Fepuleai v VWA
[2025] VCC 889
•1 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01196
| LENE FEPULEAI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2025 | |
DATE OF JUDGMENT: | 1 July 2025 | |
CASE MAY BE CITED AS: | Fepuleai v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 889 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – right knee and subsequent left knee injury – pain and suffering – causation – credit and reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Mullaly (Victorian Bar Pro Bono Barristers Court Referral Scheme) | |
| For the Defendant | Ms C Spitaleri | Lander & Rogers |
HER HONOUR:
1Mr Lene Fepuleai is a forty-eight year old man who has worked much of his adult life as a steel fixer. He injured his right knee on 10 September 2009 when pulling a steel frame down from the top of a pile of frames while working for AB Steel Reinforcement Pty Ltd (“the employer”). In order to grab it as it came off the stack, he had to slide the frame downwards and move backwards. As he did so, he stepped backwards onto the corner of an empty pallet behind him, twisting his body and injuring his right knee.
2After seeking medical treatment, he underwent an arthroscope and then a reconstruction before returning to work as a steel fixer.
3In or about 2019, he developed pain and symptoms in his left knee as a consequence of overcompensating for the pain and symptoms in his right knee.
4Mr Fepuleai made his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that the pain and suffering consequences of the right and left knee injury are at least very considerable and more than significant or marked.[1]
[1] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
5At the hearing, Counsel for Mr Fepuleai advised that they were no longer relying on the application pursuant to paragraph (c), that is the application for a determination that Mr Fepuleai had a permanent severe mental or behavioural disturbance or disorder.
6No issue was taken with the fact that Mr Fepuleai had made a claim for compensation for his injuries on 19 May 2021, which was accepted by the WorkCover insurer, Allianz Australia.
7However, Counsel for the defendant submitted that the Mr Fepuleai’s credit and reliability were in issue, affecting the questions of both causation and consequences.
8Counsel for the defendant submitted that the medico-legal doctors who had examined Mr Fepuleai and provided an opinion regarding causation had done so on incorrect factual assumptions, those being:
(i)before the incident in September 2009, Mr Fepuleai had no prior right knee problems; and
(ii)after the surgeries (on 19 October 2009 and 2 November 2009), Mr Fepuleai continued to experience pain and instability in his right knee.
9In the alternative, Counsel for the defendant submitted that the consequences of Mr Fepuleai’s impairment did not meet the test for serious injury. That is, the consequences were not very considerable, significant or marked.
10Thus, the following questions need to be resolved in this case:
(a) Was Mr Fepuleai a reliable and credible witness?
(b) Was Mr Fepuleai’s current right knee injury and consequential left knee injury caused by his employment with the employer? and
(c) If yes, what are the consequences of the impairment and are they very considerable?
11The legal principles to be applied in this case were not in dispute.
12Mr Fepuleai gave affidavit evidence and was cross-examined at the hearing. The parties otherwise tendered medical reports and other material from their Joint Court Book.
13I have considered Mr Fepuleai’s evidence at the hearing and the evidence tendered by the parties. While I do not propose to refer to all the evidence, I shall refer to it to the extent necessary to explain my reasons.
14For the reasons set out below, I find that Mr Fepuleai is entitled to leave to proceed with a claim for damages for his pain and suffering arising from the injury to his right and left knees.
Relevant background matters
15Mr Fepuleai swore affidavits on 19 October 2023, 10 March 2025, 28 April 2025 and 21 May 2025 in support of his application. I have summarised the evidence contained in those affidavits below.
16In summary, he said the following in his affidavit sworn 19 October 2023 (noting that I have added dates in brackets where relevant to assist with context):
(a) He was born in Samoa. He completed his initial schooling there before moving to New Zealand, where he completed Year 11 in Auckland. After finishing school he worked in customer service and hospitality until he came to Australia. After arriving in Australia he performed work in security, warehousing and roadwork. He also commenced an apprenticeship as a plumber. He then started working as a steel fixer.
(b) He commenced work with the employer fulltime in 2008.
(c) He experienced immediate pain in his right knee following the injury on 10 September 2009. He reported his injury and was ordered to go home.
(d) He tried to return to work the next day, but the safety officer saw him in pain and sent him home.
(e) He attended Dr Shankar Srinivasan, general practitioner (on 11 September 2009).
(f) He was referred for an MRI of his right knee, which took place on 1 October 2009.
(g) He was not aware he could lodge a WorkCover claim at that time. His general practitioner referred him to the public hospital system regarding his knee injury for further specialist advice. He underwent an arthroscopy later that year (19 October 2009), followed by more extensive surgery about a month later (2 November 2009).
(h) The surgeries resulted in some initial improvement in his symptoms.
(i) He left his job as a steel fixer and relocated to Western Australia, where he was employed as a wharf labourer. That job did not involve much stress on his knees, although he was very cautious with any physical activity. He remained working on the wharf for about nine months and then returned to Melbourne in 2011 and recommenced work as a steel fixer. Although he managed to continue at work, his symptoms persisted. He had increasing difficulty with his right knee from 2018. He was regularly in pain and returned to his general practitioner and was sent for further investigations.
(j) He started to develop pain in his left knee as he was trying to protect his injured right knee.
(k) He had a further MRI scan of his right knee (on 12 July 2021), followed by x-rays soon after (29 November 2021 to the left and right knees), and an MRI scan of his left knee (on 9 May 2022).
(l) After further investigations, Mr Timothy Lording, orthopaedic surgeon, recommended that he undergo an osteotomy to his right knee and advised that he might require a total knee replacement in the future. Mr Fepuleai preferred to avoid further surgery. In the meantime, he continued with physiotherapy treatment.
(m) While he was able to return to steel fixing work, he was restricted and avoided tasks which involved twisting, sudden turns or kneeling. He had most recently been employed with ENS working on construction sites, but was let go in September 2023 due to a shortage of work.
(n) At the time of swearing this affidavit, the pain in each of his knees was gradually worsening. The pain was acute when he was active. He wore knee braces on each of his knees during the day.
(o) The pain was more severe on the left side at that time.
(p) He was aware that he would need further surgery, in particular to his left knee.
(q) He could no longer play sports with his kids. He could not return to boxing. He still went to the gym, concentrating on upper body fitness work.
(r) His knees seized up if he drove for prolonged periods of time. He moved more slowly because of his knee injuries.
(s) He had trouble dressing himself, in particular putting pants and shoes on.
(t) The pain in each of his knees woke him at night. He tried to avoid taking medication as he did not wish to give up work any earlier than he had to. He could manage to walk for about 20 minutes on flat ground before the symptoms became severe. If the ground was uneven or undulating, he would suffer pain immediately.
17In his affidavit sworn 10 March 2025, he said:
(a) He continued receiving wages from the employer during his time off work between September 2009 to February 2010 and exhibited his bank statements as evidence of this.
(b) He had been instructed by the employer to return to work earlier than medically advised or they would stop paying his wages.
18In his affidavit sworn 28 April 2025, he said:
(a) He could no longer run, sprint or walk safely on unstable surfaces. Activities such as kneeling, sitting cross-legged or standing for prolonged periods caused significant discomfort, swelling and instability.
(b) He had to modify his lifestyle, including purchasing a higher vehicle to accommodate his mobility limitations.
(c) He relied on natural medicine, physiotherapy and self-managed rehabilitation to manage his daily symptoms.
(d) Chronic pain and physical limitations had negatively affected his fitness levels, mental wellbeing, energy, mood and motivation.
(e) He had participated in a formal pain management program with Advanced Healthcare, where improvements were achieved through compensatory strategies rather than a complete recovery.
(f) His ongoing functional ability remained dependent on maintaining a strict rehabilitation and exercise regime. Any lapse led to a rapid deterioration of his symptoms.
19Before considering Mr Fepuleai’s final affidavit, which disclosed an injury to his right knee sustained in 2008, I will interpose some procedural details for context. Mr Fepuleai was initially self-represented in this matter. On 16 April 2025, the Court made an order referring Mr Fepuleai to the Victorian Bar Pro Bono Barristers Court Referral Scheme. As a result, Mr Fepuleai was represented by Mr Mullaly of Counsel for the hearing of this matter. The defendant filed and served written submissions in accordance with orders of the Court made on 6 May 2025. At the hearing, Counsel for the defendant asked Mr Fepuleai whether he had only addressed his 2008 injury after he received the defendant’s written outline. He said that was correct.[2] He also agreed that he did not disclose any of his unrelated health issues because, as stated in his affidavit of 19 May 2025, he was not aware that he was required to.[3]
[2] Transcript (“T”) 6, Line (“L”) 5
[3] T19, L11-14
20In his affidavit sworn 19 May 2025, he said:
(a) On 7 March 2008, he hurt his right knee when he stepped into a trench at work. He went to see his general practitioner and was referred to John Fawkner Private Hospital for review, where he underwent an x-ray. He was prescribed Panadeine Forte and ibuprofen and told to rest at home. He was told to return to hospital if the pain had not improved by 11 March 2008.
(b) By 11 March 2008, his pain was much better and he did not feel he had to go back to the hospital. He went to see his general practitioner, who told him that he had likely dislocated his kneecap and the pain would resolve with rest. By about late March or early April 2008, he was able to move about normally. He was placed on light duties at work for a short time, but his knee held up and he returned to his normal role.
(c) He did not think to tell the doctors about hurting his knee in 2008. He was told it was a partial dislocation and it would heal by itself. It did not cause him any further concerns, so he did not think of it as significant. He told a WorkSafe officer about the 2008 right knee partial dislocation when he submitted his claim in 2021. He spoke to the WorkSafe officer over the phone, who did not seem to think it was significant or relevant, so neither did he.
(d) He was diagnosed with an irregular heartbeat and cardiovascular problems in about 2016. In about late 2019 or early 2020, he was advised that his heart condition was getting worse. He was put on heart medication. The medication negatively affected his weight and breathing. He took himself off the medication and focused on healthy eating and exercise instead. His heart health improved significantly. It does not cause him any day-to-day concern now. He is no longer on medication for his heart health. He does not suffer shortness of breath when going upstairs anymore.
(e) He started to suffer right wrist pain in about 2022. He fractured his wrist when he was a child at school. The fracture had not been properly fixed. He was told the pain in his right wrist is caused by arthritis because of the old fracture. He experiences some pain if he bends his wrist backwards. However, he can continue to do most things with his wrist, such as boxing, carrying plates, lifting and shopping. His right wrist does not prevent him from going about his day-to-day life or from working. He uses herbal medication which helps reduce inflammation and pain.
(f) He has experienced difficult periods in his life that led him to seek professional help for mental health and addiction. In about 2024, he attended a pain management course which taught him mechanisms to cope with the injury and restrictions to his knees. He learnt how to better manage his knee pain, physically and mentally, and the psychological impact it had had on him. As a result, his mental health has been much improved recently. He continues to feel down and upset about his injury and the incident, especially during a flare-up when he is in pain and has to spend many days lying down with his leg elevated.
(g) After his injury, the employer advised him to go through the public hospital system for treatment and surgery. He was not informed that he could lodge a WorkCover claim or have his treatment covered. He was told he would continue receiving weekly wage payments during his recovery. As a result, he had no WorkCover benefits or private insurance to rely on and could not afford specialist care. It was not until around 2021 that he became aware that he could make a WorkCover claim. Financial hardship had meant that he had no option but to keep working through the pain. He was also harassed by his employer’s leading hand during this time, which left him feeling pressured and unsupported throughout his recovery.
(h) He worked through the pain out of fear of losing his employment in the construction industry.
(i) On 19 October 2009, he had a right knee arthroscopy through the public healthcare system. On 2 November 2009, he had a right knee ACL reconstruction through the public healthcare system. He initially experienced some improvement in right knee pain following the surgeries.
(j) About four months after his operation, the employer told him he had to return to work or he would stop paying his wages. With no other financial support, he felt forced to go back despite ongoing pain.
(k) On 2 February 2010, he saw his general practitioner due to continued right knee pain and limping, which had worsened since returning to work. On 15 April 2010, he aggravated his right knee injury at work after falling onto his right hand and knee, causing further pain and swelling. He believes the premature return to work significantly contributed to the long-term deterioration of his knee.
(l) Until about August 2010, he continued to work as a steel fixer. He found the job was difficult to manage and increased his knee pain and restrictions. In about August 2010, he was presented with a job opportunity in a remote area of Western Australia to work in a more sedentary role at a wharf. He decided to take the job and move to Western Australia to give his knees a bit of a break. He moved back to Melbourne in 2011 because he wanted to be close to his family again and was not enjoying the wharf job. He recommenced work as a steel fixer. His knee pain and physical limitations worsened when he returned to work.
(m) He continued to experience regular and consistent pain in his right knee between 2011 and 2017. As the pain was not excruciating, he continued working through his injury for years, managing his pain with over-the-counter anti-inflammatories like Voltaren and pushing through physical discomfort for financial reasons.
(n) Between 2011 and 2017, he attended his general practitioner in relation to other medical issues. By this time, he was no longer working for the employer and had no insurance or financial support to fall back on. Consequently, he did not raise his right knee pain during these appointments. He relied solely on over-the-counter painkillers and anti-inflammatory medication to manage his ongoing pain and discomfort.
(o) In about March 2018, the pain and restriction in his right knee began to get more severe. He experienced a flare-up of pain related to his existing knee injury and was limping when he walked. The pain and limp were impacting his ability to work, and he was no longer able to cope using over-the-counter anti-inflammatories. On 27 March 2018, he consulted his general practitioner in relation to the pain and limping. He informed his general practitioner that he had suffered a workplace right knee injury in 2009 and had surgery, and that he had been suffering from ongoing pain regularly since then, and that over the last few days the pain had increased significantly and was not tolerable. He informed his general practitioner that he had not sustained any further injury to his right knee since the 2009 incident.
(p) In about 2019, he began to develop pain in his left knee as a result of limping and overcompensating for the pain in his right knee. On 15 September 2019, he consulted with his general practitioner in relation to his left knee. He was taking Arthrexin for left knee pain at the time.
(q) Towards the end of 2020, his right knee pain began to flare up again and became intolerable. He was not coping with the over-the-counter anti-inflammatory medication. On 25 February 2021, he consulted with his general practitioner regarding a flare-up of right knee pain and swelling. He told his general practitioner that he had surgery to his right knee as a result of the 2009 incident. He was advised to rest and elevate his knee.
(r) In May 2021, after receiving information at work that he could still make a WorkCover claim, he consulted with his general practitioner regarding the 2009 knee injury and surgery. On 17 May 2021, he informed his doctor that he had been experiencing ongoing pain in his right knee since the injury and that the pain had significantly worsened around 2020 to the point of being intolerable. This was the point at which he formally took steps to pursue a WorkCover claim, as he had previously believed that he was not able to do so.
(s) He submitted his WorkCover claim form on 19 May 2021.
(t) He was then referred to an orthopaedic surgeon, Mr Lording. In around January 2022, Mr Lording recommended that he undergo a surgical osteotomy to realign his right knee. In about June 2022, Mr Lording recommended that he undergo an arthroscopic surgery to his left knee. He had a left knee MRI which showed degenerative medial meniscus tear with a parameniscal cyst. Both the right knee osteotomy and left knee arthroscopic surgery were approved by the WorkCover insurer. He decided not to undergo these surgeries as he was worried about the risks. Mr Lording has indicated that he will need a right knee replacement in the future.
(u) In about January 2024, he started a multidisciplinary pain management program with a physiotherapist, psychologist and pain specialist. The pain management program gave him motivation and coping techniques to manage his ongoing knee restriction and pain. On 15 May 2025, he completed his last scheduled session with the psychologist under the pain management program. He plans to continue to apply the rehabilitation exercises and tools that were provided to him as part of his ongoing recovery. He continues to manage his injury with rehabilitation exercises and health nutrition. As part of his rehabilitation, he tries to go to the gym or boxing four or five times a week, subject to how his knees are feeling. He is careful when exercising not to twist or inflame his knees. He tries to walk most days.
(v) He takes anti-inflammatory medication, Arthrexin, as needed if he experiences pain, significant restriction or a flare-up. He takes Arthrexin about twice a month on average. He otherwise relies on herbal medicines to prevent and reduce inflammation and pain.
(w) He continues to experience pain and significant restriction because of the incident. He has pain in both knees if he attempts twisting or pivoting movements, crouching, kneeling or folding his legs. If he kneels down, he finds it painful and very difficult to get back up. He does assisted squats at the gym to help him build up his strength and stability.
(x) He is unable to extend his left leg fully because of restriction in his left knee. As a result, he often ends up dragging his left leg a bit when he walks. He experiences stiffness and pain if he walks for more than about an hour. He estimates that he experiences pain when walking at least once a week. He tries his best to ignore it and push through, but sometimes it makes him sore for the next few days. He also walks at a much slower pace than prior to his injury. He experiences pain in both knees when walking down an incline or hill. He tries to use a stick or something similar to support him if he has to walk down an incline.
(y) He has pain in both knees if he stands still for about 15 to 20 minutes in the same spot. After this, he moves around or sits down to give his knees a rest.
(z) He can sit or drive for up to about an hour. Beyond that, his knees seize up and it becomes very difficult and painful to move. This means it is difficult for him to travel long distances. He has purchased a four-wheel drive ute which has more legroom and is higher up off the ground. This allows him to get into the car without having to bend his knees.
(aa) He gets stiff knees if he sits on the couch or at a table for more than about an hour.
(bb) He is restricted in the play and activities he can do with his children because of the pain and stiffness in his knees. He is no longer able to move quickly, twist or kneel when playing with them. He is still engaged in some activities with them, such as playing badminton, but it is more standing in the same spot and avoiding sudden movements and running.
(cc) Prior to his injury, he used to run and sprint as part of his exercise routine. He avoids running and sprinting now because it causes too much pain in his knees. These days, he is limited to a slow, short jog for about 200 metres. Even when he tries to jog, it causes pain in his knees and he generally feels pain and stiffness in his knees for several days afterwards. He generally avoids jogging. He needs help when getting dressed. He has to sit down on a bed or lean against something when putting on his socks or pants. He finds it difficult to do chores around the house, such as cleaning, because of his knee restrictions. He tries to bend over rather than squat when picking something up or cleaning the house. He lives on his own, so even when he is in pain or experiencing a flare-up he has to try and push through and do his best to cook or clean for himself.
(dd) He experiences flare-ups of knee pain and restriction every two to three months. Sometimes the flare-ups are brought on by activity and knee movement. Other times, the flare-ups are unpredictable and do not seem to be triggered by anything. During a flare-up, he experiences severe pain and increased pressure and restriction in the affected knee. The flare-ups differ in severity. Generally, they last for a few days or a week. One of his flare-ups in 2023 lasted for about five weeks. He finds the flare-ups to perhaps be the most debilitating result of his injury.
(ee) During a flare-up, he has to lie down and keep his leg elevated to reduce pain and swelling. This means he has to stay home and keep his weight off his knees to let his body rest and recover. During a flare-up, he is reduced to walking with crutches because it is too painful to weight bear on the affected knee. During a flare-up, he takes Arthrexin three times a day, which is the maximum daily dosage. Arthrexin makes him drowsy. He struggles to concentrate on anything. As such, he is not really able to do much when he is experiencing a flare-up. He finds that his mental health deteriorates when he is stuck sitting at home, lying down and unable to do anything.
(ff) His sleep is negatively impacted during a flare-up.
(gg) During a flare-up and for several days afterwards, he is unable to attend the gym or perform his rehabilitation exercises. When this period of inactivity extends beyond a couple of weeks, he notices a significant loss of muscle strength. The exercises normally help strengthen the muscles around his knee, allowing them to compensate for the weakened joint. However, when the exercises are not maintained, the joint is forced to compensate for itself, leading to increased instability, joint misalignment or popping, further restriction of movement and worsening pain. He then has to start rebuilding his strength again just to return to a manageable baseline.
(hh) He continues to be worried about further deterioration to his knees in the future. He worries that he already had two significant surgical procedures to his right knee and that a left knee arthroscopy is likely required. Mr Lording has informed him that he will likely require further surgical procedures in the future, including knee replacement surgery. He is concerned that if he is not able to keep his strength exercises going in the future, that his condition will deteriorate and result in knee replacements, as the specialists have recommended. He remains concerned about what effect the knee injuries might have on his life in the future.
21At the hearing, Mr Fepuleai said:
(a) He told Dr Umberto Boffa, consultant occupational physician, that he had no symptoms before 2009 when he saw him in January 2024.[4]
[4]T7, L20-22
(b) He disclosed his 2008 knee symptoms to the WorkCover officer when he made his WorkCover claim over the phone. The officer stated that it did not cause any permanent injury so therefore he did not need to mention it.[5]
[5]T7, L29-31 – T8, 1-3
(c) He told Dr Iain McLean, orthopaedic consultant, in June 2024 that he had had no right knee symptoms before 2009.[6]
[6]T8, L10-15
(d) The fact he was not insured and his employer was not paying for his consultations with his general practitioner on 11 December 2009, 2 February 2010 and 15 April 2020 did not stop him from attending his doctor.[7]
[7]T9, L15-31 – T10, L1
(e) He had pain and restriction on a weekly basis between 2011 and 2018.[8]
[8]T10, L30-31 – T11, L-3
(f) He thought it was pointless to seek the doctor’s advice during this period believing that he would be advised to take time off work.[9] That was not an option for him as there was no insurance that would cover his income.[10] He stopped going to the general practitioner regarding his right knee symptoms after 15 April 2010 because he had to keep working to make a living.[11]
[9]T31, L 23 - 29
[10]T11, L7-13
[11]T30, L26-31
(g) When it came to knee injuries, it was not something that he thought he could just take a day off work for and then heal.[12]
[12]T11, L20-22
(h) He hung up his boots after his employment with ENS ceased as he could no longer bear the pain.[13] However, he would have kept working there if he had not been let go for financial reasons.[14]
[13]T11, L29-31 – T12, L1-2
[14]T12, L8-10
(i) He did not mention his right knee pain to the general practitioners at Greenvale Medical Centre at any of his attendances in 2012,[15] 2013[16] or 2017.[17]
[15]T13, L19
[16]T13, L26
[17]T13, L31
(j) He did not attend the Greenvale Medical Centre for any issues with his right knee between 15 April 2010 until February 2018.[18]
[18]T14, L1-4
(k) The issues with his right knee had been bearable, which is why he did not go to the doctor complaining about symptoms between 2011 and 2017.[19]
[19]T15, L10-13
(l) He agreed he told his general practitioner that his job involved heavy lifting at his attendance on 27 March 2018.[20] He not tell the doctor that he had been having weekly pain in his right knee since 2009, as he did not have a WorkCover claim and did not know he was going to end up in court to explain himself.[21] He said he had had pain all along.[22] He did not tell the doctor about his ongoing right knee pain because he did not want to take time off work as he could not support himself.[23] He agreed he was provided with a medical certificate at that attendance.[24]
[20] T15, L25-28
[21]T15, L29-31 – T16, L1-2
[22]T16, L20-21
[23]T16, L22-24
[24]T16, L31
(m) He did not proceed with having an MRI or x-ray of his knee as recommended at the attendance on 27 March 2018 because he did not have insurance.[25]
[25]T17, L1-3
(n) He did not refer to any issues with his right knee at any of the 14 attendances he had at the Greenvale Medical Centre in 2020.[26]
[26]T17, L30-31
(o) Between April 2010 and February 2021, he only attended a doctor twice for right knee pain.[27]
[27]T18, L3-4
(p) When he told Dr Ali Hashemloo, general practitioner at Greenvale Medical Centre, that “since last year started to feel pain again after heavy lifting” at the attendance on 15 May 2021, he meant that the pain was getting to the point where it was unbearable.[28]
[28]T18, L13-18
(q) He had a couple of days off work for his wrist in 2022. His wrist did not prevent him from returning to work, going about his day-to-day life or doing his usual activities.[29] He did not proceed with the recommended wrist surgery, as he does not like surgery and could not afford to have the surgery. The doctor advised him not to proceed with a cortisone injection.[30]
[29]T32, L17-25
[30]T32, L22 – T33, L12
(r) He has daily pain in his right wrist.[31] It affects his ability to lift things to a point.[32]
[31]T20, L13-15
[32]T20, L20-21
(s) His right wrist would not stop him from working as a steel fixer because the pain in his right wrist was there for the whole time he worked as a steel fixer.[33]
[33]T20, L25-28
(t) His right wrist did not affect his ability to do housework or cook.[34]
[34]T21, L3-5
(u) His cardiac condition used to cause him issues with shortness of breath and fatigue, but that stopped in 2022 or 2023.[35] His heart condition did not affect his ability to walk, run, go to the gym or box.[36]
[35]T21, L9-16
[36]T21, L17-27
(v) He stopped taking medication for his heart condition at the end of 2023.[37] He told his cardiologist that he was still taking the medication, when in fact he had taken himself off it.[38] However, in re-examination he said that rather than telling the cardiologist that he was still taking the relevant medication, he did not mention to the cardiologist that he had stopped taking the medication.[39] He had told his general practitioner that he stopped taking the heart medication.[40]
[37]T21, L31 – T22, L1
[38]T22, L8-18
[39]T33, L20-23
[40]T33, L25
(w) He disagreed that he was experiencing significant issues with his mental health between July 2017 and the end of 2020.[41] His mental health improved from mid-2021 when he took his health into his own hands and started dealing with it.[42] He said his mental health was fine in April 2024. He had had some issues selling a property interstate, but as soon as that property was sold his mental health got better.[43] His mental health is fine now.[44] It does not impact on his day-to-day life, working or employment.[45]
[41]T23, L27-28
[42]T24, L24-31
[43]T25, L24-31 – T26, L1-2
[44]T34, L28
[45]T34, L28-30
(x) He agreed that he went back to see Dr Udara Winodahewa, general practitioner at Watervale Medical Centre, on 26 June 2024 and that she had recorded he had seen a psychologist for counselling. He was feeling anxious and that his sleep was all over the place, and he was referred to a psychiatrist. He did not believe he went to that psychiatrist.[46]
[46]T26, L7-22
(y) He cannot extend his left knee fully because it automatically stops him from getting to a point where he will experience pain if he tries to extend it fully. Therefore, this restriction prevents him getting to the point where he is in pain.[47]
(z) The pain that he currently experiences in both knees is intermittent. It would be constant if his body did not automatically stop him from getting to that point (of feeling pain).[48]
(aa) He only takes occasional anti-inflammatory medication unless he is experiencing a flare-up.[49]
(bb) His right and left knee pain does not stop him from going to the gym four or five times a week for rehabilitation.[50]
(cc) He can do boxing training now. He can play badminton with the kids, standing on the same spot and hitting the shuttlecock. He can sit for an hour. He can drive for an hour. He can go walking most days. He can walk for up to an hour. He can jog for about 200 metres.[51]
(dd) He could run for one kilometre with a knee brace. Every so often he attempts to run, but he tries not to because it takes him at least a week to recover. He did a one kilometre run with a knee brace, which he described to his physiotherapist on 17 January 2023.[52]
(ee) He can lift 40 kilograms with his hands. Being a steel fixer required him to stand for long periods, repetitively bend and squat, and perform lots of heavy lifting. He could do that job until September 2023 with knee braces for the last few years.[53]
(ff) He stopped working as a steel fixer because there was a shortage of work, but he had also been advised by his medical practitioners to seek a different career.[54]
(gg) He now runs his own business which he started last year. He works 10 to 20 hours a week selling clothes online. He does not have any difficulty operating the business. His left and right knee pain is not affected by the business.[55]
Reports of treating doctors
[47]T35, L7-16
[48]T27, L1-6
[49]T27, L24-26
[50]T27, L27-31 – T28, L1
[51]T28, L9-24
[52]T28, L26-31 – T29, L1-8
[53]T29, L11-18
[54]T29, L21-25
[55]T29, L26-31 – T30, L1-6
Dr Shankar Srinivasan, general practitioner, Airport Total Health Care Clinic
22The attendance notes of Dr Srinivasan were tendered at the hearing. While I do not propose to summarise all the notes, I will summarise the relevant extracts.
23Mr Fepuleai attended Dr Srinivasan on 7 March 2008 with a history of stepping into a trench at work that day. There was infrapatellar soreness and some instability so he was referred to the Emergency Department at John Fawkner Hospital.
24He attended again on 11 March 2008, 17 March 2008, 25 March 2008, 28 March 2008, 1 April 2008, 14 April 2008 and 29 April 2008 in connection with the knee.
25On 14 April 2008 Dr Srinivasan recorded that Mr Fepuleai was much better, that his boss had offered him light duties, and that Dr Srinivasan discussed this with him at length. He recommended a return to work trial for two weeks and to see how he was going.
26When Mr Fepuleai returned on 29 April 2008, he said that the improvement was only slight, but that the duties were okay, and Dr Srinivasan prescribed him Panadeine Forte tablets and Temaze tablets.[56]
[56]Joint Court Book (“JCB”) 256-257
27He next presented for his right knee on 11 September 2009 after twisting it at work the day prior. Dr Srinivasan recommenced brace, gel, Indocid, and rest. He queried whether it may involve the meniscus. A medical certificate was produced.
28Mr Fepuleai attended again on 14 September 2009 and 28 September 2009. At the attendance on 28 September 2009 Dr Srinivasan recorded that Mr Fepuleai needed to see a knee specialist and have an ultrasound, and he wrote a note for his employer asking whether they would cover that.[57]
[57]JCB 254
29On 5 October 2009, Dr Srinivasan recorded that Mr Fepuleai had spoken to his boss, and his boss had advised that he should “go public”. Dr Srinivasan also recorded that Mr Fepuleai should use private insurance if this did not work.[58]
[58]Ibid
30On 20 October 2009, Dr Srinivasan recorded that WorkCover had been mooted by the Royal Melbourne Hospital, where Mr Fepuleai had one surgery, and that he would require a second one for his meniscus and ACL.[59]
[59]Ibid
31There were further consultations with Dr Srinivasan relating to the knee on 9 November 2009, 11 December 2009, 2 February 2010 and 15 April 2010.
32On 2 February 2010, Dr Srinivasan recorded that Mr Fepuleai was limping but had a full range of motion with little lateral twisting and was at work with proposed light duties. The notes record that Dr Srinivasan was happy with this as there was no lifting, that Mr Fepuleai should not start full duties until six months after the operation, and that the hospital had apparently said the same thing to him.[60]
[60]JCB 253
Dr Phillippa Wills, emergency physician, John Fawkner Hospital
33There was a handwritten note from Dr Wills dated 7 March 2008. After examining him, she recommended a splint, Panadeine Forte and ibuprofen from the chemist, and to ice the knee for 20 minutes every two to three hours. She advised that if the knee was still very sore, Mr Fepuleai should return the following Tuesday, where an MRI would be considered. If he was improving, he was to see his local doctor for further advice.
Greenvale Medical Centre attendance notes
34While I do not propose to summarise all of the entries in the clinical notes, I will refer to the entries that were relevant in arriving at my decision.
35On 29 May 2012, Mr Fepuleai attended the clinic with a history of having injured his left Achilles tendon after a game of football.
36On 27 March 2018, Mr Fepuleai attended with right knee pain, which was present for the last few days, and was limping. He provided a history that he had a knee injury in 2009 and needed knee reconstruction surgery. He said there was no injury this time, but his job was very physical as he lifted heavy objects and climbed up and down ladders. Dr Nashrin Nazim, general practitioner, queried whether he might have a meniscus tear. She referred him for an X‑ray and MRI and provided him with a medical certificate.
37Mr Fepuleai presented to the after-hours clinic on 15 September 2019. He said he had been taking Arthrexin for left knee pain. The doctor queried whether it was gout. There is a note that there was no injury on the left knee.
38He attended on 17 May 2021 with a history of having twisted his right knee, which resulted in an ACL and medial meniscus repair in the Royal Melbourne Hospital, and that since last year he started to feel pain again after heavy lifting. He asked for a WorkSafe claim. He could not kneel or squat. He thought that the previous year he did heavy lifting which put pressure over the knee.[61]
[61]JCB 302
Mr Timothy Lording, orthopaedic surgeon
39There were three pieces of correspondence tendered from Mr Lording addressed to Dr Ali Hashemloo of the Greenvale Medical Centre.
40The first of these was dated 25 November 2021.
41Mr Lording took a history that Mr Fepuleai injured his right knee in a workplace injury about 12 years previously. He was lifting a frame down, when he fell backwards and twisted his knee. He suffered an ACL rupture as well as medial meniscus tear and had an ACL reconstruction at the Royal Melbourne Hospital. Mr Fepuleai told him that his knee had never been the same but it had been getting worse more recently. He had a flare-up with some medial-sided pain, and the knee felt increasingly unstable. There was also lateral-sided pain which radiated up and down from the knee, with clicking but no locking.
42After examining him and reviewing the MRI scan, Mr Lording said that Mr Fepuleai was developing quite significant post-traumatic osteoarthritis and that in the fullness of time he would need a (right)[62] knee replacement. At the age of 45, the question was whether his symptoms could be controlled in the shorter term, and also whether an osteotomy would be appropriate for him. Mr Lording organised some weight-bearing X‑rays and long leg alignment views and arranged to see him again shortly.
[62]The consultation was about the right knee. I have inferred his reference to needing a knee replacement was with respect to the right knee.
43The next letter was dated 10 January 2022.
44In that letter, Mr Lording advised Dr Hashemloo that he went through the imaging with Mr Fepuleai that day. He concluded that the options included osteotomy or maximised conservative management. He noted that instability was as much of a problem for Mr Fepuleai as pain, and on examination he thought there was some ACL laxity. He indicated he was going to put in a request to WorkCover for approval for an off-loader brace to simulate the effect of an osteotomy.
45Mr Lording next wrote to Dr Hashemloo on 21 June 2022. He noted it had been several months since the request for an off-loader brace had been submitted to WorkCover, and that he would chase this up.
46He noted that the MRI scan showed a degenerative medial meniscus tear with a parameniscal cyst which would require arthroscopic intervention.
47He intended to put in a request to WorkCover for this at the same time as reiterating the request for the off-loader brace for the right knee.
Dr Prashan Fernando, general practitioner, Greenvale Medical Centre
48Dr Fernando is a general practitioner at the Greenvale Medical Centre and provided a report dated 21 August 2023 to Mr Fepuleai’s prior legal representatives.
49Dr Fernando also wrote a report dated 2 April 2024 where he provided answers to questions asked by Allianz Australia.
50He wrote that he was currently treating a twisting injury to the right knee causing ACL and medial meniscal tear in 2009. He said that a few years later, in 2021, Mr Fepuleai reinjured his right knee with heavy lifting at work. He also said that he was treating a compensatory injury to the left knee resulting in medial meniscal tear.
51He noted that Mr Fepuleai had twisted his right knee, causing his ACL rupture and medial meniscal tear about 13 years ago when he fell backwards as he was lifting a frame down. He said his knee had never been the same since the surgery. It had been getting worse since the end of 2021 as his work required him to lift heavy objects. The knee felt increasingly unstable with ongoing pain, clicking, and giving way frequently. He also noted that due to limping he later tore the medial meniscus in the left knee.
52He noted that surgical treatment of the left knee would be as suggested by Mr Lording, and that Mr Fepuleai would be a suitable candidate for a total right-knee replacement in the future. Mr Fepuleai required ongoing physiotherapy to both knees.
53While he noted that Mr Fepuleai had a capacity for suitable employment, he had the following restrictions or modifications:
(a) avoiding heavy lifting or working at heights;
(b) avoiding kneeling, squatting or twisting the left knee;
(c) avoiding climbing ladders or stairs; and
(d) wearing knee brace at all times.
Advance Healthcare Multi-Disciplinary Pain Management Clinic
54Various reports from the Advance Healthcare clinic were tendered.
55Mr Fepuleai described his symptoms as intermittent left knee pain rated as “0−6/10”[63] on the medial and lateral aspects of his knee. Mr Fepuleai described it as a dull pressure-like pain.
[63] JCB 85
56He also had intermittent right knee pressure-like pain which felt like the left knee but more so around the patellar region. He rated this as “0−5/10”[64], and felt weighted and heavy. Both of his legs felt weak when he walked on them.[65]
[64] JCB 85
[65]JCB 85
57In terms of his history, Mr Fepuleai reported that his pain first began in the right knee 13 years ago while lifting a steel frame when he stepped backwards. That is, he did not refer to the 2008 incident.[66]
[66]JCB 85
58Mr Fepuleai reported that he returned to work after about three months following his surgery in 2009 and continued to try to manage his pain. He said that his knee never really went back to normal; that the surgery was okay, but he always felt guarded and cautious about his knee. He reported that in his mind he knew it was not 100 per cent.[67]
Plaintiff’s medico-legal reports
[67]JCB 86
Dr Iain McLean, orthopaedic consultant of knee problems
59Mr Fepuleai was seen by Dr McLean on 12 June 2024.
60Mr Fepuleai provided a history to him that he sustained injury on 10 September 2009 at work in the circumstances previously outlined. Dr McLean believed the diagnosis of injury for the right knee was internal derangement of medial meniscus and chondral origin, and anterior cruciate ligament rupture. He noted this had been treated surgically by a partial medial meniscectomy and anterior cruciate ligament reconstruction. Mr Fepuleai had ongoing pain, insecurity, and functional disability, suggesting progression of degenerative change.[68]
[68] JCB 111
61With respect to the left knee, Mr Fepuleai had an aggravation or precipitation of symptoms from protecting and loading his left knee, arising from his right knee pathology and problems. Dr McLean noted an aggravation of underlying asymptomatic early constitutional degenerative changes. Mr Fepuleai had ongoing pain and functional disability.
62Dr McLean noted Mr Fepuleai had a very guarded prognosis relative to both his right and left knees. He believed that, with the passage of time, the progressive degenerative changes would continue.[69]
[69]JCB 112
63Dr McLean recorded that Mr Fepuleai did not wish to undertake any further surgical intervention and was attempting to put off the need for total knee replacement surgery relative to both right and left knees. However, with the progression of time and resulting progression of degenerative changes, he opined it would become necessary at an earlier time frame than would otherwise have been anticipated.[70]
[70]JCB 113
64Dr McLean noted that Mr Fepuleai had significant degenerative changes to the medial compartment of his right and left knees, and that with those changes and the progression of time he would have further pain and functional limitations.
Defendant’s medico-legal reports
Associate Professor Bruce Love, consultant orthopaedic surgeon
65Associate Professor Love provided a report to Allianz Australia dated 15 August 2022.
66Associate Professor Love obtained a history of injury occurring on 10 September 2009 in the circumstances previously referred to.
67On assessment, he said that the right knee of Mr Fepuleai had gradually deteriorated since undergoing reconstructive surgery in 2009, and he believed it could be stated that the degeneration was a consequence of the events that led to him requiring reconstruction at that time. He also thought it was reasonable to accept that the left knee had become symptomatic as a consequence of Mr Fepuleai’s reliance on that knee due to the increasing dysfunction that had developed in the right knee.
68He considered that provision of an unloading brace to the right knee and an arthroscopic meniscectomy on the left knee was appropriate.[71]
[71]JCB 130
69He thought it was doubtful that Mr Fepuleai could return to steel-fixing work.[72]
[72]JCB 131
70He thought that Mr Fepuleai had medial compartment osteoarthritis in the right knee and a medial meniscus tear in the left knee.[73]
[73] JCB 129
Mr Timothy Gale, general and trauma surgeon
71Mr Gale provided a report dated 13 December 2022. He obtained a history of the injury occurring at work in September 2009 in the circumstances previously outlined.
72He thought that as a result of the incident at work, Mr Fepuleai was likely to have ruptured his anterior cruciate ligament with an associated tear to the medial meniscal cartilage.[74]
[74] JCB 136
73He said that Mr Fepuleai stated that his knee had never been the same since the workplace incident of injury. In the last two years he had developed increasing symptoms in the right knee, with discomfort on certain activities, without locking, swelling, or giving way of the knee.
74He noted that Mr Fepuleai had ongoing knee symptoms of variable severity since the incident, and that the symptoms had increased since early 2018. He considered that Mr Fepuleai continued to suffer from symptoms arising out of the incident, as the initial ligamentous injury in 2009 had led to the development of degenerative changes within the right knee that were currently symptomatic.[75]
[75]Ibid
75He thought that, in due course, Mr Fepuleai was likely to require significant surgery to the right knee, and that at that time his knee symptoms had some impact on his occupational and daily living activities. He did not think that Mr Fepuleai would suffer any injury or harm by engaging in appropriate occupational and daily living activities, but believed his symptomatology could be benefited by reappraisal of his current employment, as alternative employment could be of some symptomatic benefit in the medium term.
76He said Mr Fepuleai’s clinical presentation was consistent with sequelae from the original workplace incident of injury.
Dr Graeme Doig, general orthopaedics and trauma
77Dr Doig provided a report to Allianz Australia dated 20 June 2023. He obtained a history of right knee injury occurring on 10 September 2019[76] which required anterior cruciate ligament reconstruction medial meniscus surgery, and the development of secondary osteoarthritis on the right side.
[76]I have inferred that this was intended to read 10 September 2009.
78He wrote that Mr Fepuleai also informed him that he developed left-sided knee pain at the beginning of 2022 while performing normal activities at work.
79After reviewing the investigations and undertaking an examination, he diagnosed Mr Fepuleai as having sustained an aggravation of pre-existing degeneration at the left knee joint.
Dr Umberto Boffa, consultant occupational and environmental physician
80Dr Boffa provided a report dated 4 January 2024.
81He took a history that Mr Fepuleai was off work for three months following surgery in 2009. He noted that he made a full return to work with bilateral knee pain and swelling over the last 12 months.
82Dr Boffa believed Mr Fepuleai had bilaterally symptomatic knee osteoarthritis, post partial meniscectomy on the right knee and worse on the left. He opined that Mr Fepuleai was no longer fit for pre-injury duties and hours. He thought Mr Fepuleai had a current capacity for sedentary duties that allowed him to move around and avoid repetitive bending, twisting, pivoting, crouching, kneeling, lifting, and carrying more than 20 kilograms, commencing with four‑hour shifts on three non-contiguous days per week.[77]
[77]JCB 160
83He recommended left knee intra-articular corticosteroid and Synvisc injections, and, if there was no improvement, consideration of a surgical left high tibial osteotomy or total knee replacement.[78]
[78]JCB 161
Analysis
Was Mr Fepuleai a reliable and credible witness?
84Counsel for the defendant submitted that Mr Fepuleai was neither a credible or reliable witness, and that this affected Mr Fepuleai’s case with respect to both causation and consequences.
85In support of this submission, the defendant relied upon:
(a) Mr Fepuleai’s failure to disclose his knee injury in October 2008 until he swore his fourth affidavit on 19 May 2025;
(b) his failure to seek medical treatment between 2010 to 2018 for his right knee; and
(c) the history he provided to his general practitioner of right knee pain starting in 2020 as a result of heavy lifting when he attended the Greenvale Medical Clinic on 17 May 2021.
86Having had the opportunity to observe Mr Fepuleai giving evidence at the hearing, I reject these submissions.
87I found that he provided straightforward answers to questions, did not seek to embellish his evidence and made concessions against his own interest where appropriate. For example:
(a) he conceded he could now participate in boxing training whereas at the time of swearing his first affidavit he had said that he could not;[79]
(b) he agreed that he would have found a way to keep working as a steel fixer with pain but for his employment with ENS ceasing;[80] and
(c) he agreed that he mostly suffered from intermittent pain, occurring weekly, rather than constant pain, other than for the periods when he experienced a flare-up of his pain.[81]
[79] T28, L11-13
[80] T12, L8-10
[81] T27, L21-26
88While it would have been desirable for Mr Fepuleai to have disclosed his 2008 right knee injury by way of affidavit evidence and to medical practitioners prior to reviewing the defendant’s written submissions, I have nonetheless concluded that the explanation provided is plausible and not inconsistent with the contemporaneous medical evidence. I have thus concluded on balance that I can accept his evidence on this point.
89I found his evidence about his ongoing pain between 2010 and 2021 was plausible because:
(a) he was unaware he might be entitled to WorkCover compensation for time off work arising from his injuries;
(b) he was concerned that if saw a doctor about his ongoing pain they would recommend time off work;
(c) he was not in a position to take time off work for financial reasons; and
(d) he was also concerned that he would not obtain further work in the construction sector if he took time off work.
90I also found this evidence to be consistent with his evidence about working through pain and restrictions arising from his right wrist injury. That is, I accepted that he was “stoic” and found ways to adjust his work duties so he could keep working.
91His evidence about worsening pain from 2018, and in particular in 2020, was not inconsistent with him seeking further medical advice and treatment and learning about his potential compensation entitlements. His evidence about the pain worsening in or about 2020 because of heavy lifting was consistent with his evidence about the general nature of the duties of a steel fixer. This evidence was not inconsistent with the contemporaneous medical evidence which, as set out below, also referred to his 2009 injury.
92While his evidence about whether he did or did not tell his cardiologist that he was continuing to take heart medication, when in fact he was not, was unclear, his evidence that he had taken himself off the heart medication was clear. I am satisfied that this evidence did not impugn his credibility, both because I accept that the main thing he recalled was that he had taken himself off the medication and he gave this evidence consistently in his oral and affidavit evidence.
93Thus, after considering his evidence, and the contemporaneous medical evidence, I concluded that he was both a credible and reliable witness and that I could accept his evidence.
Was Mr Fepuleai’s current right knee and consequential left knee injury caused by his employment with the employer?
94Counsel for the defendant submitted that I ought not rely on the opinions of Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean because their opinions were based on the following incorrect factual assumptions:
(a) before the incident in September 2009, Mr Fepuleai had no prior right knee problems; and
(b) after the surgeries, Mr Fepuleai continued to experience pain and instability in his right knee.
95Counsel for the defendant submitted that because of the incorrect factual assumptions, and that these assumptions were not supported by the evidence, there was no evidence or insufficient evidence that Mr Fepuleai’s right knee injury and consequential left knee injury were caused by the work incident on 10 September 2009.
96I will consider each of these submissions in turn.
Did the failure of Mr Fepuleai to advise Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean that he had right knee problems prior to September 2009 render their opinions unreliable?
97As outlined above, Mr Fepuleai sustained an injury to his right knee on 7 March 2008.[82]
[82] JCB 424 at paragraph [3]
98Mr Fepuleai’s evidence about the consequences of that knee injury was that:
(a) by late March or early April 2008, he was able to move about normally and return to normal duties;[83]
(b) his knee did not cause him any further concerns, so he did not think his prior knee injury was significant, and thus he did not mention it to the medico-legal doctors he saw for his case;[84] and
(c) he told a WorkSafe officer about the 2008 right knee injury when he started his claim in 2021. That officer did not think it was significant or relevant, so he did not either.[85]
[83]JCB 425 at paragraph [4]
[84]JCB 425 at paragraph [5]
[85]Ibid
99I found his evidence regarding his symptoms and treatment in 2008 was consistent with the contemporaneous clinical records.
100The handwritten records from the Emergency Department of the John Fawkner Private Hospital, where he had been sent by his general practitioner for medical treatment, revealed that he was released with a recommendation to use a splint and to return for an MRI scan if the knee was not improving. If it was getting better, then he was to return to his local medical officer.
101He returned to his general practitioner clinic for further treatment.
102At his second-last attendance for his March 2008 injury with Dr Srinivasan on 14 April 2008, he reported that his injury was much better and that he was on light duties. His doctor said he should try that for two weeks and see how that went.
103At the last attendance for his March 2008 right knee injury at the clinic on 29 April 2008, he reported the improvement was only slight,[86] but the light duties were okay. This is consistent with Mr Fepuleai’s evidence that his knee was continuing to improve.
[86] Which I have inferred to mean as compared to his previous visit.
104There were no further attendances with his general practitioner regarding his March 2008 right knee injury.
105The x-ray undertaken on 8 March 2008 recorded as follows:
“… There is a large knee joint effusion. Bone alignment is normal and no acute bony injury is identified.”[87]
[87]JCB 267
106Although the notes reveal that the practitioners contemplated referring Mr Fepuleai for an MRI scan if his knee symptoms did not improve, it does not seem that an MRI scan was undertaken at this time. This is consistent with Mr Fepuleai’s evidence that his knee was improving over the period he was being treated for this injury.
107On balance, I found the contemporaneous clinical evidence to either be consistent, or not inconsistent, with Mr Fepuleai’s evidence that he did not have ongoing problems from his right knee injury in 2008.
108By way of contrast, Mr Fepuleai’s evidence about the pain and symptoms arising from the September 2009 injury, and the evidence from the medical experts about the treatment he went on to require, is consistent with his evidence that the injury of 2008 was not significant with respect to his current right knee injury.
109While it would have been desirable for Mr Fepuleai to have ensured that of Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean were aware of the history of his 2008 injury, I accept his evidence that he understood it was not relevant based on his conversation with the WorkCover officer. Had the contemporaneous clinical records revealed that he had a more significant injury, or had there been other expert evidence before me analysing the significance of the 2008 injury and arriving at a different view than that of Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean, I may have arrived at a different view. However, based on the evidence before me, I am satisfied that the opinions of Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean are not rendered unreliable by reason of this omission.
Did the history provided to Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean by Mr Fepuleai of continuing pain and instability in his right knee following the surgeries render their opinions unreliable?
110As outlined in my analysis of Mr Fepuleai’s credit and reliability above, I have accepted his evidence about why he did not seek treatment for his ongoing symptoms from 2010 to 2018.
111Mr Fepuleai’s evidence about ongoing symptoms is consistent with a note taken by his general practitioner at his attendance for right knee symptoms on 27 March 2018.[88] Dr Nazim recorded that Mr Fepuleai advised that he had a knee injury in 2009, but did not have an injury this time (that being March 2018). He also recorded that Mr Fepuleai advised him that the job was very physical, that he was lifting heavy objects and always climbing up and down ladders.
[88] JCB 281
112Turning to after 2018, I was satisfied that Mr Fepuleai’s evidence of worsening pain in 2020 was not inconsistent with the entry in the clinical records of 17 May 2021. The history Dr Hashemloo has recorded, that Mr Fepuleai began to feel pain again after heavy lifting and that he believed he performed heavy lifting the previous year which put pressure over his knee, is consistent with Mr Fepuleai’s evidence about his duties as a steel fixer.
113His evidence of worsening pain is not inconsistent with the history recorded in the MRI scan of the right knee of 12 July 2021, that being that Mr Fepuleai had “recently increased pain”.[89]
[89] JCB 363
114Considering these three records together, I am satisfied that they are consistent with Mr Fepuleai’s evidence of worsening pain from 2018, particularly in 2020, in his right knee following his 2009 injury. I thus find that Mr Fepuleai continued to experience pain and instability in his right knee after the surgeries arising from the 2009 injury.
115I am therefore satisfied that the opinions of Dr Boffa, Associate Professor Love, Mr Gale and Dr McLean are reliable insofar as they rely on this history.
116Turning to their opinions, they were broadly in agreement that Mr Fepuleai sustained:
(a) a medial meniscus tear and ruptured his anterior cruciate ligament in his right knee in the work injury in 2009, requiring partial medial meniscectomy and anterior cruciate ligament reconstruction;[90]
(b) an aggravation of previously asymptomatic osteoarthritis in the right knee because of symptoms arising from the work injury of 2009;[91] and
(c) an aggravation of previously asymptomatic osteoarthritis in his left knee because of overreliance and loading on his left knee following his right knee symptoms and injury.[92]
[90] JCB 136; JCB 111
[91] JCB 82; JCB 111; JCB 129; JCB 137; JCB 160
[92] JCB 80; JCB 112; JCB 129
117I note that Associate Professor Love was of the view that Mr Fepuleai had a medial meniscus tear in the left knee,[93] and that Dr Doig thought that he had pre-existing degeneration at the left knee joint. I found these opinions were not inconsistent with the opinions of Dr Boffa, Mr Gale and Dr McLean.
[93] JCB 129
118Their opinions are also consistent with the opinion of Mr Lording, Mr Fepuleai’s treating orthopaedic surgeon.
119In the correspondence tendered at the hearing, Mr Lording said that:
(a) he thought Mr Fepuleai sustained an anterior cruciate ligament rupture as well as medial meniscus tear arising from the work injury of 2009;
(b) Mr Fepuleai was developing quite significant post-traumatic osteoarthritis, and that in the fullness of time he would need a right knee replacement;[94] and
(c) due to limping, Mr Fepuleai had torn the meniscus in his left side which would require arthroscopic intervention. [95]
[94] JCB 369
[95] JCB 391
120Mr Lording, Dr McLean and Dr Boffa agreed that Mr Fepuleai will require a total knee replacement to his right knee,[96] and Dr McLean believed he will require a total knee replacement to his left knee.[97]
[96] JCB 113; JCB 161; JCB 369
[97] JCB 113
121Given the unanimity of opinion between the medico-legal experts, and that their opinions accord with the opinion of Mr Lording, I have relied on the most recent opinion, that being the opinion of Dr McLean, for the diagnosis of injury and the likely prognosis.
122I therefore find that Mr Fepuleai has sustained:
(a) internal derangement of medial, meniscal and chondral origin and interior cruciate ligament rupture to his right knee in the incident of September 2009, which was treated surgically by partial medial meniscectomy and anterior cruciate ligament reconstruction. His ongoing pain, insecurity and functional disability is due to progression of degenerative changes; and
(b) an aggravation of symptoms in his left knee from protecting and loading following his right knee pathology and problems. He has sustained an aggravation of underlying asymptomatic early constitutional degenerative changes in the left knee.
123I also accept that with the passage of time, those progressive changes will continue. I also accept, and find, that while Mr Fepuleai does not wish to undertake any further surgical intervention, he will likely come to a total knee replacement for both his left and right knees as a consequence of the injury and the aggravation of the degenerative changes arising from the symptoms and the injury.[98]
[98]Ibid
124I therefore accept and find he has a permanent serious impairment and a loss of body function to both his left and right knees arising from the incident of 10 September 2009.
What are the consequences of the impairment and are they very considerable?
125As outlined above, I accept Mr Fepuleai was a credible and reliable witness.
126I was impressed with the concessions he made regarding his restrictions at the hearing. For example, in his first affidavit his evidence was that he could no longer box.[99] However, in his fourth affidavit[100] and his oral evidence[101] he said that he had returned to boxing training, and that boxing and going to the gym were part of his rehabilitation. This was consistent with the contemporaneous records of his pain management specialists.[102] I was impressed that this showed that Mr Fepuleai was motivated to try his best and to return to the activities that he previously enjoyed and to follow the recommendations of his medical practitioners.
[99]JCB 5, at paragraph [25]
[100] JCB 431, at paragraph [26]
[101] T28, L11-13
[102] JCB 89; JCB 115; JCB 119
127I was also impressed with his candour regarding his reasons for ceasing work as a steel fixer, and the fact that he has returned to suitable employment by starting his own business. The fact that he had not relied on others to assist him with finding a job, and that he had instead started his own business, suggested to me that he was highly motivated to keep working and earn an income that was consistent with his restrictions.
128The restrictions he deposed to having in his fourth affidavit and in his oral evidence were consistent with the restrictions that Dr Fernando, Dr McLean and Dr Boffa believed he would be subject to with respect to suitable employment options, those being:
(a) Dr Fernando:
(i)minimal walking (up to 500m);
(ii)minimal standing (up to 30min);
(iii)unable to kneel or squat; and
(iv)lifting and carrying restricted to a maximum of 20kg.
(b) Dr McLean:
(i)unable to be on his feet for long periods;
(ii)unable to climb multiple steps or stairs;
(iii)no squatting, kneeling, twisting or loading;
(iv)no heavy lifting;
(v)no climbing up ladders; and
(vi)only fit for work activities that are of a light sedentary nature where he can self-monitor his sitting, standing and moving.[103]
(c) Dr Boffa:
(i)Mr Fepuleai had a current capacity for sedentary duties which allow him to move around, and allow him to avoid repetitive bending, twisting, pivoting, crouching, kneeling, and lifting or carrying more than 20 kilograms. He had a capacity to return to work, commencing on four hour shifts on three non-contiguous days. He thought that Mr Fepuleai was no longer fit for pre-injury duties.[104]
[103] JCB 113
[104] JCB 160
129I have preferred the opinions of the above three doctors on Mr Fepuleai’s restrictions to those of Mr Gale and Associate Professor Love because of their recency, consistency and detail.
130Mr Gale believed that alternative employment could be of some symptomatic benefit in the medium term, but did not otherwise think that Mr Fepuleai would suffer injury or harm by engaging in appropriate occupational and daily living activities when he saw him on 13 December 2022.[105]
[105] JCB 137
131Associate Professor Love did not anticipate that Mr Fepuleai would return to pre-injury duties and hours, and that if he was to return to any form of work it would need to be in a role performing alternative duties.[106]
[106] JCB 132
132Mr Fepuleai’s evidence regarding his restrictions was consistent with the opinions of Dr McLean, Dr Boffa and Dr Fernando.
133I therefore accept Mr Fepuleai’s evidence, and find that he has the following consequences as a result of the incident:
(a) pain and restriction in both knees if he attempts to twist, pivot, crouch, kneel or fold his legs;
(b) taking the anti-inflammatory medication, Arthrexin, as required, and on average, about twice a month. He also relies on herbal medicines to prevent and reduce inflammations and pain;
(c) pain when walking at least once a week;
(d) walking at a slower pace than prior to his injury;
(e) pain in both knees when walking down inclines and hills;
(f) pain in both knees if he stands still for about 15 to 20 minutes in the same spot;
(g) sitting tolerance for up to an hour. This has made it difficult for him to travel long distances. He has purchased a four-wheel drive ute which has more leg room and is higher off the ground due to the difficulties he was having with getting in and out of his previous car;
(h) stiff knees if he sits on the couch or at the table for more than an hour;
(i) restrictions in the play and activities he can do with his children because of the pain and stiffness in his knees. He still engages in some activities with them, such as playing badminton, but he does this by standing in the same spot and avoiding sudden movements and running;
(j) avoiding running and sprinting because it causes too much pain in his knees. He is limited to a slow, short jog of about 200 metres, however he avoids jogging. Prior to his injury, he used to run and sprint as part of his exercise routine;
(k) difficulty getting dressed. He has to sit down on a bed or lean against something when putting on his socks or pants;
(l) sometimes finding it difficult to do chores around the house. For example, he tries to bend over rather than squat when picking something up or cleaning the house;
(m) flare-ups of knee pain and restrictions every two to three months, where he experiences severe pain and increased pressure and restriction in the affected knee. They generally last for a few days or a week. One of his flare-ups lasted for about five weeks in 2023. During a flare-up, he stays home and keeps the weight off his knees to let his body rest and recover. During a flare-up he takes Arthrexin three times a day, which is the maximum daily dosage;
(n) sleep being negatively impacted during a flare-up;
(o) inability to attend the gym or perform his rehabilitation exercises during a flare-up, which can lead to a significant loss of muscle strength. The exercises normally help strengthen the muscles around his knee, allowing them to compensate for the weakened joint;
(p) worry about further deterioration in his knees. He is concerned he will require knee replacements in the future; and
(q) worry about the effects the knee injuries may have on his life in the future.
134I also accept the opinion of Dr Fernando that Mr Fepuleai will require ongoing treatment in the form of physiotherapy,[107] and will benefit from the following for the next six to 12 months as maintenance therapy:
(a) weekly physiotherapy;
(b) attending the gym for two to three sessions per week;
(c) weekly “hydrotherapy/pool”; and
(d) daily home exercises.[108]
[107] JCB 83
[108] JCB 100
135I accept the evidence of Mr Lording, Dr Boffa and Dr McLean that Mr Fepuleai will likely come to a knee replacement in his right knee, and the evidence of Dr McLean that he will also likely come to a knee replacement in his left knee in the future. This is a very considerable consequence of his impairment.
136In considering what Mr Fepuleai has lost, I am also required to consider what he has retained. I accept that he has retained the ability to go to the gym and participate in boxing training. While he has difficulty dressing, cooking and cleaning, I note that he lives alone and thus manages as best as he can, in part because he is conscious of setting a good example of resilience for his children. He engages in some recreational activities, such as badminton with his children, albeit with restrictions. He can drive, albeit that he is restricted in the distances he can drive.
137I am also conscious that Mr Fepuleai is relatively young, being forty-eight years of age, and will need to live with the consequences of his impairment for the rest of his life. This is very likely to include further flare-ups and knee replacement surgery to both knees.
138I also find that he is a stoic person, as he worked for as long as he could as a steel fixer in the face of increasing symptoms and pain in his right knee, and emerging symptoms and pain in his left knee. While his evidence was that he would have continued working as a steel fixer had his employer not ceased to trade, he has not tried to continue as a steel fixer. Instead, he has shown great initiative and entrepreneurship in setting up his own business which allows him to work within his restrictions.
139Considering the above, I am satisfied that, when the right and consequential left knee injury and impairment is judged by comparison with other cases in the range of possible impairments or losses, the impairment can be fairly described as being “at least very considerable” and “more than significant or marked”.[109]
[109] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
Conclusion
140I therefore find that Mr Fepuleai is entitled to leave to proceed with a claim for damages for his pain and suffering because of the injury sustained to his right knee, and the consequential injury to his left knee, arising from his employment on 10 September 2009.
141I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
Post-script:
142Mr Fepuleai was self-represented. However, after a referral was made to the Victorian Bar Pro Bono Barristers Court Referral Scheme, he was very ably represented by Mr Mullaly at the hearing of this matter.
143The conduct of both Counsel in this proceeding was exemplary and I thank both Counsel for their efforts in assisting the court. Their behaviour and conduct in this case showcased the legal profession at its finest, for which both Counsel should be proud and applauded.
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