Xanthoulas v Eire Workforce Solutions Pty Ltd (Workcover)

[2017] VMC 20

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION  H10917013

BETWEEN:

STERGIOS XANTHOULAS  Plaintiff

-and-

EIRE WORKFORCE SOLUTIONS PTY LTD   Defendant

MAGISTRATE:   GINNANE

WHERE HEARD:   MELBOURNE

DATES OF HEARING:   20 & 21 NOVEMBER 2017

DATE OF DECSION:   23 NOVEMBER 2017

MEDIUM NEUTRAL CITATION:  [2017] VMC020

REASONS FOR DECISION

Workplace Injury Rehabilitation and Compensation Act 2013 – bilateral knee injuries – two claims – accepted workplace injury – whether plaintiff incapacitated for pre-injury duties – limited value of surveillance footage – whether plaintiff’s account of pain exaggerated or psychological – opinions of defendant occupational physician beyond scope of expertise – work injury comprises material contribution to incapacity for pre-injury duties

APPEARANCES   Counsel   Solicitors

For the Plaintiff  Ms A. Smietanka  Zaparas Lawyers

For the Defendant  Mr E. Makowski  Russell Kennedy

HIS HONOUR:

1. The plaintiff seeks relief by way of setting aside two notices made by the defendant employer’s authorised agent Xchanging Integrated Services Victoria Pty Ltd in respect of knee injuries.
2. The plaintiff suffered a work related injury on 8 March 2016 when as a result of an assault at work he fell to his knees suffering injury to the same.
3. The plaintiff lodged firstly a claim for compensation dated 8 April 2016[1] seeking compensation for his left knee. Liability for injury to his left knee was accepted by the defendant.

[1] ExP1

4. On 6 October 2017 the plaintiff lodged a claim in respect of his right knee.[2] The defendant also accepted liability for this claimed injury.

[2] Ex P2

5. By written notice dated 23 September 2016 Xchanging determined the plaintiff’s entitlement to the receipt of weekly payments of compensation for left knee injury together with payment of medical and like expenses were to cease from 28 October 2016[3].

[3] Ex D4

6. By written notice dated 18 October 2017 Xchanging rejected the plaintiff’s entitlement to the receipt of weekly payments of compensation for the right knee injury together with payment of medical and like expenses after 6 September 2016[4].

[4] Ex D5

7. The principal question for determination by the Court is whether the plaintiff’s injuries have resolved such that he is fit for pre-injury hours and duties of employment. It was not contended for by the parties that the required test was otherwise.
8. I am satisfied by the plaintiff’s evidence on the balance of probabilities that his injuries to his knees have not resolved and that his work injuries to the knees materially contribute to an incapacity that prevents the plaintiff from being fit to return to his pre-injury duties and hours. My reasons for arriving at this result follow.
9. In the determination of proceedings of this type the court exercises original jurisdiction to determine the matter and it is not undertaking judicial review of the decisions of the employer’s agent Xchanging. However, in tracing the determinative action taken by the defendant’s insurer in terminating the plaintiff’s compensation, it is worth noting that the underpinning for the agent’s decision in each instance of termination was the reliance placed on the opinions of Dr Marcus Navin, Occupational Physician. Indeed in my judgment, the plaintiff’s only relevant evidentiary vulnerability is contained in the opinions of Dr Navin upon which was based the agent’s two notices of termination of compensation. There was produced at the trial of the proceeding some surveillance footage taken in September 2016 lasting approximately 6 minutes but it was not of much value one way or the other in revealing the plaintiff’s work capacity.
10. In order to determine if the plaintiff has a capacity for his pre-injury duties it is relevant to consider the particulars of his employment whilst engaged by the defendant. There was no debate about the salient features of the duties undertaken by the plaintiff in his pre-injury employment and although there were some cross-examination about certain elemental features of his work, such as the way in which he went about the use of a shovel and the extent of exertion required by the plaintiff when he dug with a spade, I am satisfied that the plaintiff’s duties are physically demanding duties and, moreover, duties the execution of which, require considerable physical force that would place stress on and through his knees. The work required the plaintiff to lay pipes in deep ditches and to follow graders along trenches and to disperse gravel. The duties necessitated a capacity to physically manoeuvrer the body into trenches and onto dirt ledges and from which place, the plaintiff said, to then drop into the bottom of the pit or trench.
11. In terms of oral evidence the issue joined can be seen in the evidence given by the plaintiff’s orthopaedic surgeon Ms Manolopoulos and the defendant’s occupational physician, Dr Navin. Both gave written and oral evidence. Ms Manolopoulos was very impressive. She gave evidence that was both explicable and empirical and she related to me her concerns about the insufficiency of opinions expressed by Dr Navin and his recourse and reliance on psychological issues that he has attributed to the plaintiff in to explain his functional limitations, something which Ms Manolopoulos considered beyond her expertise.
12. Mr Makowski of counsel for the defendant relied upon what he argued amounted to a concession by Miss Manolopoulos in acknowledging an insufficiency in the pathology for the plaintiff’s expressed pain and functional limitations, and that absent the plaintiff’s account of pain, she would have no difficulty with him performing a range of duties. However, Ms Manolopoulos did not concede the absence of the existence of pathology to account for the plaintiff’s pain.  
13. The plaintiff makes no claim for an injury constituted by a “pain syndrome” so characterised in final address. The plaintiff’s counsel Ms Smietanka expressly abandoned any consequential psychological injury stemming from the plaintiff’s physical injury.
14. The written reports from Ms Manolopoulos received in evidence included her report dated 25 September 2017 that followed her examination of the plaintiff on 22 June 2017 in which she said as follows:

“He had recently had an MRI scan of his right knee that shows a medial meniscal tear and a MCL ligament tear. He is had 3 weeks of hydrotherapy which caused him pain and is now doing his own exercises in a pool. He is able to walk for fifteen minutes before he experiences pain in both knees but is somewhat better now. The cold weather is making his pain worse and is no longer able to hike as he used to. He is not able to walk his dogs, and he feels quite functionally disabled.…

His right knee is causing him symptoms as a result of meniscal pathology and a MCL ligament injury. With respect to [his] left knee he has a medial meniscal tear and he had lateral tibial plateau contusion that was diagnosed in 2016.

With respect to my report on the 5^th December 2016, I still maintain that [the plaintiff’s] medical condition has entirely been contributed to by his injury sustained in March 2016. In addition, I do not feel that [the plaintiff] is capable of his pre-injury employment as a civil construction labourer as a result of the functional limitations that I have listed above.

I feel that [the plaintiff] will certainly benefit from further treatment. I think his meniscal tears are causing him pain and he would benefit from arthroscopies of these. In addition I feel that he would also benefit from referral to a pain clinic.

The plaintiff has difficulty with manual activities. He finds it difficult to bend, squat and kneel, although pulling, pushing or lifting is not as seriously affected[5].

He finds it difficult to repetitively manipulate the lower limbs as mentioned in my functional limitations above. He is unable to walk or run and has not tried climbing.

I consider [the plaintiff] as a civil construction labourer was causative and a significant contributing factor to his right knee injury. At the time of his accident at work he had bilateral knee pain. Initially the left knee was attended to and the right knee was somewhat neglected until symptoms provoked further investigation by myself.

In contrast to Dr Navin’s opinion regarding [the plaintiff] having no injury I would disagree. His functional limitations are quite considerable and he now has MRI scan evidence of bilateral knee pathology. I do not feel that [the plaintiff] is able to return to his preinjury duties.”

[5]I note this is consistent with the surveillance footage I saw.

15. In her oral evidence Ms Manolopoulos described having seen the plaintiff initially on 4 August 2016 and subsequently on 22 September 2016, 13 October 2016, 27 October 2016 and most recently on 22 June 2017. Seven written reports in total were provided by her (Exhibit P 3). Her reports most recently are those of 16 February 2017 and 25 September 2017.
16. Some part of the cross examination of Miss Manolopoulos sought to elicit from her the extent to which if at all she was aware that the plaintiff suffered injury as a result of a “twisting” movement when he fell. She described a valgus force to the left knee but no mention of the same to the right but she concluded based on the description of the fall on to both of his knees that the plaintiff in all likelihood would have twisted. I note that Mr Maclean an orthopaedic consultant who reported to the plaintiff’s solicitors dated 9 August 2017 included in his description of the history relevant to injury that the plaintiff gave an account in which he was “initially pushed in the chest by the worker, so that as he went to defend himself, he wrestled, falling to the ground on the front of both his knees, but being aware of twisting during the struggle.”[6] Certainly the plaintiffs account given in his evidence in chief and in cross-examination was that as part of the struggle he twisted. To the extent twisting is a necessary mechanical precondition to the presentation that the plaintiff suffered to his knees I am satisfied of it.

[6] Ex P9

17. I am satisfied as well that prior to the work related injury the plaintiff presented with no pre-existing damage to his knees. This is an important finding due to the extent to which the defendant seeks to attribute in part any pathology by way of observation in relation to the condition of the knees to ordinary degeneration as opposed to the ongoing consequences of the work related injury. The argument raised by the defendant that any pathology is consistent with ordinary degeneration, is something I reject. It is not on the balance of the evidence the account I prefer. The rationale for such a finding depends upon a rejection of clinical evidence based on scans and the contention that the deleterious effects of the fall sustained and damage to the knees should by now have resolved. Thus, the argument goes, the plaintiff’s experience of pain is psychologically based or is exaggerated. The high water mark for in support of this argument is Dr Navin.
18. Doctor Navin’s two reports and the opinions expressed by him in them were called into question to some considerable extent due to his concession that the material upon which he relied for the opinion that the plaintiff presented with a “long history of mental health difficulties …. [that] has required significant medication for depression …” was not based on any evidence before him is concerning medications.
19. On examination and by reference to the plaintiff’s general practitioner’s notes which I permitted to be introduced on a limited basis on an opposed application by the plaintiff’s counsel after she had closed her case, there was some record of historical emotional upheavals in the plaintiff’s life and of a mental health plan  and a breakup of a personal relationship but that there existed within the plaintiff’s history any plausible connection to the conclusions reached by Dr Navin to support a thesis he developed that the plaintiff’s restrictions on examination were not genuine or were exaggerated is a theory I reject and, moreover, the opinions expressed by Dr Navin as to the plaintiff’s mental state extended beyond his expertise, something he readily conceded under cross-examination.
20. I accept the evidence of Ms Manolopoulos in preference to Dr Navin. Dr Navin accepted that he would defer on orthopaedic matters to Ms Manolopoulos. She said that she saw evidence of bone contusions and she maintained the existence of some minor irregular tearing to the free margin of the body of the medial meniscus but that the resolution on the film of the scan made it difficult to assess the size of the tear although she thought it probable to be greater in size than lesser due to the plaintiff’s report of symptoms. As well she thought that the left knee radiology findings seemed somewhat more significant than that for the right knee. She accepted that the MRI of the right knee exhibits no sign of effusion or synovitis. However, she discounted as determinatively adverse to the plaintiff’s complaints of pain the comment by Dr Navin of a lack of swelling due to the need for 50 ml of fluid to be present for the same and this being an amount she categorised as a significant amount.
21. In relation to the observations she drew from the surveillance footage she noted that the plaintiff presented with a limp when filmed walking in and out of a service station. The limp was evident to me. It was suggested that the limp was minimal on observation ad was not in the nature or style of a “waddling gait’ as had been ascribed to the plaintiff’s presentation by Mr McLean. However, as Ms Manolopoulos said, her consideration of the plaintiff’s gait would normally be conducted on examination in which the plaintiff’s affected limbs would be on display and the movement not disguised by clothing. As to the footage that the defendant’s counsel suggested identified the plaintiff attempting to push his car up his driveway by leaning outstretched with his arms on the bonnet, Ms Manolopoulos said that it was not plain to her what action the plaintiff was trying to perform but that it looked to hear as if he was trying to rock the front of the car up and down. That too was my observation. The plaintiff in evidence on being questioned about it, could not recall what he was trying to achieve but denied that he was attempting to push the car up the driveway of his home. Much was obscured when another car arrived and people alighted blocking a clear observation of the scene. Again, however, Ms Manolopoulos said that the assertions by defendant’s counsel to her in questioning about the apparent posture adopted by the plaintiff was problematic partially because his affected limbs were obscured by clothing and the arrival of another vehicle and persons in the frame.
22. Ms Manolopoulos did accept in her cross-examination that absent the plaintiff’s pain she would not have difficulty with him returning to a range of duties. There are two important comments to make about this aspect of the evidence upon which the defendant relied on. The first is that Ms Manolopoulos did not concede that sans pain the plaintiff would be fit to undertake his pre-injury employment. But second, and more relevant, the question is refined to the extent which if at all there is a sufficient evidentiary basis that the plaintiff’s pain is rooted in the pathology of his injury or rather and instead if it amounts to a “pain syndrome” or “pain condition” that is psychological in nature and thus not part of the plaintiff’s case.
23. There is reference to the plaintiff suffering a “pain condition” in a number of the reports. However, the extent to which any medical examiner, other than Doctor Navin, presents the plaintiff’s restrictions as due to, or by reference to the legal test “materially contributed” to by a pain syndrome or pain condition caused by a psychological problems as opposed to the effects of the work injury is limited.
24. Mr McLean reported to the plaintiff’s solicitors dated 9 August 2017[7]. He wrote of the plaintiff as having experienced “very little change in symptoms over the last six to twelve months”. He went on and his report included the following extracts:

[7] Ex P9

Pain remain in the peripatellar aspect and deep in both knees, and a present for 75% to 80% of the time; with the other 20% to 25% of the time he has reduced pain only when taking medication. He states that he is only able to walk for 10 to 15 minutes before the pains become too great and he needs to sit. He can only walk on the flatter surfaces, with any undulations causing more problems, particularly coming down any slopes.

He has difficulty negotiating steps and stairs, doing one at a time and holding the rail due to both pain and insecurity coming down.

He is unable to squat relative to either knee.

If attempting to knee onto a soft cushion, he then has difficulty to arise, needing to push off or hang onto firm objects to arise.

He is aware of clicking that occurs into either knee with associated sharp pains. These are random and can occur two or three times in a day.

Swelling will occur with the puffiness to the knees if he is on his feet “too long”.

Pains are worse in the cold weather, with the left being more of a problem and the irritation then posterolaterally and into the lateral car.

His sleep at night can be interrupted by pain in his knees, whereby he will need to take further analgesic medication.

25. Mr McLean made observations on examination of both the right and left knees. He diagnosed a “Bilateral knee soft tissue abrasion and contusion injury, including lateral tibial bone oedema left knee. Trauma triggering complex pain; anxiety/apprehension, limited range of knee movement (into flexion and extension); with resulting functional disability.” In response to whether or not the plaintiff would benefit from additional treatment he wrote that the plaintiff “presents as a complex pain problem triggered by his traumas to both his left and right knee is as a result of the work incident of March 2016”. He went on to point out that there was an absence of evidence of “significant internal derangement of either knee”. In relation to operative or surgical treatment he said that although he saw no indication for surgical intervention he believes the role of arthroscopy was a possibility but this was predicated on a necessity to better define the pathology so as to set a further appropriate exercise or work program. He was of the opinion that it was appropriate to defer these further investigations and consultations to the plaintiff’s orthopaedic surgeon. In relation to the presentation and its impact on functional limitations, Mr Maclean said that the plaintiff “would find difficulty performing any of the following activities:

·     Manual activity

·     Bending, squatting, kneeling

·     Pulling, pushing or lifting

·     Repetitive manipulation of lower limbs

·     Walking, running or climbing

·     Any other physical functions or motions.

26. He went on to say that the plaintiff “a significant functional limitations to all the above activities”. Furthermore, he expressed the opinion that the plaintiff “does not have capacity to perform his pre-injury duties.”
27. Mr Maclean also wrote when summarising the plaintiff’s presentation as a man who had been involved in an altercation at work “whereby he wrestled, twisted and fell to the ground. He suffered direct blows with abrasions to the anterior aspect of both knees, followed by the swelling; the left being the more predominant initial problem. From that incident is suffered a pain and functional disability, with limited range of movement, and at all times walking with a limp, not fully extending onto either knee”.
28. He said that on examination, some 18 months having passed following the onset of symptoms that the work incident has triggered, “the vicious circle of complex pain, apprehension and disability.” I am not prepared to accept nor do I find any of this reporting constitutes a sufficient evidentiary basis that the physical disability does not constitute a material contribution to the plaintiff’s ongoing incapacity in a functional sense to perform his pre-injury duties.

26. Doctor Doig in a report to the defendant’s solicitors dated 28 August 2017 examined the plaintiff on 23 August 2007. He gives an account of the incident of the work altercation. He recorded the treatment to date which is essentially been “conservative management”. He recorded the plaintiff had undergone physiotherapy and hydrotherapy and uses analgesics on an ongoing basis as required to control pain. He recorded the complaints presently made by the plaintiff which is persistent bilateral knee pain with difficulty straightening the legs and difficulty bending, twisting and squatting. He noted the plaintiff is required to kneel with care, which is very uncomfortable.
27. He reported that investigations of plain x-rays were reported as satisfactory and an MRI scan revealed a contusion on the lateral tibial plateau at the left knee with an osteo-chondral defect at the patella, which may have been old. Mr Doig went on and noted the MRI scan of 24 May 2017 suggested a tear of the medial meniscus, again something which may be of long-standing, and some scarring of the medial collateral ligament. I note here that I am not satisfied that the observations relating to an old injury in any way moderates the conclusions I have reached. Indeed I prefer the evidence of the plaintiff’s treating orthopaedic surgeon which is that the conclusions in regard to an old injury are debatable. Dr Doig made notes of clinical examination of the plaintiff who appeared to walk with both knees flexed and could only squat to 100° from the horizontal position holding onto the desk. He observed the plaintiff could only kneel with care, which was uncomfortable. He wrote that there were no obvious joint effusions. He went on to note that the plaintiff appeared to have 10° fixed flexion deformity at both knees with 120° of flexion on the right and 105° on the left. He noted that both patella-femoral articulations were irritable and the joints were generally tender, particularly in the medial sites.
28. Dr Doig was asked to comment on the worker’s current physical condition, symptomatology, physical restrictions and how any condition affects all limits the worker’s physical functioning. In response to this he wrote that the plaintiff:

…has developed bilateral chronic pain in his knees with fixed flexion deformities. He will have a 10 kg lifting/pushing/pulling restriction with limited bending, twisting and squatting through both legs. He should not be working at heights or on uneven ground. He will have difficulty repetitively climbing stairs and hills and should avoid kneeling. All activities out-with these restrictions will symptomatically exacerbate his knee conditions.

32. Dr Doig’s opinion included the plaintiff’s continuing use of analgesics to deal with the ongoing pain unless and until the knee pain subsides or otherwise resolves.
33. In response to the plaintiff’s prognosis in respect of his physical condition he replied as follows:

The prognosis must be guarded is now nearly 18 months since the worker’s injury. Based on the MRI scan findings there is no significant pathology that really could be addressed with arthroscopic surgery, although these scans are not always accurate. A clinical concern of performing any operative procedure would be the potential worsening of the fixed flexion deformity is that already pre-exist. Prognosis for the knee condition is therefore must be guarded.

34. It is true that Dr Doig referred as well to the plaintiff having “developed a chronic pain condition particularly affecting the left side more than the right, with the development of fixed flexion deformities which are unlikely to resolve in the future” and that examination findings “appeared excessive relative to the MRI scan findings.” However, Doctor Doig also added that, “once again that these scans are not always accurate.”
35. Doctor Doig wrote that the plaintiff:

...appears to have damage the patello-femoral articulations at both knees particularly the left side where there is an osteo-chondral defect on his MRI scan. There was also a lateral tibial plateau contusion with scarring of the medial collateral ligament on the right side and degenerative fraying/tearing in both knees of the medial menisci. In the absence of any prior problems with the knees, it would appear that the incident of 08.03.2016 is materially contributing to his condition.

36. Doctor Doig was further asked the plaintiff’s current capacity arising from his findings on examination. In particular he was asked whether the plaintiff could perform the duties detailed in an appended job description. He was also asked about the prospects of the plaintiff returning to suitable employment. In dealing with the matter before me, which is whether or not the plaintiff presents with a capacity for preinjury employment, Dr Doig wrote:

Based on my current examination findings, the worker is unlikely to return to his preinjury occupation and will require, I expect, retraining into a permanently sedentary job.

He is currently only fit for a seated job with the previous restrictions in place.

37. I add that in having taken account of the plaintiff’s evidence and presentation and responses under cross-examination that he impressed me as man beset by pain and who gave a credible account of himself. I thought he did cavil at one point with the defendant’s counsel in relation to his actions about what he was trying to do with the car as he leaned against it but I am not satisfied that the short footage introduced in evidence by the defendant gave a probative insight into the plaintiff’s capacity and certainly not sufficient to be set against the evidence of the plaintiff’s orthopaedic surgeon and the opinion of Doctor Doig as to incapacity for pre-injury duties due to the work injury and his opinion about the necessarily modified nature of any employment the plaintiff might be able to undertake should it arise.
38. I am called on to decide if the plaintiff continues to suffer injury for his work and if he does whether the injury is one that renders him incapacitated for employment. In answer to both these questions, the answer is yes. I was not addressed on the law and largely because the matter is decidedly one of fact but I have applied the test required under the Act and I am satisfied that considered against that template the evidence of both of a lay and an expert medical nature fortifies my conclusion. As I have already identified but for Dr Navin there is no contribution of fact or factors that abrogates the work injury as a material contributing factor to the ongoing incapacity. The signal factor identified on the whole of the evidence when understood in light of my reasons for the plaintiff’s continuing incapacity is his work injury. It need not be the sole or dominant reason but I am satisfied of its significance.
39. I direct that the notices are to be set aside and I declare that the plaintiff is entitled to weekly payments of compensation for incapacity at the appropriate rate from 14 October 2016 to date and to continue in accordance with the Act and for medical and like expenses to continue from 26 October 2016 also in accordance with the Act and that the plaintiff’s entitlements to weekly payments and medical and like expenses be reinstated from 5 September 2016 to date and to continue in accordance with the Act pursuant to the second claim.
40. I will hear the parties as to the appropriate form of final order including as to interest and costs.