IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List
Case No. CI-19-05876

MARIO DE’OLIVEIRA	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

---

JUDGE:	HIS HONOUR JUDGE PURCELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 February 2021	
DATE OF JUDGMENT:	17 March 2021	
CASE MAY BE CITED AS:	De’Oliveira v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2021] VCC 258		

REASONS FOR JUDGMENT
---

Subject:		ACCIDENT COMPENSATION
Catchwords: 	Serious injury – right knee – causation – leave sought for pain and suffering
Legislation Cited:	Accident Compensation Act 1985 (Vic), s134AB(37)	
Judgment:	Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.

---

APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Mighell QC with
Mr L Allan	Slater and Gordon Ltd Lawyers	
			
For the Defendant	Mr J Batten	Lander and Rogers	

HIS HONOUR:

1	On 18 May 2010, the plaintiff, Mr Mario De’Oliveira was working as a concreter for Summit Formwork Pty Ltd.  On that day he was using a trowel on wet concrete when a kneeboard on which he was kneeling slipped, causing him to fall onto the wet concrete, with his right hand in an outstretched position, but otherwise onto the right side of his body (“the incident”).
2	Following the incident, the plaintiff claims to have developed pain in his right knee, right hip and right shoulder.  
3	Following the incident, the plaintiff remained off work for several months.  By about 1 October 2010, he returned to work.  
4	The plaintiff continued working as a concreter.  In October 2010, the employer changed its corporate structure and name to become Summit Formwork (Aust) Pty Ltd (“the employer”).  The plaintiff was apparently unaware of that change.  He always regarded himself as working for Summit Formwork and the nature of his work remained the same.
5	The plaintiff was working for the employer when on 17 March 2014 he was carrying timber and developed pain in his left shoulder and left knee.  He ceased work and has not worked since.  He is currently in receipt of WorkCover weekly payments from the employer.  He is now sixty years of age.
The Application
6	This is a “serious injury” application in respect to a workplace injury.  The principals in respect to such an application are well-known and are not in dispute.  The plaintiff alleges that he has suffered a “permanent serious impairment or loss of a body function”, namely injury to the right knee.
7	The issues to be decided in this application are relatively narrow.  The issues are:
•	What is the nature and extent of any right knee injury suffered by the plaintiff in the incident and whether the plaintiff’s ongoing symptoms and consequences are causally related to such injury?
•	Assuming that there is a persisting compensable injury to the right knee, does such compensable injury meet the test of “very considerable” as required by s134AB(37) of the Accident Compensation Act 1985 (Vic).
8	The plaintiff, via his counsel Mr Mighell QC and Mr Allan, submitted that the real issue in this application is causation.  He submitted that as a consequence of the incident he suffered either the aggravation or development of degenerative change in the right knee, together with tears of the meniscus.  As a consequence of such injury he has required a right total knee replacement and he submits that the impairment consequences of such meet the test of “serious”.
9	The defendant, via its counsel Mr Batten, says that causation is the principal issue.  The defendant submits that the incident was minor or innocuous and that the plaintiff has an underlying osteoarthritic knee condition which is not causally related to whatever happened in the incident.  Further, the defendant does not concede that the totality of the plaintiff’s right knee condition would meet the test of “serious”, but conceded that the Court “might take a view that someone who has had a total knee replacement qualifies as having a serious injury but the results of the total knee in this case have removed pain”.
10	Before dealing with the issues as identified for determination, it is convenient to briefly deal with the credit of the plaintiff.  The credit of the plaintiff will often be critically important in serious injury applications, particularly where matters of history are relevant to the determination of the application.
11	In final address, Mr Batten quite candidly and appropriately submitted that the Court, having seen the plaintiff give oral evidence, would no doubt have formed the view that he is a frank witness with a pretty good memory of historical matters and that he was not evasive of questions put to him.  That is a fair summary of my impression of the plaintiff.  That is important because a number of the defendant submissions are built around the cornerstone of a factual finding that the incident was innocuous or minor.  
12	The suggestion that the incident was innocuous arises from a letter written by Dr Clayton Thomas, rehabilitation physician, to Mr Michael Khan, orthopaedic surgeon, on 4 August 2010.  In that letter, Dr Thomas writes that when he examined the plaintiff on 28 July 2018, he formed the impression that:
“After what seemed to be a fairly innocuous fall, he simply developed some significant and widespread problems.  It would appear that most of them were aggravations of pre-existing conditions which I accepted historically were asymptomatic”.
13	Pausing, there is no suggestion that prior to 18 May 2010 the plaintiff had any symptoms of knee pain, bearing in mind that he was undertaking physical work as a concreter, which he in fact had undertaken for several decades.
14	The comments of Dr Thomas need to be taken in context.  The circumstances of the fall do appear innocuous in the sense of there being nothing particularly remarkable or traumatic about it.  However, clearly the fall was of some significance as it caused the plaintiff to be off work for several months.  The day after the fall, the plaintiff attended his treating general practitioner, Dr Dheyaa Ali.  By 21 May 2010, Dr Ali saw fit to refer the plaintiff to Mr Michael Khan, orthopaedic surgeon.  In a letter of 22 October 2014, Dr Ali records the plaintiff consulting with him on 19 May 2010 was suffering from right knee bruises, and right knee, shoulder and hip pain, which suggested that no matter how innocuous the fall may have been, it was sufficient to cause right knee bruising and pain in a man who had no previous history of knee symptoms.
15	The plaintiff then attended Mr Khan on 28 May 2010.  Mr Khan wrote back to Dr Ali following that attendance and in that letter recorded a history that the plaintiff was “squatting down finishing the concrete with a trowel in his right hand when he slipped on the wet surface landing heavily on his right arm.  He required help to get him on his feet.”  Mr Khan referred the plaintiff for scans, including scans of the right knee.  On 29 June 2010, Mr Khan wrote to Dr Thomas, asking Dr Thomas to provide an independent assessment of the plaintiff’s condition.  In that referral letter, Mr Khan notes that an MRI scan of the right knee revealed post-degenerative changes in the patellofemoral joint and medial femoral condyle area.  Mr Khan further noted that the plaintiff had evidence of a tear in the menisci, along with degenerative changes, and that those conditions might be improved with arthroscopy.  
16	Pausing again, the fall may have been innocuous, but I do not accept that it was minor.  It was sufficient to cause bruising and pain in the right knee.  It was sufficient to require several months off work, a referral to Mr Khan and by late June 2010, the suggestion of right knee arthroscopy. 
17	Returning to Dr Thomas, when the plaintiff was examined on 28 July 2010, he took a history that the right knee pain had resolved, but there were persistent symptoms around his right leg.  In cross-examination the contents of the letter was put to the plaintiff and the fact that by the time he saw Dr Thomas his right knee had effectively recovered.  The plaintiff said that it had not recovered and never recovered.  It was further put to him in cross-examination whether in fact he had told Dr Thomas his knee was better and he no longer had pain in the knee, to which the plaintiff said he did not remember saying that but it was possible that is what he said.
18	Next in time, the contents of various clinical records were put to the plaintiff in cross-examination.  In particular, the record of Dr Ali of 1 October 2010, was put to the plaintiff, in which Dr Ali records the plaintiff as feeling normal with no pain or limitation of movement.  Further in that note Dr Ali recorded the plaintiff had decided to go back to work “as he is feeling good” and there was recorded a request for a clearance certificate.  The plaintiff accepted that he went to the doctor and told him that he was feeling alright, but he still had pain in his knee.  
19	It is relevant, in my opinion, that after the incident the employer was well aware of the plaintiff’s injuries and in particular the right knee injury.  Indeed, by letter dated 29 June 2010, Mr Khan wrote to the employer enquiring whether its insurer would be prepared to pay for the cost of the plaintiff’s treatment, which may require an arthroscopy of the right knee.  The plaintiff’s uncontradicted evidence is in fact that the employer did not deal with the claim in a formal sense and instead it made informal payments to him.  The plaintiff gave evidence that one of the reasons he requested a clearance certificate was because of the informal processing of the claim and pressure from his employer to go back to work.  
20	Accordingly, notwithstanding the return to work in approximately October 2010, I accept the plaintiff’s evidence that he did so, despite ongoing symptoms in his right knee, remembering that his knee had been asymptomatic prior to the incident.
21	At a time when he was still working, the plaintiff was referred to see another orthopaedic surgeon, Mr Simon Talbot, regarding complaints about pain he then had in both knees.  He attended Mr Talbot on 26 November 2012 and a history was taken that the plaintiff had a problem with both his knees, worsening over the last couple of years, following a workplace fall about two years ago, requiring three months off work.  Mr Talbot obtained a history that the knee symptoms had settled “somewhat” after that, but have now returned and are worsening.  Mr Talbot referred the plaintiff for an MRI scan of the right knee and then reviewed him on 10 December 2012.  He described the right knee MRI scan as showing moderate patchy osteoarthritis developing, as well as medial and lateral meniscal tears.  Mr Talbot also recommended arthroscopy for those right knee symptoms.  The plaintiff was reviewed by Mr Talbot on 1 March 2013 and then again on 16 April 2014.  At that last review Mr Talbot reviewed up-to-date radiology and noted the right knee had moderate to severe medial compartment osteoarthritis.  In correspondence to the general practitioner, Dr Ali, Mr Talbot set out the possibility of a right knee arthroscopy as a form of treatment because “we would really like to avoid a replacement for as long as possible”.
22	In a letter to the Accident Compensation Conciliation Service dated 27 October 2014, Mr Talbot reported:
“1.  Mr De Oliveira has osteoarthritis effecting (sic) both his knees.  When I first saw him in November 2012 he reported that he had had injuries at work following a fall a couple of years prior to that requiring 3 months off work, and that his knee symptoms had come on after that injury.
 2.  I am uncertain as to the relationship between Mr De Oliveira’s current employment and his injury condition, apart from what he told me at the first appointment.
 3.  As I didn’t see him until a couple of years following the injury I can’t comment as to whether his current condition is caused by the injury.
 3.  Mr De Oliveira is likely to eventually require a knee replacement.  His right knee is more severe than his left and this one is probably in the situation that it would require a knee replacement in the near future.  When I initially saw him I thought his left knee may improve with an arthroscopic debridement, but his symptoms seem to be worsening and it’s likely that this is also going to require a knee replacement.”
23	The defendant submits that Mr Talbot avoids giving an opinion on causation. To some extent that is an accurate analysis of his opinion as set out in his report of 27 October 2014.  However, importantly, Mr Talbot records that the plaintiff gave a history that the knee symptoms came on after a fall (which I interpret to be a reference to the incident) a couple of years before he first examined the plaintiff.  In that regard I accept the submission of the plaintiff that Mr Talbot’s reporting of symptoms coming on after the incident are consistent with the plaintiff’s own evidence of the onset and continuance of symptoms since the incident and that Mr Talbot’s history as recorded is effectively the same as the history recorded by Mr Khan, who of course sought permission from the employer to accept the cost of the proposed arthroscopic surgery.
24	In addition to the right knee condition, the plaintiff also required orthopaedic assessment for his left shoulder and he came under the care of Mr Raymond Crowe.  By letter dated 28 July 2014, written to the general practitioner Dr Ali, Mr Crowe noted that Mr Talbot was then looking after the plaintiff in respect to his knee problems.  Mr Crowe went on to perform left shoulder rotator cuff repair, but by July 2015 he appears to have also become involved in treatment of the plaintiff’s knee condition.  By letter dated 10 August 2015 written to CGU Worker’s Insurance, Mr Crowe recorded that:
“I think for the moment the most important factor is to establish that Mario has as a cause of most his injuries a significant fall at work which happened in May of 2010.  He fell very heavily when he slipped and fell onto his right side whilst concreting, injuring his right shoulder, his right knee and his right hip.”
25	Mr Crowe went on to say that:
“I believe there is no doubt that the fall in May 2010 was a significantly contributing factor to the problems that Mario has in both knees … .
 …
 To summarise Mr De Oliveira’s situation, he I think worked very hard for many years as a Concreter he suffered a significant fall in May 2010 this I think contributed to severe problems with his right shoulder right hip and right knee … .”
26	Mr Crowe then wrote again to CGU Worker’s Insurance on 4 January 2018, in which he repeated the plaintiff’s story that “he originally had a fall at work in 2010 where he injured his right side, particularly his right knee, his right hip and his right shoulder” and that “his present problems definitely relate to his fall at work and to his subsequent working for many years as a Concreter.”  Mr Crowe said that –
“… his present major problems are his right knee which is definitely related to his work environment and particularly his fall in 2010 and subsequent working as a Concreter, for this he would benefit from a right total knee replacement.”
27	In fact Mr Crowe went on to perform a right total knee replacement on 12 December 2018.  Mr Crowe recently summarised the plaintiff’s condition in a report of 25 February 2021 to the plaintiff’s solicitors.  In that report, he notes that when the plaintiff was last reviewed on 4 November 2020, the right knee was recovering satisfactorily.  In respect to the right knee, he said the plaintiff had done reasonably well and he then had almost full extension and a reasonable range of flexion.  However, Mr Crowe stated that “even the best performing knee replacements are nothing like are (sic) normal knee and so it is quite definitive that he would not be able to return to any form of vigorous point owing to the right knee replacement” and that “of course for a relatively young man there is always the probability of a revision being required in between 10-15 years as the component wears”.
28	The plaintiff has been seen for medico-legal purposes by Mr Thomas Kossmann at the request of his solicitors.  In a report of 26 October 2020, Mr Kossmann opined that the plaintiff had suffered “aggravation of his pre-existing but symptom free degenerative changes of his right knee, right hip and right shoulder, which developed into osteoarthritic changes in these joints”  requiring a total knee replacement on the right side.  Mr Kossmann further opined that the conditions identified by him – and in particular the right knee – had resulted from or had been materially contributed to by the injuries that the plaintiff suffered in the incident.  In a supplementary report of 20 February 2021, Mr Kossmann had adhered to his earlier opinion and indicated that he disagreed with the opinion of Dr Ian Dickinson.  
29	Dr Dickinson is an orthopaedic surgeon who was asked to provide an opinion regarding the plaintiff’s right knee at the request of the solicitors for the Victorian WorkCover Authority.  Dr Dickinson provided a report dated 1 February 2021 “on the papers” without conducting an examination of the plaintiff.  Dr Dickinson was asked to review various clinical records, including the records of Dr Clayton Thomas.  Based on his review of the material, Dr Dickinson opined that the plaintiff suffered no injuries to the right knee, right hip or right shoulder as a result of the incident.  He states that the incident was “minor”.  He says that “in the clinical records it is clear that the event was minor, and while there had been exacerbations of underlying conditions, there was no significant injury to any of these regions in the incident of 18 May 2010” and that “the conditions of which Mr De’Oliveira has been complaining are degenerative diseases … not caused by nor materially affected by the incident at work”.
30	It is clear that Dr Dickinson’s opinion has been heavily influenced by the concept that the incident was minor and by Dr Thomas’s description of a “fairly innocuous fall”.  Curiously, despite having Mr Khan’s clinical records, Dr Dickinson does not appear to have been aware that Mr Khan in fact had flagged a right knee arthroscopy as a form of treatment by late June 2010.
31	Returning for a moment to the plaintiff’s affidavit material, in an affidavit sworn 22 February 2021, the plaintiff said as follows:
“I understand that a doctor who has provided a report recently for Summit, one who I did not meet myself , has said that the incident in May 2010 was ‘minor’.
 That is totally wrong.
 That incident caused me to have pain all down my right side, in my right knee, right hip and right shoulder, and to need four months totally off work as a result.
 My right side was never the same after that. The pain in my right knee, right shoulder and right hip never totally went away, and just got worse as time went by, even though I did everything the doctors told me to do.
 As I said in my first affidavit, even though I got back to work, I had to change the way I did things, and I started to have days off for right knee, shoulder or hip pain. I took medication regularly for those problems too, particularly to get through the day at work”.
32	I accept the plaintiff’s uncontradicted evidence that it is totally wrong to describe the incident in May 2010 as minor.  As I have noted, the objective evidence speaks for itself, namely that a previously asymptomatic condition became painful and has been painful ever since, requiring referral to an orthopaedic surgeon in May/June 2010 and a discussion of arthroscopy.  I accept the opinions from the treating doctors as set out and as expressed by Mr Kossmann, that the incident caused the aggravation of degenerative change for which the plaintiff has undergone right knee replacement.  I do not accept the opinion expressed by Dr Dickinson.  His opinion is coloured by his erroneous assumption that the incident was “minor”.  Accordingly, on the primary issue of causation, I conclude that in the incident the plaintiff suffered injury to the right knee, properly described as the aggravation of previously asymptomatic degenerative change and that such aggravation persisted to the point where the plaintiff required a right total knee replacement.
Is the right knee “serious”?
33	As noted at the outset, the defendant accepts that the Court might take a view that someone who has had a total knee replacement qualifies as having a serious injury.  That is the view that I take.  
34	The plaintiff has had considerable symptoms culminating in the need for a right total knee replacement in December 2018.  The treating surgeon notes that having undergone a successful knee replacement at a relatively young age, the plaintiff may require a revision knee replacement in ten to fifteen years which is, of course, a need for further significant surgery at a stage in the plaintiff’s life when the risks from such surgery is increased.  In addition, I accept the plaintiff’s sworn evidence of 22 February 2021 that his right knee still aches a lot, particularly in colder weather and is restricted in terms of range of movement.  I accept his evidence that he has difficulty walking without pain and difficulty kneeling or squatting.  He continues to wear a knee brace and the knee feels unstable and has a funny feeling to it.  
35	In addition, I accept the evidence of the plaintiff’s wife, Ms Laura De’Oliveira in her affidavit of 24 February 2021, in which she observes her husband complaining about his right knee, particularly after walking a lot, or in colder weather.  She notes the need for a knee brace and that the plaintiff sleeps with a pillow under his right knee.  
36	Notwithstanding that the plaintiff has other physical conditions, no doubt consistent with wear and tear from years of hard work as a concreter, I am satisfied that the impairment consequences referable to the right knee in isolation – in particular the ongoing pain, stiffness and probable need for more surgery - are such so as to produce a “very considerable” pain and suffering consequence.
37	Accordingly, I grant leave to the plaintiff to commence a proceeding for pain and suffering damages.  
38	I shall hear the parties as to the question of costs.
- - -