Williams v Victorian WorkCover Authority
[2020] VCC 709
•26 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02767
| LESLIE TERRENCE WILLIAMS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2020 | |
DATE OF JUDGMENT: | 26 February 2020 | |
CASE MAY BE CITED AS: | Williams v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 709 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left knee – aggravation pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Gennimatas v Transport Accident Commission [2002] VSC 552
Judgment: Leave granted to bring proceedings for damages for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater & Gordon |
| For the Defendant | Mr J L Batten | IDP Lawyers |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with William Adams Pty Ltd (“the employer”) on 9 June 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function said to be impaired is the left knee.
5 The impairment of the body function must be permanent.
6 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1], Petkovski v Galletti[2] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2][1994] 1 VR 436
[3][2012] VSCA 60
11 The plaintiff swore two affidavits. He was cross-examined. He also relied on an affidavit sworn by his partner, Claire McEnroe, on 11 January 2020. Also in evidence were medical reports and other material. I have read all the tendered material.
12 The main issue in dispute is whether any effects of the incident injury are “serious” as at the date of hearing in circumstances where the plaintiff had left knee problems prior to the said date. Counsel for the defendant conceded there had been an exacerbation of the plaintiff’s left knee condition as a result of the incident but submitted that exacerbation had long since resolved, as Dr Allen opined.[4]
[4]Transcript (“T”) 1; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
The Plaintiff’s evidence
13 The plaintiff is presently aged fifty-five, having been born in February 1965. After he completed Year 12, he did an apprenticeship as a diesel mechanic and worked in that field for various companies thereafter.
14 The plaintiff presently lives with his partner, Claire, and their children, aged nine and ten. He also has two adult children from a previous relationship.
15 In about June 2004, the plaintiff’s right thumb was partially amputated in an accident at work. He obtained damages for pain and suffering in about 2010, and continues to have intermittent pain and restriction of movement in his right thumb.[5]
[5]T37
16 This work injury required two operations. The plaintiff had two weeks off after the first operation, returned to work and then had four weeks off after the second operation.[6]
[6]T38
17 The plaintiff started working for the employer as a diesel mechanic in April 2007. The work involved a lot of climbing up and down ladders and stairs and being on his feet all day. In early 2009, his role was changed to building maintenance, a job that also required him to be on his feet most of the day and climbing ladders.
18 On the said date, as the plaintiff was walking through a designated walkway, the cuff of his left overall leg caught against a wooden pallet that was sticking out into the walkway and he fell onto his left knee (“the incident”).
19 The plaintiff believed he saw his general practitioner in Cranbourne, either that day or a day or so later, but was not sure exactly when. He continued working, hoping his left knee would improve, but the pain and swelling continued to worsen.
20 The plaintiff was cross-examined about his post-incident complaints to medical examiners. He agreed he may have hurt his knee after the incident when climbing on machines, as noted by Dr Pavasaris on 18 September 2009. Although he agreed he first mentioned the incident to Mr Abbas on 1 October 2009, he told the general practitioner at Valewood about it when seen on 28 September 2009. That doctor then noted the plaintiff advised he slipped and fell at work eight weeks ago.[7]
[7]T25
21 The plaintiff reported the incident in accordance with the employer’s policy pretty much straight after it occurred.[8] The incident was witnessed by another employee, as set out on the Claim Form, and the date thereof would have been the date on the incident form.[9]
[8]T42
[9]T43
22 In September 2009, the plaintiff’s general practitioner, Dr Pavasaris, arranged an x‑ray of his left knee, and the plaintiff also started physiotherapy at that doctor’s clinic.
23 In about September 2009, the employer organised for the plaintiff to see its doctor, Dr De Haan at Valewood Clinic, and Dr Julien Freitag, sports physician.
24 Dr Pavasaris and the company doctor referred the plaintiff to Mr Tran, orthopaedic surgeon, who first saw him on 1 October 2009. He advised the plaintiff surgery was required. On 8 January 2010, he operated on the plaintiff’s left knee.
25 The plaintiff was given four weeks off work but the employer pushed him to return to work after about two or three weeks.
26 The plaintiff continued to work for the employer in maintenance, but that work was difficult with his left knee pain and he tried to avoid putting too much pressure on that leg. The role was lighter than work as a diesel mechanic but still required being on his feet.[10]
[10]T39
27 The plaintiff agreed he had no time off work after his return post-surgery but he had a couple of months’ physiotherapy with Mr Abbas, who practised at Dr Pavasaris’ clinic.[11]
[11]T20
28 From 2010 to 2014, the plaintiff compensated with the right knee and used his back to bend instead of doing a squat.[12]
[12]T39
29 In July 2013, the plaintiff consulted a general practitioner, Dr Kumar, as he was struggling to work with left knee pain. The plaintiff then complained of back pain when lifting a 20 to 25-kilogram weight from the floor. He also told Dr Kumar of the knee surgery and that he could not squat properly and had pressure mainly on his back.[13]
[13]T36
30 In about 2014, the plaintiff moved to Queensland with his wife and daughter. His daughter suffered from asthma and the climate was better in Queensland. They also moved there for a different lifestyle.
31 Soon after arriving in Queensland, the plaintiff found a job working for the Moreton Bay Regional Council (“the Council”) supervising the workshop. That job was lighter than the work he did for the employer and he could sit and stand as needed throughout the day. There was also less walking.
32 In February 2016, the plaintiff fell onto his left knee and wrist when walking at an outdoor market. He fell because his left knee gave way and collapsed when he was getting over the top of a cable. He fell to the ground and hit his right arm.[14] His right hand took the brunt of the fall and “that was where the great pain was”.[15]
[14]T33
[15]T44
33 In this fall, the plaintiff suffered an aggravation of left knee pain and pain in his left wrist, and had x‑rays. Shortly after, his left wrist pain resolved and his left knee returned to the state it was before that fall.
34 The plaintiff saw Dr Jayawardena at Beachmere Medical Centre (“Beachmere”) after this fall, complaining of left wrist and left knee problems. Before that fall, the plaintiff had got painkillers in Queensland at a different clinic which he attended on about two occasions.[16] He has not been referred to a knee specialist for treatment in Queensland.[17]
[16]T29-31
[17]T34
35 The plaintiff agreed he had been prescribed Panadeine Forte for back pain in December 2017 at Beachmere, but it was not the first time he had been prescribed this medication in Queensland. It was first prescribed when he was in Victoria.[18]
[18]T32
36 As at January 2019,[19] the plaintiff usually took around four tablets of Panadol Osteo for his knee every day. He took Panadeine Forte on Friday nights and on the weekends as he could not take it while at work. His partner, Claire, massaged Voltaren Gel into his left knee every day. He wore a compression bandage on his left knee on most days for support.
[19]First affidavit
37 The plaintiff then had constant pain in his left knee and his left thigh muscle. That pain radiated up and down his leg, into his left hip and down to his foot. He believed that sometimes his left knee pain made him walk with an altered gait. In the last three years, he had been having pain in his low back and right ankle, which he thought was contributed to by the way he weight-beared on his feet due to his left knee pain.
38 The plaintiff also developed a large painful callus on his right foot about eighteen months after the incident, which continued to persist. He believed this was also due to compensating with his right foot. When he was standing, he tried to put more pressure on his right leg. He could stand for about an hour before his left knee pain got worse. He could walk for about half-an-hour, but after fifteen minutes his left knee pain started increasing.
39 The plaintiff found using stairs, especially going down, particularly painful for his left knee. Walking on an incline or uneven surfaces increased his left knee pain. He tried to avoid bending from the knees, kneeling and squatting, as those movements aggravated his left knee pain.
40 The plaintiff’s left knee swelled every day and he tried to use a box at work under his desk where he could elevate his left leg. He also tried to elevate his leg with a pillow when he was lying down at home. His knee pain was generally worse towards the end of the day and when he first stood up in the morning. He then needed to be careful when getting out of bed due to this pain.
41 The plaintiff got strong cramps in his left thigh muscles when lying in bed. He felt there was a loss of muscle in his left thigh area compared to the right leg.
42 The plaintiff found it difficult to get comfortable and fall asleep due to left knee pain and left thigh muscle cramping. He woke several times at night because of the pain. He usually felt that he was not well rested in the morning.
43 The plaintiff could drive, but after about half-an-hour, his left knee pain was worse due to sitting down with his left leg bent. He found it difficult to put on his shoes and socks as he needed to avoid bending his left knee to sit down while doing so.[20]
[20]T36
44 The plaintiff had difficulty bending down to pick things up off the ground and needed to bend from his back, which put pressure on it. He avoided sitting down on the ground when gardening; however, in cross-examination, he conceded he is not a gardener.[21] If he did need to get onto the ground, he had to either sit down or lie on his side rather than kneel or squat.
[21]T5
45 The plaintiff’s ability to play with his children was affected by his knee injury. He avoided kicking a football with his son and avoided playing games with his children on the floor.[22] As his children were still very young, he worried about his ability to play with them and be an active father due to his left knee injury. He was worried about his knee getting worse with age and his need for an early knee replacement.
[22]T36
46 Prior to the incident injury, the plaintiff and Claire played golf every weekend at Membridge, a 9-hole course. He was not a member and did not have a handicap – it was just a hobby.[23] He only tried nine holes once in Queensland and “that was enough”.[24]
[23]T26
[24]T27
47 Pre incident, the plaintiff and Claire also did a lot of walking together but he could not walk too much anymore.
48 The plaintiff also previously enjoyed going camping with his family on weekends and long weekends. He now found camping too difficult with his left knee pain as he had to walk on uneven surfaces and sleep on the ground. They now used a caravan when camping.
49 Prior to the incident injury, the plaintiff had a pushbike, which he rode on most weekends, and he also enjoyed riding a motorbike. His left knee pain increased when he rode either type of bike, and he now avoided riding. When he went to Queensland in 2014, he bought a Harley key-start motorbike in the hope he could ride it. He could not really ride it so got rid of it. It sat in the shed for about six months. He then sold it as it was too expensive to keep.[25]
[25]T26
50 The pushbike is in the plaintiff’s shed in Queensland. The tyres are not pumped up. He last tried to ride about nine months ago on a newly built path near his house, but it was a bit painful and he did not continue.[26]
[26]T27
51 The plaintiff had put on a significant amount of weight since his left knee injury as he could not be as active as he used to be. He had been told he needed to lose weight to take pressure off his knees. He accepted he had issues with his weight over the years and told Mr Tang in 2004 he had averaged about 120 to 127 kilograms, but was not able to hold that weight.[27]
[27]T15
52 The plaintiff had also been told by his doctors he might need a total knee replacement and that he needed to lose weight to have that surgery. He found it difficult to lose weight as he could not exercise properly due to his left knee pain. In 2018, he was prescribed Duromine, which he took to lose weight. He needed to take it again in 2019. If it was not for his left knee pain, he would not need that medication for weight loss.
53 The plaintiff’s left knee pain had affected his intimate relations with his partner.
54 The plaintiff swore a supplementary affidavit on 11 January 2020.
55 The consequences of the plaintiff’s left knee injury have been much the same; however, in the last year he felt his left knee pain has deteriorated rather than improved.
56 The plaintiff has discussed his left knee injury with his general practitioner, Dr Shanthi Kumara, who has advised him a knee replacement was the only option in the future. The plaintiff understood that procedure lasted for only about ten years, thus he was trying to delay having it as long as he could.
57 The plaintiff worries about his future as he is only fifty-five. He worries about his ability to work until retirement age and also his ability to look after his children and enjoy retirement. He thinks about whether he will be able to interact with his grandchildren in the future and whether he would require a wheelchair.
58 The plaintiff continues to take about four Panadol Osteo tablets, over-the-counter, for pain on the days that he is working. On days when not working, which is usually the weekend, he takes Panadeine Forte. He does not take any medication to help with sleep.[28]
[28]T36
59 Presently, the plaintiff is using Voltaren Gel for the swelling above the knee and the muscle aches around that area.[29]
[29]T32
60 The plaintiff presently sees general practitioner, Dr Araghi. The plaintiff agreed that when he saw the doctor for a weight review in April 2018, he told him that he had left knee pain from many years ago. Dr Araghi discussed with the plaintiff having a stem cell injection into his knee, but then advised him against this procedure, after an x-ray showed the knee was “too far gone”.[30]
[30]T33
61 The plaintiff’s work continues to be supportive of him. He doubts he would have been able to work if he did not have this job. Due to his left knee injury, he feels like he has lost his career as he cannot stand or walk for long, climb stairs, ladders, kneel or bend from his knees properly.
62 The plaintiff’s present job is supervisory, with eleven workers under him. He has been told not to work with his hands.[31]
[31]T7
63 The plaintiff had six physiotherapy visits for a back injury suffered in his current job. He did not put in a claim and did not require any time off work for this injury.[32]
[32]T27
64 The plaintiff’s solicitors had advised him that in 2004, he saw Mr Tang, orthopaedic surgeon, for left knee pain. The plaintiff does not specially recall seeing him. He does not recall a specific left knee injury in 2004 or prior thereto. He may have had pain in his left knee; however, he recalls having various pains due to the nature of his work over the years. He believes that when he started working for the employer, he was physically fit and had no problems passing the medical.
65 In cross-examination, the plaintiff confirmed he had no independent recollection of any left knee problems prior to the incident but agreed he had seen Mr Tang in 2004 and he would have had an x-ray that year. He agreed he told Associate Professor Buzzard he had no problems before the incident with his left knee because he did not.[33] He denied any previous knee impairment in his lump sum Claim Form because he did not have one.[34] He gave the same answer in his Claim Form because he could not recollect any injuries – he had had a lot of muscle aches, “bruisings”, working in his industry. He did see doctors from time to time when he was in pain.[35]
[33]T9
[34]T8
[35]T9
66 The plaintiff would not have called what was described in the 2004 documents as knee problems because he kept on working. He could not recall an injection in his knee in 1989.[36] He had had x-rays over the years. He did not recall being advised by doctors pre incident that he had osteoarthritis but agreed, if recorded by them, this occurred. But he did not recall. He did not remember having any ACL problems in 2004.[37] He did remember hurting his leg generally – soft tissue, muscle damage and bruising.[38]
[36]T11
[37]T15
[38]T16
67 The plaintiff agreed he told Mr Tran that he had had occasional aches and pains in his left knee over the years. He could not recall seeing his surgeon after the operation but may have. His knee was not healed at that time - he was still off work. His knee felt slightly better after the surgery.[39]
[39]T19
68 The plaintiff did not recollect knee problems pre 2009 or remember them - “like they were insignificant”.[40]
[40]T40
Lay evidence
69 The plaintiff’s partner, Claire McEnroe, swore an affidavit on 11 January 2020. She works full time as a registered nurse and has been in a relationship with him since about 2001.
70 Claire does not remember the plaintiff having any substantial problems with his health when they first met. She recalled in 2009 he told her he had injured his left knee when he tripped on an obstruction in a walkway at work. She could recall him having surgery in 2010 and at that time, she was on maternity leave with their first child. She looked after the plaintiff after his surgery.
71 Prior to the incident injury, she and the plaintiff shared household duties including cooking, cleaning and gardening. Since his injury, she has had to do most of these duties. As the years went on, she noticed the plaintiff’s left knee was getting worse and he was able to do less and less. That meant she had taken on all cleaning and gardening duties despite the fact she works full time. The plaintiff sometimes helps with cooking and washes the dishes.
72 Claire notices the plaintiff being in pain every day. Most days she rubs Voltaren Gel into his knee. Sometimes he uses a wheat bag for pain relief. Sometimes, she assists him with putting on his socks and cutting his toenails or their son will help him do the latter.
73 In the last twelve to eighteen months, she has noticed the plaintiff is in more pain and doing less around the house and does not get involved in as many family activities.
74 Prior to the plaintiff’s knee injury, they played golf most weekends and had barely played since. He would take her out on a motorbike but had not been able to do so for a long time because of his left knee pain. She still goes pushbike riding with the children but the plaintiff rarely goes with them now.
75 They used to own a boat which they took out on the water; however, they had to sell it about three years ago. The plaintiff struggled to get in and out of the boat and it was pointless for them to keep it. Instead of doing active things as a family, they try to do more sedentary things to accommodate the plaintiff such as going to the movies or spending time with the family. Often they are at home and just let the children play in the pool.
Treaters
76 Dr Madeleine De Haan at Valewood Clinic noted, on 28 September 2009:
“slipped & fell at work 8/52 ago-knee cap injury
not right since-on Vollaren (sic) & occasional Panadeine Forte
6/7 ago had swollen knee & more pain than before
saw local GP-x’ray
today attending ‘company doctor’ for orthop referral
pain is poorly localised
some restricted mov’t & clicking
… .”
77 On assessment, a meniscal tear was queried.
78 Physiotherapist, Adam Abbas, wrote to Dr Pavasaris on 1 October 2009, thanking him for referring the plaintiff.
79 Mr Abbas noted the plaintiff presented with 3/12 duration of left patellofemoral symptoms post fall at work. He found kneeling, squatting and stairs difficult and could walk a reasonable distance before his knee caused pain. The plaintiff was treated with advice, STM ultrasound and exercise.
80 Dr Julien Freitag, physician, wrote to the defendant in October 2009, after seeing the plaintiff, whose left knee had been injured three months earlier while at work. Dr Freitag noted the plaintiff had seen Mr Tran, who suggested an arthroscopy. After having looked at the x-rays, and also after clinical examination, Dr Freitag believed the plaintiff had patellofemoral cartilage damage that related to the fall directly onto his knee, and agreed with the surgery suggested.
81 Mr Tran, orthopaedic surgeon, wrote to Dr De Haan on 6 October 2009, advising he had seen the plaintiff on 1 October 2009.
82 Mr Tran noted the plaintiff reported occasional aches and pains over the years. He slipped at work about three months ago, which resulted in pain and swelling of his left knee. He remained at work, with persistent pain and self-medicating.
83 On examination, the plaintiff had a moderate sized effusion, with a Grade 2 anterior draw test. The knee was mobile, with an obvious click medially. The x-rays showed he had advanced degenerative disease in the knee, especially medially. Mr Tran’s clinical diagnosis was a medial meniscal tear in the face of the degenerative joint.
84 At that stage, Mr Tran had recommended surgical debridement and a meniscectomy to hopefully get the plaintiff back to his pre-injury level. He advised the plaintiff weight loss, and appropriate work modification would be of benefit going forward.
85 On 8 January 2010, Mr Tran carried out a left knee arthroscopy and meniscectomy. In the operation report, it was noted the articular surface of the medial compartment was completely lost down to the bone. There was a large displaced medial meniscal tear. The ACL had been deficient because of encroachment of the osteophytes through the notch. The lateral compartment showed a Grade 2 wear on both sides with an intact meniscus.
86 The plaintiff was reviewed by Mr Tran on 18 January 2010. His knee arthroscopy was then well healed and the knee felt much better.
87 Mr Tran advised Dr De Haan that the plaintiff’s arthroscopic finding showed that he had near complete loss on the medial compartment, with a medial meniscal tear and a deficient ACL.
88 Mr Tran advised that, at his age, these were quite adverse findings for the plaintiff and he needed to seriously consider weight loss and appropriate activity modification to ensure the longevity of the knee. From the working point of view, he could resume his activities, as tolerated.
89 Dr Jitendra Kumar noted, on 27 July 2013:
“yesterday was trying to lilt weight of approx. 20 • 25 kg from floor. noticed back pain.
has had left knee surgery in the past & feels cannot squat properly & pressure was mainly on back.
no cracking/popping sound.
mainly rt sided pain. no abnormal neurological Sx.
… .”
90 The reason for the visit was back pain, and Fenac was prescribed. The plaintiff was advised about light work only.
91 On 9 August 2013, the plaintiff saw Dr Kumar for gastrointestinal issues. It was also noted he had pain in his left knee. That note went on to set out:
“surgery on left knee under work cover 3 yrs ago. getting increasing problem & pain.
pressure on back.
slight stiffness, no locking , no feeling of giveway.
Imaging request printed: Plain X-ray• Knee, left. (?OA, h/o previous surgery)
review with results.
chase previous (sic) a records regarding treatment on left knee.”
92 On 17 August 2013, the plaintiff attended Dr Kumar for an LRTI, and left osteoarthritis of knee. The x-ray results were discussed:
“Osteoarthritis of knee. may need CT as ?loose bodies. will talk to worksafe/Legal advice about work cover & will inform me. will manage with analgesia till then.”
93 Dr Araghi, general practitioner at Beachmere Medical Centre in Queensland, reported on 13 January 2020. He diagnosed severe osteoarthritis based on the two x-rays performed in 2016 and 2019. He was unaware of the nature of the 2009 injury; however, given the findings of severe osteoarthritis, it seemed the condition more to be degenerative in nature, rather than caused by a single injury. He thought it also worth noting that, in the opposite knee, the plaintiff had significant pseudo-gout and therefore, once more, unlikely to be related to any injury, and confirmed other pathologies at work other than injury.
94 Dr Araghi noted the plaintiff had been offered platelet rich plasma, which he had not received, and he had been referred for physiotherapy of his left knee.
95 Given the severity of the condition of his left knee, Dr Araghi would not be surprised if it interfered with the plaintiff’s activities of daily living and work, and he needed to consider total replacement sooner rather than later. He thought a full assessment of the plaintiff’s functional capacity perhaps should be carried out by a qualified occupational therapist.
Investigations
96 The plaintiff had an x-ray of his left knee on 26 February 2004. It was reported the lateral view showed considerable displacement of the suprapatellar fat pad, suggesting a fluid collection in the joint space. Moderate osteoarthritic changes were noted in the patellofemoral and femorotibial regions, with some narrowing of the medial aspect of the femorotibial compartment.
97 The plaintiff had a left knee x-ray on 16 September 2009 organised by Dr Pavasaris. It was reported that degenerative change was seen in relation to both medial and lateral compartments. There was moderate narrowing of the medial joint space. Prominent changes were present at the patellofemoral joint. No significant effusion was seen. There was irregular calcific change in the region of the suprapatellar pouch, presumably representing loose body formation.
98 Dr Kumar, at Tooradin, organised an x-ray of the plaintiff’s left knee in August 2013. Clinical details in the report set out “? Osteoarthritis”. It was reported multiple osteophytic lippings were demonstrated around the knee joint and moderate narrowing of the medial joint compartment base was noted in standing weight-bearing view. The appearance was in keeping with tricompartmental osteoarthritic changes, worse in the medial compartment. There were multiple faint opaque osseous shadows noted projecting over the left knee, and they suggest loose bodies. It was noted a CT scan for the left knee would be helpful in further evaluation should there be clinical concern.
99 Dr Alcantara organised an x-ray of the plaintiff’s left knee on 8 February 2016. It was reported there was a small effusion in the suprapatellar bursa. There was the suggestion of faintly calcified loose bodies in the suprapatellar bursa. Small calcified loose bodies were also suspected posterior to the left knee joint. There was ossification at the site of the insertion of the quadriceps tendon on the upper margin of the patella. There were moderate degenerative changes in the patellofemoral joint. There were moderate to marked degenerative changes in the medial compartment of the left knee joint, with joint space narrowing associated with subarticular sclerosis on osteophytic hypertrophy of the joint margins and with a mild varus deformity. No obvious recent fracture was seen.
100 An x-ray of the left hand and wrist showed no significant soft tissue bony or articular abnormality and no fracture.
101 In his 2019 report, Mr McLean noted an x-ray of the left knee taken on 24 July 2018 which showed complete loss of medial joint space with marginal and patella osteophytes. Dr Allen described that x-ray as showing well established advanced osteoarthritis.
The Plaintiff’s medico-legal evidence
102 The plaintiff was seen by Mr Iain McLean, orthopaedic consultant of knee problems, in October 2019.
103 Mr McLean noted the plaintiff was very vague and did not recall any specific past history, but, included in enclosed documentation, was a report by Mr Tang in 2004 and a 26 February 2004 x-ray.
104 The plaintiff again stated he did not recall any specific incidents, and maybe he had minor incidents which settled, and he continued all his work without particular restrictions and not having other specific treatments.
105 The plaintiff gave a history of the incident fall and subsequent return to work and, later, surgery.
106 The plaintiff said he was off work for about three weeks, the procedure being of some help, but with ongoing problems. He did continue through until about 2014, but required various medication because of ongoing left knee pain with variable swelling and limitations. He then moved to Queensland for family reasons.
107 The plaintiff advised that, from the incident date, he had been aware of progressive and increasing pain and limitations to his mobility because of his left knee. He was able to walk with a slight limp on a flatter surface, but always with some pain, going up to 1 to 1.5 kilometres but then, afterwards, being aware of increasing pain. That pain was right across and through the whole of his left knee as soon as he started weight bearing. When sitting, he was aware of a general ache, particularly towards the end of the day.
108 The plaintiff was not able to fully squat or kneel relative to the left knee, and he was aware of variable swelling, depending on activities. There could be a sharp jarring pain with sudden or twisting movements, or on uneven surfaces. He was aware of unpredictable collapsing, and that tended to be sideways when the knee was loaded, or when on an uneven surface.
109 The plaintiff could be woken up at night by pain, and if standing, was constantly transferring weight from one leg to the other. He would become aware of some lower back pain and pain in both thighs, and some right ankle pain, which he attributed to limping.
110 Mr McLean noted the 2004, 2016 and 2018 investigations. The plaintiff was presently taking Panadol Osteo and Panadeine Forte and wore a left knee support at work.
111 The plaintiff told Mr McLean that he continued to work full time but had to strongly modify the way he performed his work activities.
112 On examination, Mr McLean noted the plaintiff was a significantly overweight male who entered the examination room walking slowly with a waddling type gait, with a shorter stance relative to the left lower limb and displaying a varus left lower limb alignment and thrust. Standing and attempting to more fully extend onto both knees displayed good weight bearing of the right lower limb, but with the varus left knee alignment. The plaintiff was not able to perform a squat, as he was taking all his weight relative to his right lower limb.
113 There was puffy thickness of the left knee with joint effusion. There was definite quadriceps muscle wasting of the left thigh, measured at 2 centimetres. The plaintiff had difficulty initiating a quadriceps contracture and then with the leg raise for a short duration, and with a definite lag. There was no obvious crepitus. The right knee had good muscle tone and form, with good alignment.
114 Mr McLean diagnosed left knee internal derangement of medial meniscus and chondral origin. There was significant aggravation of underlying, but previously asymptomatic or relatively asymptomatic, constitutional degenerative change. There had been progression of degenerative changes in varus alignment of the knee and ongoing pain and functional disability.
115 Mr McLean thought there was significant osteoarthritis affecting the medial compartment of the left knee, with limited range of movement and ongoing left pain and varus alignment. He considered the prognosis was very poor and guarded, with the plaintiff being bone on bone in the medial compartment of his left knee, with the described limited movement and his ongoing pain and functional problems. He thought the degenerative change would continue to cause symptoms so, at some point there would be the need for total knee replacement surgery.
116 Based on the need to rely on the history, honesty and recollection of the plaintiff that the stated work history had caused significant pain and ongoing problems, Mr McLean noted the injury did lead to the need for arthroscopic surgery, with the plaintiff not being aware, prior to the injury date, of ongoing symptoms of pain, limited movement and function.
117 Mr McLean thought the plaintiff’s work would need to be of a supervisory non-manual type of role.
118 In Mr McLean’s view, the plaintiff’s left knee may be considered to be substantially stabilised. The plaintiff had been advised it would be inevitable he would require a replacement but, also, that at the age of fifty-four, that he was young and significantly overweight and, therefore, has increased risk relative to that surgery.
119 Mr McLean concluded that the plaintiff undoubtedly had underlying constitutional degenerative change, as described in 2004 by Mr Tang, and x‑rays that year reporting some narrowing of the medial and tibiofemoral joint interval, but he claimed he required no specific treatment and they settled down, and he had good function prior to the incident injury, and there was no record of him having a reduced record of movement prior to then.
120 Based on the history and on the plaintiff’s honesty and recollection, Mr McLean thought knee replacement surgery would be at an earlier stage than would otherwise have been anticipated, were it not for the work injury. In his view, as at October 2019, the incident remained a material cause of the plaintiff’s ongoing knee condition.
121 None of the further material provided to Mr McLean earlier this year influenced or caused him to alter his report for assessment.
122 Associate Professor Anthony Buzzard (“Mr Buzzard”) examined the plaintiff on behalf of the defendant in December 2018.
123 The plaintiff told Mr Buzzard his problems started in June 2009 when, at work, suffering injury in the incident.
124 The plaintiff told Mr Buzzard he never had any trouble with his left knee before the incident and thought his problem in that regard was worsening. He was then taking Panadol, four a day, and Panadeine Forte.
125 The plaintiff also had started to get a bit of lower back pain and he had a right foot callus, right ankle pain and left thigh cramping.
126 On examination, the plaintiff had a slight limp, favouring the left leg. Mr Buzzard could not detect any ligamentous laxity (noting it had been detected by previous examiners). He could not find any effusion. Both legs were equally and normally developed by measurement.
127 Mr Buzzard thought the plaintiff probably had significant degenerative disease in his left knee prior to the incident. That would be consistent with the radiological findings of 15 September 2009. He considered the plaintiff did suffer from an aggravation of pre-existing degenerative disease of the left knee and that his very high BMI was now a significant contributing factor to the left knee.
128 In the longer term, Mr Buzzard thought the plaintiff may require a left knee total replacement; however, that was contraindicated now in terms of his very high BMI. He thought the plaintiff’s lower back pain was attributable to that high BMI, as was his right ankle pain.
129 Mr Buzzard noted the plaintiff appeared to be capable of carrying out full work, but should not be carrying out work involving the climbing of ladders because of his knee. Mr Buzzard concluded the plaintiff’s condition was stable. He noted that there was not any hard data in the material that he had been provided which could be used to apply the doctrine of apportionment.
Claim documentation
130 In his Claim Form signed on 10 November 2009, the plaintiff set out he suffered injury on the said date. He reported it to first aid and the incident was witnessed by Shane Dyson. The plaintiff answered “No” to the question: “Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?”
131 The plaintiff submitted a claim for permanent impairment in relation to the left knee injury. He answered “No” to the question: “Have you ever had similar injuries/conditions or injuries/conditions affecting the same body part for which you are claiming impairment benefits?”
132 By letter dated 3 January 2019, the insurer advised the plaintiff that liability had been accepted for a left knee injury suffered on 9 June 2009, and that following an examination by Mr Buzzard, a permanent impairment was accepted.
The Defendant’s medical evidence – the Plaintiff’s treaters
133 Dr Madeley, general practitioner, wrote to Dr Tang, orthopaedic surgeon, on 27 February 2004, thanking him for seeing the plaintiff regarding OA of his left knee. He noted the plaintiff had had a work injury in 1989, but never followed up. He advised him regarding weight loss.
134 Mr Tang wrote to Dr Madeley in March 2004, thanking him for the referral of the plaintiff, who had unfortunately injured his left knee many years ago. He noted intermittent knee pain, that the plaintiff had been bothered by pain and swelling but had always responded to rest. Recently, his knee did get very painful and swollen, but fortunately it had subsided to a large extent now.
135 An examination on 15 March 2004 confirmed the plaintiff still had a swollen knee. There were palpable osteophytes and some medial joint line tenderness also. X-rays actually demonstrated quite osteoarthritic changes in the plaintiff’s knee.
136 On examination that day, Mr Tang could not discern any cruciate ligament laxity, but given the changes, one would assume that many years ago the plaintiff had some form of ACL injury and medial tear. He noted the plaintiff is only thirty-nine and, at that stage, he thought they should try and treat him conservatively first, given his symptoms had settled. If the knee did flare up again though, he thought the plaintiff would be a candidate for a knee arthroscopy, and he would cross that bridge when they came to it.
137 Mr Tran, orthopaedic surgeon, wrote to Dr De Haan in October 2009, having seen the plaintiff the previous week.
138 The plaintiff stated he had occasional aches and pains in his left knee over the years. He slipped at work about three months earlier, which resulted in pain and swelling of his left knee. He had been self-medicating with anti-inflammatories and had remained at work with persistent knee pain.
139 Clinically, the plaintiff was a large gentleman. He had a moderate sized effusion with a Grade 2 anterior drawer test. The knee was mobile, with an obvious click medially.
140 The plaintiff’s x-ray showed he had advanced degenerative disease in the knee, especially medially. The clinical diagnosis was a medial meniscus tear in the face of a degenerative joint.
141 They had a long discussion regarding surgery, and at that stage, Mr Tran recommended surgical debridement and meniscectomy to hopefully get the plaintiff back to his pre-injury level. He advised the plaintiff that weight loss and appropriate work modifications would be of benefit to him going forward.
142 On review on 8 January 2010, Dr Tran noted the plaintiff’s knee arthroscopy was well healed and the knee feels much the same. Arthroscopic findings showed the plaintiff had near complete loss on the medial compartment with the medial meniscus tear and a deficient ACL.
143 Mr Tran noted, at this stage, these were quite adverse findings. The plaintiff needed to seriously consider weight loss and appropriate activity for modification to ensure the longevity of his knee. From the working point of view, he can resume his activities as tolerated.
144 On 9 February 2016, the plaintiff attended Beachmere Medical Centre in Queensland. He advised he had a fall on 7 February 2016 at about 11.00am at local markets, landing on his left wrist and left knee. He had a past history of surgery to the left knee five years ago; it was just a clean-up. The results of the x-ray were discussed.
The Defendant’s medico-legal evidence
145 The plaintiff was seen by Dr Phil Allen, consultant orthopaedic surgeon in Queensland, on 11 December 2019. He was provided with all investigations and reports from Mr Buzzard and Mr McLean.
146 When questioned about his left knee prior to 2009, the plaintiff reported there was no history that he could remember before that time, but Dr Allen noted there were medical records with respect to the plaintiff’s left knee going back to 1989.
147 It appeared that the plaintiff had left knee pathology in 1989 and the aetiology therefore was unclear, and an operation was proposed at that time. Dr Allen noted an x-ray in 2004 showed an effusion in the left knee, with already established osteoarthritic changes in the patellofemoral joint, as well as the tibia and the knee joint itself.
148 Further, it appeared the plaintiff was seen by an orthopaedic surgeon in February 2004, where he was diagnosed with osteoarthritis of the left knee and given general advice about his condition and recommended weight loss.
149 Dr Allen commented that the medical records also noted that for a number of years, the plaintiff had symptoms and swelling affecting his left knee, and they had been well established prior to the incident.
150 Dr Allen noted that, in 2004, Dr Tang had diagnosed an ACL ligament and meniscal injury, and recommended the plaintiff may benefit from a knee arthroscopy if his symptoms did not settle.
151 Dr Allen noted the incident circumstances and the plaintiff’s subsequent treatment. He commented that the surgery, in effect, was to treat a condition which had been previously diagnosed in 2004, and he thought it did not appear there was any new material injury to the knee other than an exacerbation of osteoarthritis. The exact indication for that surgery was unclear, especially in the setting of established osteoarthritis of the left knee, nevertheless, the plaintiff reported it gave him benefit. The plaintiff advised that since then, his knee had become progressively worse, with gradual deterioration, to the point where he now had significant symptoms which were interfering with his quality of life and activities of daily living. He wore a support and had difficulty walking. There was instability, pain on ambulation and at rest.
152 The plaintiff advised Dr Allen he used analgesia for his knee and that other treatment had been recommended, including a stem cell injection and a steroid injection.
153 On examination, Dr Allen noted the plaintiff to be 153 kilograms. The plaintiff advised he had always been a big person.
154 There was some varus alignment, with full extension of the left knee, and the plaintiff could only flex to 60 degrees. He was unable to perform a squat and walked with a gait which favoured the left leg, which had an antalgic quality. No effusion was detected. There was a one-centimetre decreased circumference on the left thigh calf, and crepitus in both knees.
155 Dr Allen also noted an x-ray of the left knee of 24 July 2018, where it was reported there was well-established advanced osteoarthritis of the left knee.
156 Dr Allen concluded the plaintiff had longstanding osteoarthritis, which dated back to the late 1980s. He was diagnosed in 2004 with a meniscal tear and a deficient ACL. By that stage, he had already had established osteoarthritis of the left knee, which had progressed in line with the natural history of this condition over time. It appeared the plaintiff had an exacerbation (a factor which may or may not be work related, that has caused a temporary worsening of a pre-existing medical condition with no structural changes) of his osteoarthritis in 2009, with the index incident, and treatment was received for that.
157 Dr Allen noted the plaintiff subsequently had the arthroscopy and the indication for that appeared to be pathology which predated 2009. That surgery, therefore, cannot be considered to be a consequence of the incident injury but, rather, surgery to treat the pre-existing condition. By that stage, osteoarthritis was also present in the knee and the outcome of arthroscopic surgery on arthritic knees is known to be poor.
158 Dr Allen thought the plaintiff’s pre-existing osteoarthritis in the knee had progressed in line with the natural history of that disease over the years.
159 Dr Allen commented that the plaintiff had marked symptoms in his knee at present, which were consequences both of his increased BMI, as well as established osteoarthritis in his knee. He thought the current pathology could not be ascribed to the incident, which was considered to have been an exacerbation of pre-existing osteoarthritis, and there was insufficient evidence to demonstrate that this was an aggravation (a factor which may or may not be work related that has caused structural worsening of the pre-existing changes of a permanent nature), as there was no evidence of material injury to the knee other than the exacerbation of symptoms. The pathology for which the surgery was undertaken was pre-existent.
160 Noting the knee symptoms began prior to 2004, Dr Allen thought they progressed in line with the natural history of degenerative osteoarthritis. That condition may be a post-traumatic degenerative arthritis, and there is a record of a previous injury or condition of the knee in 1989. He noted the plaintiff had a long established meniscal lesion and anterior cruciate deficiency.
161 Dr Allen diagnosed degenerative osteoarthritis which had progressed from prior to 2004 to the present, in line with the natural history of the disease, with deterioration over the years. There was an exacerbation of symptoms in 2009. That had ceased and been superseded by the progression of the underlying osteoarthritis.
162 The prognosis was for gradual deterioration of the pre-existing osteoarthritis in line with its natural history, and further treatment, including knee arthroplasty, was indicated. Reduction in BMI and symptomatic management was indicated.
163 Dr Allen thought the incident injury was an exacerbation of pre-existing osteoarthritis. It was not an aggravation, because there is insufficient material evidence to assert this was the case. The indication for surgery was pathology which predated the exacerbation. The pathology of a meniscal tear and ACL deficiency with established osteoarthritis predated the incident. He thought the plaintiff would be in the same or similar position had the aggravation not occurred. In fact, there had been no aggravation; the condition was an exacerbation and that had long ceased.
164 In Dr Allen’s view, the knee condition was due to the advanced degenerative osteoarthritis. There was no obvious functional overlay, exaggeration, psychological or psychosomatic factors apparent.
165 Mr Peter Lugg, orthopaedic surgeon, was asked to advise on the papers earlier this year.
166 Mr Lugg was provided with the claim documentation, the plaintiff’s first affidavit, the investigations report, reports from Mr McLean and Mr Buzzard, various clinical notes and Mr Tran’s operation report.
167 Mr Lugg commented, however, there were some deficiencies in the information provided, such as no clinical notes of an injection in 1989.
168 Mr Lugg observed there seemed to be little doubt the plaintiff had some problems with his left knee dating back to the late 1980s. Later, when he presented in 2004, Mr Tang commented that he thought the plaintiff had ruptured his ACL and had suffered some intraarticular derangement at that time, with which Mr Lugg would agree. Mr Lugg noted that it would appear that between the original injury in the late 1980s and 2004, when the knee became so painful and swollen and opinion was sought from Mr Tang, the plaintiff had had intermittent episodes of swelling and pain. Importantly, by 2004, he had demonstrable findings of degenerative change in moderate proportion, particularly in the patellofemoral and medial compartments.
169 Based on Mr Tang’s letter, Mr Lugg thought these intermittent exacerbations always responded to rest and resolve without any more than simple and conservative therapy. He noted that by the time of the referral to Mr Tang, the symptoms had started to subside.
170 Mr Lugg thought that scenario appeared to have continued following 2004, right up until the incident injury. He noted that injury would likely cause significant pain in the knee, which was already arthritic.
171 Mr Lugg commented it was curious that when the plaintiff was seen soon after the incident, he did not complain of knee pain, but also mentioned flare up climbing onto a machine.
172 In any event, the plaintiff was referred to Mr Tran, who undertook arthroscopic surgery.
173 Mr Lugg then detailed the post-operative knee attendances.
174 In conclusion, Mr Lugg would agree with Mr Tang’s supposition that this was likely to be an ACL injury. While Mr Tang did not demonstrate any instability when he examined the plaintiff, Mr Tran did when he was treating him for the meniscal tear and he found clinical evidence of an ACL deficiency.
175 Mr Lugg thought such deficiency made a knee more likely to sustain a meniscal injury, but when the original meniscal injury occurred, it is almost impossible to be certain about. All we know is that he did have one by the time Mr Tran saw him.
176 We also know from the plain x-rays that the plaintiff had degenerative changes as early as 2004, particularly in the medial compartment. This would be the normal, natural history one would see from a patient who had an ACL instability and, in particular, if he had already developed a meniscal tear. This clinical presentation causes premature degenerative change and, in particular, in the medial compartment.
177 Mr Lugg noted the two injuries reported by the plaintiff in 2009 and the subsequent fall in 2016, when his left knee gave way.
178 Mr Lugg would summarise all this by saying the plaintiff had a significant injury to his left knee back in the late 1980s, which caused an ACL deficiency and possibly a meniscal tear. The injured knee had developed typical premature degenerative change and the tendency to do that had been made worse by, in particular, the plaintiff’s obesity. He thought the plaintiff genuinely had the injuries described at work; he presented as a credible witness, but the injuries caused flare ups with the amount of the pain he had, sometimes resolving quickly, but sometimes not, with him going on to surgery.
179 Mr Lugg thought the plaintiff now suffers from severe medial compartment osteoarthritis of the left knee, secondary to an ACL injury back in the late 1980s, with an associated medial meniscus tear. That led to an unstable knee without meniscal support. Mr Lugg considered the incident injury to be an aggravation of a pre-existing condition-injury and believed the effects of that aggravation had now ceased.
180 While Mr Lugg thought it likely the plaintiff would have required the surgery had he had that injury or not in the incident, because the meniscal tear may well have been present already, but he could not be absolutely certain of this. He was certainly positive that the injury caused at least an increase in the size of the tear, or aggravated the previously relatively asymptomatic knee to become much more symptomatic, and on this occasion it did not settle down. The injury seemed to be the one that did not resolve relatively quickly, unlike the other ones. So it was probable that the plaintiff would have had the surgery in any event, but possible the need for the surgery was caused by the injury. He thought it more highly likely than not the plaintiff would be in a similar position now as he would have been had the incident injury not occurred.
The Defendant’s submissions
181 The defendant relied on the opinions of Mr Lugg and Dr Allen.[41]
[41]T48
182 It was submitted it should be accepted that the plaintiff has had ongoing knee problems from the 1980s until attending Dr Tang in 2004. X-ray findings in 2004, and later in 2016, “used the same language in terms of moderate to marked degenerative changes”.[42]
[42]T47
183 Counsel for the defendant agreed there was no suggestion of knee treatment between 2004 and 2009, but it was submitted, by 2004, the plaintiff had quite significant degenerative change, and that there was not much difference in the 2004 and 2016 x-rays.[43] There was no corroboration as to the plaintiff’s evidence about lack of treatment and work consequences between 2004 and 2009.[44]
[43]T48
[44]T55
184 Even if it was accepted there was no treatment from 2004 to 2009, counsel for the defendant submitted the plaintiff intermittently was bothered by knee pain and swelling, even on his own history. Osteoarthritis is an insidious progressive condition, effectively how it was described by Mr Lugg and Dr Allen, and in the context of the personal circumstances of the plaintiff, particularly his BMI, it has progressed, and it continues to progress, with incidents or episodes.[45]
[45]T49
185 The treating orthopaedic surgeon, Mr Tran, described the plaintiff’s condition as an exacerbation, but as counsel conceded, he did not indicate the duration thereof.[46] It was submitted the word “exacerbation” should be interpreted in a medico-legal context, as Dr Allen had done.[47] Importantly, treater, Mr Tran, did not provide a before and after Filipowicz[48] view in circumstances where the plaintiff has the onus.[49]
[46]T50
[47]T52
[48]Supra
[49]T53
186 The defendant relied on the fact there was marked degenerative osteoarthritis in the knee, with probably meniscal degeneration in the medial compartment which, according to the operating surgeon, Mr Tran, was effectively completely lost down to the bone.[50]
[50]T50
187 Counsel disagreed that the defendant’s case would be stronger if the plaintiff had complained or had problems with work from 2004 to 2009, because what is relevant here is the degenerative condition which, it was submitted, manifested itself in the 1980s and again in 2004. The plaintiff continues to work after 2004, has the 2009 exacerbation, continues to work, and has an exacerbation in the market fall in February 2016.[51]
[51]T51
188 On the defendant’s medical material, the underlying condition continues to degenerate, and that occurs in the context of the plaintiff’s personal circumstances of BMI, his ageing process, but, more importantly, on the medicine of the progression – the natural progression of osteoarthritis. It does not remain the same.[52]
[52]T52
189 It was submitted the injury the plaintiff has to identify, at the highest, is a furthering of the meniscal tear, which has resected, for which there is evidence there is improvement, supported by the operating surgeon, and the absence of continuing medical treatment and time off work.[53]
[53]T53
190 It was submitted Mr McLean’s view could be questioned, because it was based on an acceptance of the plaintiff’s honesty and recollection. While he also relied on the absence of treatment and interference with work into the relevant period, counsel submitted it begged the question what was the relevant material, given the plaintiff’s lack of detail in his first affidavit. Neither treating orthopaedic surgeon helped the plaintiff in doing the requisite disentanglement; however, that analysis has been done by the two orthopaedic surgeons relied upon by the defendant.[54]
[54]T54
191 In summary, it was submitted in this case, what has happened to the plaintiff is he has a degenerative condition which, of its nature, will “smart”, in the language of Kitto J in Semelitch,[55] from time to time by throwing salt on the wound, with exacerbations and/or intermittent episodes of heightened symptoms.[56] It was submitted Dr Allen’s thesis was that the current presentation is the further advancing of the degenerative state in the plaintiff’s knee, not the incident.[57]
[55]Supra
[56]T55
[57]T56
192 Further, it was submitted there was no permanent pathology that had been aggravated or permanently impaired by the incident. The issue of pathological change comes up in the context of whether or not there was an injury in the underlying condition. While it was accepted there was an exacerbation, that had not progressed the structural defect or accelerated the rate of osteoarthritis. As Dr Allen described, prior to 2004, the condition had progressed in line with its natural history, with deterioration over the years. There was an exacerbation in 2009 and possibly in the 2016 fall. Therefore, he concluded the effects of the incident aggravation had ceased and been superseded by the underlying osteoarthritis.[58]
[58]T57
193 It was submitted the pre-existing osteoarthritic condition had been symptomatic for many years, with a history of an injection, treatment and specialist referral in 2004, intermittent problems over many years and unchanged x-rays between 2004 and 2016, and then reliance on the opinion of Dr Allen. It was submitted it was incumbent on the plaintiff, who had the onus, to demonstrate the picture in respect of the knee, now, by reason of the incident, is in anyway different than it would otherwise have been, and that was Mr Lugg’s point.[59]
[59]T58
194 Counsel for the defendant was critical of Mr Buzzard’s opinion because of his “entirely incorrect history”.[60] Mr McLean should be rejected, because he relies on the honesty and recollection of the plaintiff. In any event, Mr McLean takes a Grech v Orica Australia Pty Ltd & Anor[61] approach that there is some contribution to the left knee condition from the incident. It was submitted that was the “heresy” submitted to the Court at first instance in Filipowicz.[62]
[60]T60
[61](2006) 14 VR 602
[62]Supra; T61
195 Further, counsel for the defendant submitted that Dr Allen took into account the history and surrounding facts that between 2004 and 2009, it was not a history of the condition being symptomatic, which is what Mr McLean seemed to suggest.[63]
[63]T64
196 It was submitted it could not be injury simpliciter, and absent some structural or pathological change, it cannot be an exaggeration or acceleration now. There is no medical evidence of that: “What there’s medical evidence of is a continuing symptomatic left knee and when that gets distilled down to the legal onuses of this case, that is the demarcation and delineation of serious injury, we don’t even get to that stage, we say, and if we do, well what are they that have been isolated?”[64]
[64]T65
Submissions on behalf of the Plaintiff
197 Counsel for the plaintiff relied on Mr McLean’s diagnosis as the relevant injury.[65]
[65]T66- Kyrou JA in Filipowicz (supra) at paragraph [31]
198 In terms of the requirement to delineate the impairment consequences of each injury, it was submitted that post incident, the plaintiff had to have the arthroscopic surgery with Mr Tran where bone on bone was found, whereas earlier treatment with Mr Tang in 2004 was conservative.[66]
[66]T66 – see paragraph [113] of my judgment
199 It was submitted Dr Allen was wrong in accepting there had been a previous meniscal tear, with Mr Tang in 2004 having only “assumed” that was the case. Further, Dr Allen was wrong in accepting an ACL deficiency, that having been found during the 2009 surgery but not on the 2004 examination. Dr Allen also had not taken the surgery finding of bone on bone into account.[67]
[67]T67
200 It was submitted Dr Allen’s chain of reasoning was not very clear when he concluded there was insufficient evidence to demonstrate that this was an aggravation, as there was no evidence of material injury to the knee other than the exacerbation of symptoms. That was the crux of his opinion, but it was submitted changes in radiology are not the “be all and end all” in terms of satisfying an aggravation.[68] The whole picture must be considered, including what happens to the plaintiff and the general clinical picture. In that regard, Dr Allen was in error, because he had ignored relevant parts of the equation.[69]
[68]T68
[69]T69
201 It was submitted it was an overstatement by Dr Allen that the plaintiff’s knee condition was well established before the incident. Mr Tang, in 2004, was already saying the plaintiff’s knee was settling down and there was no follow-up treatment, save for an incident in 2008 when the plaintiff jammed his leg in a door. It was accepted the plaintiff had had intermittent problems, but he had been able to do heavy work as a diesel mechanic, not going to see his doctor about his knee between 2004 and 2009.[70]
[70]T71
202 Further, it was submitted Dr Allen had understated findings on arthroscopic surgery, just describing degenerative changes as well as a meniscal tear in circumstances where there was a significant finding of bone on bone. Whilst there was an x-ray in 2004, there was no treatment following it, and then suddenly the plaintiff was involved in the incident which was trauma on the knee and not long after that he underwent surgery where bone on bone was shown.[71]
[71]T71
203 Mr McLean diagnosed damage of the chondral surfaces, not just the meniscus.[72]
[72]T71
204 It was submitted Dr Allen’s assessment was fairly simplistic, concluding there is just an exacerbation because there is no structural damage. Counsel for the plaintiff was also critical of his definitions of exacerbation and aggravation.[73]
[73]T72
205 It was submitted Mr McLean and Mr Buzzard ought to be preferred to Dr Allen, as Mr McLean had a comprehensive past history and three letters of instruction.
206 It was submitted Mr Tang, in 2004, opted for conservative treatment which appeared to be borne out by the subsequent good function and absence of symptoms, consistent with his notation at that time that the plaintiff’s symptoms had settled.
207 Casey Medical Centre records showed when the plaintiff was seen on 28 January 2004 for a mole on his back - “Inj 1989 L knee meant to have op, recurrent swells, sore gen stable eff + XRR v ? refer” and a prescription of Voltaren.
208 After the plaintiff was referred to Mr Tang on 27 February 2004, he was seen two further times that year at Casey Medical Centre, and once in 2005, twice in 2006 and 2007, and once in 2009. None of these attendances related to the left knee.
209 Dr Baria at the Cranbourne Stawell Clinic noted, on 18 May 2008 – “Hurt his left knee in the 80s 2/52 bruise his left leg: jammed at work ongoing pain of left knee as well especially in the morning click sometimes x-ray requested.” When seen by Dr Baria on 29 August 2008, there was no reference to the left knee. Dr Allen did not appear to have seen that note.
210 It was submitted Dr Allen’s assertion that the medical records also showed that for a number of years the plaintiff had symptoms and swelling affecting his left knee and these had been well established, was apt to mislead in one sense. The 2008 attendance was discrete and without follow-up, and the plaintiff told Dr Baria in August 2008 he was physically active.
211 Dr Allen asserted that the surgery was to treat the previously diagnosed condition, but made no assessment of the incident injury contribution to the need for that surgery, nor did he explain why conservative treatment appeared reasonable in 2004 and the plaintiff needed surgery in 2010.
212 There was no assessment by Dr Allen of the plaintiff’s pre-incident and post‑incident situation. He made no detailed analysis of the any differences between the 2004 and 2009 radiology.
213 Dr Allen was also criticised in that he had not done the requisite three-fold assessment, taking into account any history of trauma, radiological investigations and clinical symptoms. It was submitted he had not considered what damage there may have been to the chondral surfaces and medial surfaces.[74]
[74]T71
Findings
Credit
214 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[75](2010) 31 VR 1 at paragraph [12]
215 Counsel for the defendant was critical of the plaintiff’s lack of recollection of knee treatment in 2004.
216 In response, counsel for the plaintiff submitted the accuracy of the plaintiff’s recollection of events in 2004 could be explained by the major injury to his right thumb requiring surgery at that time. It was conceded the plaintiff was not the greatest historian; however, Mr Lugg thought he was credible, even though he had not examined him.[76]
[76]T77
217 I accept, as counsel for the plaintiff submitted, the plaintiff was a fairly straightforward person.[77] He was a credible witness who clearly did not have a great recall of treatment in 2004 for his knee; however, I accept that he did have more significant health issues at that time. The knee then settled, as Mr Tang confirmed, and the plaintiff largely got on with his life without need for further treatment and was able to do heavy work until the incident.
[77]T78
218 It is not in dispute the plaintiff injured his left knee at work in the incident. His claim was accepted, payments were made and surgery funded.
219 However, in issue is what role the incident injury plays in the plaintiff’s current presentation, with Dr Allen of the view that there was only a temporary exacerbation on a background of longstanding, progressive osteoarthritis.
220 Taking into account all the evidence, I am satisfied that the incident injury continues to contribute to the plaintiff’s current presentation and therefore reject Dr Allen’s opinion to the contrary for a number of reasons.
221 Whilst osteoarthritis is a progressive condition, in this case, there is not a history of natural progression as Dr Allen described.
222 I accept the plaintiff first had left knee problems in 1989. By the time he was seen by orthopaedic surgeon, Mr Tang, in March 2004, having had a left knee x-ray the previous month, the plaintiff’s condition had settled and no further treatment was suggested.
223 In March 2004, Mr Tang found no evidence of ACL instability/laxity on examination and simply assumed that many years ago, the plaintiff had some form of ACL injury. Further, whilst there was no evidence of a meniscal tear at that time, Mr Tang also assumed there had been some form of meniscal tear many years ago.
224 Significantly, the plaintiff did not require treatment for his left knee from 2004 until the traumatic incident, save for a knock on the knee in 2008. He was able to work full time without any restriction in a heavy job. Mr Tang’s decision to take a conservative approach in March 2004 was borne out by this subsequent good function and absence of symptoms the plaintiff actually had.
225 On this factual background, the incident injury is not merely “salt on the wound” as submitted by counsel for the defendant.
226 Soon after the incident, the plaintiff was referred to an orthopaedic surgeon, and surgery undertaken in early 2010. Findings at that stage were of ACL instability and significant meniscal damage, such that it was bone on bone/ near complete loss on the medial compartment – new findings. Knee pain and restriction have continued since that time.
227 Dr Allen’s interpretation of the clinical notes and medical evidence in the period 2004 to 2009 is flawed. There were not well established symptoms and swelling for a number of years before the incident as he described.
228 Further, Mr Tang only “assumed” there had been ACL damage and a meniscal tear by 2004. There was no firm diagnosis of these conditions which were later shown on surgery in 2010.
229 Dr Allen gave no explanation whatsoever as to why knee surgery was required after the incident and not before, simply saying the operation was to treat the pre-incident pathology. He made no comment about the significant finding on operation of bone on bone and chondral damage. He did not explain why conservative treatment appeared reasonable in 2004 and surgery was required in 2010. He did not make any detailed analysis of the radiological differences between 2004 and 2009.
230 Further, Dr Allen did not explain his view there was only a short-lived exacerbation and the plaintiff’s knee condition then reverted to its pre-incident state.
231 Mr Lugg’s conclusion can also be criticised on this basis – simply saying the aggravation had ceased, but not explaining when or why and how he came to that conclusion. Further, on the limited medical evidence he was given, Mr Lugg incorrectly assumed there was “an ongoing scenario” of knee complaints before the incident.
232 As counsel for the plaintiff submitted, pathological change is not the only relevant factor when considering this aggravation injury. In his analysis, Dr Allen failed to take into account the history of trauma and the plaintiff’s presentation in terms of the course and severity of his symptoms.
233 As Mr McLean noted, whilst there had been incidences of left knee pain before the incident, it had always settled down. This was not the case after the incident when surgery was required soon thereafter – a point taken up to some extent by Mr Lugg in his report on the papers.
234 Having accepted there is a causal link between the incident injury and the plaintiff’s current impairment, it then must be determined whether the consequences of that incident-related aggravation are serious and permanent.
235 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 the additional impairment resulting from the work incident is serious and permanent.
236 In Petkovski v Galletti,[78] 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. …”
[78]Supra; Gennimatas v Transport Accident Commission [2002] VSC 552
Consequences
237 Counsel for the defendant submitted the plaintiff had not successfully disentangled the incident consequences from his pre-incident knee condition as required by Kyrou JA in Filipowicz.[79]
[79](supra) at paragraph [31]
238 It was submitted any claimed consequences “… don’t really relate to work, don’t really relate to enjoyment of life. Maybe he stopped riding the Harley, maybe he’s got a pumped up bicycle which he’s not ridden.” But it was submitted, even if it was accepted the injury was having a continuing effect, the plaintiff still had to discharge the Filipowicz[80] burden and deal with the matter as the Court indicated in Petkovski v Galletti.[81] He has to prove, in that context, that the need for a total knee replacement arises from, and continues to be a contribution from, the incident.[82]
[80]Supra
[81]Supra
[82]T62
239 It was submitted that onus had not been discharged on the medical evidence given the history of climbing at work in the period before treatment in 2009, the history of the subsequent falls, the history of continuing to work in the presence of clearly morbid obesity – particularly when taking into account the opinion of the defendant’s orthopaedic surgeons and the matter not having been addressed by the plaintiff’s treaters.[83]
[83]T62, see paragraph [114] of my judgment
240 Counsel for the plaintiff submitted the fall in the incident caused an aggravation that has serious injury consequences in terms of pain, restriction of mobility, need for surgery and medication, bringing forward the need for knee replacement surgery, issues with sleep and interference with sporting activities such as golf and motor bike riding.[84]
[84]T75
Pain
241 I accept the plaintiff’s knee pain has increased significantly since the incident, as he deposed, despite some limited improvement after the January 2010 surgery.[85]
[85]T74
242 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[86]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[86](Supra) at paragraph [11]
243 The plaintiff has constant pain in his left knee and his left thigh muscle, radiating up and down his leg, into his left hip and down to his foot. At times, that pain makes him walk with an altered gait, and in recent years, he has experienced pain in his low back and right ankle, which he thought was contributed to by the way he weight-beared on his feet due to his left knee pain.
244 The plaintiff has reported his pain in similar terms to a number of examiners, with Dr Allen describing the plaintiff as having marked symptoms, albeit because of increased BMI as well as established osteoarthritis.
245 Further, there is some restriction of knee movement and functionality as the plaintiff described, confirmed by Mr McLean on examination. I accept the plaintiff’s description of the fall at the market in 2016 as a result of his left knee giving way.
246 I also accept the plaintiff’s back complaints in 2013, noted by Dr Kumar, were as a result of his inability to squat properly and his back taking more of the load because of his left knee problems. As counsel for the plaintiff submitted, the plaintiff was a man who was just trying to keep working and adjusted the way he did things.[87]
[87]T76
247 The plaintiff requires frequent painkilling medication for his left knee, taking four Panadol Osteo a day whilst working and Panadeine Forte on the weekends. He wears a knee support and uses Voltaren Gel.
248 As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[88]
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[88](2007) 17 VR 592 at paragraph [199]
249 I accept the plaintiff required the 2010 arthroscopic surgery as a result of this incident injury, as Mr McLean explained. Whilst the plaintiff had had other instances of knee pain, they always settled down, but this did not – a view to some extent accepted by Mr Lugg, who thought it was possible the need for surgery resulted from the incident injury.[89]
[89]T73
250 I also accept the incident injury has resulted in an acceleration of the knee replacement surgery, as Mr McLean described.[90] Based on the history and on the plaintiff’s honesty and recollection, Mr McLean thought knee replacement surgery would be at an earlier stage than would otherwise have been anticipated, were it not for the work injury.
[90]T72
251 I accept the plaintiff’s knee pain causes him difficulty sleeping and getting comfortable in bed. It interferes with his ability to walk long distances and play golf, and prevents him from riding the Harley he purchased when he went to Queensland in 2014.[91] Driving and sitting for prolonged periods increase his knee pain. He is also restricted in his ability to play with his young children.
[91]T75
252 Taking into account all the evidence and analysing it in the manner directed by the Court in Filipowicz,[92] I am satisfied the consequences of the incident aggravation are “serious”.
[92]Supra
253 The plaintiff’s evidence as to his pre and post-incident knee condition was corroborated by his partner, Claire, whose affidavit evidence was unchallenged.
254 I also accept that the plaintiff’s knee impairment is permanent, as his pain and restrictions have continued for many years despite surgery and he will ultimately need replacement surgery.
255 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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