.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M R Titshall QC and | Hounslow & Associates |
| Mr G Wicks | ||
| For the Defendant | Ms F M McLeod SC and | Transport Accident Commission |
| Mr P J Gates | ||
| HER HONOUR: |
1 This is an application brought by Originating Motion for leave pursuant to section 93(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 2 July 2003 (“the transport accident”).
2 The application is brought pursuant to section 93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under section 93(17)(a):
“serious long term impairment or loss of body function”
4 The body function relied upon by the plaintiff in this case is the right knee.
5 The inquiry under sub-section (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described at least “very considerable” and more than “significant” or “marked”.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He 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.
9 On 15 October 2007, the plaintiff lodged an application under s.134B of the Accident Compensation Act in relation to an earlier knee injury which occurred on 24 January 2003 (“the first incident”).
10 That application came before me on 27-29 January 2009 (“the s.134AB application”). On 12 February 2009, judgment was delivered, and the plaintiff was granted leave to bring proceedings for damages for pain and suffering in respect of the first incident. The claim in relation to loss of earning capacity was dismissed.
The Plaintiff’s Evidence
11 In the present application, pursuant to s.93 of the Act, the plaintiff’s affidavit evidence relating to the s.134AB application was relied upon, as was the transcript of those proceedings.
12 The following paragraphs are a summary incorporating all the affidavits and the viva voce evidence in relation to both applications.
13 The plaintiff is presently aged thirty eight, having been born on 3 June 1972. He is presently in receipt of a disability support pension.
14 The plaintiff left school in the second term of Year 12, aged seventeen. His employment history includes four years in the Army Reserve between 1992 and 1996, work as a labourer in Queensland, twelve months as a re-fueller for National Bus Company in Doncaster, work as a trades assistant in mining maintenance for about a year, house re-blocking and site security work.
15 Before commencing work with Aus Offal (“the employer”) in November 2002, the plaintiff was very fit and in good condition.
16 The plaintiff injured his right knee in a motorbike accident in 2000 and recovered after a few weeks. When cross-examined about a reference by his general practitioner to knee pain on 27 December 2002, the plaintiff said he could not recall having injured or experienced pain in his right knee at that time. He did not have any time off work and he “was working consistently when rostered”.
17 The plaintiff’s work with the employer involved delivering carcasses of meat from the employer’s Patterson Lakes premises to various retail butcher shops. He was paid on average approximately $1,000 per week gross, including overtime.
18 On 24 January 2003, when the plaintiff was delivering meat to a butcher’s shop in Frankston, he stepped into the back of the truck and swung a hind- quarter weighing approximately 80 to 90 kilograms on his shoulder. The truck floor was slippery and the plaintiff took the weight of the carcass on his shoulder. His right leg slipped and made contact with the wall of the truck. He spun around and fell down three steps at the back of the truck.
19 At the time of the first incident, the plaintiff “heard a bad crack and a heap of pain”. His right knee immediately swelled and became very painful. He also suffered cuts to his back when he fell.
20 A fellow worker completed the unloading of the truck, but as he did not have the requisite heavy vehicle licence to drive the truck, the plaintiff drove the truck back to the depot using a piece of wood to operate the accelerator. Later that day, the plaintiff attended Dr Blake in North Blackburn.
21 From about 28 January 2003, the plaintiff undertook light duties involving driving and no lifting for approximately four weeks, but he was unable to continue work because of knee pain.
22 Mr Bruce Love, orthopaedic surgeon, to whom the plaintiff was referred by Dr Blake in late January 2003, performed a right knee arthroscopy on 4 April 2003 (“the first arthroscopy ”).
23 In the s.134AB application, the plaintiff deposed that after the first arthroscopy he noticed a considerable improvement but his knee would not straighten properly. When he saw Dr Hudson on 17 April 2003, he still had pain and he was taking anti-inflammatories and Panadeine Forte.
24 In cross-examination, in the present application, the plaintiff confirmed this was the situation when he saw Dr Hudson, but said at that time he had a small amount of pain.
25 After the first arthroscopy the plaintiff again returned to light duties on 20 May 2003. He deposed in the s.134AB application that these duties were gradually increased from a lifting restriction of 20 kilograms up to 80 kilograms and he was nearly back to doing his normal work at 2 July 2003 (“the said date”).
26 In his viva voce evidence in the present application, the plaintiff said his light duties on his return to work after the first surgery involved some driving, picking up rubbish and counting slides. A fellow worker would lift the heavy carcasses and the plaintiff would “start it off by carrying the lamb carcasses”. The plaintiff agreed that he only did very light lifting at that time. He lifted slides from one bucket to another, carried the occasional offal bag into the butchers and lifted the lambs from one side of the rail to the other.
27 In cross-examination in the s.134AB application, the plaintiff denied that he told Dr Hudson that his knee was perfect following the first arthroscopy before a further flare-up on the said date. Before that date, the plaintiff continued to experience knee pain and was limited in walking to 200 metres. He found it was impossible to carry anything and there were flare-ups. The plaintiff denied the first arthroscopy had solved his problems, because he still had damage to his knee. It had not solved his symptoms although he would have been feeling a lot better at that stage. The plaintiff disagreed he told Mr Love that he was comfortable prior to the transport accident as he was still in pain and taking anti-inflammatories.
28 In re-examination in the s.134AB application, the plaintiff explained that whilst on light duties, having started work at 5.00 am or 6.00 am, by the end of the day he had “had enough”. The pain was just getting worse every day. The more he kept pushing to keep trying and do eight hours, the worse the pain became. The plaintiff did not attend Dr Hudson regularly whilst on light duties as he had to travel some 50 kilometres to see him and he needed to be driven by his father, who was also working at the time.
29 The plaintiff was cross-examined in the s.134AB application as to his attendance with Dr Rowe on 19 May 2003, the day before he returned to light duties. He complained of wasting and weakness in the right knee. The plaintiff denied he told Dr Rowe that at that time he was looking after himself, as he was having some help from his father and stepmother. He would cook a meal but his parents did the heavier housework. He was having problems driving a car. His explained that his knee was getting basically looser and he was losing more and more support in the actual knee joint itself.
30 In his viva voce evidence in the s.134AB application, the plaintiff could not recall instability in his knee before the transport accident. It was not until after that time that he started using a bandage or brace.
31 In cross-examination in the present application, the plaintiff agreed he was having pain at that time but “not compared to what he is dealing with now”. He agreed that he has not been pain free since January 2003. He also agreed that prior to the transport accident he was struggling at work with some pain on light duties, although he wanted to return to heavier work. He agreed he was doing very light duties after the first arthroscopy. Nearing the end of June 2003, he required lower doses of painkillers, perhaps two or three a day.
32 The plaintiff agreed that before the transport accident his right knee certainly was not perfect and it had never fully recovered. He had some pain but there was a lot of improvement from the first arthroscopy. He was able to stand for two or three hours without pain. “It was soreness at that time getting back into normal work.”
33 On the said date, the plaintiff suffered a flare-up of his right knee when working at the employer’s premises. Whilst he was bending down putting petrol in the tank of his truck, another truck came from his right at a fast speed, very close to him. He stood up quickly facing his truck to avoid the oncoming vehicle.[1]
[1] Transcript page 15, line 15
34 In the s.134AB application, the plaintiff described how he then felt pain in his knee as he tried to rise quickly to move out of the way. He explained that there was nowhere else for him to go. He denied he had jumped out of the way of the other truck or that it was a particularly traumatic incident, as was recorded by a number of medical examiners. He also denied that he hit his knee on the petrol tank or any other part of his truck.
35 The plaintiff confirmed this version of the transport accident in cross- examination in the present application. He gave a similar version of the transport accident to Ron Camp and Associates Pty Ltd, investigators who provided a report on 12 November 2004. In particular, he identified the driver of the other truck as being Peter King, and the incident occurring in the delivery yard of the employer’s premises at Learmonth Road, Carrum.
36 The plaintiff did not put much detail about the transport accident in the Injury Register as he filled it out quickly so he could go to the doctor.
37 The plaintiff deposed he had suffered the following injuries in the transport accident:
•
Traumatic injury to the right knee involving internal derangement of the right knee; complete rupture of the ACL necessitating arthroscopy 28 January 2004, ACL reconstruction surgery 24 March 2004 and arthroscopy (medial meniscus tear resection and trimming) 25 January 2007;
• Likelihood of right knee replacement surgery in the future;[2] • Adjustment Disorder with anxiety and depressive symptoms. [2] Transcript 130, lines 3-6
38 After the transport accident, the plaintiff was told to fill out another claim form, although he regarded it as just ongoing problems with his knee he had originally hurt in the first incident.
39 The plaintiff did fill in another claim form in relation to the transport accident, and handed it to his supervisor, Mr Madison. Some time later he was called in to see the manager, Mr Cunningham, who told him no further claim was to be made, and then proceeded to tear up the claim form in the plaintiff’s presence, telling the plaintiff he was doing him a favour.
40 In his viva voce evidence in the s.134AB application,[3] the plaintiff said that at the time of the transport accident “there was a little bit of pain when it happened, but nothing major”, but as time went on he was having more problems with his right knee, and this led to further treatment from Mr Love.
[3] Transcript 15, line 22
41 In cross-examination in the present application, the plaintiff agreed with this description of his pain. He then said that as at the said date he was at 95 per cent of his work capacity and Dr Hudson was about to clear him fit for full time duties. The plaintiff was doing strengthening exercises and the doctor was just being cautious before certifying him fit for normal duties.
42 In re-examination in the present application, the plaintiff said at the time he stood up in the transport accident he felt a really bad pain in his knee and he knew straight away that he would have to go to the doctor.
43 The plaintiff described that basically the pain was in the middle of the knee where the joint is – “it just felt like a really bad tear, like it had been cut”. It was “in a completely different ball park” to the injury suffered in the first incident. The pain at that time was eight out of ten, whereas after the first incident it was three or four out of ten.
44 The transport accident was the one that “took the plaintiff out of work”. After that his father had to drive him to and from work. Before the transport accident, the plaintiff had full movement in his knee; it was stable and he required minimal medication. Afterwards he had problems with movement, it was hard to stand and he had to take increasing amounts of medication.
45 After the transport accident, the plaintiff had a further week off work. He then returned to work on light duties. After about two weeks he went from the slide shed to just answering the phone. He could manage those duties for only six weeks.
46 In cross-examination in the present application, when asked about an Injury Register entry on 21 July 2003 which he had earlier deposed was not a new injury or incident, the plaintiff agreed that he had knee swelling on that date as a result of lifting bags of offal.
47 The Injury Register entry made on 15 August 2003 related to bruising or soft- tissue injury to the plaintiff’s back that he suffered at work on that day. When he was about to go down a flight of stairs at work, his right knee gave way and he lost his balance, landing on his backside.
48 At that time, approximately six weeks after the transport accident, the plaintiff’s right knee was weak and unstable, but he did not suffer any specific incident to his right knee on that date.
49 The plaintiff was referred back to Mr Love, who organised an MRI scan of the right knee on 28 August 2003 which showed complete disruption to the anterior cruciate ligament.
50 The Injury Register entry on 15 September 2003 did not relate to a further incident. The plaintiff had been told by Mr Love that he needed further surgery. The plaintiff reported that his knee pain was a result of the first incident, and agreed in cross-examination that he thought the first incident was responsible.
51 Mr Love performed a second arthroscopy on 28 January 2004 (“the second arthroscopy”) and later carried out an anterior cruciate reconstruction on 24 March 2004 (“the knee reconstruction”).
52 The plaintiff was under the care of Dr Hudson at Phillip Island during 2003 and he re-commenced seeing Dr Blake in October 2004.
53 After the knee reconstruction, the plaintiff’s knee worsened. It generally felt loose and unstable, with pain causing him to wake at night.
54 The plaintiff had arranged to return to work on light duties on 13 June 2004. On that date, whilst getting ready to go to work, the plaintiff’s right knee gave way for no particular reason and he advised the employer that he could not return to work on that day.
55 The plaintiff underwent a further arthroscopy on his right knee on 25 July 2007 (“the third arthroscopy”). He was advised by Mr Love, subsequent to this procedure, that he needed a knee replacement, but that he was too young at that stage for the procedure.
56 In February 2008, the plaintiff enrolled at Yallourn Technical College in a youth worker course specialising as an alcohol/drug counsellor. The course involved attendance four days per week at the Yallourn campus, fifteen kilometres from his home.
57 The plaintiff attended on 4 February 2008. However, because of the medication he was taking and his inability to concentrate, he deferred on that date.
58 The plaintiff re-enrolled in the course and recommenced study on 9 February 2009. The plaintiff hoped, upon graduating, to find a part time casual position in the Latrobe Valley – hours and work he thought he could cope with.
59 The plaintiff was only able to do about five weeks of the course, as the Lyrica medication he was taking had an adverse effect on his concentration. He constantly felt fuzzy, and his head was swimming. He hopes that some time in the future he would be able to continue with this course.
60 As at the hearing of the present application, the plaintiff is about to complete an eight-week computer course run by GEST in Moe. The plaintiff’s knowledge of computers is very basic and limited, and he hopes to get some more understanding of computers by doing this course. He does not obtain a formal qualification when he completes the course
61 The plaintiff explained in cross-examination that it is very basic computer course, involving setting up a website address, sending emails, and using the internet. He is required to attend classes from 9 am to 4 pm but some days he can only cope with three to four hours and does not stay for the day. He found it difficult to concentrate on his study for long periods because of the effects of Cymbalta.
62 Given these difficulties, the plaintiff is not hopeful of being able to cope with a return to the Youth Work course.
63 The plaintiff has now come to realise he will never be able to return to physical or manual work. He no longer has the ability to return to full time work as a meat lumper or, for that matter, any other type of heavy physical work. The plaintiff does not believe that he would be able to work full time because he cannot stand up for more than half an hour before the knee pain gets unbearable.
64 The plaintiff deposed in the s.134AB application that he thought that he would have problems running around after children as a youth worker for eight hours a day. In addition to providing information to young people, he would have to be able to get up and down stairs. If something went wrong, he would have problems. The job may involve sleeping overnight. It could involve twisting. He might be required to lift a child. The level of physical work depended on the circumstances of the job. Because of his depression, he believed he could not do the work as he felt it very difficult to concentrate when he was taking medication.
65 The plaintiff agreed in the s.134AB hearing that a youth working full time would earn $50,000 per year. If he had a choice between his old job and youth work, the plaintiff would go back to meat lumping “without a problem” as he loved physical work.
66 Further, the plaintiff agreed he would be able to work as an enquiry clerk, but he would have problems as a telemarketer with reading and concentrating. He could not do the running around that would be involved as a welfare support worker. It did not matter whether he could get up and sit down whilst working because the pain got worse as the day goes on.
Ongoing Treatment
67 The plaintiff last saw Mr Love at the end of 2007. He then told the plaintiff that he would require a right knee replacement.
68 In January 2008, the plaintiff commenced treatment with a pain management specialist, Dr Lim, who suggested he undertake an extensive rehabilitation course. In mid 2008, the plaintiff attended the North Eastern Rehabilitation Centre (“NERC”) to help him cope with psychological issues.
69 The plaintiff considered the course had been of assistance to his mental wellbeing and also resulted in some improvement of his pain. As a result of his good progress, Dr Lim reduced the amount of medication the plaintiff was taking at that time.
70 The plaintiff now takes OxyContin twice a day – 10 milligrams in the morning and 5 milligrams at night. He also takes 60 milligrams of Cymbalta, an anti- depressant, once a day. In the past the plaintiff has been prescribed Panadeine Forte, Effexor, Cymbalta and Lyrica, which he took for several months, Maxillon and anti-inflammatories. He does not like taking medication.
71 The plaintiff continues to see a psychologist, John Jakupi on a fortnightly basis. This treatment is of assistance to the plaintiff and he no longer feels suicidal.
72 Early in 2010, the employer’s insurer, Allianz, terminated all medical and like expenses and the plaintiff paid for his own medication. However on 25 June 2010, the Medical Panel set aside that decision insofar as it related to physiotherapy, attendance on the general practitioner and medication.
73 The plaintiff continues to see his general practitioner, Dr Blake, monthly for prescriptions.
Present Condition
74 The plaintiff has constant right knee pain, the intensity of which fluctuates and increases with activity.
75 The plaintiff is unable to sit or stand for prolonged periods, and his limit is about half an hour or so. He can walk for about twenty minutes, two or three times a day, but walking can bring on aching pain in his knee, together with discomfort and swelling.
76 The plaintiff also experiences bouts of his knee giving way and general weakness. He walks with a limp and wears a brace on his right knee. He has difficulty going up and down stairs.
77 Since the transport accident, the plaintiff’s sleep is frequently disturbed with pain in the right knee.
78 Since October 2008, the plaintiff has held a restricted licence to drive with a left foot accelerator. Despite the employer’s insurer having agreed to pay for this modification to his vehicle, nothing has been done. The plaintiff considers the modified car would make a “massive difference” to his life.
79 The plaintiff experiences problems driving his father’s ute with his right foot, having to operate the accelerator, and when he has to apply the brake. Driving increases his pain.
80 The plaintiff also experiences difficulties carrying out normal domestic activities. He is dependent on his father and stepmother for assistance with domestic tasks and shopping.
81 The plaintiff presently lives on his own in a house on his parents’ property in Willow Grove, about seventeen kilometres from Moe. He pays rent. His stepmother vacuums, hangs out his washing and does the heavier cleaning. The plaintiff cooks his own food, does light cleaning and sometimes helps with the shopping.
82 The plaintiff spends his day pottering around the property and he feeds the animals and does other light chores. He does not have to walk his dog as it just runs around the property.
83 The plaintiff cannot run or engage in sporting, martial arts or recreational activities and he has not done so since the first incident.
84 At the time of the first incident, the plaintiff was running. He last did martial arts a week and a half before starting work with the employer in November 2002.
85 The plaintiff uses heat packs and gives himself deep-tissue massage with a TENS machine. He is planning to have further hydrotherapy treatment when he has saved up to pay for the treatment.
86 In re-examination, the plaintiff said that his pain has now improved in terms of the medication he is taking. Having done the pain management course, he knows how to deal with a flare-up but “it is still awkward”.
87 For the three weeks prior to the hearing, the plaintiff has been involved in volunteer work one morning a week at the Moe Drop in Centre, where he talks to homeless people. The plaintiff does not want to stay on a disability pension. He wants to “give it a go” and “cannot handle sitting at home”.
The Plaintiff’s Medical Evidence
88 The plaintiff’s current treating general practitioner, Dr Blake, first saw the plaintiff in April 2002.
89 The plaintiff attended on 24 January 2003 when he complained of being injured at work – “today slipped while carrying meat”.
90 On that date, it was also noted that the plaintiff slipped at work on 27 December 2002 and that after the December incident the plaintiff’s right knee recovered on its own.
91 On 29 January 2003, Dr Blake referred the plaintiff to Mr Love, orthopaedic surgeon. Dr Blake did not see the plaintiff again until 29 October 2004. Dr Blake was not consulted about the transport accident injury. He has seen the plaintiff on a regular basis since that time.
92 In his report dated 22 October 2008, Dr Blake concluded that the plaintiff’s whole knee situation had its fundamental causation in the first incident and maybe in the later transport accident, of which he had no knowledge. In his view, the plaintiff’s inability to return to his pre-injury duties was predominantly the result of him sustaining the injury to his right knee in the first incident. Dr Blake deferred to the views of Mr Love in determining the significance of events other than the first incident. Dr Blake confirmed that he saw the first incident as playing a role in the plaintiff’s current symptomatology.
93 Dr Blake considered that with appropriate re-training, the plaintiff would be qualified to pursue employment in his preferred field of youth work. He thought that there was no impediment relating to his knee to the plaintiff completing youth worker studies and he could see no reason, once qualified, why the plaintiff could not work in that field. He hoped he could do so on a full time basis.
94 In his view, the plaintiff would most likely have a continuing painful knee which may need further surgical intervention, but with appropriate management he should be able to cope. At that time he was prescribing 15 milligrams of OxyContin, which the plaintiff took daily. He had also prescribed the antidepressant, Cymbalta, since July. The plaintiff had problems with his concentration when taking Lyrica when he first enrolled in the youth work course in 2008. No adverse side effects had been shown by the plaintiff whilst taking OxyContin.
95 Dr Blake hoped the plaintiff would be able to continue his studies and complete them, even if he was still taking OxyContin. Dr Blake thought that the plaintiff would still be able to work as a social worker, youth worker or perhaps answer enquiries. In his view, the plaintiff could work full time in a telemarketer’s job if he had the job and the inclination. Dr Blake agreed that working as an enquiry clerk, subject to some job training, if the plaintiff wanted to do it, was a job that he could perform at that time. He thought that the plaintiff’s suitability for various jobs would depend upon the circumstances of each job such as the amount of sitting and standing involved.
96 In report dated 17 May 2010, Dr Blake advised that he continued to see the plaintiff approximately monthly to write prescriptions for his regular analgesic requirements. These have remained constant over the last year with OxyContin SR, 20 milligrams in the morning and 10 milligrams at night. The plaintiff was also treated with an antidepressant, Cymbalta, 60 milligrams daily.
97 The plaintiff continues to attend hydrotherapy, but has stopped attending physiotherapy for financial reasons. He still attends a psychologist for counselling. Dr Blake expected the plaintiff’s medication needed to continue as he remained affected by right knee pain which seemed to have stabilised and did not appear to be lessening.
98 Dr Blake did not expect the plaintiff would sufficiently recover to engage in his pre-injury duties, and thought that he should retrain for sedentary duties. He noted the plaintiff had deferred his training course in youth work as he was experiencing study problems with concentration, probably a direct result of his analgesia medication.
99 Dr Blake noted the plaintiff still had plans to rejoin that course, and he supported those plans. He considered the plaintiff’s prognosis was guarded, and that his knee was likely to continue to deteriorate, and ultimately he may require knee replacement surgery.
100 Dr Hudson treated the plaintiff between 13 March 2003 and 4 December 2003.
101 On examination on 13 March 2003, Dr Hudson recorded that the plaintiff twisted his right knee at work on 24 January 2003 and was awaiting an arthroscopy. Dr Hudson last saw the plaintiff prior to the transport accident on 15 May 2003. On that date, Dr Hudson certified the plaintiff fit for modified duties from 20 May 2003 to 16 June 2003.
102 Dr Hudson recorded on 2 July 2003 that –
“The right knee had been perfect but there was an accident at work this am – things were going well – had to jump out of the way of a turning truck – the bad knee hit the truck.”
103 He noted that the plaintiff complained of pain under the patellofemoral ligament of the right knee.
104 The plaintiff was referred by Dr Blake to Mr Love, orthopaedic surgeon, in January 2003. The plaintiff told him of the first incident. Mr Love made a provisional diagnosis of a medial meniscus tear and he performed a meniscectomy on 4 April 2003.
105 In the operation report of 4 April 2003, Mr Love noted that the plaintiff had a bucket handle tear. He considered that tear inherently made the plaintiff’s knee stable by virtue of the torn cartilage jamming the knee. In those circumstances, it was probable any examination of the knee would not have revealed any instability.
106 On 30 April 2003, Mr Love noted the plaintiff was feeling “OK”. He recorded that the plaintiff told him he was comfortable and that he felt the first surgery had solved his symptoms. At that time, he anticipated the plaintiff would return to work forthwith on a graduated basis.
107 Mr Love reviewed the plaintiff on 10 July 2003. He then recorded that the plaintiff told him that he suffered further injury at work in the transport accident when he was standing in the yard where he worked. Another truck, which entered the yard at some speed, did not strike the plaintiff but he jumped in fright and struck the tank on his truck with his right knee - a circumstance which, in Mr Love’s view, could result in injury to the anterior cruciate ligament. After the transport accident, the plaintiff’s knee became acutely swollen and remained painful.
108 Mr Love requested funding for an MRI examination.
109 On 7 August 2003, when the plaintiff again saw Mr Love, he was suffering quite a lot of knee pain, particularly complaining of pain over the medial aspect of the knee.
110 Mr Love organised an MRI scan on 28 August 2003, which showed a complete disruption of the anterior cruciate ligament with a subtle tear of the posterior horn of the medial meniscus.
111 Following an arthroscopy on 28 January 2004, on 24 March 2004 Mr Love decided to proceed to anterior cruciate ligament reconstruction to remove the non-functional ligament and replace it with a cruciate ligament graft.
112 In August 2004, the plaintiff complained to Mr Love of ongoing symptoms since the reconstruction surgery. At that stage Mr Love suggested the plaintiff had a capacity for modified employment. He noted the plaintiff continued to complain of knee pain on examination in July, September and October 2004, January, February and November 2005.
113 On 25 July 2007, Mr Love performed a third arthroscopy. Following that procedure, Mr Love thought the plaintiff’s response was reasonable.
114 When he last saw the plaintiff in December 2007, the plaintiff was complaining of ongoing knee pain. Mr Love was not able to detect any sign leading to a precise diagnosis as to the cause of the plaintiff’s pain, and he referred the plaintiff to pain management.
115 In Mr Love’s view, any person who has a cruciate ligament injury or a meniscal injury will at some point in the future have a high probability of a total knee replacement.
116 Mr Love concluded that the injury sustained in the first incident and the sequelae of the surgical treatment of the plaintiff’s two knee injuries materially contributed to his current condition, his requirement for surgery and his incapacity.
117 In Mr Love’s view, most probably the anterior cruciate ligament was weakened as a result of the first incident and the transport accident was, as it were, the “straw that broke the camel’s back” – that was the injury that ultimately led to full disruption of the ligament.
118 Mr Love considered that the injury in the first incident as described to him was a very severe one. In his view, a bucket handle tear of the medial meniscus was a very significant injury and therefore his interpretation of events was that that probably led to some weakness of the anterior cruciate ligament and the transport accident “sort of completed the injury, leading ultimately to the diagnosis”.
119 As at December 2007, Mr Love thought the plaintiff had a capacity for some relatively sedentary work. From a physical view, he considered the plaintiff would be able to work full time as an enquiry clerk. He could do sedentary work that did not involve twisting, bending, lifting and turning. Mr Love agreed full time work was reasonable, provided it was sedentary and did not breach any of those restrictions.
120 The plaintiff commenced treatment at Gippsland Physiotherapy Group in August 2007 under the care of Damian Rowe, physiotherapist. The plaintiff was treated with local soft tissue and electrotherapeutic techniques, and he was also encouraged to continue with hydrotherapy.
121 Ms Muir, physiotherapist, reported on 2 February 2010. Her report was prepared in relation to an application by the employer’s insurer, Allianz, to terminate medical and like expenses, in particular physiotherapy.
122 Ms Muir noted the plaintiff was seen on 4 November 2009, at which time he reported a significant increase in his pain levels since ceasing his physiotherapy and hydrotherapy program. The plaintiff also reported difficulty in completing his usual activities of daily living.
123 Ms Muir recommended the plaintiff receive an ongoing pool pass in order for him to complete his exercises independently and to promote active management. She also recommended he receive a further twenty physiotherapy consultations to use at his discretion in order to progress his rehabilitation program.
124 Mr Jakupi, psychologist, provided a report of 21 January 2010.
125 He noted that the plaintiff self-referred for psychological treatment in March 2006 in relation to reported symptoms of anxiety and depression which he associated with a serious right knee, ankle, and back injury during the course of his work with the employer.
126 Since that time, the plaintiff had been seen on a sporadic basis, ranging from weekly to monthly sessions, depending on his degree of functioning.
127 The plaintiff advised of the two work incidents and subsequently slipping on wet stairs in 2003 which led to back pain.
128 On initial assessment, the plaintiff reported chronic right knee pain and that walking was unbearable after a period of time.
129 It was noted that the plaintiff’s work with the employer ended in September 2003 and he reported a dramatic decline in his mood after that time, with a dramatic increase in alcohol and prescription drug use. He also advised of a suicide attempt.
130 The plaintiff told Mr Jakupi of attempts to enrol in a local TAFE course, but a change in his analgesia meant the plaintiff struggled with his basic comprehension and simply could not concentrate. Mr Jakupi noted that the plaintiff still had the intention to resume and complete the course.
131 In Mr Jakupi’s opinion, the plaintiff appears to be suffering a depressive and anxiety disorder which he considered to be a direct result of his various injuries. The plaintiff reported persistent loss of pleasure and interest in any activity, loss of confidence, sense of worthlessness, fatigue, chronic irritability, sadness, and pessimism.
132 Mr Jakupi noted the plaintiff’s daily activity was significantly compromised, clearly as a result of the physical and psychological symptoms. He noted the plaintiff conscientiously avoided social contact. Given the severity of the plaintiff’s symptoms, he thought he would require counselling for the indefinite future.
133 In his view, the plaintiff was fit for work. However, the nature and degree of any employment was likely to be very limited, and consideration would clearly need to be made for the plaintiff’s ongoing anxiety and mood, in addition to the psychological effects of chronic pain.
Medico-Legal Evidence
134 Dr James Rowe examined the plaintiff on 19 May 2003, the day before he returned to light duties.
135 Dr Rowe noted that the plaintiff was keen to return to work and hoped to return to his previous job. The plaintiff told Dr Rowe that his current doctor had restricted his lifting to 30 kilograms .The plaintiff thought there was work he could do with the employer but advised Dr Rowe the employer told him he could not return to work unless he did normal duties.
136 The plaintiff complained to Dr Rowe that he still had pain in his knee, the right quadricep was weak and he had difficulty walking any distance. He was able to walk 200 metres at a time. The plaintiff was then taking between four and ten Panadeine Forte a day for pain. He was under the care of Dr Hudson but had not started physiotherapy.
137 On examination, Dr Rowe noted that the plaintiff’s knee was slightly swollen. The plaintiff was sensitive and tender about the knee. Patellofemoral movements were uncomfortable and the plaintiff was tender about the lateral joint line of the knee. He had limited range of movement and could not extend his knee. There was two centimetres of wasting in the right quadricep and the plaintiff could not squat or kneel.
138 Dr Rowe thought the plaintiff was not fit for normal duties because of the requirements to lift, but that he was fit for alternative duties. Dr Rowe considered it may be another two months before the plaintiff could resume his normal duties.
139 Dr Rowe re-examined the plaintiff on 29 June 2004. He noted that the plaintiff was to embark on more arduous duties when he previously examined him and that he had returned to work and was almost performing his normal duties when he was involved in the transport accident.
140 The plaintiff told Dr Rowe that in the transport accident he jumped out of the way of another truck and he twisted his right knee and felt something give.
141 At the time of this re-examination, the plaintiff’s knee was slightly swollen and he could not bend it properly. He could not walk up and down stairs, nor walk any distance or run. There was a four centimetre difference between the quadriceps. Patellofemoral movements were uncomfortable.
142 Dr Rowe concluded the plaintiff had a further injury to his knee in the transport accident which was a separate matter.
143 The plaintiff was initially examined by Mr Dunin, orthopaedic surgeon, on 2 September 2005 for the purposes of an impairment assessment.
144 Having been provided with further documents, Mr Dunin reported on 22 January 2009 that the plaintiff had suffered a soft tissue injury to the right knee in the first incident. He noted, on the basis of Mr Love’s report, it appeared as though the plaintiff sustained a tear of the medial meniscus from which he had made a good recovery following the first surgery.
145 Mr Dunin noted that in the transport accident, the plaintiff had a twisting injury as he tried to avoid the truck coming towards him. In his view, it appeared as though the plaintiff sustained a tear of the anterior cruciate ligament in the transport accident.
146 When asked whether the first incident appeared to weaken the plaintiff’s knee, such that the transport accident injury would not have occurred but for the first incident, having noted the plaintiff appeared to have made a satisfactory recovery following the arthroscopic surgery, Mr Dunin considered, on the balance of probabilities, that the injury in the transport accident was a new injury. He thought there may have been some very minor residual loss of muscle tone that may have been a minor contribution to the transport accident injury but, on the balance of probabilities, he considered that the tear of the anterior cruciate ligament would have occurred if the plaintiff had not had the previous injury in the first incident.
147 It was therefore Mr Dunin’s opinion that any contribution by the first incident to the new injury in the transport accident was minimal, at best. Further, he did not consider that the transport accident injury was rendered more serious because of the previous injury in the first incident.
148 Mr Dunin considered there was minimal connection between the injuries in the first incident and those suffered in the transport accident. He thought the first knee surgery may have caused some loss of muscle tone in the right lower limb which may have slightly increased the risk of further injury. He considered that the prognosis for the first incident injury was very good. Following any procedure involving a medial meniscectomy, he considered the risk of post-traumatic osteoarthritis in years to come increased.
149 The plaintiff was examined by Mr Jonathan Hooper on 15 January 2008. The plaintiff told him of the circumstances of the first incident and he also described the transport accident when he was squatting and then when “he pulled up” he had sudden severe pain in his knee.
150 Mr Hooper believed that a combination of the injuries in January and July 2003 had been the cause of the plaintiff’s problems, and it may well be that the plaintiff partially tore his cruciate ligament in the first incident and then completed the tear in the transport accident but there was no way of knowing in retrospect.
151 Mr Hooper believed the plaintiff needed to see a pain management specialist. He offered a very pessimistic prognosis about the plaintiff getting back to manual work in the foreseeable future and he could not see him ever returning to his pre injury duties of truck driving/meat lumper.
152 Mr Hooper was asked to consider whether the first incident and the transport accident were related. He was told by the defendant’s solicitors that the plaintiff’s accounts as to the transport accident varied and included having to jump out of the way of a turning truck and also hitting the truck with his knee.
153 Mr Hooper concluded it was absolutely impossible to state definitely one way or another. He noted, on the basis of Dr Blake and Mr Love’s views, the plaintiff was considered, following the first incident, to have only a meniscal tear. This tear was attended to surgically and the plaintiff was certified fit to go back to work in May prior to re-injuring his knee in the transport accident.
154 Being the devil’s advocate, however, Mr Hooper thought it was possible that the plaintiff partially tore his cruciate ligament in the first incident and the further major episode in the transport accident further damaged an already weakened ligament. He noted it was also possible that the plaintiff’s knee was not fully rehabilitated and the muscle control was not sufficient to stabilise the knee following the transport accident. He noted they were theoretical concepts only and it was impossible to give a definite answer as it really depended on the severity of both of the injuries. He noted he had seen people rupture their cruciate ligaments from a simple fall, as in the transport accident. He had also seen people rupture that ligament by a sudden contraction of muscles without any major incident.
155 Based on the material with which he had been provided from the plaintiff’s treating doctors, Mr Hooper thought it was not unreasonable to conclude that the first incident and the transport accident were unrelated. He noted that if one had an uncomplicated medial meniscal tear and worked hard with rehabilitation, the knee could be very functional again after about three or four months.
156 Mr Hooper concluded it was likely that there were two separate incidents based on the evidence given to him by the plaintiff’s treating doctors, but it was theoretically possible the plaintiff may have damaged his anterior cruciate ligament in the first incident. In Mr Hooper’s view, there was absolutely no way of knowing this and he thought one must draw conclusions based on evidence, not only hypotheticals.
157 Mr Simm, orthopaedic surgeon, first examined the plaintiff on 5 September 2005. The plaintiff gave him a version of the first incident and the transport accident similar to his oral evidence.
158 Mr Simm diagnosed a torn right medial meniscus treated by arthroscopic resection on 4 April 2003 and a torn right anterior cruciate ligament treated by reconstruction on 24 March 2004. He noted that in the absence of additional pathology, one would have expected a good return of function following surgery.
159 Mr Simm considered the plaintiff presented with ongoing pain which restricted his activities. He noted the plaintiff continued to use analgesic medication and a knee brace. Physical examination showed quite marked restriction of knee flexion. Mr Simm thought it was evident that the plaintiff had had an adverse pain response to his injuries. He noted that none of the injuries to the right knee had run the typical course of a ruptured anterior cruciate ligament. He concluded the most likely injury that caused the rupture was the first incident.
160 In Mr Simm’s view, an in-substance tear may have been present at the time of the first surgery. He conceded that in his practice he had missed the presence of such a tear. He explained that the cruciate ligament was in a sleeve of synovial tissue. It may rupture but not sufficiently to tear the sleeve and the sleeve remained intact. Therefore, on casual examination of the ligament, one might believe the ligament to be intact but in fact the rope or the ligament inside the sleeve had disrupted. This was called an injury in continuity because the ligament appeared to be intact but in fact it was not.
161 Mr Simm confirmed the circumstances of the first incident were consistent with an anterior cruciate injury where there was a twisting of the knee under load. He confirmed that in isolation, the transport accident would be unlikely to cause symptoms or to injure the knee and that the subsequent course of events suggested the knee was compromised by the first incident, and as a result of the transport accident, there was further injury to the compromised knee.
162 Mr Simm explained that if the plaintiff struck his knee on the truck or tank he would rupture the posterior cruciate, not the anterior cruciate ligament. If the plaintiff jumped suddenly and twisted, it would be an unusual course to rupture the anterior cruciate ligament unless he jumped high enough and landed awkwardly enough that on landing and twisting he could rupture his anterior cruciate – a common mechanism in basketball or netball where people jump high. If the plaintiff simply jumped away, it would be an unusual mechanism to rupture the anterior cruciate ligament.
163 Mr Simm thought Mr Dunin’s views were plausible, but they differed from his own. Mr Simm did not accept, as had Mr Dunin, that there was a straight forward arthroscopically resected meniscus as the plaintiff had pain symptoms and analgesic requirements when he saw Dr James Rowe on 19 May 2003.
164 In his view, the two incidents seemed to have been quite different and the first incident was a far more significant injury than suddenly standing up whilst squatting or jumping out of the way of a truck or striking one’s knee on the front of the truck. He did not expect to see two centimetres of quadricep wasting from a torn medial meniscus treated arthroscopically.
165 Mr Simm did not think there was any doubt the plaintiff had a physical problem but he agreed there was some symptom amplification when he first examined him.
166 Mr Simm re-examined the plaintiff on 1 March 2010.
167 The plaintiff told him that he suffered from constant knee pain ranging from 4 out of 10 to 9 out of 10. Pain occurred over the medial side of the knee and radiated into the proximal and medial aspect of the lower leg. His knee had not given way.
168 On examination, the circumference of the plaintiff’s right thigh was half a centimetre less than the left, and the right calf was one centimetre less. The quadriceps tone was reasonable. Range of motion of the right knee was restricted from 10 degrees of fixed flexion to 105 degrees of flexion. Movement was undertaken cautiously and the plaintiff complained of pain on movement. There was mild anterior cruciate laxity when performing the Lachman and anterior drawer tests. There was some joint line tenderness and some minor joint crepitus.
169 Mr Simm concluded that the plaintiff continued to present with features of a chronic adverse pain response.
170 Mr Simm thought that the transport accident was significant. He noted that the plaintiff had returned to work after the first surgery. In Mr Simm’s view, it was relevant that the plaintiff was in a crouching position in the transport accident as he would have required good knee function to be able to do so.
171 As Mr Love had found no ACL damage on the first surgery, Mr Simm thought that there was an in-substance rupture which could certainly predispose the plaintiff to a complete rupture as a result of the transport accident. He thought that it seemed probable that the transport accident injury did contribute to the need for the plaintiff’s reconstruction.
172 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on 3 December 2008. The plaintiff gave a history of the first incident and the transport accident consistent with his viva voce evidence.
173 On examination, Mr Miller noted there was marked “quadriceps wasting and an effusion in the right knee”. There was also irritability with knee movement. Mr Miller thought there was residual laxity in the knee and that the long term prognosis was fair to poor and that there was significant risk of developing arthritic disease.
174 Mr Miller concluded the major knee injury was in the first incident where the plaintiff suffered a meniscal tear and very likely suffered a sub-clinical injury to the anterior cruciate ligament just as it was functioning reasonably well and appeared in good condition arthroscopically.
175 Mr Miller believed, however, it was likely that the ligament was weakened by the first incident and that the plaintiff further injured it in the transport accident. He believed therefore the plaintiff’s current clinical status reflected the effects of the two injuries, but predominantly the first incident.
176 Mr Miller considered the plaintiff was clearly not fit for his pre-injury work, nor work that involved prolonged standing, walking, twisting, turning or knee agility. In his view, the plaintiff was only basically suitable for work in a seated position and a return to work would be problematic due to his work-related injury. He was supportive of a graduated supervised return to work program with the plaintiff eventually resuming full time duties.
177 Mr Miller concluded that the first incident weakened the plaintiff’s knee and subsequently made it susceptible for further injury. He confirmed his view that the plaintiff’s symptoms related predominantly to physical injury to the right knee. Whilst there were some features of a Chronic Pain Syndrome which were magnifying the plaintiff’s symptoms, excluding that as best he was able, he believed the plaintiff’s symptoms and incapacity related predominantly to the physical injury to the right knee.
178 In Mr Miller’s view, striking of the knee was not a common way to injure or rupture the anterior cruciate ligament and it was unlikely, in such circumstances, that the ligament would rupture. A rupture was more likely and nearly always occurred when there was twisting or turning of the knee under load. When he took the plaintiff’s history he was mindful of that distinction.
179 Mr Miller disagreed that any problem with the anterior cruciate ligament would have necessarily been found on arthroscope. In his view, there could have been a sub-clinical injury to the anterior cruciate ligament. Though the ligament was damaged, it still functioned quite well. It could arthroscopically look close to normal or even be presumed to be normal when the knee was examined and the knee felt stable, and then over a period of time the ligament had in fact been damaged, the substance of the ligament and the ligament broke down and degenerated and ultimately either stretched or re-tore.
180 Mr Miller thought that was what happened in this case and that the ligament re-tore in the transport accident. He put a relative weighting on the energy of the incidents, noting that the first incident was a twisting of the knee in a loaded position with an additional load and that the plaintiff heard a crack and that was highly significant in terms of a ligament injury. It was his understanding the transport accident did not involve twisting under load.
181 In Mr Miller’s view, the plaintiff had not recovered from the first incident. It was his understanding the plaintiff had not returned to full normal duties or sport or “other sorts of things”. He would have thought if he was treating the plaintiff and he had made a full recovery, assuming the plaintiff wanted to return to normal duties, then he would have expected him to do so. He thought that would be an objective marker of a level of knee function. He did not think the plaintiff had reached that level of knee function.
182 The Medical Panel, on 6 July 2010, concluded the plaintiff was suffering from residual dysfunction of the right knee following a tear of the medial meniscus treated by partial meniscectomy, and complete rupture of the anterior cruciate ligament (surgically treated) and a partially treated Major Depressive Disorder with anxiety features relevant to the claimed injury.
183 The Panel considered that the medical services, namely psychology sessions, medications and visits to the general practitioner, were essential to ensuring that the plaintiff’s health or ability to undertake the necessary activities of daily living do not significantly deteriorate.
184 Further, the Panel was of the opinion that physiotherapy sessions, including hydrotherapy, were not essential to ensuring that the plaintiff’s health or ability to undertake the necessary activities of daily living do not significantly deteriorate.
Investigations
185 Mr Love organised an MRI scan of the right knee on 28 August 2003.
186 It showed a complete disruption to the anterior cruciate ligament in the mid portion extending . There was a subtle tear involving the posterior horn of the lateral meniscus. The medial meniscus was truncated, especially the anterior horn, suggesting previous partial meniscectomy. The residual posterior horn contained a very subtle defect extending onto its inferior articular surface. There was probable intra-articular loose body of cartilage measuring about seven by four millimetres in diameter, sitting adjacent to the origin of the posterior cruciate ligament. There were no other signs of significant internal joint disruption derangement.
The Defendant’s Medical Evidence
187 The defendant did not arrange any medical examinations of the plaintiff.
188 Mr Love’s operation report dated 25 July 2007 set out an arthroscopic meniscectomy was carried out on that date. Inspection of the medial compartment showed a minor horizontal tear in the medial meniscus and this segment of the meniscus was resected arthroscopically and satisfactory clearance achieved. The remainder of the knee revealed no significant abnormality. The previously reconstructed ACL was intact and looked sound. There was no articular cartilage damage.
189 Dr Dharwadkar, psychiatrist, examined the plaintiff for medico-legal purposes on 2 August 2005. He diagnosed a mild Adjustment Disorder with anxiety and depressive symptoms with unresolved anger issues.
190 Dr Dharwadkar thought there was no incapacity based on a psychiatric disorder and that the plaintiff’s psychiatric condition was predominantly secondary to physical injury.
191 Mr Chamberlain examined the plaintiff for medico-legal purposes on 16 January 2006. The plaintiff told him about the first incident and the transport accident.
192 Mr Chamberlain noted that the knee reconstruction had achieved stability but the plaintiff still complained of residual symptoms. At that stage he thought the plaintiff was capable of light or sedentary work.
193 The plaintiff was referred by Mr Love to Dr Lim, rehabilitation specialist, in January 2008.
194 Dr Lim reported to Dr Blake that the plaintiff did relatively well in the NERC Pain Rehabilitation Program. He also advised Dr Blake that he prescribed Lyric, Oxycontin, and also Cymbalta at various times during 2008.
195 When he last reported in August 2008, Dr Lim advised Dr Blake the plaintiff was now walking only with the knee brace more for psychological than mechanical reasons. On review in September, he hoped to wean the plaintiff off the brace.
196 The Progress report from the NERC dated 20 June 2008 set out that the plaintiff had been instructed in self-management strategies, including flare-up management. It was noted, in light of the chronicity of the plaintiff’s pain and physiological sensitisation changes, brief bursts of therapy may be beneficial in the future at a specialised pain management centre.
197 The plaintiff was discharged from the NERC program on 25 September 2008, having been provided with appropriate self-management strategies. It was noted the plaintiff had made good improvements in activity levels, although he was still significantly reduced. The plaintiff continued to report high pain levels and continued to wear his knee brace to aid knee stabilisation.
Findings
198 I accept that the plaintiff suffered a compensable injury to his right knee in the transport accident. The precise nature of that injury is however in dispute.
199 In this case, where there is a pre-existing knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff, and determine whether any additional impairment resulting from the transport accident is serious and long term.
200 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
201 I have the benefit of evidence from both the plaintiff’s treating orthopaedic surgeon and also his general practitioner as to the condition of the plaintiff’s knee before and after the transport accident.
202 Having made a provisional diagnosis of a medial meniscus tear following the first incident, Mr Love carried out an arthroscopy on 4 April 2003, and a medial meniscectomy was performed.
203 At review on 30 April 2003, the plaintiff told Mr Love that he was comfortable and felt the procedure had resolved his symptoms. Mr Love anticipated, at that stage, the plaintiff could return to work forthwith.
204 When the plaintiff was next seen by Mr Love on 10 July 2003, the plaintiff told him of a further injury to his knee in the transport accident When seen in September 2003, there were signs of ACL ligament insufficiency. Mr Love noted such signs were not demonstrated at the time of the first arthroscopy and he assumed the transport accident was what produced the instability.
205 In his viva voce evidence in the s.134AB application, Mr Love confirmed that on examination in January and April 2003, there was no sign of an ACL instability or insufficiency.
206 When Dr Hudson saw the plaintiff on 17 April 2003, following the first arthroscopy, the plaintiff was walking without a stick, and he had no pain. On 15 May 2003, six weeks after the first arthroscopy, the plaintiff still complained of pain when he walked 200 metres.
207 On 25 June 2003, Dr Hudson had a telephone conversation with CGU. He noted there had been an arthroscopic meniscectomy for bucket-handle tear; “back at work, could walk 200 metres without pain ? need for letter”.
208 On 2 July 2003, Dr Hudson noted –
“The right has been perfect, but had accident at work this a.m. Things were going well, had to jump out of the way of a turning truck and the bad knee hit the truck. Complained of pain under the patellofemoral ligament of the right knee.”
209 The plaintiff’s own evidence was that at the time of the transport accident he was nearly 100 per cent, and about to be certified to return to full time work. His medication intake was decreasing at the end of June 2003 and there had been a considerable improvement in his knee pain since the first arthroscopy.
210 When the plaintiff saw Dr Rowe on 19 May 2003, he described similar problems as he did to Dr Hudson of pain and difficulty walking, being able to walk a kilometre in five bursts of 200 metres. The plaintiff was taking anywhere between four and ten Panadeine Forte. He had quadriceps weakness.
211 The plaintiff, at that time, had been certified to lift up to 30 kilograms. He could drive. Dr Rowe then thought it was two months before the plaintiff could go back to normal work. In a later report, Dr Rowe noted that the plaintiff was about to do more arduous work when the transport accident occurred.
212 On 2 July 2003, the plaintiff was involved in the transport accident. Whilst there were different versions of this accident recorded by different doctors, including Doctors Hudson, Love and Rowe, I accept that when the plaintiff stood up from a crouched position, as he was bent forward putting petrol in the passenger side of a truck, another truck approached his vehicle quickly, and he had to flatten his body against his truck to avoid a collision.
213 The plaintiff gave this version of the transport accident in his viva voce evidence at both hearings, confirming his affidavit evidence. It is also consistent with the account of the transport accident given by the plaintiff to the investigator. Although there was not much detail, the Register of Injuries set out an incident on 2 July 2003 in which the plaintiff hurt his knee.
214 I accept that the plaintiff felt pain at that stage which he initially deposed to being “a little bit of pain, but nothing major, but as time went on [he] had more problems”.
215 Whilst agreeing with this description when cross-examined in the present hearing, the plaintiff gave a more dramatic description of the level of his pain in re-examination, describing his pain as worse than after the first incident at that time, being 8 out of 10, rather than 3 or 4 out of 10.
216 Whatever be the correct description of the level of pain at that time, I accept that the plaintiff suffered injury to his right knee in the transport accident.
217 Significantly, since that date, the plaintiff has experienced knee instability for the first time and his level of pain and restriction has greatly increased.
218 Having attended Dr Hudson after the transport accident, the plaintiff then had a week off work and then returned to light duties until September 2003, when he could no longer cope with his duties.
219 As the plaintiff’s condition did not improve, he was referred back to Mr Love. The plaintiff underwent the second arthroscopy surgery on 28 January 2004, and the reconstruction surgery on 24 March 2004. Whilst a return to work had been arranged on 13 June 2004, the plaintiff was unable to go back to work that day because his knee gave way for no particular reason.
220 The plaintiff did not resume work with the employer after that time, and was told, in effect, that if he could not do his normal work then there was no job for him.
221 Whilst the plaintiff was progressing well after the first arthroscopy and he was almost fit for normal duties when the transport accident occurred, since that time the plaintiff no longer has any capacity for manual work.
222 The consensus of medical opinion is that the plaintiff does not have the capacity for unrestricted manual work – the type of work he has performed all his life. Because of his knee, he has problems with prolonged standing and sitting, and lifting any particularly heavy weights.
223 As at December 2007, Mr Love thought the plaintiff had a capacity for some relatively sedentary work that did not involve twisting, bending, lifting and turning.
224 Dr Blake did not expect the plaintiff would sufficiently recover to engage in his pre-injury duties, and should retrain for sedentary duties. Mr Simm agreed that the plaintiff was fit for sedentary light work.
225 Mr Hooper offered a very pessimistic prognosis about the plaintiff getting back to manual work in the foreseeable future and he could not see the plaintiff ever returning to his pre-injury duties of truck driving/meat lumper.
226 Mr Miller considered the plaintiff was clearly not fit for his pre-injury work, nor work that involved prolonged standing, walking, twisting, turning or knee agility.
Medical Opinion as to the Nature of the Knee Injury Suffered in the Transport
Accident227 In Dr Rowe’s view, there was a further knee injury in the transport accident which necessitated an ACL operation.
228 Mr Love shared Dr Rowe’s view and assumed there had been a new injury to the ACL produced by the transport accident. Although he agreed one would not necessarily see an ACL tear on arthroscopy, he did note that there was no evidence of a tear on clinical examination prior to the transport accident. Complete disruption of the ACL was first found on MRI on 28 August 2003.
229 Mr Simm thought that the transport accident was significant. He noted that the plaintiff had been alright following the first arthroscopy until the transport accident, in which he was crouching. Further, after the transport accident the plaintiff limped.
230 Whilst Mr Simm thought that the circumstances of the first incident were more likely to damage the ACL than the transport accident, he referred to Mr Love’s findings before the transport accident of no ACL problem, noting that there could have been an in-substance rupture at that time. In his viva voce evidence in the s.134AB application, Mr Simm thought it unusual, but commented that sometimes ACL damage could be missed on arthroscopy. However, in his view, the transport accident materially contributed to the plaintiff’s current condition.
231 Mr Dunin thought the plaintiff had satisfactorily recovered from first arthroscopy and that the injury in the transport accident was a new injury. He thought there may have been some very minor contribution by the first incident, but on balance, the ACL tear would have occurred without the first incident, and there was a minimal connection between the two incidents.
232 Mr Hooper deferred to Mr Love, noting that the plaintiff was fit after the first arthroscopy. He thought it was possible that the plaintiff had partially torn his ACL in the first incident, but it was likely that there were two separate incidents.
233 Mr Miller thought the plaintiff’s knee had been weakened by the first incident, and that the first incident was a major contributor and it was very likely that the plaintiff had a subclinical tear following it. In his view, the plaintiff’s current clinical condition reflected the effects of both incidents, predominantly the first.
234 I accept, on the medical opinion, that the plaintiff’s condition has been significantly aggravated by a new injury to his knee in the transport accident. I accept – taking into account, in particular, the evidence of his treating surgeon as to the absence of any ACL findings before the transport accident, having investigated the knee by arthroscopic surgery and the lack of clinical findings in this regard – that the plaintiff suffered injury in the transport accident which necessitated the reconstruction.
235 Whilst there was brief mention of non-organic factors, such as pain behaviour and Chronic Pain Syndrome in the plaintiff’s presentation by Mr Simm, Mr Dunin and Mr Miller, I am satisfied that the plaintiff’s knee condition is predominantly organically-based.
236 For the plaintiff to succeed in the present application he must establish that he has suffered injury to his knee as a result of the transport accident. He must prove that the transport accident materially contributes to his present physical condition and that such contribution is serious and long term.
237 Taking into account the medical evidence, and accepting the plaintiff’s evidence as to his improving knee condition prior to the transport accident, I accept this is the case.
238 My finding in the s.134AB application of a serious injury resulting from the first incident is not inconsistent with my findings in the present case. Both injuries can materially contribute to the plaintiff’s present condition and I find this is the case.
239 In Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at para 58, Ashley JA held that a consequence may have a multiplicity of causes including a multiplicity of compensable injuries. The words “results from” have been construed to require much less than that injury be the sole cause of a consequence.
240 Counsel for the defendant accepted that similar principles apply to applications pursuant to the Transport Accident Act.
241 At paragraph 65 in Grech, Ashley JA noted that in principle the question to be resolved was - did the compensable injury result in or materially contribute to the incapacitating consequences?
242 Provided that the plaintiff establishes that the transport accident materially contributes to the plaintiff’s present knee impairment and its consequences, and will continue to do so in the long term, then the role of the other injuries, resulting from the first incident, does not preclude a court concluding that there was an appropriate causal link between the transport accident injury on the one hand, and consequences relied upon on the other.
243 I accept that the plaintiff continues to suffer pain, weakness and instability in his knee which interferes with his general mobility. Further, since the transport accident, the plaintiff’s sleep has been frequently disturbed by his knee pain.
244 The plaintiff’s evidence in this regard was not really challenged.
245 Since the transport accident the plaintiff has required significant narcotic medication, initially Lyrica, and now OxyContin, whereas prior thereto he required decreasing dosages of Panadeine Forte. He uses heat packs and a TENS machine for pain relief and to increase his mobility.
246 I accept that the plaintiff’s condition is long term and that the prognosis is poor. Dr Blake considered the plaintiff’s prognosis was guarded, and that his knee was likely to continue to deteriorate, and ultimately he may require knee replacement surgery. In Mr Love’s view, any person who had a cruciate ligament injury or a meniscal injury would at some point in the future have a high probability of a total knee replacement.
247 Mr Miller thought that the plaintiff’s long-term prognosis was fair to poor and that there was significant risk of developing arthritic disease.
248 I accept that the plaintiff’s knee condition affects his social, domestic and recreational activities, as well as his ability to perform manual work.
249 The plaintiff’s evidence in this regard was not challenged.
250 Whilst the plaintiff had not resumed his sporting activities following the first incident, his knee condition was improving and he was building up his strength and exercising. I accept that without the instability resulting from the transport accident, this relatively young man would have been able to resume some sporting activity and have achieved increased general mobility.
251 Because of his knee condition, the plaintiff is unable to do heavy housework and he requires the ongoing assistance of his family in this regard.
252 The plaintiff continues to have pain when driving as he is required to use his right foot to drive, not having been provided with modified vehicle as he has been certified fit to drive by VicRoads.
253 Another consequence which I am entitled to take into account in an application pursuant to s.93 of the Transport Accident Act is the plaintiff’s expected psychological response to the pain and restriction resulting from his knee injury as Winneke P set out in Richards v Wylie (2000) 1 VR 79.
254 The plaintiff continues to require treatment with antidepressant medication prescribed by Dr Blake and counselling from Mr Jakupi for problems with anxiety and depression related to his injury. Dr Dharwadkar has diagnosed the plaintiff’s problems in this regard as a mild Adjustment Disorder.
255 I am satisfied that the aggravation of the plaintiff’s knee condition suffered in the transport accident, which involved injury to the ACL which was previously asymptomatic, has resulted in an injury, which when judged by comparison with other cases in the range of possible impairments may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
256 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the transport accident.
- - -
0
2
0