Czerwonka v Inghams [2002] NSWCC 55

Compensation Court of New South Wales

CITATION : Czerwonka v Inghams [2002] NSWCC 55 PARTIES : Maria Czerwonka v Inghams Enterprises pty ltd MATTER NUMBER(S) : 50561 of 2001 JUDGMENT OF: Geraghty J CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/9/2002 19/9/2002 EX TEMPORE JUDGMENT DATE : 09/19/2002

FOR APPLICANT: Mr A Ventura instructed by Stacks LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S Flett instructed by Sparke Helmore

JUDGMENT:

JUDGMENT GERAGHTY J Maria Czerwonka claims weekly benefits from 29 August 2001, lump sum compensation for loss of use of the right leg at or above the knee, payment of medical expenses and an award of interest on accrued weekly benefits. She based her claim on injuries she sustained in a motor vehicle accident on 18 September 2000. Mr Flett, counsel for the respondent, clarified the issues as: firstly, injury, though the fact of the incident was not put in issue; causation; the extent of any incapacity; the quantification of the loss; and the application of the provisions of s 68A. There was no dispute that Czerwonka was involved in an incident on her way home from work on 18 September 2000, that she was attended by an ambulance officer and conveyed to the John Hunter Hospital where she remained for a number of hours. Nor was there any dispute that in this incident a stationary car moved forward while she was crossing the road, and that she injured her neck and shoulder, and bruised the right thigh. There was no dispute that the applicant is disabled as a result of the condition of her right knee. She has undergone arthroscopic surgery, conducted by Dr Posel, and her knee is still causing distress. The principal question is whether the right knee was involved in the incident of 18 September 2000. In general, in support of her contention that it was, we have the applicant's evidence that she injured her right knee, that she felt pain in the knee at the time of the accident, and that she told Dr Wilson within days of the accident. She said that she had continued to tell Dr Wilson every time she saw her that she had problems and pain with the right knee. When confronted with the fact that Dr Wilson had no record of her complaint until the middle of November, some 2 months later, she said, Why does it hurt? Why did I undergo surgery if I wasn't injured?. The applicant's evidence was in some way supported by her neighbour, Christine Grothen; by Exhibit N, being a statement of fitness made by S. Meakes on 25 September 2000, and by her daughter, Solanta, on 20 September 2000. The allegation that her right knee was injured in the motor vehicle accident is supported by Dr Wilson, who stated that the right knee condition was secondary to the motor vehicle accident, and by a number of medico-legal doctors, though their opinions were entirely reliant on the history provided by the applicant. Mrs Czerwonka was born in Poland in 1951. She arrived in Australia in February 1988. She told of an impressive work history both in her country of origin and in Australia. She began working in Australia as a seamstress before she accepted a position with the respondent in October 1990, as a packer of chickens. She is unable to read or write English, and from her appearance in Court, I concluded that she has a very limited ability to speak English. She was assisted in court by an interpreter, though she appeared to understand some questions. Her English would seem to be more extensive than she would admit. Dr Wilson has been able to take detailed notes of personal matters as well as of medical matters, without the assistance of an interpreter. Czerwonka said that on a journey home on 18 September 2000, she was hit on the right side of her body by a car. She said the impact had been violent, that she had suffered serious pain, and that she could not move her leg. She was taken by ambulance to the John Hunter Hospital. She said that the right knee pain was constant. She consulted Dr Marnie Wilson, who referred her for x-rays and to Dr Peter Berton, an orthopaedic specialist, but since he was on leave, she was treated by Dr Posel, who performed an arthroscopy on 18 December 2000. After surgery, the applicant returned to work for about 6 weeks working, it was suggested to her, 4 hours a day, though she denied this. She also denied that she returned to work after the arthroscopy, but then agreed that she did return to work for about 4 or 5 months. Czerwonka seemed confused and unable to distinguish various periods of time, that is, times before and after the arthroscopy, and unable to give clear evidence when she returned to work, or even whether she went back to work. I noticed in cross-examination also, when she was being taken day by day through the clinical notes of Dr Wilson, her answers seemed to run in parallel with the questions, so that often the answers did not address the questions, nor was she able to focus on the obvious problem arising from the notes, namely, that for a period of two months there was an absence of any record of knee problems. She seemed confused in answering these questions and unable to focus on discrete periods of time. In the end, I formed the opinion that perhaps unconsciously, she was reconstructing events. I do not suggest that she was telling lies to the Court. It seemed to me that the applicant believed what she was saying, but she was not making any distinction between various times. Czerwonka complains now that she is unable to walk on her right leg. She uses a walking stick (which she had for the last 2 months) and she is unstable without it. Sometimes, she said, she has fallen over and she drags her leg when walking. She feels that her knee clicks. She has problems with her domestic duties, she does not do any gardening; she cannot stand for any more than about half an hour; she has problems negotiating steps and even sitting for half an hour or more causes pain. In cross-examination, Mr Flett took the applicant through, day by day, the clinical notes of Dr Wilson to which I will return in due course. He suggested that she had made no complaints about the right knee before 21 November 2000. She said that from the beginning she had told Dr Wilson that she had a bad knee. She said she had complained to her within days of the accident. She said that she had told her over and over again, every time she saw her, that she had right knee problems. Every time I said, `the right knee hurts'. However, I do not accept this evidence. Dr Wilson's notes are extraordinarily clear and detailed, and uncommonly easy to read. There are details from the time she had been first consulted, and the complaints seemed to have been recorded as well as a detailed diagnosis. It was suggested, to explain the absence of any knee complaint, that Dr Wilson and Czerwonka had spoken English only, and that perhaps Dr Wilson had not understood what she was saying. From reading Dr Wilson's notes, it seems to me that the doctor understood very well what was being said. Exhibit B is a series of x-ray and MRI reports. The MRI dated 27 November 2000 disclosed a Grade 4 chondromalacia related to the medial femoral condyle. It showed degenerative changes within the menisci, particularly the medial. There was also some erosive change related to the lateral femoral condyle, with loss of articular cartilage at that level. The x-ray of the same day reported moderate patello-femoral degenerative changes, with mild tibio-femoral degenerative changes. A further MRI scan was undertaken on 5 December 2000. It showed no evidence of a meniscal tear, though there would seem to have been a tear when the surgery was undertaken. There was however a suggestion of a small partial tear at the myotendinous junction of the serimembraneous. These investigative procedures are from November and December. Exhibit C is the ambulance report dated 18 September 2000. Under the rubric Chief Complaint, the ambulance officer has reported: Right thigh pain - patient hit by a car taking off from an intersection (low impact) - patient hit on right side and rolled across bonnet. On examination patient conscious, nil head. Neck injuries, nil motor-sensory loss, sharp sternal pain which dissipated en route. Has bruising to right thigh, complains of pain in right buttock and lower back. The stick figures in the report, front and back, show some bruising or laceration to the right thigh. Exhibit K is the report from the clinical information department of the John Hunter Hospital. It was compiled from the medical records taken on 18 September and records injury by way of bruising to the right thigh, painful right hip, right flank, pelvis and right forearm: On examination, the patient was `teary' , complaining of pain in the right hip and right forearm. The face, chest, cervical spine and abdomen showed no abnormality. Tenderness was noted over the right flank. The pelvis was tender to palpation. The right hip showed normal range of movement. The right thigh was tender on the lateral side where bruising was noted. No other injuries were noted. Exhibit N is the statement of fitness in which an employee of the respondent, S Meakes, declared on 25 September 2000, that she had seen Mrs Czerwonka at 3 pm, that is, before the accident, when she had been walking upstairs without any abnormality noted. The bottom half of the document was signed by the applicant's daughter on 20 September. She stated that she had seen her mother at 5.15 at the hospital, that she was lying down on a bed in a dressing gown which had been provided by the hospital. Her mother was crying. The daughter described the injuries as abrasions, bruises, limping, couldn't get out of bed by herself. After the applicant left hospital, she consulted Dr Khaira on 19 and 21 September. In his medical certificates (part of Exhibit A.), he noted only multiple bruises and abrasions. He recommended rest and analgesic medication. Czerwonka consulted her general practitioner, Dr Wilson on 26 September. The medical reports are also part of Exhibit A. On 26 September, the doctor noted sprained left shoulder and soft tissue injuries. The same diagnosis was made on 4 October when the doctor certified the applicant fit for suitable duties, that is, 4 hours per day without any lifting over 5 kilograms. On 10 October, the doctor diagnosed a strained left neck, shoulder and upper back, noting that there had been a flare-up of pain with the return to work. However, the applicant was still certified fit for suitable duties as previously. On 17 October, she was certified fit for suitable duties, 6 hours per day, doing the duties which she had previously been doing. Dr Wilson recommended physiotherapy and repeated the diagnosis, namely a sprained left neck, shoulder and upper back. On 24 October, same diagnosis, same treatment if needed and same restricted duties. On 31 October, Dr Wilson repeated her diagnosis ( a sprained left neck, shoulder and upper back) and certified the applicant fit to resume pre-injury duties on 1 November, though she recommended a graded return to normal duties over 1 or 2 weeks. On 7 November - fit to resume pre-injury duties, with the same diagnosis of injury. It was only on 27 November that Dr Wilson certified that the applicant was unfit for work from 27 November; referred her patient for an x-ray of the right knee; provided some medication for pain; referred her patient to an orthopaedic surgeon and diagnosed a possible meniscal damage to the right knee, which the doctor said was secondary to MVA of 18 September 2000. The certificates issued in December 2000, January, February, March, April, May, August, September, December 2001, March and July 2002, all relate to the applicant's right knee problems. Dr Wilson's reports and clinical records are Exhibit J. The notes begin on 14 August 2000, before the incident of the 18th, and deal with a left knee problem which seemed to have been improving by 17 August. On 22 September 2000, Dr Wilson noted that the applicant's left knee was fine; that she had been involved in a motor vehicle accident on her way home from work. She had been walking across a road, when a car pulled out and hit her. She had been projected up onto its bonnet. She was bruised, battered, teary and currently off work. Then the doctor took over treatment on 26 September and diagnosed a sprained left shoulder and neck. On 4 October the applicant is referred to as much better with a big improvement, so that she was near normal. On 10 October the applicant complained that she was very sore since the day before, when she had pushed something and experienced a cramp in the left upper back. She had pain in the shoulder and neck. The doctor diagnosed a flare-up of pain. She was described as much better on 17 October, and on 16 October as really good. The doctor treated her again on 24 October, 31 October, 7 November and 14 November. On 21 November, for the first time, the doctor recorded that the right knee hurt when her patient was getting up. She had felt a sharp pain. She returned on 27 November and the doctor recorded that Czerwonka was: Doing normal daily work at home yesterday. At the end of it, she sat for a few minutes reading the paper and on getting up, there was a pseudo locking of her right knee. She exercised this problem out and then she was okay. Today, twisted to right to get out of car - increased pain right knee. The doctor observed that the applicant had had no problems before the motor vehicle accident in which she had injured her right hip and upper leg to her knee, and she questioned whether the current knee condition was related to the motor vehicle accident. This seems to be a reconstruction of the evidence she had recorded in September. There had been no reference to the applicant's right knee. It had been to her thigh. Dr Wilson's treatment then concentrates on the applicant's right knee. Part of Exhibit J is a report of 27 February 2001 in which the doctor describes the accident of 18 September 2000. She said that she first saw the patient on 26 September. She had been hit on the right upper leg and hip, had fallen on her left shoulder and also on her extended right wrist. The doctor recorded that on examination, Czerwonka had a reduced range of neck movement and (significantly) of the left shoulder, with mild problems in her right shoulder. By 4 October, the doctor said, the neck control was much better, though the patient had occasional sharp pain on her left shoulder. The doctor then remarked that on 21 November, Czerwonka complained of pain in her right knee. She recorded in her report the details which she had recorded in her clinical notes. The doctor said that at first she had thought that her patient had arthritis, though she mentioned that she had had no problems before the motor vehicle accident which injured her right hip and upper leg. She recorded that on 18 December 2000, by arthroscopic procedure, a tear of the posterior horn of the medial meniscus had been excised and a small tear of the anterior horn of the lateral meniscus had been debrided. Dr Wilson said that her patient had ongoing problems with her right knee: How much of this is related to the accident, and how much to the underlying degenerative changes is difficult to say. . . because of the degenerative change, it is likely that she will have some ongoing problems with the knee. In a further report in January 2002, Dr Wilson said: Prior to the accident, Maria had had no problems at all with her right knee, though there was significant degenerative change at operation. I do believe that the accident is responsible for the exacerbation of her underlying condition, and this exacerbation has caused her current symptoms and incapacity. Dr Posel's reports are Exhibit G. He recorded a brief history of the motor vehicle accident in September, including the following detail: The car made contact with her right thigh and she probably sustained a vagus stress to her right knee. He further recorded that Czerwonka had reported that her knee had been functioning Pretty good until 2 weeks ago, (that is, 2 weeks before 8 December 2000), she was walking with a sudden pain in her right knee and the knee locked up. Following the right knee arthroscopic debridement (7 weeks thereafter) Dr Posel reported that his patient was happy with the progress she had made. She reported no pain, only a sensation of tightness immediately with prolonged standing. On examination, the doctor recorded that she was able to stand (single stance) on the right leg; she could walk without a limp; she had good quadriceps control and no residual knee effusion. The knee had a full range of motion and that the Murray Test was negative. In his report (Exhibit H), Dr Berton recorded that Czerwonka was hit by a car on 18 September: She had immediate pain in her right leg and was knocked unconscious. . . she was discharged that day and has had persistent problems with the knee. He said that she had sustained an acute derangement of the knee and that certainly, on the basis of the history, this was related to the motor vehicle accident. In his report (Exhibit F), Dr Laird also recorded a history of the accident in September, when the applicant was walking across a street: She stated that she was hit over the lateral aspect of the right knee. Dr Kleinman's reports are Exhibit L. He examined the applicant in November 2001, a year after surgery, some 14 or 15 months after the accident. He recorded that after the accident, she had been taken to John Hunter Hospital; that she had had no splintage or bandage on the right knee after she had been discharged; that the next day she had seen Dr Wilson, her general practitioner; that she was x-rayed and referred to Dr Peter Berton, orthopaedic surgeon. Of course, the applicant was summarising a very important part of her history over 2 or 3 months, into that statement. It is not true to say that the next day she saw Dr Mahony, though she did see him within a few days. Nor is it true to say that she was x-rayed and referred to Dr Berton without adding that it was several months later that this had taken place. Dr Plowman thought that the applicant's injury and disability were attributable to the injury on 18 September; that this incident had aggravated previously asymptomatic degenerative changes in the right knee and had caused a tear of the meniscus. He thought that in future, as the osteoarthritis progresses, she would come to need a total knee replacement. Finally, Dr Smith's reports are Exhibit 1. He examined the applicant in July 2001 and recorded an incident that she had been hit by a car and injured her right leg. Dr Smith referred to the letter of Dr Posel and concluded that Czerwonka had injured her right knee primarily, but that after treatment by Dr Posel, by December she had recovered. He thought that after this recovery, she had developed symptoms in the right knee suggestive of possible internal derangement, symptoms which appeared to date from late November or early December 2000, 2 months after the accident. On this scenario, Dr Anthony Smith concluded, it was unlikely that her present condition was due to the motor vehicle accident. The silence of Dr Wilson's contemporaneous clinical notes remains unexplained. In the light of her detailed notes recording complaints, findings on examination, treatment and diagnosis, it seems to me that Dr Wilson's silence about the right knee until November must be explained, and cannot be explained in the way the applicant sought by saying there had been a failure of communication and problems with language. I do not accept the applicant did make those complaints to Dr Wilson. The doctor has not recorded these, and has recorded many others. It seems to me that the applicant was confused about the time sequences. I do not suggest that she has deliberately told the Court lies. It seems she does believe that she had injured her right knee in the motor vehicle accident and that she did tell Dr Wilson. The question is whether this is true? I have concluded that it is not. I have concluded that the applicant did not injure her knee in the accident on 18 September, that her knee problem arose firstly because of serious degenerative changes which predated this accident, which were asymptomatic, but which became symptomatic independently of the accident, some time in November, and that since that time she has had problems with her right knee. Czerwonka called her neighbour, Christine Grothen, to testify that she had had problems immediately after the accident. The only evidence Mrs Grothen gave was that she had seen her neighbour crying, that she had observed her using crutches, that she had had problems going up and down stairs, and at one stage she did say that she had observed that the right knee was bruised. I do not accept this evidence. The evidence was given 2 years after the accident and the memory was too precise, particularly in the context of the fact that Mrs Grothen could not recall much other detail and was confused about times. For these reasons, I enter an award for the respondent, and I make no order as to costs.