Brown v Victorian WorkCover Authority
[2025] VCC 1330
•18 September 2025
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-06833
| KERRY BROWN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 6 August 2025 | |
DATE OF JUDGMENT: | 18 September 2025 | |
CASE MAY BE CITED AS: | Brown v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1330 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation injury to the left knee – subsequent aggravation injury – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Seckold v Transport Accident Commission [2025] VSCA 18; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Mr A J Saunders with Ms C A Kusiak | MinterEllison |
HER HONOUR:
Introduction
1Ms Kerry Brown, the plaintiff, is a fifty-four-year-old former enrolled nurse. Ms Brown claims that she suffered an aggravation injury to her left knee in an incident that occurred on 14 September 2020 (“the work incident”) while working for her employer, BaptCare Ltd (“the employer”).
2Ms Brown seeks leave to commence a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).
3For Ms Brown to succeed, she must establish that the permanent impairment consequences arising from her compensable left knee aggravation injury are “serious”. That is, that the impairment consequences can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Ms Brown suffered a compensable aggravation injury in the work incident. The VWA submitted that Ms Brown further aggravated her left knee injury in an incident in January 2021, and Ms Brown could not aggregate the impairment consequences of the work incident and that later incident. The VWA submitted that Ms Brown was an unreliable witness. Insofar as the impairment consequences of the work incident were identified, it was submitted they did not meet the statutory threshold.
5Thus the issues for determination are:
(a) Was Ms Brown a reliable witness?
(b) What was the condition of Ms Brown’s left knee prior to the work incident?
(c) What are the permanent impairment consequences of Ms Brown’s compensable aggravation injury to her left knee?
(d) Are those impairment consequences “serious”?
Background
6The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
7Ms Brown left school part way through Year 11, when aged sixteen. She joined the armed forces and was a soldier/cook for approximately four-and-a-half years. Thereafter, she worked part time as a cook and raised five children. Ms Brown was a volunteer aide at a primary school for several years.
8In 2011, Ms Brown qualified as a personal care assistant, and obtained work in an aged care home. While doing so, she completed a nursing course and continued to work in the aged care home, but as an enrolled nurse.
9In about October 2018, Ms Brown started working part time for the employer as an enrolled nurse at its aged care home in Warragul. Ms Brown generally worked approximately 24 hours a week.
10In about June 2020, Ms Brown hyperextended her left knee at home when her young granddaughter ran into her. She said, and I accept, that she experienced some temporary pain, which resolved.
11In July 2020, Ms Brown hyperextended her left knee again when she slipped whilst getting out of the shower (“the shower incident”). She experienced left knee pain and some swelling. She attended her general practitioner (“GP”) about a month later, complaining of ongoing pain in her left knee. Ms Brown was advised to take regular analgesia, and have physiotherapy.
12In the work incident on 14 September 2020, Ms Brown further injured her left knee whilst pushing a medicine trolley around a corner. She experienced severe pain in her left knee.
13Ms Brown first consulted her GP following the work incident on 16 September 2020, although there was no recorded mention of the work incident, the only history recorded being in relation to one of the earlier incidents, and her left knee being “very painful at work yesterday”.[1] She was provided with a medical certificate and sent for an MRI scan of her left knee. The clinical history recorded for the MRI scan was:[2]
“… hyperextension injury approx 3 months ago.
…
… intermittent severe left knee pain.”
[1]Defendant’s Amended Court Book (“DCB”) 41
[2]Plaintiff’s Amended Court Book (“PCB”) 30
14Following the work incident, Ms Brown continued to perform her pre-injury duties, but said that she struggled with ongoing pain in her left knee, which was swollen.
15In November 2020, she took some time off work to rest her knee, and her GP referred her to an orthopaedic surgeon, Mr Ben Brooker.
16Ms Brown signed a Worker’s Injury Claim Form on 9 December 2020.[3] The same day, her GP provided a certificate of capacity certifying her fit to perform restricted duties until 5 January 2021.[4]
[3]PCB 12
[4]DCB 46
17Ms Brown resumed her pre-injury duties in January 2021. On 24 January 2021, she slipped and fell on a recently mopped floor at work, again injuring her left knee. She began to use a knee brace. Ms Brown consulted her GP on 25 January 2021, seeking a medical certificate for that day.
18In April/May 2021, Ms Brown was unable to work for about three weeks due to her left knee injury. When she returned to work in early May 2021, she performed modified (administrative) duties. She did not return to her pre-injury duties after this time.
19In June 2022, Ms Brown ceased working for the employer. She said this was because she could not return to her pre-injury duties due to her left knee condition and needed to find alternative work. She completed an occupational health and safety course online.
20Ms Brown’s left knee injury has been treated conservatively. She has had corticosteroid injections, a visco-supplementation injection and has undertaken physiotherapy.
21At the time of the work incident, Ms Brown was overweight. She was advised to lose weight to assist her knee symptoms. She underwent bariatric surgery after leaving the employer, and ultimately lost over 40 kilograms.
22In March 2023, Ms Brown obtained employment with Mecwacare at a day centre in Pakenham, running programs for the elderly. She works approximately 30 hours a week, Monday to Thursday.
23Currently, Ms Brown does not take any regular medication for her knee condition. She had been prescribed Panadeine Forte and Palexia but each of those medications caused unacceptable side effects. She performs home-based exercises, and has taken up karate to help strengthen her knee.
24She lives with her husband in Trafalgar.
Was Ms Brown a reliable witness?
25Leading Counsel for the VWA submitted that Ms Brown was a somewhat poor historian. She ultimately accepted the contents of the clinical records, but they did not sit comfortably with Ms Brown’s affidavits, or the accounts Ms Brown gave to doctors. It was submitted that the Court ought to have reservations as to her reliability.
26Senior Counsel for Ms Brown submitted that Ms Brown accepted the content of the clinical records from the start. Senior Counsel submitted that Ms Brown gave her evidence in a forthright, consistent and straightforward manner, at times making concessions against interest.
Findings
27In her oral evidence, I found Ms Brown a mostly straightforward witness. She accepted, quite understandably, that she struggled to remember particular consultations with her GPs in 2020 and 2021. She generally accepted that the clinical records were likely accurate as to the history she gave.
28I find that some of the impairment consequences deposed to in Ms Brown’s affidavits were somewhat overstated. I am conscious that a plaintiff’s affidavits in an application such as this are generally drafted by lawyers and are usually not in the plaintiff’s own words. Nonetheless, when sworn or affirmed, the affidavits constitute the plaintiff’s evidence-in-chief.
29Some examples of aspects of Ms Brown’s evidence which troubled me are:
(a) There was an element of reconstruction as to what would have been the case. The clearest example of this was Ms Brown’s evidence that the pain in her left knee “would have” been minor prior to the work incident, because she was still performing her full work duties at the time.[5] Ms Brown’s current memory appeared to be that she did not perform her pre-injury duties after the work incident. That was not borne out by the contemporaneous evidence;[6]
(b) In her first affidavit, affirmed on 26 June 2024, Ms Brown deposed “my left knee pain can wake me from sleep”.[7] In her second affidavit, sworn on 3 July 2025, Ms Brown deposed to waking three to four times each night due to left knee pain. The apparent deterioration in her sleep between her first and second affidavit was difficult to reconcile with the lack of progression in symptomatology over that period. During cross-examination, Ms Brown was asked about any sleep difficulties she had prior to the work incident. Initially she said she had no such problems before the work incident. When challenged, she said she had not had pain-related sleep difficulties, but probably had prior sleep problems.[8] When taken to a clinical record in August 2021,[9] where she reportedly told her GP she had always been a poor sleeper, Ms Brown accepted this was true, but due to her husband’s snoring and being a light sleeper due to being a parent.
I found Ms Brown’s evidence about her sleep difficulties unsatisfactory. I accept that Ms Brown has had longstanding sleep difficulties caused by different factors;
(c) In paragraphs 14 and 15 of her second affidavit sworn on 3 July 2025, Ms Brown relevantly deposed:[10]
“… our current house is one stor[e]y, however it has steps to get into it which I now find difficult to manage.
… the property we now live on is on an incline which I find difficult to cope with due to the pain and restriction in my left knee. Unfortunately this was all we could afford, and I have to push through this pain to manage on a day-to-day basis.”
[5]Transcript (“T”) 42
[6]See paragraphs 12-18 above, and paragraph 38 below
[7]PCB 22
[8] T18
[9]PCB 73
[10]PCB 27
In contrast, during cross-examination, Ms Brown acknowledged that if she ascends the stairs at home right foot first, “that’s fine”.[11] Also during cross-examination, Ms Brown said that her driveway at home was on a 45-degree angle, and offered that, as her husband takes the bins out, and she does not check the letterbox very often, she does not walk on the driveway often.
[11]T32
30I find Ms Brown’s oral evidence was mostly reliable, but approach the content of her affidavits with some caution.
What was the condition of Ms Brown’s left knee prior to the work incident?
31In her first affidavit, affirmed on 26 June 2024, Ms Brown described the two prior incidents involving her left knee. She deposed that after the first incident, she experienced pain which was temporary and resolved. As to the second incident, she relevantly deposed:[12]
“My left knee was hyperextended again when I slipped in the shower in approximately August 2020. I again had some left knee pain and slight swelling. I attended my GP in late August regarding my knee pain and was advised to use pain relief medication.
After these incidents I managed my work duties without restriction.”
[12]PCB 19
32In cross-examination, Ms Brown accepted that following the second incident, she experienced pain in her left knee, pain when pushing the trolley at work, throbbing pain at rest, and twisting was painful. Initially, Ms Brown said that she was referred to Mr Brooker by her GP on 21 August 2021,[13] but she subsequently confirmed that this was after the work incident.[14] Ms Brown confirmed that the pain from the second incident was continuing at the time of the work incident but “it would have been minor because I still worked – not a problem … if it was more severe I would have definitely taken time off.”[15] Ms Brown accepted that she was imagining what probably happened by reference to the fact that she continued working.[16] Ms Brown agreed that she took Voltaren for her left knee condition after the second incident, and was still taking it at the time of the work incident.
[13]T38
[14]T52
[15]T41-42
[16]T42
33This is a convenient point at which to consider the medical evidence.
Treating material
Imaging
34An MRI scan of the left knee undertaken on 18 September 2020, was reported to reveal:[17]
“Intact ligaments.
Low grade sprain of the medial collateral ligament.
Moderate suprapatellar collection with mild synovitis.Partial thickness chondral tears in the medial femoral condylar articular cartilage and apex of the patella.”
[17]PCB 30
35An x-ray of the left knee undertaken on 18 February 2021, was reported to reveal:[18]
“The knee joint space is maintained and the bones are normally aligned with no fracture or significant osteophytosis. Minimal osteophytic lipping noted at the superior pole of the patella and there is enthesopathy at the insertion of the quadriceps. No suprapatellar effusion. No intra-articular radiopaque loose body.”
[18]PCB 31
36A further MRI scan on 7 January 2022, was reported to reveal:[19]
“Progressive meniscal tears in medial meniscus. This prominently affects the body where a complex degenerative radial tears are noted with progressive cartilage loss in medial compartment.”
[19]PCB 32
37Finally, a further x-ray on 11 December 2023 was reported to reveal:[20]
“… moderate OA in the three compartments with marginal osteophyte formation.”
[20]PCB 34
Bunyip Medical Centre
38Extracts of clinical records of Bunyip Medical Centre were tendered, together with a medical certificate dated 25 January 2021, and certificates of capacity dated 9 December 2020, 27 March 2021, 16 April 2021 and 17 May 2021. Ms Brown continues to attend this clinic, but no medical report was tendered from her GP.
39On 21 August 2020, Ms Brown consulted Dr Trisha Nicholls. The consultation was by phone due to COVID-19 restrictions. The clinical note relevantly recorded:[21]
[21]DCB 41
“#Painful Left knee
-hyperextended knee when slipped out of shower about a month ago
-knocked by granddaughter about 2 months ago and hyperextended again
-painful when pushing med trolley at work
-throbs when you rest
-twisting is painful
discussed x-ray/ct/us/mri/physio/ortho review
reluctant to have imaging would consider if not improving
keen for conservative management as does not feel unstable and pain is tolerablep
regular analgesia
physiotherapyreview in a week.”
(sic)
40The next entry in the clinical records was on 16 September 2020. Ms Brown consulted Dr Natalie Niap. The clinical note relevantly recorded:[22]
[22] DCB 41-42
“left knee very painful at work yesterday
nearly in tears
willing to pay for an MRI scan of the left knee now
hyperextension injury approx. 3/12 as per dr.trisha’s notes…
P
advised MRI $250 at baw baw radiologymed cert for work
,,, .”
(sic)
41Ms Brown next consulted Dr Stephanie Dawson on 24 September 2020. She advised that she had twisted her left knee again ten days previously. She was using Panadol. Her knee was noted to be okay when not walking, but “excruciating after working”.[23] She reported having some Voltaren tablets at home, and would see the physiotherapist at work with her MRI scan result. It was agreed that consideration would be given to a referral to an orthopaedic surgeon if her left knee did not improve. That referral was made on 7 November 2020.[24]
[23]DCB 42
[24]PCB 68
42On 25 January 2021, Ms Brown consulted Dr Dawson. The clinical note relevantly recorded:[25]
[25]DCB 44
“slipped backwards last night hurting left knee
wanting work certificate for today as called in sick today
recently mopped floor and a carer had wiped it clean - slipped backwards right foot on the ground and left foot swin[ging] forward. no fall. no head strike. held onto the chair to steady self and felt that knee was strained
wearing a knee brace
seeing orthopaedic surgeon on 15th feb
stating more sore then later said it is just always sore.
frustrated very much at work givin[g] … her more shifts to work so wanted a day of resting.
… .”
Mr Ben Brooker, orthopaedic surgeon
43A report was tendered from Mr Brooker dated 6 March 2025. Mr Brooker first saw Ms Brown on 11 February 2021, and last saw her on 17 May 2021.
44Mr Brooker noted the history of injury as follows:[26]
“… [S]he was at work pushing a heavy drug trolley (she worked as a nurse at that stage) and twisted her knee while she was pushing the drug trolley. … .”
[26]DCB 42
45Mr Brooker did not mention the prior hyperflexion injuries, or the January 2021 injury in his report.
46Mr Brooker said that when first seen he diagnosed medial compartment chondral damage in the knee. It was treated with a combination of corticosteroid injections and gentle strengthening exercises. When seen again in May 2021, Ms Brown “wasn’t doing very well with the knee” and a visco-supplementation injection was arranged.
47Mr Brooker opined as follows regarding the relationship between the work incident and the injury:[27]
“I think the relationship between the work incident and the injury is that the knee had essentially asymptomatic arthritis in it prior to the injury, and then the injury has created inflammation in the knee which has stirred up the arthritis and essentially allowed it to become symptomatic. I would classify this as aggravation of a pre-existing injury … .”
[27]DCB 42
48Mr Brooker said that he suspected that Ms Brown would need a knee replacement at some point in the future “given her age and the fact that she is already symptomatic from medial compartment arthritis”.[28]
[28]PCB 42
Mr Lachlan Batty, orthopaedic surgeon
49Three reports were tendered from Mr Batty, dated 14 April 2022, 13 July 2022 and 17 October 2022.
50In his first report dated 14 April 2022, Mr Batty noted the following history:[29]
“… [Ms Brown] injured her left knee at work on 14 September 2020, when she was pushing a medical trolley around the corner. She has been experiencing significant medial-sided knee pain since. She has had on and off symptoms which are medial and posterior pain.”
[29]PCB 35
51Mr Batty did not mention the two prior hyperextension injuries in his report. He did not mention the January 2021 incident.
52Mr Batty noted the following on examination:[30]
“… [Ms Brown] has varus coronal plane alignment. She has [a] range of motion from 0-120 degrees and tenderness over the medial joint line. She has a height of 161 cm and weighs 128 kg. Meniscal provocation testing is positive today.”
[30]PCB 35
53Mr Batty opined that although some of Ms Brown’s symptoms may be contributed to by meniscal pathology, that was in the context of “a more globally failing medial compartment”. This was exacerbated by her varus alignment and increased weight. He recommended weightloss, hydrotherapy and a low impact exercise program. He did not recommend knee surgery.
54In his second report, dated 13 July 2022, Mr Batty noted Ms Brown had lost some weight, and intended to have bariatric surgery when her health insurance “matured”. She had been undertaking hydrotherapy, physiotherapy, walking and using an exercise bike.
55In his final report, dated 17 October 2022, Mr Batty noted Ms Brown’s symptoms were reasonably stable. She had lost some weight, and had been diligent with hydrotherapy and physiotherapy.
Madeline Putland, physiotherapist
56A report was tendered from Ms Putland dated 31 July 2025. Ms Putland last treated Ms Brown in March 2023.
57Ms Putland said that the treatment she provided included a strengthening home exercise program, in clinic exercises and a hydrotherapy program. She noted that at the end of treatment in March 2023, Ms Brown still experienced knee pain, particularly with increased activity.
58Given that she had not seen Ms Brown for more than two years, Ms Putland was unable to comment on her current condition.
Rebecca Clarke, physiotherapist
59A physiotherapy treatment plan authored by Ms Clarke on 3 October 2023, and a report dated 6 March 2025 were tendered. Ms Clarke treated Ms Brown on twenty-one occasions between April 2023 and February 2024.
60Ms Clarke’s diagnosis was “left knee medial compartmental degeneration with meniscal tear”. Ms Clarke noted that Ms Brown changed jobs because she was unable to work on her feet for long hours as a nurse. She noted that over the course of her treatment, the strength and stability of Ms Brown’s left knee improved and “she was happy for self-management”.
Medico-legal practitioners
Associate Professor Bruce Love, orthopaedic surgeon
61A report was tendered from Associate Professor Love dated 13 October 2021. Associate Professor Love examined Ms Brown on 1 October 2021. His examination was to determine whether a Synvisc injection was appropriate treatment for Ms Brown’s left knee injury.
62Associate Professor Love was not given a history of the prior hyperextension injuries. Indeed, he noted that Ms Brown denied a past history of a knee condition.[31] Ms Brown told him that following the work incident, her knee became very swollen and painful but she remained at work in spite of the pain. After about three months, she was not improving, and started to take some time off because of pain.
[31]DCB 27
63Ms Brown reported pain, aggravated by prolonged activities. When resting, the knee was reported to be “relatively comfortable”.
64On examination, Associate Professor Love relevantly noted:[32]
“… [no] deformity on weightbearing and she did not walk with a limp.
There was no significant restriction of range of movement of either knee. The left knee exhibits localised medial joint tenderness but the knee is otherwise stable.
… I have inspected the [MRI] images and there is a suggestion of an inflammatory response adjacent to the lateral meniscus but no other remarkable finding is noted.”
[32] DCB 27
65Associate Professor Love stated that there was an inflammatory process in the knee and it was reasonable to offer a Synvisc injection.
Mr Ash Chehata, orthopaedic surgeon
66A report was tendered from Mr Chehata dated 13 June 2023. He examined Ms Brown that day and provided an impairment assessment.
67Mr Chehata noted the two incidents in which Ms Brown injured her left knee prior to the work incident. She reported that both incidents had resulted in mild pain.
68Ms Brown reported to Mr Chehata that she was unable to stand for more than 40 minutes because of ongoing left knee pain, and had no capacity for any high physical activity. Mr Chehata noted that Ms Brown’s pain was reported to be between two and four out of ten.
69On examination, Mr Chehata found as follows:[33]
“… [T]here is minimal restriction but she stands with a mild valgus.
She does not walk with a limp and does not really have an antalgic gait and does not use any gait aides.
She is able to extend to 0°, flex to 120°.
There is generalised medial pain.
Her sciatic nerve is intact.
There are no leg length discrepancies.”
[33] DCB 16
70Mr Chehata described the clinical findings as “minimal … it is just generalised medial joint line pain.”[34]
[34]DCB 17
71Mr Chehata noted that the MRI scan findings revealed generalised wear and tear in the left knee, with generalised meniscal tearing. He further noted that the two orthopaedic surgeons Ms Brown had seen agreed there was partial thickness chondral tearing of the medial femoral condyle, “really suggesting some mild wear and tear as an ultimate diagnosis”.[35]
[35]DCB 17
Medical Panel Opinion and Reasons
72A Medical Panel Opinion and Reasons were tendered, dated 7 February 2024. The opinion was in relation to Ms Brown’s impairment benefit claim. The Panel comprised Associate Professor Sharon Van Doornum, rheumatologist, and Dr Garry Grossbard, orthopaedic surgeon.
73The Panel examined Ms Brown on 15 November 2023.
74The Panel noted that Ms Brown described her symptoms as follows:[36]
“… [S]he experiences constant pain in the left knee, at the front of the knee underneath the kneecap and sometimes at the back of the knee, which fluctuates in intensity and is worse with prolonged standing, walking or sitting or with any activities. She said she sometimes gets stabbing pains on the inside aspect of the knee and it swells at times. She said she feels a grinding sensation in the knee and it clicks but does not lock. She said she has the sense that it might give way and she is nervous going upstairs but she has not had a fall. She said there was no paraesthesia, tingling or numbness in or around the left knee.
…
… [S]he can walk for up to approximately 1 km and can stand for up to one hour. She said she can sit in an appropriate chair, as long as it allows her to bend her knee adequately, for around one hour and she is able to drive her own car, in which she can find a comfortable position, for up to one hour. She says that when driving she needs to reposition her knee frequently.
… [S]he is independent in her personal and domestic activities of daily living with some modification of her approach due to the left knee symptoms. She said the left knee sometimes wakes her from sleep.”
[36] DCB 36-37
75The Panel noted from the referral materials that Ms Brown had experienced two episodes of left knee pain prior to the work incident. Ms Brown told the Panel that the pain from the first incident resolved fully. She reportedly told the Panel that after the second incident, there was some slight swelling, but no restriction of movement.
76On examination, the Panel noted Ms Brown had a normal gait, and was able to stand on her heels and toes. There was no evidence of effusion, but mild tenderness over the medial joint line. There was a full range of flexion and extension and no evidence of varus or valgus deformity. There was no crepitus, no evidence of any joint instability, no loss of power in the lower limbs, and neurological examination of the lower limbs was normal.
77The Panel noted that Ms Brown’s described symptoms were consistent with arthritis of the left knee. They were of the view there had been progressive cartilage loss since February 2021.
78On the basis of the history Ms Brown provided that her left knee recovered fully after each of the hyperextension injuries, the Panel concluded that there was no evidentiary basis to have regard to a pre-existing impairment.
Dr Joseph Slesenger, occupational physician
79A report was tendered from Dr Slesenger dated 24 October 2024. Dr Slesenger examined Ms Brown on 20 October 2024.
80Dr Slesenger reported being told the following regarding the condition of Ms Brown’s knee prior to the work incident:[37]
“Ms … Brown advised that she was injured at home, in the shower about a month prior to the injury. She hyperextended her left knee and developed knee pain. She had no time off work. She attended her GP and does not appear to have undergone investigation. She remained at work performing normal duties. Her symptoms gradually settled within three weeks.”
[37]DCB 5
81Dr Slesenger noted Ms Brown’s current symptoms and function as follows:[38]
[38]DCB 5-6
“Ms … Brown advised of residual pain over the medial aspect of the knee and the medial joint line. She has restricted range of movements. She has intermittent swelling in the left knee, particularly noticeable on over-exertion, such as walking for more than an hour, standing for more than an hour and repetitive climbing up and down the stairs. She has difficulty squatting. She is unable to kneel.
…
She advised that she has difficulty cleaning the bathrooms and the toilets; otherwise, she is able to attend to domestic tasks although is avoidant of gardening duties.
…
… [S]he used to enjoy gardening before the accident and was a keen motorcycle rider but ceased as a result of the injury.
…
… [S]he drives an automatic car for up to 60 minutes.”
82On examination of the left knee, Dr Slesenger noted tenderness over the medial joint line and the medial collateral ligament. There was no effusion, and no crepitus. The range of movement findings were zero degrees extension and 160 degrees flexion. These were the same as those for the right uninjured knee. The circumference of the left thigh was one centimetre greater than the right. On lower limb neurological examination, power, tone, sensation and reflexes were noted to be normal bilaterally, although there was a reduction to “3+” in the left knee extensors.
83Dr Slesenger was provided with clinical records of the Bunyip Medical Centre, and noted the two prior hyperflexion incidents. He noted the subsequent incident in January 2021.
84Dr Slesenger opined that Ms Brown’s current left knee impairment related to her “pre-injury status rather than the injury”. He said this was so because:[39]
“I note the minor nature of the index accident.
I am satisfied that it was likely that she would have suffered a brief aggravation of pre-existing left knee impairment and the aggravation has now resolved.
Her current impairment relates to her pre-injury status, namely the constitutional degenerative disease of the left knee. In particular, I note that it is unlikely that she would have sustained a meniscal tear given the mechanism described.”
[39] DCB 11
85Dr Slesenger opined that Ms Brown retained the capacity to work pre-injury hours with restrictions, namely, no push, pull, carry or lift over 10 kilograms, avoid squatting and kneeling, and avoid walking on uneven ground. Subject to those restrictions, she was fit to work as an occupational health and safety officer in the healthcare sector, but not as an allied health worker, aged care assessor, immunisation nurse or nurse in doctors’ surgeries.
Mr Philip Sheard, orthopaedic surgeon
86Two reports were tendered from Mr Sheard, dated 8 April 2025 and July 2025. Mr Sheard examined Ms Brown on 8 April 2025.
87Mr Sheard noted the history of the work incident on 14 September 2020. As to prior and subsequent incidents, Dr Sheard noted:[40]
“Previous medical history
Mrs Brown describes hyperextension injury to her left knee a few months before, and had a slip and fall two weeks later. She told me these are resolved. These were documented by her GP.”
[40]PCB 47
88Mr Sheard was provided with various documents, including Ms Brown’s first affidavit and the clinical notes of Bunyip Medical Centre. He noted the entries on 21 August 2020 and 25 January 2021 in those clinical records.
89Mr Sheard said Ms Brown described the following restrictions:[41]
“… Washing, dressing and cooking is unaffected. She is unable to clean at floor level as she is unable to kneel or squat. While shopping, she does less walking and has to go more frequently. She is able to drive for approximately 45 minutes plus before she has to stretch her left leg. She has difficulty getting to sleep and is woken approximately three times a night. He husband looks after the acreage. Gardening was her hobby, but she is unable to work at floor levels. Prior to the accident, she describes riding motorbikes, which she has decreased.”
(sic)
[41]PCB 48
90On examination, Mr Sheard found as follows:
“… Mrs Brown told me she is 161cm tall and weighs 85 kg. She has a normal gait, no walking aid. … .”
91Mr Sheard opined that the work incident appeared to be the cause of a medial meniscus tear, along with chondral damage. He said the prior hyperextension injuries “appeared to be self-limiting and minor and did not affect her ability to work”.[42]
[42]PCB 49
92Mr Sheard diagnosed a left knee medial meniscus tear with progression of both meniscal tear and osteoarthritis. He said the injury sustained was consistent with the described accident.
93As to prognosis, Mr Sheard opined:[43]
“Your client is likely to have worsening in her pain, and restriction on her walking with increase in night pain, and she is likely to benefit from total knee replacement but not in the foreseeable future.”
[43] PCB 50
94Mr Sheard was subsequently provided with Ms Brown’s second affidavit. He said it did not alter his opinions.
Findings
95I find that Ms Brown had pre-existing arthritis in her left knee. Each of the treating and medico-legal practitioners have identified this to be so.
96Her left knee condition was asymptomatic until 2020.
97In about June 2020, Ms Brown was knocked by her young granddaughter and hyperextended her left knee. I accept that she experienced pain in the knee, which resolved within a reasonably short time. She did not seek any medical treatment following that incident, and continued performing her pre-injury duties.
98In about July 2020, Ms Brown again hyperextended her left knee, this time when she slipped getting out of the shower. She consulted her GP about the injury four weeks later, on 21 August 2020. The clinical note is relevantly extracted above.
99I find the symptoms caused by this second incident were continuing at the time of the work incident. Ms Brown continued performing her pre-injury duties after this incident, but was experiencing ongoing pain, particularly when pushing the medicine trolley, and experienced throbbing in her knee at rest. She took Voltaren and Panadol, and consulted the physiotherapist at work for treatment.
100Ms Brown’s present belief is that the pain and restriction she was experiencing in her left knee prior to the work incident must have been minor because she continued performing her work duties. However, she also continued to perform her pre-injury duties for various periods after the work incident. Indeed, she was not put onto long-term light duties until April 2021. Doing the best I can on the clinical records, I find she was experiencing ongoing pain in her left knee requiring analgesia from July 2020.
101Mr Brooker, Mr Batty and Associate Professor Love had no history of the prior incidents or the January 2021 incident.
102Mr Chehata had a history of the two prior incidents, but accepted the history he was given that those symptoms resolved prior to the happening of the work incident. Nonetheless, he accepted that apportionment was a live issue to consider.
103Mr Sheard had the benefit of the relevant clinical records, but I accept the submission of leading counsel for the VWA,[44] that he did not engage with them in his report. He appeared to simply accept the history given by Ms Brown that the earlier incidents were self-limiting.
[44]T74
104Dr Slesenger had the most complete history, derived from the clinical records. His view was that the current condition of Ms Brown’s knee related to the pre-injury condition of her knee, namely the constitutional degenerative disease.
105I find that at the time of the work incident, Ms Brown was suffering from pre-existing arthritis in her left knee. It had been symptomatic since July 2020, requiring over-the-counter analgesia and physiotherapy.
What are the permanent impairment consequences of Ms Brown’s compensable aggravation injury to her left knee?
106Ms Brown relied on two affidavits, one affirmed by her on 26 June 2024 and a second affidavit sworn by her on 3 July 2025.
107Ms Brown deposed to the following impairment consequences by reason of her left knee injury:
(a) An inability to work as a nurse. Ms Brown said that she missed nursing very much;
(b) Constant pain in the left knee, which fluctuates in intensity. It is generally a dull aching pain, but it can become sharper and more intense on average two to three times a week depending on activity. When that happens, she needs to sit and rest and the increased pain can last for up to an hour;
(c) Difficulty with prolonged standing, walking or sitting, as those activities cause increased pain. Walking is limited to one kilometre, standing to an hour, and sitting to an hour. Ms Brown struggles to walk on uneven ground, walk on the beach or bushwalk;
(d) An inability to drive for more than an hour, and a requirement to reposition her knee frequently whilst driving. When she drives the 12-seater bus at work, it causes increased pain in her knee;
(e) Difficulty or an inability to kneel;[45]
[45]PCB 21 (paragraph 37) cf PCB 22 (paragraph 43)
(f) An inability to squat;
(g) At times, the knee swells;
(h) A grinding sensation in the knee;
(i) The left knee feels like it will give way, and therefore Ms Brown said she was nervous to go up stairs. Ms Brown deposed to finding the steps up to her home difficult to manage;
(j) Sleep disturbance;
(k) A limited ability to bend and play with her grandchildren;
(l) Interference with sex;
(m) Struggles to get in and out of a kayak;
(n) Limited to riding a motorbike for 30 minutes;
(o) Travel is difficult, as it requires managing luggage and walking for longer periods.
108In her second affidavit, Ms Brown deposed that she had taken up karate as a means to strengthen the muscles around her left knee. She said that she struggles with stances and kicks because of her injury.
109During cross-examination, Ms Brown described her work duties and hours at Mecwacare. She attends karate classes after work on Mondays and Wednesdays and has achieved a blue belt, which she said was just under halfway towards a black belt. Ms Brown has participated in five gradings. She performs front, side, roundhouse and back kicks with both legs. She participates in sparring, and said she had been “punched in the head many a times (sic)”.[46]
[46]T29
110When asked about her report of a further incident at work in January 2021, Ms Brown agreed that she felt that she had strained her knee in that incident. She said:[47]
“I do recall falling in the dining room at the aged care. They had previously mopped the floors. That was done. And I was going to put in a menu or something for one of the residents, and I’ve walked, and I remember falling, and I did fall on the floor. That’s … what I recall.”
[47]T51
111Ms Brown agreed it was possibly right that she began wearing a knee brace as a result of that incident.
Findings
112Leading Counsel for the VWA referred to the decision of the Court of Appeal in Seckold v Transport Accident Commission,[48] in which it was said:
“… [W]here the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. Notwithstanding the need for the applicant to undertake this exercise, the applicant adduced no evidence which sought to deal with this issue. Specifically, there was no evidence as to the extent of the aggravation, or the likely duration of the effects of the aggravation. These were matters of evidence which the applicant was required to address as part of his case in endeavouring to establish that the consequences of the injury caused by the accident were serious.”
[48][2025] VSCA 18 (“Seckold”) at paragraph [55]
113Senior Counsel for Ms Brown submitted that the different factual scenario here distinguished this case from Seckold. Whilst it is right that the factual circumstances are different, the principles are nonetheless apposite.
114It is a long-established that in a case involving a pre-existing condition, a comparison is to be made of the impairment immediately before the accident with the impairment thereafter. Where the pre-existing condition is degenerative, this comparison may involve determining the difference between the progression which would likely have occurred had the accident not happened, with the progression that in fact occurred.[49] As was observed in Seckold:[50]
“… It applies whether or not the pre-existing condition was symptomatic (as in Petkovski) or asymptomatic (as in the present case). It is the nature and extent of the impairment resulting from the injury sustained in the accident that must be identified by the applicant. Of course, the extent of any necessary analysis of such an impairment (particularly in the case of an asymptomatic pre-existing condition) will depend upon the whole of the evidence adduced in the case, including the medical evidence directed to the effects (if any) of the injury upon the underlying degenerative condition and a consequential impairment.”
[49]Petkovski v Galletti [1994] 1 VR 436
[50]Seckold at paragraph [58]
115Senior Counsel for Ms Brown submitted that her condition was minimally symptomatic before the work incident, and the work incident was the incident that was causative of Ms Brown’s current left knee symptomatology and resultant impairment. It was submitted that Ms Brown suffered an acute meniscal tear in the work incident.
116I do not accept that Ms Brown suffered an acute meniscal tear in the work incident. Mr Sheard was the only doctor to offer such a diagnosis, and it was insufficiently reasoned. Such a diagnosis is against the weight of the other medical evidence.
117There is a broad consensus on the medical evidence that Ms Brown has suffered from an aggravation of pre-existing progressive degenerative change in her left knee in the work incident. As I have said, this condition was symptomatic at the time of the work incident.
118The situation is further complicated by the subsequent incident in January 2021 in which Ms Brown further aggravated her left knee condition. Senior Counsel for Ms Brown submitted no one has made anything of that until counsel for defendant in this case.[51] The difficulty with that submission is that doctors can only give consideration to the history provided to them.
[51]T107
119On whole of the material, I am satisfied that the January 2021 incident was an incident of significance to the course of Ms Brown’s left knee symptoms. I am unable to determine what impact it had upon Ms Brown’s left knee condition, and which, if any, of Ms Brown’s current impairment consequences are due to that incident.
120Mr Brooker, Mr Batty and Associate Professor Love did not have a history of the prior incidents or the subsequent incident.
121Mr Chehata undertook an impairment assessment in June 2023. He was told about the two prior incidents, but given a history that they resulted in mild pain. Mr Chehata noted that apportionment would need to be considered as there was already knee pain with two prior incidents, and the work incident was the third.
122The Medical Panel also had a history of the two prior incidents. The history given to the Panel was that the left knee fully recovered prior to the work incident. On that basis, the Panel opined there was no evidentiary basis to have regard to a pre-existing impairment.
123Mr Sheard was provided with the relevant clinical records. He noted that Ms Brown gave him a history of a hyperextension injury to the left knee a few months before the work incident and a further slip and fall two weeks later. Ms Brown reportedly advised that “these are resolved”.[52] He noted, in particular, that the prior incidents were self-limiting and minor and did not affect her ability to work. It was on this basis that Mr Sheard attributed the current impairment of Ms Brown’s left knee to the work incident.
[52]PCB 47
124The history accepted by Mr Sheard that the symptomatology consequent upon the shower incident had effectively resolved prior to the work incident was inconsistent with my findings.
125The medical opinions relied upon by Ms Brown were not founded upon an accurate history of the effects of the shower incident, or the January 2021 incident. There was thus no proper consideration or explanation of the extent to which the current impairment consequences of Ms Brown’s left knee condition are attributable to the work incident.
126Dr Slesenger was provided with the relevant clinical records. He was also given a history that the symptoms of the shower incident had settled prior to the work incident. His conclusion that the present condition of Ms Brown’s knee was referable to the pre-existing constitutional degenerative disease, not the work incident, was primarily said to be so because of the minor nature of the work incident.
127I am not persuaded by Dr Slesenger’s analysis, as it is insufficiently explained.
128On the whole of the evidence, I find that the current condition of Ms Brown’s left knee is due to a combination of the pre-existing progressive degenerative condition, the shower incident, the work incident and the January 2021 incident. The evidence does not enable me to delineate the current impairment consequences caused by the work incident. I am unable to determine those impairment consequences upon a consideration of the whole of the evidence.
129The onus rests upon Ms Brown to establish the current impairment consequences referable to the aggravation injury in the work incident. She has not satisfied that onus. On that basis, her claim must fail.
130In the event that I am wrong to find that Ms Brown has failed in her onus to establish which of the current impairment consequences of her left knee are referable to the work incident, I will deal with my findings as to her current impairment consequences and the issue as to whether those consequences satisfy the statutory threshold.
131To be clear, the following findings as to Ms Brown’s current impairment consequences are made holistically, as if I were satisfied (which I am not) that Ms Brown had established all of her current left knee impairment consequences were due to the work incident.
Treatment
132Ms Brown sees her GP regarding her left knee injury infrequently. She last sought specialist treatment from an orthopaedic surgeon in October 2022. No treatment is currently planned.
133Ms Brown may come to total left knee replacement surgery in the future, but not in the foreseeable future.
134She takes no medication.
135Ms Brown last had physiotherapy in early 2024. She was then discharged to a self-managed exercise program.
136Ms Brown described her pursuit of karate as a form of treatment for her knee condition. She had enjoyed Taekwondo when she was young, but did not think she could resume that form of martial art given the condition of her knee. I find that the karate is partially a form of treatment, but also an enjoyable hobby which Ms Brown has been able to take up following the work incident.
Work
137Ms Brown ceased working as an enrolled nurse in aged care. She is now working in a different capacity in the aged care field. She currently works more hours than she was working at the time of the work incident.
138The medical evidence as to Ms Brown’s work capacity is limited. Mr Brooker, Mr Batty, Associate Professor Love, Mr Chehata and the Medical Panel do not comment upon it. Dr Slesenger, who was the only occupational physician to proffer an opinion, was of the view that Ms Brown was fit for modified duties on her pre-injury hours with restrictions, was fit to work as an occupational health and safety officer in the healthcare sector but not in the other roles suggested as suitable.
139I find that as a result of her overall left knee impairment, Ms Brown is no longer able to work as an enrolled nurse in aged care. She is still working in the aged care field, but in a different capacity. I accept that the loss of ability to continue to work as a nurse is a significant matter to her.
Pain
140I accept that Ms Brown experiences a constant dull ache in her left knee. Approximately two or three times a week her pain is exacerbated and becomes a sharp pain. She needs to rest for that pain to abate.
141I accept that Ms Brown was previously taking medication, which she ceased due to unacceptable side effects; however, I find that Ms Brown’s current level of pain does not require any regular analgesia or anti-inflammatory medication.
Functional tolerances
142I accept that Ms Brown has difficulty walking more than a kilometre, standing for more than an hour, and sitting for more than an hour, as such activities can exacerbate her knee pain. I also accept that she can struggle with uneven ground and steep inclines.
143Ms Brown can drive for up to an hour at a time. She is able to drive the 12-seater bus at work, although needs to adjust the position of her knee regularly, and I accept that doing so can aggravate her left knee pain.
144Ms Brown remains able to ride a motorbike, but for shorter periods of time and struggles to control the motorbike. There was no evidence as to the frequency with which she rode a motorbike before the work incident so the reduction of capacity to do this is difficult to assess.
145I accept that the prolonged walking and luggage management involved in travel are more difficult for Ms Brown because of her left knee condition.
146I accept that Ms Brown has adjusted the way she kneels to avoid exacerbating her knee injury. Whilst Ms Brown can perform squats, she does not engage in low squats to avoid putting too much stress on her knee.
147I accept that the limitation on her functional tolerances impacts her physical involvement in play with her young grandchildren.
Sleep
148I accept that there is some interference with sleep due to pain, but I do not accept it is multiple times per night. Doing the best I can, I find there is regular disturbance.
Intimate relations
149I accept that left knee pain interferes with Ms Brown’s intimate relations. I am unable to assess the extent of the interference given the limited evidence on this issue.
Hobbies
150I accept that her limited knee function can interfere with Ms Brown’s ability to get into and out of a kayak. There is very limited evidence as to the frequency with which she undertook this activity prior to the work incident, and its importance to her. The limitations in respect of it are therefore difficult to assess.
151Ms Brown has taken up karate since the work incident, and since her bariatric surgery. She attends five karate classes a week, usually three on a Monday evening after her work day, and two on a Wednesday evening after her work day. This involves some very limited contact sparring.
Are those impairment consequences “serious”?
152What has been lost must be considered in the context of what is retained.
153Ms Brown is unable to continue to perform her pre-injury work. That loss is an important impairment consequence to her.
154She remains able to work in the aged care sector but in a different capacity, on increased hours.
155Ms Brown has a 45-minute commute to and from work each day. In addition to her commute, and a full day at work, she is able to spend several hours undertaking karate classes two nights a week.
156Ms Brown is not taking any regular medication for her left knee condition, and has progressed to a home exercise regime.
157Ms Brown remains able to cook. She has some difficulties performing domestic duties and gardening.
158Ms Brown did not depose to any impairment in her ability to socialise.
159Taking Ms Brown’s impairment consequences as a whole, when considering what has been lost in the context of what is retained, I am not persuaded that, taken holistically, the impairment consequences of Ms Brown’s left knee condition are more than significant or marked and at least very considerable when considered in the range of impairments including those that do not come before the Court.
Conclusion
160Given my finding that Ms Brown has not satisfied her onus to identify the current impairment consequences by reason of the aggravation injury in the work incident, her application must be dismissed. In the event that finding was wrong, I am not persuaded that the current impairment consequences of Ms Brown’s left knee injury, taken holistically, satisfy the statutory threshold.
161I will hear the parties on the issue of costs.
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