IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE

No. U01945595

B E T W E E N

ROBERT STAMERS

Plaintiff

- and –

HERITAGE GLASS PRODUCTS (AUST) PTY LTD

Defendant

D E C I S I O N (Delivered 16 August 2007)

MR B.R. WRIGHT, MAGISTRATE

Ms. B. Knoester (instructed by Maurice Blackburn Cashman) for the Plaintiff

Mr. M. Richards (instructed by Lander and Rogers) for the Defendant

ACCIDENT COMPENSATION – TABLE OF MAIMS – RIGHT LEG – WORK INJURY AND PRIOR NON-WORK INJURY – MEDICAL PANEL OPINION AS TO CONTRIBUTION – QUESTION OF APPORTIONMENT – PAIN AND SUFFERING – ACCIDENT COMPENSATION ACT ss. 68(4),98,98A

(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS)

LEGAL TRANSCRIPTS PTY LTD

Suite 18, 600 Lonsdale Street, Melbourne – Telephone 9642 0322

D E C I S I O N

HIS HONOUR: The plaintiff seeks compensation for permanent and partial loss of use to the right leg pursuant to s.98/98A of the Accident Compensation Act (“the Act”) as a result of an injury which occurred on or about 15February 2006.

Although the defendant in its Defence denied liability for that injury, it emerged in the course of evidence that in fact the defendant or the VWA paid medical expenses for that injury. In any event, as a result of a Medical Panel Opinion of 7June 2007 that defence is probably irrelevant anyway.

However, a major issue between the parties involves an earlier injury to the right knee sustained while the plaintiff was playing indoor soccer in 1989 in non-work related circumstances.

The plaintiff is aged 39 years old and has at all times material worked, and continues to work, as a glazier. He worked for the defendant from about 1989 till late 2003, except for about ten weeks in the year 2000. Initially his job involved mainly domestic work with some commercial work. However, over the years it has progressed to being more commercial.

Nowadays he mainly does commercial work such as office glass partitions, security doors and windbreaks in glass. Of course, the glass handled in these applications is more heavy and awkward to handle.

His right knee problem started in 1989 when he was injured playing indoor soccer. He was referred to MrStanley O'Loughlin, orthopaedic surgeon, who performed a partial medial meniscectomy in 1991. He returned to work after ten days and made a good recovery from pain and locking.

He had a further incident when he jumped off a ledge and caught his right foot in a roof ridge in 1993. He jarred the knee and had physiotheapy for a short time. He stated his knee recovered well and he was even able to play mixed netball. He made a workers' compensation claim and was paid his reasonable medical and like expenses at that time.

He hurt his right knee again at work on or about 15February or 12February 1996. As he twisted in a full squat, he felt and heard a snap to his right knee. He said there was severe pain this time. He got severe swelling and went to his GP. He was given anti-inflammatories and physiotherapy.

By November 1996 it had not resolved. He had been having locking episodes to the knee. He was able to adjust performing his work duties to minimise use of the knee. He was referred back to MrO'Loughlin, but did not attend him as the knee appeared to settle slightly. He had intermittent swelling and locking over the years. Again, in the year 2001 he was referred back to a MrO'Loughlin, but did not keep the appointment. At some stage he was paid his reasonable medical and like expenses from the 1996 knee episode.

In mid 2003 he had a problem with his left knee. He asked the doctor, DrHarry Unglik, to examine his right knee and was told that he had ruptured his right ACL (anterior cruciate ligament).

His workers' compensation claim was denied at that stage on the basis that there was no rupture. He then was referred to DrBoecksteiner, an orthopaedic surgeon. She operated on three occasions performing an osteotomy, ACL reconstruction and cartilage grafting procedure. He still has the knee screws in situ.

Unfortunately, the bouts of surgery occurred just after he had changed jobs. This caused considerable financial and other anguish to the plaintiff and his family.

He was visibly, understandably and genuinely upset in recounting the events of that time to me. He was considerably restricted for 12 to 15 weeks being virtually unable to do anything. He had to wear a brace 24 hours a day for some considerable time. He returned to work on light duties in June 2004.

Although he has had little treatment of attendances on doctors since, I accept he has continuing problems with the knee at work and otherwise. As stated, the relief sought pursuant to ss.98/98A was denied at all relevant times. In April 2007 questions were referred to a medical panel at the request of the defendant.

The medical panel formed its opinion dated 7June 2007. It found the plaintiff had an overall 20% permanent partial loss of use of the right leg for industrial purposes.

It found the plaintiff's employment with the defendant, and in particular on or about 15February 1996 (which actually occurred on 12February 1996) was in fact a significant contributing factor to an aggravation of osteoarthritis to the right knee, a tear of the medial meniscus and a tear of the ACL.

It found the loss of use was materially contributed to by the 1989 injury to a ‘minor’ extent, and the February 1996 injury to a ‘major’ extent. Thus, it is necessary for me to determine the actual percentage as a result of the employment, and in particular the incident in February 1996.

Further, if relevant, I need to consider any allowance pursuant to s.98A. Of course, I have to adopt and apply the medical panel opinion pursuant to s.68(4). To that extent, any finding I make, must be consistent with that opinion (see Kumar v. QBE [2006] VSCA 103). In determining the actual compensation payable for any loss of use, I must apply s.98(4)in determining the amount that “. . appears to be just and proportionate to the degree of injury suffered."

A large number of reports were tendered from various doctors. The only doctors who considered the issue to any degree were MrClive Jones and MrKevin King. MrJones' material was of little assistance as it contradicts the medical panel opinion in a number of ways, especially as to whether the employment incident in February 1996 contributed to any knee injury at all. MrKing certainly considered the issue in more detail and stated that apportionment is complicated by such a long history.

Despite this he stated that about one-third of the current impairment was due to the original injury in 1989 and two-thirds as a result of the specific incident in February 1996. He stated the overall impairment was 25%, which is not the relevant issue.

Of course, in considering such issues any court is not strictly bound by medical evidence as to the actual percentage or even scientific tests (see such cases as Buwalda v. SEC (1973) 4 WCBD 329 and Manning Vale Homes v. Cleveland (NSW C/A, unreported, 29August 1995).

In looking at apportionment in s.98 cases there are two particular ways to look at the overall disability. Firstly, in looking at any pre-existing injury, the state of the worker's knee prior to the industrial injury is relevant (see King v. Hayward (1943) 67 CLR 488). Secondly, to what extent is the final percentage impairment due to the non-work and/or work-related injuries (Gennimatos v. TAC (2002) 5 VR 547).

I accept the plaintiff's evidence that after his injury in 1989 he had no problems with the right knee except for a short (and work-related) episode with the defendant occurring in about 1993.

It was after the 1996 episode that his continuing problems really started to the extent that he was referred back to MrO'Loughlin in 1996 and 2001, but did not keep those appointments. Certainly, the surgical findings were much more serious in 2003 than in 1991. He now had a tear (whether that be a complete rupture or not) to the anterior cruciate ligament and a further tear to the medial meniscus. Prior to 1996, he had gone some five years without continuing problems.

Even if the anterior cruciate ligament had been in a weakened state prior to 1996, the medical panel found that it had now torn. On that basis, a very large proportion of the ultimate percentage is attributable to the 1996 incident. MrKing appears to have considered the issue on the second basis, that is looking at the issue of contribution in retrospect, which is a way of considering apportionment.

In considering a “just and proportionate amount” of compensation, I believe I should consider both approaches. Doing as best I can in the circumstances and taking into account MrKing's opinion, the surgical findings in both 1991 and 2003/2004 and my acceptance of the lack of symptoms in the interim, I find that the plaintiff has a 16% permanent partial loss of use attributable to the February 1996 incident. That is, on the basis that 80% of his total impairment is due to that incident.

That is consistent with the medical panel opinion. That incident materially contributed to a ‘major’ extent to that loss of use and the 1989 injury to a ‘minor’ extent. Thus, the plaintiff is entitled to an assessment pursuant to s.98 of 16% permanent partial loss of use to the right leg (i.e. $12,036) which is above the threshold for s.98A at the time. Accordingly, I must consider the factors set out by the Victorian Court of Appeal in Dunstan v. Amcor [2000] VSCA 9.

I have already set out a number of relevant details of this man's rather lengthy and painful history of three bouts of surgery over five months, his lengthy recuperation period and distress and anxiety this caused him. I also accept his evidence that although he is able to continue working in his occupation as a glazier (even with relatively considerable overtime) he is continually subject to the limitations imposed by his knee. This results in adjustments to his method of performing work and the type of tasks he is able to perform.

Certainly I accept that he has difficulty in manoeuvring large items of glass, working on building sites and getting into awkward positions because of his leg. He is likely to continue to have such difficulties indefinitely. Further, he is likely to continue to have periods of swelling and pain to the knee, consequential upon his work-related injury.

Of course, I must look at the maximum amount payable of $53,880 (and pursuant to s.98(3)) which is only payable in the most extreme case and award a reasonably proportionate amount having regard to the degree and duration of pain and suffering and the severity of the injury. I award such pain and suffering in the amount of $12,500, giving a total award pursuant to s.98/98A of $24,536.

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.JL:FJ 16/08/07 FTR: DECISION

Stamers