Chetcuti v Hungry Jack's Pty Ltd
[2024] VCC 1815
•20 November 2024
c
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03058
| MADISON ELISE CHETCUTI | Plaintiff |
| v | |
| HUNGRY JACK’S PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2024 | |
DATE OF JUDGMENT: | 20 November 2024 | |
CASE MAY BE CITED AS: | Chetcuti v Hungry Jack’s Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1815 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left knee – aggravation of pre-existing condition – pre-injury plan for surgery – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms N Hanna | Carbone Lawyers |
| For the Defendant | Mr G B Hevey RFD SC with Ms B King | IDP Lawyers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant, Hungry Jack’s Pty Ltd, on 14 August 2021 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the left knee.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2][1994] 1 VR 436 (“Petkovski”)
12The plaintiff relied upon two affidavits, sworn 7 February 2023 and 12 August 2024 and was cross-examined. She also relied on an affidavit sworn by fiancé, Nathan Zammit, on 12 August 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The issue for determination in this application is whether any additional impairment caused by the aggravation injury (the incident) qualifies as a “serious injury” under the Act.[3]
[3]Petkovski; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51 at paragraph [40]
The Plaintiff’s evidence
14The plaintiff is presently aged 26, having been born in June 1998.
15After completing Year 12 in 2016, she graduated with a Bachelor of Psychological Science with Honours in about 2021. The following year, she commenced a Master of Educational Psychology, which she completed last year.
16Between April 2014 and November 2018, the plaintiff was a volunteer coach with Sunshine George Cross Soccer Club. Between April 2015 and August 2017, she worked as a team member for Nando’s.
17In about August 2017, she started work for the defendant as a crew member at Sunshine. She was later promoted to team leader. She worked between 10 and 25 hours per week.
18Between about January and November 2020, she was a volunteer “buddy” with Ardoch, providing literacy support to disadvantaged children.
19In about June 2020, she started work as an applied behaviour analysis therapist with Change for Life, a multidisciplinary psychology clinic (like speech OT), providing one-to-one therapy to autistic children. She was later promoted to therapist supervisor.
Left knee – pre-incident
20In May 2014, the plaintiff had a left knee ACL repair, having injured herself playing soccer. She has not played since that surgery. She was told she could go back to soccer, but chose not to after that surgery.[4]
[4] Transcript (“T”) 7
21In about December 2020, the plaintiff felt a clicking in her left knee. She disagreed her knee started playing up quite severely at that time, but she did have to go back to her GP, who sent her to Mr Miller in February 2021.[5]
[5]T7-8
22In March 2021, Mr Miller performed a left knee arthroscope (“the scope”). The plaintiff was advised of the possibility of needing a complete ACL reconstruction; however, she continued to work to the best of her ability without any significant issues.[6]
[6]Affidavit sworn 7 February 2023
23Although she was advised in March 2021 she might need further surgery, there was no set date. She had stopped treatment immediately after the scope. She felt her left knee was stable and she was able to resume most of her recreational activities and hobbies, albeit with some restrictions, but these were due to COVID‑19.
24The workplace injury brought forward the urgency of the surgery and further treatment she was not expecting to require. She thought the incident seriously aggravated her condition.[7]
[7]Affidavit sworn 12 August 2024
25Mr Miller did not recommend in February 2021 that she effectively have a surgical revision of her knee. He told her that she had a bad knee that “may or may not require revision surgery,” and he sent her for the scope. He told her after the scope it may or may not need to be reviewed.[8]
[8] T8
26The plaintiff initially said she took out private health insurance in April 2021 because Mr Miller had told her the public system would not fund the revision surgery if she needed it, “so to take it out just in case”.[9]
[9] T9
27She was then taken to Mr Miller’s letter to her dated 13 April 2021, just after the scope was performed, advising “she now requires a revision knee reconstruction”. He did say to her that she had a bad knee, but he said to her that further surgery depended on her symptoms. He said to come back in September that year and “we would revise my symptoms and see whether I needed to have the surgery or not”.[10]
[10] T11
28She did not agree that the whole reason she took out private health insurance cover then was so she could get her knee reconstructed or revisited. She agreed she took out private health insurance costing just over $200 a month purely on the speculation she might need something done, as distinct from she did need something done. She denied she was saying that to try and advance her case, as distinct from telling the truth.[11]
[11] T11
29She denied the sole reason for taking out private health insurance was to allow the time to get her knee revisited by Mr Miller, as he had suggested in April 2021. She knew she was going to need some sort of revision “potentially”. She did not know 100 percent if she was going to have it, so she took out cover “knowing that fully well public and private takes about a year to kick in. So if [she] did need it and he said in September that [she] would need it, then [she] wouldn’t have to wait as long.” The waiting period was 12 months, and she thought she took out the cover in April 2021.[12]
[12] T11
30Her private health insurance did cover the procedure which was ultimately carried out on 7 February 2022. She then said she could not remember if she had in fact paid the premium or taken out private health insurance in February 2021. She agreed she must have “misspoke” before, and she took out the insurance in February. She would have had to wait twelve months before the surgery was covered. She then said she could not remember when she took out the insurance. She was not going to say 100 percent.[13] It was not possible that she had a six month waiting period.[14]
[13] T12
[14] T13
31She denied she was simply guessing when she took out insurance after it was pointed out that she would have had to have a twelve-month waiting period by February 2021 for the surgery to be covered.[15]
[15] T14
Left knee – post-scope
32It had been brought to her attention that after the scope, but prior to the incident, she had attended about four physiotherapy sessions at Melbourne Sports Physio in Essendon between February and March 2021. She felt physically strong enough after the scope, so she stopped physiotherapy. She recalled she also stopped taking pain medication about one to one-and-a-half weeks after the scope, because her left knee was feeling good. She wore a knee bandage for about a fortnight, at which time her stitches were removed. She did not wear a knee support after the stitches were removed.[16]
[16]Second affidavit sworn 12 August 2024
33After the scope, she had approximately four weeks off work with the defendant and also in the other job with Change for Life, where she was working up to three full days a week as an applied behaviour analysis therapist.
34When she returned to Change for Life, she was doing clinic and home stays. She recalled being able to engage and play games with the children and do play-based therapy. She was squatting, bending, and getting down on the floor at the children’s level without experiencing any significant left knee pain.
35She was in pain “between that time”. Once she got back to work, she was relatively good. She went “back to doing everything that [she] was doing before without the COVID restrictions and all that kind of stuff but [she] was back to work, back at Hungry Jack[’]s, back with the kids doing all of that”. She was also studying.[17]
[17] T15
36Despite the pandemic, she also recalled attending a wedding between various lockdowns. She wore high heels, and her left knee was feeling good while wearing them. She even went fishing at Port Arlington with her father during that time.
37In re-examination, she confirmed she was relatively good in the post-scope period before the incident. From mid-June through to July up to the time of the incident, her knee was “really good”. She was working for the defendant two to three shifts per week of between five to eight hours. Her knee was “going good”.[18]
[18] T19
38She thought she was due to see Mr Miller again in September 2021 to look at her knee symptoms (as he advised in April 2021) and to discuss any need for further surgery. She would not have had surgery if her knee had been the way it was in those eight weeks before the incident, because she did not feel like she needed to have it: “I felt good, and if I could have avoided the surgery I would have.”
39Her knee is now nothing like it was in those eight weeks:
“I’m swelling, I have sharp pain, I’ve got dull ache all the time ... the actual pain that is there is a constant pain, and it varies in between the day, whereas eight weeks before the surgery – before the fall, I didn’t have that.”[19]
[19] T20
The incident
40On the said date, the plaintiff was instructed to deliver food to a customer in the parking bay by exiting through the back door. As she was descending the steps, she slipped on the first step, which was inadequately maintained, and suffered injury to her left knee (“the incident”).
41The defendant failed to heed complaints from co-workers, who also had to exit via these stairs to deliver food to clients in the parking bay, that the stairs were in a state of disrepair.
42Following the incident, the defendant repaired the stairway by installing nosing and the plaintiff understood it had instructed staff to no longer exit the premises through the back door to deliver food.
43Following the incident, the plaintiff was transported by ambulance to The Royal Melbourne Hospital. She was given crutches and a splint, and sent home the same day.
44On or about 17 August 2021, she sought treatment from Mr Miller for her work injuries. He considered she needed an ACL reconstruction.
45On or about 23 August 2021, the plaintiff started physiotherapy with Stephen Lee in Footscray and also commenced hydrotherapy treatment under the care of Gerry Lokic at Total Physio Care. On about 11 September 2021, she had a further MRI scan of her left knee.
46After the incident, but before the February 2022 surgery, the plaintiff was able to continue working with Change for Life. She thought she went straight back to that job after that surgery, because she was working from home. She was working in data analysis and was a therapist/supervisor via Zoom from home.[20]
[20]T17
February 2022 surgery
47On 7 February 2022, Mr Miller performed a left knee reconstruction (“the February 2022 surgery”) at Western Private. The plaintiff paid for this procedure privately, as WorkSafe denied funding.
48She could not remember what she discussed with Mr Miller before the February 2022 surgery. He did tell her it was going to be a revision ACL reconstruction. She met with him after that surgery, and he told her it went well.[21]
[21] T16
49Post surgery, she did not resume work with the defendant, although she wanted to earn extra money. She resigned on 9 May 2022. She did not go back to that job because standing for long periods exacerbated her knee pain. She could not recall how much she was being paid per hour by the defendant.[22]
[22] T20
50It depended on the week, and also on the data that they needed done, but she thought she was working at Chage for Life about ten to twenty-five hours a week, after about the second- or third-week post-surgery.[23]
[23]T18
51As at May 2022, she was still studying her Master’s Degree. She agreed she had to concentrate as her studies were intense and she wanted to do well. She denied that she wanted to devote herself fully to her study. She also wanted to work at the same time because she was hoping to buy a house and wanted extra money.[24]
[24] T17
52On or about 21 November 2022, the plaintiff had an MRI scan on her left knee.
53As at 7 February 2023, she was taking Panadol and Nurofen for pain relief as required.[25]
[25]Affidavit sworn 7 February 2023
54While she had a history of left knee pain, she believed she was managing her condition well up until the time of the incident. Her work injuries had greatly diminished her quality of life. Her knee movement was restricted, and she suffered regular and ongoing pain – a “dull ache” – in her left knee.
55Due to her regular knee pain from her work injury, she struggled to sit, stand and walk for prolonged periods. The pain worsened when she moved from a seated to standing position and when she turned corners. She had difficulty and experienced increased pain when getting in and out of cars and when walking on an incline.
56Her capacity to perform daily activities had been impaired as a result of her injury. She took a long time to shower, as she had difficulty bending to wash and dry her legs and feet. She struggled getting dressed. She suffered worsening pain from awkwardly moving to put on her pants. She found it difficult to take care of her appearance. She struggled to wear heels due to her regular knee pain and was worried it would put her at risk of falling. She found this emotionally distressing.
57Prior to the incident, she was living at home and assisted her parents with domestic duties such as washing, cleaning and carrying groceries. Since then, she had struggled to perform these chores, because being on her feet for long periods increases her knee pain.
58Pre-incident, she was physically active, despite her history of left knee pain. She regularly walked the dog and participated in outdoor recreational activities, such as camping, motorbike riding, fishing, and jet skiing.
59Since the incident, she had had difficulty participating in these leisure activities, which required her to be on her feet for extended periods.
60She was devastated her work injuries had reduced her ability to engage in an active social life to the same extent and intensity as pre-incident. That situation had impacted her emotionally.
61Her sleep was disturbed as a result of her injuries. She had difficulty finding a comfortable position due to regular knee pain. When she woke in the morning, she did not feel refreshed due to poor sleep quality.
62Pre-incident, she was a confident person who took pride in working in various roles to better herself. Since then, she felt she had lost her sense of identity as a dependable and hardworking person. She lost confidence, as she struggled to do things she could do previously. She thought about what her life had come to. She suffered from stress, anxiety, and depression as a result of her injuries.
63She continued to work for Change for Life in Hoppers Crossing; however, she predominantly worked as a data assistant and a therapist supervisor, as the role was sedentary in nature.
64She managed to walk and exercise during the lockdowns and took long walks during the day without experiencing any significant left knee pain or swelling.
65The plaintiff underwent further scans on her left knee and saw Mr Miller again, as her left knee was deteriorating and the pain worsening throughout 2023.
66In about October 2023, Mr Miller recommended further arthroscopic surgery and potential revision of the screw in the plaintiff’s left knee. He operated again in November 2023 (“the November surgery”).
67After the November surgery, the plaintiff was on crutches for a few weeks and attended rehabilitative physiotherapy a few weeks later with Mr Lee, who treated and strapped her left knee at intermittent periods.
68When seen by Mr Miller in about December 2023 for post-surgery review, he advised she would need to have further surgery to remove the screw and to review the meniscal injury. He advised her to be careful with her left knee and to continue with exercises and physiotherapy, but otherwise told her to go back to him only if needed.
69The plaintiff remains under the care of her general practitioner (“GP”), Dr Sheriff, and generally sees her physiotherapist once a week and does home exercises.
70She takes two Panadol most days. She tries to put up with the pain despite how frustrating it is. She straps her left knee regularly during the week.
71In about February 2024, she started personal training sessions and was approved for a gym and swim membership by the insurer, but was too scared to be in the gym alone and was restricted with the type of exercises she could do because of her left knee. Her trainer helps with strength training to rebuild her muscle and strength in and around her knee.
72The plaintiff remains in constant persisting pain in and around her knee. The pain varies in intensity, although it is worse at night. The baseline of pain is a dull ache, although it becomes a sharp shooting pain frequently and often unexpectedly. Her left knee feels unstable, locking up frequently. It feels weaker than the right, despite regular physiotherapy and personal training sessions.
73Her left knee swells daily, particularly at the end of the day, depending on her level of activity. When it swells, she often walks with a slight limp. Her knee feels hot, which she has been told is due to inflammation.
74She has referred pain in her right hip, lower back and right knee pain due to overcompensating because of her left knee injury. Those areas are often tight and have to be treated by the physiotherapist, particularly her lower back.
75Issues with prolonged postures and walking on inclines and declines continue. She no longer goes for long walks, as she did after her March 2021 scope. She was able to kneel, bend, and squat deeply with her left knee after the scope, but now struggles to do so.
76She avoids steps when possible and prefers to hold onto railings. It was not like that after the scope. She continues to be mindful of twisting, turning, and pivoting with her left knee due to pain and weakness.
77She has concerns about scarring following the additional surgery.
78She still struggles to wear high stiletto heels and is worried she will fall because her stability is weak and her pain increases. She wears a short block heel instead but pays for it with pain afterwards. At her cousin’s bridal party in May 2024, she had to take off her low heels and put slippers on for the rest of the evening.
79The plaintiff went jet skiing every summer prior to the scope, but could not go after then due to COVID-19, although she believed she would have been able to physically do it. She had not been able to jet ski since the incident due to the worsening of her left knee condition.
80Prior to the scope, she was doing unrestricted exercises and HIIT classes three or four times a week in an exercise group. Since the incident aggravation, she has attempted to take group fitness classes with a PT, but she goes less these days because of pain. If she does go, she modifies the exercises due to her left knee condition and avoids high impact exercises for her lower body.
81She has gained weight as she is not as active as she once was because of her left knee, and that impacts on her self-esteem.
82She loves dirt bike riding and had done so since she was eight, riding at Port Arlington with family and friends most summers and weekends. Her fiancé bought a bike in early 2021 and she was contemplating buying one and getting her licence after the scope so she could join him. She did not have the opportunity after the scope due to COVID-19, although she believed she had the ability to ride. She cannot now ride a dirt bike because it is too physically demanding and would aggravate her left knee pain.
83She struggles to do the same extent of activities with friends and her fiancé as she did before the injury. They go for drives, but she has to ask to stop and stretch due to left leg pain.
84When camping over the Australia Day weekend in 2022 and during Easter 2023, her fiancé set up the tent because she was not very useful. She stayed at the camp and her friends went walking and exploring because she did not know what stairs or inclines were present.
85Her sleep continues to be interrupted by knee pain. She sleeps with her left leg elevated and takes Panadol most nights when her leg is sore.
86She is getting married in September next year. She has bought a wedding dress but avoided one with a thigh split due to her left knee scars. She has to find heels that will accommodate her situation. She wishes she could have looked forward to a wedding dress easily and not be self-conscious about her knee. She did not ever imagine her wedding day to be impacted by her knee.
87Her mood continues to fluctuate. She is annoyed, disheartened, and frustrated, and gets teary because of her left knee pain and limitations. She is a young woman feeling older than she should. She has had limited relief with surgeries and physical treatment, and feels there is no end in sight for her.
88She continued to work with Change for Life as a data assistant and therapist supervisor up until Australia Day this year. At that time, she was working 25 hours per week, earning about $25 per hour.[26]
[26] T19
89In about January last year, she was allocated one autistic child and, towards the end of that year, a second child. Both were less active and less physically demanding on her compared to other children in the clinic. She was allocated these children because of her injury.
90After she left Change for Life, she joined St Francis of Assisi Primary School as a psychologist, a full-time position she currently holds. She works with one child at a time doing clinical assessments, counselling, and consulting with the teachers about the child’s needs. It is mostly administration and much slower paced work than her previous role. She can dictate her schedule and appointments with children, which is predicated on her left knee condition. She can alternate positions to suit left knee pain and work with her left knee on a stool during the time without kids.
91She is lucky enough she can wear runners to work, which are comfortable, as she struggles to wear a block heel during the working day. On occasions she needs to dress up for work, she wears Doc Martens.
Lay evidence
92The plaintiff’s fiancé, Nathan Zammit, swore affidavit on 12 August 2024. They started dating in about August 2017 and plan to marry next year.
93Between the March 2021 scope and the incident, the plaintiff was energetic and always on the go between study and work commitments. She enjoyed dirt bike riding and fishing. They often went out with friends and had a busy social life. They camped frequently, especially on a long weekend. They went with a big group of friends and drove to the country and interstate, and loved camping together.
94The March 2021 scope was a difficult hurdle the plaintiff had to overcome, but he recalled her recovering well and telling him that she was feeling good after that surgery, both physically and mentally. He saw her being active and moving around well with her left knee. They made do with the activities they could do during lockdown, such as going to each other’s places and going for walks.
95After the incident, the plaintiff’s left knee got a lot worse and it was like she started from the bottom again. Since aggravating her left knee, she complained to him generally every day about knee pain. She also complained about bending, lifting, twisting, and general physical movement and restrictions, even tying her shoelaces.
96He also saw her struggling with pain and having difficulty with prolonged postures. When she is in pain, she withdraws from him and keeps quiet.
97He has seen her avoiding going out because of knee pain. They struggle to do things as a couple and she prefers to stay at home because of pain. She tells him she is worrying about her left knee and is especially scared in the rain because she might slip.
98He confirmed the plaintiff’s problems with sleeping and the need for Panadeine at night.
99She has complained to him about weight gain because of inactivity. She is reluctant to go about because her clothes don’t fit her.
100When they tried camping, she spent most of her time in a chair and looked like she did not really enjoy it.
101They had aimed to purchase a house at about the time of the incident, but due to her poor wages and loss of income, it was hard for a loan to be approved.
102They eventually purchased a home that required renovations. The plaintiff was frustrated that she was not able to help with cleaning or painting because of her knee.
103Since the incident, the plaintiff’s mental health has gotten worse. Her mood has been low, she snaps at him quickly, and they are clashing more often these days.
104He feels that she puts up with a lot and she tries to push through, but she gets frustrated. She is anxious and worried. It is like the world is not at her feet as it was before the incident.
Plaintiff’s medical evidence
Treaters
105The plaintiff’s GP, Dr Sheriff, first saw the plaintiff on 20 September 2021.
106He then noted:
“14/8 fell down stairs at work
…
Seen Russell Miller, needs surgery …
Previous injury to acl …
She is privately insured not until 26/1
…
It is now work related injury
… .”
107His note of 23 November 2021 set out that the fall caused a complete ACL tear of the left knee: “This is a fact.” This occurred due to the faulty steps at work, which were in a state of disrepair and subsequently repaired by the defendant.
108When he last reported in February 2024, the plaintiff was still in the post-operative rehabilitation phase, having had an arthroscopy in November 2023.
109He was then asked whether the plaintiff was likely to be restricted or precluded in relation to employment and or activities relating to bending, pushing, pulling, prolonged postures, using stairs, et cetera, as a consequence of her work-related injury. All activities were restricted, but he was then unable to assess her full function as she was still in the post-operative phase.
110The plaintiff’s pain, which had been chronic, was likely to improve, but she was unlikely to ever return to her premorbid level of functioning.
111The post-incident findings on MRI of an ACL graft rupture would have altered the nature of the February 2022 surgery.
Stephen Lee, physiotherapist
112Stephen Lee, physiotherapist, has reported on a number of occasions, having first seen the plaintiff on 23 August 2021. He most recently reported in February 2024, following the November 2023 arthroscopy.
113He noted the previous ACL surgery and post-injury revision ACL surgery in early 2022. The September 2021 MRI scan showed further damage to the knee compared to the previous MRI and surgical report by Mr Miller. Specifically, now ruptured ACL ligament, bony bruising, and now further medial meniscus tear not previously there. The slip and fall was the cause of the new injury.
114He disagreed with Dr Ghan’s view that the plaintiff’s knee was unstable and gave way, causing her to fall, as the plaintiff was functioning normally and performing normal duties even after the scope. She had evidence about the poor state of the stairs, the slippery floor, and she was wearing proper work boots at the time. He strongly believed these factors had contributed to her further injury, and now severe instability and subsequent required surgeries.
115Post the November 2023 surgery, the plaintiff was having weekly physiotherapy.
116The plaintiff remained debilitated from the injury and had not been able to return to running, jumping and hopping. Exercise physiology would be beneficial for her to help assist with her rehabilitation ongoing, noting unfortunately that had been rejected by the insurer.
117It was imperative the plaintiff continue to have appropriate treatment following knee surgery, and he did not understand why exercise physiology would be rejected but physiotherapy was funded.
118The plaintiff had a serious knee injury, and her recovery had to some extent been delayed due to the insurer’s refusal to accept liability for the surgery. She could not simply self-manage her condition when it is likely she will need further surgical treatment.
Mr Russell Miller, orthopaedic surgeon
119Mr Miller wrote to the Accident Compensation Conciliation Service on 26 November 2021.
120He advised he first saw the plaintiff on 17 February 2021 with ongoing problems with her left knee, and he considered she would benefit from arthroscope and removal of the staples from the tibia (“the scope”).
121The scope was performed on 2 March 2021. There was a Grade 2 anterior drawer and a Grade 2 pivot shift. The scope revealed attenuation of the ACL and a complex lateral meniscus tear. An arthroscopic lateral meniscectomy was performed, and the staple was removed.
122On review on 13 April 2021, there were ongoing problems, and he felt the plaintiff would probably require revision reconstruction of the knee.
123When seen on 17 August 2021, there were ongoing problems with evidence of instability, the plaintiff having fallen and tumbled down some steps at work. She felt a crunch and then had pain and swelling.
124On examination, the plaintiff had a large effusion in her knee. There was Grade 1-2 medial ligament laxity and a Grade 2 anterior drawer. The knee was irritable.
125He felt that the plaintiff now had significant problems with the knee and required revision ACL reconstruction. The investigative information suggested there had been a further deterioration in the knee and he felt this was in part work related.
126He reviewed the plaintiff again on 3 September and 8 November 2021, with ongoing deteriorating left knee problems, and it was recommended she have revision reconstruction.
127Mr Miller thought that the plaintiff had major instability, now involving the medial ligament, and she required complex revision ACL reconstruction.
128It was clear the plaintiff had pre-existing problems with her knee and pre-existing knee disease. These were aggravated by the fall, following which there was a marked deterioration in left knee function. The requirement for surgery related partly to the effects of the fall.
129Mr Miller reported to Carbone Lawyers on 11 September 2023.
130He noted that when he saw the plaintiff on 13 April 2021, there were ongoing problems with knee stability. At that stage, it was felt that the plaintiff would require a revision ACL reconstruction. It was her intention to take out private insurance and probably have this surgery in early 2022.
131He advised that when the plaintiff was last reviewed on 8 November 2022, there were ongoing problems with the left knee, and it was recommended she undergo revision reconstruction.
132The plaintiff had had ACL reconstruction surgery on 7 February 2022 when it was noted there was a Grade 2 anterior drawer and Grade 3 pivot shift. There was also Grade 1 to 2 ligament injury. No meniscal pathology was identified.
133On review on 23 August 2023, the plaintiff was working as a psychologist in a sedentary-based role. She had a long history of left knee problems. She again indicated there was a significant reduction in left knee function following the fall. She complained of ongoing problems with ache, discomfort, and feelings of insecurity in the knee, and also tenderness in relation to the proximal part of the leg.
134Mr Miller suggested further x-rays and an MRI scan to investigate the possibility of further meniscal pathology. He thought it likely the plaintiff would require surgery to remove the metalware. He noted she had not been able to return to sporting activities and was continuing the sedentary work.
135Due to the fall, it was likely the plaintiff suffered a further injury, aggravation of ACL ligament injury, and development of a medial ligament injury, for which she underwent further reconstructive surgery. There were ongoing symptoms and a significant risk of subsequent development of increasing problems with instability and the likelihood, in the longer term, of developing arthritic disease.
136Mr Miller thought it was a particularly complex matter. It was clear the plaintiff had pre-existing disease in the knee for which she had a reconstruction. She had undergone surgery which identified the knee was cruciate deficient. It was considered she would probably undergo further reconstructive surgery if her symptoms persisted.
137The plaintiff recorded a marked deterioration in function after the fall. It was likely that this injury injured the secondary straits to the knee and also caused injury to the medial ligament. The knee behaved in a far more unstable manner following that injury and it contributed to the requirement for surgery.
138It was therefore his view that the requirement for surgery related predominantly to pre-existing factors, but significantly and partly to the effects of the fall. He acknowledged the difficulties in making that determination.
139He thought the plaintiff would not be able to undertake significant physical work and was now only suitable for sedentary-type duties. It was likely that she would have had a higher level of knee function and less restrictions had the fall not occurred. Her ongoing problems with the left knee would impact significantly on her capacity for domestic gardening and recreational activities.
140On balance, he believed it likely the plaintiff would have ultimately come to surgery had the fall not occurred. However, the result of surgery would have been superior to that which had been achieved due to the additional injury that occurred in the fall.
141The nature of the February 2022 surgery was similar to that which would have been performed had the fall not occurred. However, the result of that surgery would have been, on the balance of probabilities, significantly better.
142He thought the plaintiff had suffered an aggravation of a pre-existing knee condition and further superimposed injury, probably in the form of additional medial ligament injury.
143Mr Miller provided a report to the Workplace Injury Commission dated 26 October 2023, having seen the plaintiff on 9 October 2023 for ongoing problems with ache, discomfort and some clicking.
144He believed the current clinical status of the left knee related partly to the work injury.
145In his October 2023 report, Mr Miller noted the plaintiff would require extensive ongoing conservative treatment. He thought she required left knee arthroscopy. In the longer term, she was likely to develop arthritic disease.
146Mr Miller reported on 17 May 2024 following a review on 13 May 2024.
147The November 2023 arthroscopy revealed the ACL ligament graft was in good condition. There was a tear of the lateral meniscus which was resected, leaving 50 percent of the meniscal rim intact. The prominent ACL ligament interference screw and staple were removed.
148The plaintiff then had ongoing problems with the left knee, with ache, discomfort and tenderness. She was having weekly physiotherapy, using a knee brace and had ongoing problems with ache, discomfort, and feelings of weakness and insecurity, but no frank giving way.
149In terms of diagnosis and prognosis, he thought the plaintiff had a very complex pathology in her knee for which she had undergone reconstructive surgery. There had been significant improvement in her symptoms. The long-term prognosis for the knee, however, is poor.
150The plaintiff will require ongoing conservative treatment for her “unusually severe knee injury”. There is a high likelihood if the knee is reconditioned with treatment (analgesics, anti inflammatories, weekly physiotherapy, use of a knee brace, and review by an exercise physiologist), it will improve her knee function, maintain a capacity for work, and reduce requirement for further surgery.
151The plaintiff will have difficulty with work that involves prolonged standing, walking, twisting, turning, kneeling, and squatting.
Plaintiff’s medico-legal
Mr Raf Asaid, orthopaedic surgeon
152Mr Asaid examined the plaintiff in May 2024.
153The plaintiff then complained of a constant dull ache in the left knee which could become sharp pain with increased activity. It was aggravated with various activities, and worse on weight-bearing.
154She struggled to perform day-to-day activities and required assistance occasionally from her mother to put on her shoes, and her mother did the majority of domestic tasks.
155She reported her knee injury had affected essentially every aspect of her life. She had previously been very fit and active and enjoyed fishing, jet-skiing, camping, and motorbike riding.
156Noting the history of presenting complaint, employment history, current symptoms and complaints, and treatment, Mr Asaid looked at the plaintiff’s pre-existing medical history. He noted she had a complex history relating to the left knee due to a reconstruction in 2014.
157The plaintiff experienced a clicking sensation in her left knee in December 2020. She was referred to Mr Miller and had the scope in March of that year, following which it was noted she would likely require consideration for revision reconstruction.
158The plaintiff reported that, despite this, she was not experiencing any significant issues with her left knee. Prior to the incident, she was able to return to the majority of her normal duties.
159In the scope, the ACL was found to be non-functioning. Despite this, the graft appeared to have been intact, albeit non-functioning. It appeared the incident caused the graft to rupture, as demonstrated on the subsequent MRI scan of September 2021.
160Given the nature of the pre-injury role with the defendant, together with the described levels of pain and physical restriction, the plaintiff was unlikely to be able to return to unrestricted pre-injury duties for the foreseeable future.
161The history provided would certainly suggest that the incident had altered the immediacy and brought forward the need for surgery.
162Based on Mr Miller’s April 2021 report, it is likely the plaintiff would still have required the surgery had the incident not occurred. However, this would have been largely dependent on her symptoms at the time, when she reported she was managing fine, rather than the results of any further radiological investigations.
163In short, the nature of February 2022 surgery is essentially very similar or the same as would have been performed had the incident not occurred.
164The plaintiff’s prognosis was then guarded.
165The incident had altered the immediacy and brought forward the need for surgery.
166At that stage, he thought she would benefit from further physiotherapy.
167Mr Asaid did not consider whether the outcome of the February 2022 surgery had been affected by the incident injury.
Dr Awad, occupational health specialist
168Dr Awad examined the plaintiff in June 2024.
169The plaintiff then complained of intermittent left knee pain 9/10, worse at night, at best 7-8/10 during the day. She wakens pain free. Her pain changes from a dull ache to a stabbing pain at the front of the knee and across her patella. She reported ongoing clicking and stiffness, but her knee did not give way.
170Dr Awad detailed the plaintiff’s significant history relating to her left knee leading to reconstructive surgery in 2014. The plaintiff was pain free and functioning fully until December 2020 when her left knee began to click, and she was referred to Mr Miller. He recommended a scope, which was carried out in March 2021, during which he found there was a gross attenuation of the ACL and complex lateral meniscus tear. The plaintiff would require a revision of the ACL reconstruction. He stated that she was to undergo surgery in early 2022. Nevertheless, she had been coping well with her symptoms and had been able to maintain paid employment.
171Following the incident, the plaintiff expedited her appointment with Mr Miller. An MRI scan demonstrated the graft was not present and there was new meniscal pathology. Despite surgery in February 2022, problems persisted, and the plaintiff required further reconstructive surgery in November 2023.
172Dr Awad noted the plaintiff’s function post injury was restricted, and her hobbies were limited secondary to her injury. She never returned to work with the defendant but had continued full-time employment as a psychologist in a sedentary role.
173Having read through the plaintiff’s treating surgeon’s reports, in her opinion and that of her surgeon, while the plaintiff needed a revision of her ACL, the injury at work expedited the need for this and may have increased the plaintiff’s post-operative level of pain.
174The plaintiff has a capacity for a full-time sedentary role, but no capacity for pre-injury duties at Hungry Jack’s.
175The plaintiff’s prognosis is guarded, as she may benefit from seeing a pain management specialist to assist with ongoing symptoms. Nevertheless, she is likely to have a degree of pain and dysfunction into the foreseeable future.
Defendant’s medical evidence
Treaters
Mr Russell Miller
176Mr Miller first reported to the plaintiff’s GP on 17 February 2021, having reviewed her on Telehealth that day.
177He advised that the plaintiff “has ongoing problems in the right knee and requires right knee scope and removal of the staple from the right tibia”. He had reviewed imaging from Lake Imaging which confirmed the staple was in situ.
178He noted the plaintiff “is aware that the surgery will improve knee function, but may not restore normal knee function and it is possible she may require more major intervention in the future”.
179On 13 April 2021, Mr Miller again wrote to the plaintiff’s GP, having reviewed the plaintiff on Telehealth that day.
180He advised that the plaintiff has ongoing problems in the left knee, where she had undergone a previous knee reconstruction. The metalware had been removed and she had ongoing instability.
181Further, he advised that the plaintiff:
“… now requires a revision knee reconstruction. I discussed the complex nature of this problem with her. She has taken out private health insurance and will return later this year to make arrangements for surgery in early 2022.”
182Mr Miller then wrote to the plaintiff’s GP on 17 August 2021, having reviewed the plaintiff that day.
183He then noted that she was coping reasonably well until the fall, when she fell and tumbled down some steps. She felt the knee crunch.
184On examination, there was a large effusion in the knee, Grade 1 to 2 medial ligament laxity and a Grade 2 anterior draw. The knee was irritable:
“I think unfortunately that … [the plaintiff] has aggravated her knee condition and now has more severe instability. She will require surgery in the form of a complex revision reconstruction. I have suggested that she commence physiotherapy. She will remain on crutches until the knee function improves. As this is a severe problem, she will probably require expediting of a revision ACL reconstruction and I will send a copy of this letter to WorkCover asking them to accept liability for a revision ACL reconstruction.
I have suggested in the interim she commence physiotherapy under the supervision of Mr Stephen Lee, Physiotherapist.”
185On 3 September 2011, Mr Miller advised Allianz the plaintiff now requires left knee revision ACL reconstructive surgery, asking it accept liability for the procedure.
186On 13 October 2021, Mr Miller wrote to the plaintiff’s GP following review of the plaintiff that day.
187He advised that the plaintiff had ongoing problems with the left knee, where she has had major problems with instability. She was mobile only with the use of a crutch and continued to use a splint, and was having physiotherapy.
188A further MRI scan showed that the ACL graft is now ruptured and there is now meniscal pathology. This compares to the earlier MRI scan in December 2020, which revealed that the ACL graft was intact and there was no specific pathology.
189He thought it reasonable to conclude there had been a further injury to the left knee. There was a rupture of the graft, and the knee was now severely cruciate deficient and required a revision reconstruction. This related significantly to the plaintiff’s work injury.
190The plaintiff would continue with physiotherapy and using crutches.
Dr Francis Ghan, orthopaedic surgeon
191Dr Ghan examined the plaintiff in October 2021 via Telehealth.
192He was aware of the plaintiff’s soccer injury in 2014 and a left knee reconstruction. He was also told by the plaintiff that she felt clicking in her left knee in December 2020.
193An MRI scan demonstrated the ACL signals were normal. In the March 2021 scope, Mr Miller had found the left knee had a 10-degree recurvatum and a Grade 2 anterior drawer, and a Grade 2 Lachman’s test, indicative of non-functioning ACL. The scope found that the ACL graft was grossly attenuated and there was a complex tear of the lateral meniscus.
194The plaintiff returned to work with the defendant after the scope. She felt the left knee was pretty good, although Mr Miller had already advised the possibility of needing a complete ACL reconstruction.
195The plaintiff fell down a couple of stairs while at work on 14 August 2021. She saw Mr Miller, who told her she would need a complete reconstruction in 2022.
196Mr Ghan noted the findings of the December 2020 MRI scan, the report of the scope and the September 2021 MRI scan.
197It was obvious that at the scope, the ACL graft was found to be non-functioning, despite the normal December 2020 MRI scan. The scope was done with a definitive diagnosis of a non-functioning ACL which occurred prior to the work injury. Hence, Dr Ghan thought the left knee was already unstable, with a non-functioning ACL. The need for future left knee complete reconstruction therefore would not be coming under WorkCover.
198The nature of the plaintiff’s condition is left knee ACL rupture. This was a pre-work injury and not work related. The incident was highly likely due to the unstable left knee.
199The left knee already had a non-functioning ACL when the plaintiff fell. Although the work had caused symptomatic aggravation, there had been no anatomical aggravation from the fall. The ACL was already non-functioning.
200The work injury was not the cause for the need for the complete reconstruction of the left knee ACL. The need for it was very obvious on the March 2021 scope, when it was found the ACL was already non-functioning.
201By letter dated 15 November 2021, Allianz denied liability for the costs of the plaintiff’s left knee revision ACL reconstruction on the basis of Dr Ghan’s report.
Mr Peter Lugg, orthopaedic surgeon
202Mr Lugg reported in July 2023, based on a detailed examination of documentation regarding the plaintiff.
203The plaintiff had attended her GP in December 2020 complaining of pain in the left knee associated with clicking, grinding, and giving way. The reported symptoms of giving way indicated she had instability.
204Findings on the March 2021 scope were of a grossly attenuated and a non-functioning ACL graft. Non-functioning would imply to him that the graft material was not providing any of the normal support one would expect from a proper functioning ACL ligament or ACL reconstruction graft ligament.
205Mr Miller also demonstrated a Grade 2 pivot shift test which is probably the best test for functional instability, Grade 2 indicating moderate ACL functional instability.
206Mr Miller’s undoubted advice following the scope was that plaintiff should have a redo reconstruction. During the scope, he had already had to remove a substantial part of the plaintiff’s lateral meniscus. If instability was not treated, she would be likely to continue having further episodes of instability and also be more likely to have further episodes of meniscal tearing.
207While the MRI scan pre-scope suggested a medial meniscus tear, presumably none was found.
208Fortunately, the plaintiff’s articular surfaces were thought to be normal. This would tend to suggest that the ACL graft had failed relatively recently. She had not had symptomatic giving way until recently, that is, December 2020. The instability only more recently developing meant that there was insufficient time for any articular damage to develop.
209If the original graft had been non-functioning and inadequate, he would have expected earlier symptoms of instability and a meniscal pathology and likely articular damage.
210A standard revision reconstruction was performed in February 2022. The tibial hardware had already been removed. The Endobutton on the femoral side had to be removed in addition to the new graft being inserted. This surgery would have been exactly the same, but performed after the incident injury.
211Insofar as the scope operation report and the report of the September 2021 MRI scan suggested that the ACL may have progressed from being attenuated and non-functional to ruptured, this would not have altered the character of the surgery ultimately undertaken in February 2022 or its outcome.
212He understood the term “grossly attenuated” means a graft tissue that is so stretched that it is no longer functioning as a proper ligament, hence the second description is the graft tissue being non-functional. A ruptured graft would also be non-functional. The outcome either way is an unstable knee requiring the same surgery whether the graft is attenuated or ruptured.
213It is of note that the pre-operative MRI scan suggested the ACL graft was reasonably normal. Attenuation in a graft can only be seen on an MRI scan if the photograph is in a wave like posture, indicating it is overstretched. He had not been able to gain access to the actual images, but presumed that was the case in this particular MRI scan.
214The answer was “yes” and “no” to the question whether the plaintiff sustained any additional injury in the incident that was not addressed in the February 2022 surgery.
215He considered the plaintiff sustained additional injury in the incident and instability is noted now, at the time of the revision reconstruction, as a Grade 3 pivot shift, which means it is a very unstable knee.
216It is something that may have occurred to re-explain that the residual graft present, the very attenuated graft, had actually finally ruptured or possibly other secondary restraints had been injured. Note that Mr Miller says there is some Grade 1 to 2 medial instability in his pre-operative assessment of the plaintiff’s stability.Whether the incident led to increased stability, the revision surgery has remained the same.
217A slight increase in medial instability can be addressed by having a good stable revision ACL graft which, according to Mr Miller’s notes, is now the case. No surgery is required for that secondary constraint if that ACL is reconstructed properly.
Findings
218It is not in dispute that the plaintiff suffered an aggravation of a pre-existing left ACL injury as a result of the incident – a complete rupture of the earlier ACL graft – and a further medial ligament injury.
219However, as Mr Miller confirmed, the plaintiff’s left knee was already unstable before the incident.
220The March scope revealed gross attenuation of the ACL graft. It was non-functioning. There was also a complex lateral meniscal tear.
221As Mr Lugg explained, “nonfunctioning” implied the graft material was not providing any of a normal support, as one would expect from a properly functioning ACL or ACL reconstruction graft ligament.[27]
[27] T34; Dr Ghan shared this view
222While the plaintiff’s evidence was that Mr Miller told her she “may or may not” need surgery following the scope, I do not accept this was the case. Her evidence in this regard was unreliable. Further, she was simply guessing when she took out private health insurance which covered the 2 February 2022 surgery.[28]
[28] T32
223Having looked inside her knee during the scope, Mr Miller advised the plaintiff’s GP on 13 April 2021 that the plaintiff had “ongoing instability” and:
“… now requires a revision knee reconstruction. I discussed the complex nature of this problem with her. She has taken out private health insurance and will return later this year to make arrangements for surgery in early 2022.”
224As Mr Lugg explained, if instability was not treated, the plaintiff would be likely to continue having further episodes of instability, and also more likely to have further episodes of meniscal tearing.
225Therefore, I accept the ACL reconstruction surgery which was carried out in 2022 was likely at some stage after the finding on the March 2021 scope – due to ongoing problems with knee stability with a non-functioning ACL – whether or not the incident occurred.
226Mr Miller discussed the complex nature of the plaintiff’s problem with her before the incident. His advice to her GP about the need for surgery was not dependant on how the plaintiff was progressing. She was to return later that year to make arrangements for surgery in early 2022.
227The incident simply expedited the need for the surgery.
228The consensus of medical opinion – importantly, the operating surgeon, Mr Miller – is that the nature of the February 2022 surgery was similar to that which would have been carried out had the incident not occurred.
229Mr Asaid thought the nature of February 2022 surgery is essentially very similar or the same as would have been performed had the incident not occurred.
230While the September 2021 MRI suggested that the ACL may have progressed from being attenuated and non-functional to ruptured, Mr Lugg thought this would not have altered the character of the surgery ultimately undertaken in February 2022 or its outcome – the surgery would have been exactly the same had the incident not occurred.
231As counsel for the defendant submitted, what the plaintiff required as a result of the incident was nothing more than she required following the March scope: “surgery, as soon as she was able to afford it, was what he actually did in February 2022. There was no more, nor no less than what he was going to do had she had health insurance in March 21, that’s exactly what [Mr Miller] did in February 2022.”[29]
[29] T22
232The only medical practitioner of a different view is Dr Sheriff, who considered the post-incident findings on MRI of an ACL graft rupture would have altered the nature of the February 2022 surgery.
Are the consequences of any aggravation “serious”?
233In this case, where there is a pre-existing left knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
234In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.”
235This is a difficult task in this application where reconstructive surgery was planned before the incident occurred.
236Counsel for the defendant conceded that the plaintiff appeared to be coping well in the four to five months before the incident, and there was no evidence of ongoing left knee problems requiring treatment.[30] However, while she was doing reasonably well, the plaintiff had not gone back to active sport like soccer or running. She was:
“simply working at Hungry Jack’s for … up to three shifts a week for five to eight hour shifts at the same time that she was working for Change For Life, and at the same time that she was studying – commendably – for her extra two degrees during that period.”[31]
[30] T23
[31] T36
237It was also submitted what was important was the plaintiff’s return to work within two to three weeks of the February 2022 surgery. She was performing exactly those duties which she had always intended she would once she obtained her necessary qualifications.[32]
[32]T36
238However, as counsel for the plaintiff noted, post scope and pre-incident, the plaintiff was back working for the defendant for five- and eight-hour shifts and has been unable to do so since the incident.[33]
[33] T38
239The plaintiff has described in some detail the situation with her left knee post incident. Those consequences were largely unchallenged in cross examination.
240The plaintiff continues to suffer knee pain and issues with knee movement. She is still undergoing physiotherapy treatment and requires painkillers.
241However, the plaintiff continues in her career path as planned before the incident and is working full time in her chosen field. She has not returned to jet skiing or dirt bike riding – strenuous activities she last engaged in before the scope – and she is able to participate in some exercise classes.
242As the reconstructive knee surgery was planned by Mr Miller before the incident because of the complex nature of the plaintiff’s knee condition and its instability, I am unable to be satisfied which, if any, consequences relate to the incident injury and whether, therefore, any such consequences are serious.
243Following reconstruction surgery, absent the incident, there would have been a period of rehabilitation and ongoing issues with the plaintiff’s knee impacting on her lifestyle.
244There is no evidence whatsoever of the likely state of the plaintiff’s left knee after the preplanned surgery, had the incident not occurred.
245Therefore, I am not in a position to make the comparison required by the Court in Petkovski to determine the seriousness or otherwise of any consequences of the incident injury.
246Mr Miller does not undertake any analysis in this regard to enable the Court to determine whether the consequences of the post-incident surgery are of themselves serious as the law requires.
247Mr Miller simply stated in his September 2023 report that it is likely the plaintiff would have had a higher level of knee function and less restrictions had the incident injury not occurred.
248Mr Miller considered the plaintiff’s current level of knee function as relating predominantly to pre-existing disease, but partly to the effects of the incident. In his view, the need for the February 2022 surgery related predominantly to pre-existing factors but significantly and partly to the incident, acknowledging the difficulties in making that determination.
249A finding that the February 2022 surgery was partly to do with the incident injury does not establish serious injury. For leave to be granted, I must be satisfied any additional impairment caused by the incident qualifies as a serious injury.
250On the evidence presently available, I am not satisfied this is the case.
251Further, while Mr Miller thought the result of the February 2022 surgery would have been, on the balance of probabilities, significantly better had the incident not occurred,[34] he did not explain why this was the case, and how much worse the result of the February 2022 surgery was due to any additional incident injuries.
[34] T45
252While the ACL may have progressed from being attenuated and non-functional to ruptured, in Mr Lugg’s view, this would not have altered the outcome of the surgery ultimately undertaken in February 2022.
253Dr Awad thought the incident “may” have increased the plaintiff’s post-operative level of pain.
254Mr Asaid did not comment on this issue.
255Further, there is no evidence that the need for November 2023 operation had any link to the incident or was the usual follow up expected after the February 2022 procedure. In any event, Mr Miller thought the prognosis should be good as a result of the November 2023 surgery.
256There are also issue of stabilisation and permanence.
257When the plaintiff’s GP Dr Sheriff last reported in February this year, he could not assess the plaintiff’s full function as she was still in the post-operative phase. He thought her pain was likely to improve but she was unlikely to ever return to premorbid level of function.
258When Mr Miller reported in May this year there had been significant improvement in the plaintiff’s symptoms; however, the long-term prognosis for the knee was poor. He thought there is a high likelihood if the knee is reconditioned with treatment (analgesics, anti-inflammatories, weekly physiotherapy, use of a knee brace and review by an exercise physiologist), it will improve her knee function, maintain a capacity for work and reduce requirement for further surgery.
259Physiotherapist Stephen Lee shared Mr Miller’s view of the benefits of referral to an exercise physiologist.
260Taking into account all the evidence, I am not satisfied any incident-related aggravation of the plaintiff’s left knee condition is serious and long term.
261Accordingly, the application is dismissed.
- - -
0
3
0