Narenji v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-20-03797

AZAD NARENJI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 February 2023
DATE OF JUDGMENT:	16 May 2023
CASE MAY BE CITED AS:	Narenji v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 755

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right lower limb/knee – impairment of the lumbar spine – loss of earning capacity – causation – aggravation – credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Woolworths Ltd v Warfe [2013] VSCA 22; Church v Echuca Regional Health (2008) 20 VR 566; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 14; O’Donnell v Reichard [1975] VR 916; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
JudgmentLeave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards KC with Ms R Heffernan	Zaparas Lawyers Pty Ltd
For the Defendant	Mr B R McKenzie	Hall & Wilcox

HER HONOUR:

Preliminary
1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Cedar Foods Australia Pty Ltd (“the employer”) from May 2012 to 2014 (“the period of employment”).
2Injury was alleged to have occurred during the period of employment with a specific lifting incident in November 2014 (“the said date”).[1]
[1]Transcript (“T”) 2; Xchanging letter of March 2020
3The application is brought pursuant to paragraph (a) and the plaintiff seeks leave in relation to both pain and suffering and loss of earning capacity.
4The body functions said to be impaired are the right lower limb/knee and the lumbar spine.
5The plaintiff bears an overall burden of proof upon the balance of probabilities.
6By ss(38)(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”.
7I 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.
8Subsection (g) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Peak Engineering & Anor v McKenzie[3] and Petkovski v Galletti[4] in reaching my conclusions.
[2] (2005) 14 VR 622
[3][2014] VSCA 67 (“Peak Engineering”)
[4] [1994] 1 VR 436
13The plaintiff swore three affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.

Issues
14Compensable injury in relation to both claimed impairments was in dispute, as was any ongoing material contribution of such compensable injury. The plaintiff’s credit was also in issue,[5] together with range and incapacity for employment.[6]
[5]T7
[6]T6
15Due to the complexity of this application involving two impairments, all these issues, including a conservable amount of historical material had to be considered before making a determination in relation to serious injury.

Plaintiff’s evidence
16The plaintiff was born in Iran in March 1970 and is currently fifty-three. He is right hand dominant. He is divorced.
17Having finished high school in Iran, he worked as a salesperson and owned a clothing business.
18As he told psychologist, Ms Lechner, in May 2015, in 2009, he was arrested by the police in Iran for printing t-shirts supporting an opposition candidate. He was tortured and physically assaulted by the police and during the course of interrogation, his knee was badly injured.
19He escaped Iran and flew from Tehran to Dubai and then Jakarta. From there, he caught a boat to Christmas Island where he was in detention from late 2009 until June 2011 when he went to Darwin. In August that year, he gained permanent resident status.[7]
[7]Ms Lechner’s report dated 11 May 2015
20In Australia, he has only worked for the employer, starting work as an abattoir worker in May 2012.
Plaintiff’s health prior to 2012
21Prior to suffering injuries at work, he enjoyed relatively good health. He suffered from asthma and hay fever which caused him to seek medical attention at emergency departments a couple of times. He was under the care of the asthma outpatient clinic at Footscray hospital.
22He had some problems with his right knee prior to arriving in Australia. He was cross-examined at length in relation to this issue.
23He agreed right knee problems went back to 2009 and they never went away. He was arrested by the authorities in Iran for making political t-shirts. When tortured by the police, he fell down some stairs and twisted his knee.[8] These issues formed the basis of his refugee status assessment.[9]
[8]T39
[9] T38; January 2019 statement in support of visa application
24While in detention at Christmas Island, he attended the International Health and Medical Services.
25On 9 March 2011, registered nurse, Linda Brogan, recorded:
“Attended clinic c/o ongoing disclocation of rt patella.
O/E : walked into clinic nil altered gate, rt knee slightly larger than left good alighnment, c/o pain lateral region nil

inflammation detected.Client states that knee moves round to lateral aspect sometimes weekly sometimes less often he lies down and a freind has to put it back in place.Neuro vasc intact ... .”
(sic)

26On 10 March 2011, Dr Woolcock noted:
“recurrewnt dislocation laterally of R knee
last 17/12 since blindfolded and pushed from height in previous detention centre
would like to play volleyball but unable.” May need surgery if gets to the mainland.”
(sic)

27He agreed if Dr Woolcock noted he may need knee surgery if he gets to the mainland, “definitely, there was a conversation if it says it happened”.[10] He later said he “had no idea” whether he was told in March 2011 he may need surgery if he goes to the mainland.[11]
[10]T41
[11] T50
28He agreed he told the doctor he was pushed down the stairs in Iran.[12]
[12]T40
29He did play volleyball at Christmas Island, because he injured himself doing so.[13] His foot was dislocated when someone stood on it while playing volleyball.[14]
[13]T41; Michelle Ottley’s note dated 22 December 2010 - painful left foot playing volleyball
[14]T39
30On 23 May 2011, Dr Forrest at the detention centre recorded:
“… has recurrent distraction of the right patella. examination. very poor quadriceps musculature. for ref to physio, see letter.”
31It was correct, as the note read, that he would have had physiotherapy at Christmas Island.[15]
[15]T43
32Dr Forrest wrote to Palmerston Physiotherapy on 23 May 2011:
“… This is painful and leads to subsequent knee swelling. He says there is a history of trauma preceeding the onset of this disorder … .”
(sic)

33The plaintiff could not now recall telling Dr Forrest his knee was painful and led to swelling.[16]
[16]T44
34Mr Watkins, physiotherapist, wrote to Dr Forrest on 9 June 2011:
“Azad presented with a reported history of patella subluxation laterally, which has happened several times a year for the last couple of years after an initial injury of falling onto his knee. His current complaint of pain … around the knee after a subluxation … .”
35The plaintiff agreed with the content of the letter. His knee was dislocating several times a year and had been for the last couple of years.[17]
[17] T44
36In May 2015, Ms Lechner, psychologist, provided a report for Victoria Legal Aid for the purposes of the plaintiff’s drug charges.
37Her report set out the plaintiff’s experiences in Iran, noting:
“… during the course of these interrogations his knee was badly injured; he did not receive medical treatment … He found a private doctor who suggested the use of opium – ‘dissolved in water, it really helped me’.”
38Ms Lechner accurately reported the history of the torture and his problems in Iran. He started using opium in about 2009 and dissolved it in water for his knee pain. He continued to use opium for a period, perhaps around seven or eight months.[18]
[18]T46
39In response to the suggestion his knee problems were significant, requiring opium, he replied:
“Based on the film recent you just – some time ago you – based on the film you said my knee doesn’t seem to have any problem at all. Now, I don’t know how I you say that it has so much problem ... .”[19]
(sic)
[19]T50

40He had knee problems before working at the employer’s factory, but “work or pressure or a heavy job at work caused me not being able to properly walk eventually and caused me not being able to work eventually”.[20]
[20]T48
Back issues pre-2012
41There was no mention in his affidavits of back problems before starting with the employer.
42Fountain House – Victorian Foundation for the Survivors of Torture – recorded on 7 July 2015:
“Issue w/ leg on waiting list for surgery. Reports being persecuted by government and tortured which resulted in tendon tearing in the right outside knee, pointed to this area. Spent three months in prison ‘lock up’ in about 2008. Chronic back pain due to disc injury associated with torture in which he had to shut his eyes.”
43The plaintiff denied that he told Foundation House that he had lower back pain. His back was hurt as a result of the torture, but he had not developed disc problems.[21]
[21]        T53
44His lower back was healthy until he started at the factory. The disc problem, in particular, started from the factory. He never told them he had a disc problem. The push and fall in detention in Iran caused back problems but not his lower back.   He did not get a disc injury in Iran.[22] Someone with a disc problem can never play volleyball.[23]
[22]T54
[23]T54
45Foundation House’s note of 21 July 2015 set out:
“… Suffered knee twist/injury primarily when forced to keep eyes closed (covered?) and fell down stairs leaving interrogation room. Feels this was done on purpose. This also caused what was later identified as disc injury. Suffered ‘a lot of other abuse’ in addition to this.”
46The plaintiff confirmed the lower disc problem occurred in the factory and he “had a witness for it”.[24]
[24]        T55

Work injuries
47The plaintiff suffered injuries to his lower back and right knee throughout the period of employment whilst undertaking his usual duties as an abattoir worker. He was required to perform duties of a heavy and repetitive nature, including lifting and awkwardly manoeuvring animal carcasses which could weigh up to 60 kilograms.
48This evidence was not challenged in cross examination.
First affidavit affirmed April 2020
49In 2013 or 2014, he started to experience lower back pain. In 2014, he aggravated his right knee at work. He saw his general practitioner (“GP”), Dr Ziabari, at Medical One Sunshine, in mid-2014 when he hurt his right knee. He was referred to Western Health for knee x-rays.
50In or around November 2014, he re-injured his right knee at work. Dr Ziabari referred him back to Western Health to undergo an MRI scan of his right knee. That MRI scan demonstrated a ruptured ACL, torn lateral meniscus, and degenerative change in the patellofemoral joint.
51In early 2015, the plaintiff saw Dr Ziabari when he hurt his lower back at work. He was referred for an MRI scan of his back and physiotherapy.
52On 6 May 2015, Dr Ziabari referred him to Ms Carla Lecher, psychologist.
53In 2016, the plaintiff started seeing a new GP, Dr Mahani, at Sunshine City Medical Centre.
54In August 2016, the plaintiff saw Dr Widjaja, orthopaedic surgeon, for his right knee issues on referral from Dr Mahani. Dr Widjaja recommended knee surgery, but the plaintiff could not afford it.
55As his right knee symptoms persisted, in March 2018, the plaintiff was referred to Mr Justin Hunt, orthopaedic surgeon. He told the plaintiff that he required conservative treatment for his back but would require right knee surgery.
56On 20 January 2019, the plaintiff lodged a WorkCover claim. This was rejected by the employer.[25] The plaintiff issued Magistrates’ Court proceedings, which settled in February 2020. By Terms of Settlement dated 14 February 2020, the defendant agreed to pay the plaintiff’s weekly payments for 26 weeks between 1 November 2014 and 2 May 2015.
[25]Letter from Xchanging dated 26 February 2019 - Claim dated 20 January 2019 rejected on the basis the plaintiff had not sustained an injury arising out of or in the course of his employment – no factual or contemporaneous medical information
57As at 2020, the plaintiff was on the public hospital waiting list for right knee surgery. He continued to see his GP and did back exercises. He took only Panadol to manage both his knee and back pain as he is allergic to morphine-based pain medications.
Pain and consequences as at April 2020
58He had constant back pain. He had sharp shooting pain in his back which travelled down his right leg. The pain was so bad that sometimes, he had trouble walking. He could only walk four to five minutes before he had pain.   He could sit for longer periods but needed to get up after a while and walk. He could only stand for about three to four minutes before he was in pain. He struggled to bend over and could only lift small loads.
59Right knee pain continued and seemed to be getting worse, not better. His knee twisted and gave way and felt generally weak.
60He struggled with sleep and was often woken in the middle of the night with pain, which kept him awake.
61He was slower at completing personal activities and sometimes his brother helped him wash his back in the shower. His brother did not usually live in Melbourne but moved to Melbourne to help him at home. His brother did the cooking and cleaning, and the plaintiff only attended to the small duties.
62In the detention centre, he enjoyed playing volleyball and used to play for two to three hours at a time. Following his injuries, he tried to play volleyball once but lasted only a few minutes due to pain in his knee and back. He used to enjoy playing soccer but was not able to play in the same way.
63In cross-examination, he agreed he was not playing soccer at the time he started work with the employer.[26]
[26]T50
64He spent his days at home and completed his back exercises. Nothing seemed to alleviate the knee pain.
65His physical injuries had impacted his mental health. He had asked his GP for a referral to a psychologist and sleeping tablets to help him cope. He worried about what work he would return to given he had only ever worked in an abattoir.
66A year later,[27] the plaintiff’s pain and limitation had not improved. In addition to Panadol, which he took for pain, he was also prescribed diclofenac and amitriptyline by his GP to help him sleep.
[27]Second affidavit affirmed 19 April 2021
67In February 2023,[28] his condition remained much the same with no improvement.
[28]Third affidavit affirmed 20 February 2023
68He continues to suffer from lower back pain. It is a sharp shooting pain which travels down his leg. The pain continues to limit the amount of time he can walk, sit and stand before he is in pain and he needs to change his position and move around. Right knee pain also continues.
69He sees Dr Mahani regularly, mostly for prescriptions.
70He last saw Mr Hunt on 19 May 2022. Mr Hunt then reviewed an MRI scan of his right knee taken the previous day and the plaintiff was advised that there had been further wear inside his knee and that he required a total knee replacement rather than an ACL reconstruction. After discussing surgery with Mr Hunt, the plaintiff decided to wait until he was older to have the procedure. He is unaware if he is still on the wait list for ACL surgery.
71In its physiotherapy discharge summary dated 15 November 2022, IPC noted the plaintiff –
“… has a specialist/OAHKS review appointment in 2 months; he appears fixated on getting the TKR to resolve his pain. He has requested for discharge from IPC Health today. We have encouraged him to continue with his regular home exercise program in conjunction with daily walking and cycling.”
72The plaintiff could remember seeing physiotherapists at IPC Health for a couple of months until November 2022.[29] Their treatment was not of much help to him at all. He did not agree that he was fixated on getting the total knee replacement and he had requested a discharge from the physiotherapy service. They just referred him for six sessions and that was then done.[30]
[29]T34
[30]T35
73He gave conflicting answers as to whether he was to see another knee specialist or was on a waiting list at Footscray Hospital for further surgery.[31] He thought he last saw Mr Hunt a few months ago but then agreed it may have been in May 2022.[32]
[31]        T35
[32]T37
74The plaintiff denied he had also mentioned to IPC possible surgery for lower back post TKR, although that was mentioned in its report.[33]
[33]        T36
75He relies on medication to treat his back and knee pain. He takes Panadol, Nurofen and Tramadol when the pain is really bad. He rarely takes Tramadol as he is allergic to it.
76In June 2021, he started seeing psychiatrist, Dr Sam Asadi. He has seen him a couple of times. He consults him by phone for repeat prescriptions of medication. He has been prescribed clonazepam 2 milligrams, which he takes every night to help with his sleep and for his panic attacks. He takes Solian 100 milligrams every night to assist with his sleep and anxiety. He also takes Lexapro 20 milligrams twice daily for depression.

77He usually experiences panic attacks twice a day. He gets so frightened of being inside, he has to run out.
78When he has panic attacks, he feels frightened. The panic attacks most often happen at night, and last five or fifteen minutes, sometimes less. Sometimes, they used to happen during the day, but ever since he has been taking medications they predominantly happen at night.[34] It was correct, as Dr Asadi reported, that he was nervous sleeping on his own. That was why he brought his brother to live with him.[35]
[34]T69
[35]T69
79Dr Mahani also recorded on 3 April 2020, that the reason for contact was panic disorder. The plaintiff –
“gets anxious
feels panic
can’t stay alone
at night can’t sleep
worried
energy is ok
…
here woth brother
not depressed
…
sometimes methadone.”
(sic)

80The plaintiff agreed he used methadone on one occasion but discussed the side-effects of using it. His doctor told him not to use methadone.[36]
Cross-examination
[36]        T47
Surveillance film
81Cross-examination commenced with the plaintiff being shown surveillance film taken on a number of dates.
82In the first film of 8 minutes on 2 October 2019, the plaintiff was shown walking around normally. There was no sign of his right knee giving way. He agreed he was walking.   He worked for two years. He had not said he did not walk. He worked two years in the factory, and he played volleyball in the detention centre. He did not make up anything;
“I never said I’ve got a leg problem, doctor said. Doctor said MRI shows lower back disc, MRI shows knee problem. I never – I never said that I had. Whatever I said it was the doctor’s opinion.”[37]
[37]T9
83When it was suggested there was no sign in the film of his right knee giving way, he said defendant’s counsel was not with him 24/7 to see whether it does.[38]
[38]T9
84The plaintiff was then shown at 11.21am leaning against an office counter. He did not accept he was supporting all his weight on his right leg –
“My opinion is the doctor’s opinion. Doctor said – even the supervisor at the factory said you’re not capable to work and doctor said you don’t have the capacity. And there’s a letter at the factory . They gave me a letter, the factory gave me a letter that I can’t work there because I don’t have the capacity otherwise I wouldn’t leave work.”[39]
[39]T10
85He disagreed that the film showed nothing wrong with his knee. When he walked for two hours, he would get so tired his knee would give way. The film was only five minutes, and he was walking normally.[40]
[40]T11
86He agreed he was shown breaking into a bit of jog when approaching a car. He agreed it did not look like there was any problem in that motion, but then said, if there was not a problem why would his doctor want to operate on it.[41] There was a day he went to the park and he could not even walk after five minutes, so his brother had to come and pick him up. That happens many, many times.[42]
[41]T11
[42]T12
87The plaintiff was filmed on 22 October 2019, the day he was examined by Dr Menz. He agreed Dr Menz accurately reported his complaints of pain and restriction. He disagreed with Dr Menz’s opinion about how he moved in the film.[43]
[43]        T14
88He agreed Mr Awad, in December 2018, accurately reported his complaints of pain and restriction.[44]
[44]T15
89He did not accept that the film did not show his right knee collapsing or constant right leg pain. Four or five times a week, his knee twists and he is really afraid of that, because he loses balance, and feels like there are things that are going to tear inside – “And then that day, in that film, you didn’t see that and that is not my problem, I don’t know what to do.”[45]
[45]T17
90He agreed that he told Mr Chandrasekaran in September 2019 that his brother does a range of activities for him.   He did not say he does not do the shopping; he does do it.[46]
[46]T18
91There was then 22 minutes surveillance film of the plaintiff attending a fruit farm on 25 November 2020 – Naturipe Fruit Farm in Bacchus Marsh. He got out of a car, having been a passenger for 35 minutes, but did not agree he did not have any pain when he did so.[47] He agreed the ground at the farm was uneven and muddy. He was shown picking cherries and did bend down and place a tray of cherries on the ground.[48]
[47]T20
[48]T21
92He agreed he was picking fruit from 11.22am to 12.01pm. He disagreed he was shown bending, standing and reaching without any sign of problems with his back, “Do you know how many tablets I took to just go there to do that?” He took two Tramadol and three Panadol to be able to walk.[49] He took these for his leg and lower back pain. He did not have any other pains but these two.[50] He disagreed he was shown putting his weight on his right knee.[51]
[49]T22
[50]T23
[51]T24
93He took Tramadol that day, even though he was allergic to it.[52] Once he asked his doctor to prescribe it for him and he had a box at home from the one prescription.[53]
[52]        Tramadol was prescribed on 10 August 2020
[53]T32
94He agreed he took a “selfie” at about 11.56am. He then carried three trays of strawberries, with his brother, to the counter. He disagreed he did not appear to have any problems with his right knee doing that.[54]
[54]T26
95He agreed, on occasion, he would take the wheelie bin in at home.[55]
[55]        T27
96Having been taken to the significant restrictions he described in his April 2020 affidavit, he pointed out that when filmed, he was lifting only just two containers of strawberries. He disagreed there was no sign on that film of his knee twisting and giving way. He does not go to places like the cherry farm on a daily basis.[56]
[56]T30
97He denied, from the film that was shown, he did not have a back problem or a knee problem. He has a “serious back disc” problem and he “cannot do heavy stuff”. His right knee has problems and requires an operation.[57]
[57]T34
Causation
98Dr Ziabari’s note of 14 August 2013 read:
“pain R knee…
past hx of twsitng injury 7 years ago to the R knee,
sicne then getting pain and swelling of the knee whenver he overdo it ,
works in meat factory ,
pain and sweling few days ,
oe there is mild effusion of the joint , tender lateral aspect of the knee,
? meniscal injury,
for Xray and US , will need assessment by an orthop[a]edic surgeon ,
Rx: Mobic Capsules (Capsule) 7.5 mg [30j - Qty: 1.30 Rpts: 0 - '1 daily with meals prn
Referral: Xray and US R knee [past hisotry of twisting injury fevv years ago,
relapses of pain and effusion of the knee,
the lateral aspect is tender,
? meniscal injury , l - l-Rad.”
(sic)

99On that visit, the plaintiff had no idea that eventually, in 2014, he would not be able to work, otherwise he would have reported a work injury.[58]
[58]T56
100He also did not mention work as he was worried about being fired. That very same doctor told him that he wanted to write down he had a disc injury at work, but the plaintiff did not get that letter, because he did not want to be fired. He was happy to go and get that letter. Dr Ziabari did not note the pain in his right knee was from his work at that time because the plaintiff was still working.[59]
[59]T57
101On 5 January 2015, Dr Ziabari noted “pain lower back and knees areas few days”.
102“Perhaps”, this was the first time the plaintiff told the GP about his back pain. He then agreed this was the first time he had mentioned to the doctor about a sore back. This was a few months after he left work.[60]
[60]T58
103“Perhaps” his solicitors helped him with his Claim Form. He did not have an injury to his right arm or his neck as was set out on the form. He might have had very minor pain.[61] He agreed he answered “no” to any prior injuries. He made no mention of any earlier knee problem. He did not have lower back problems before coming to Australia.[62]
[61]T61
[62] T62
104Mr Widjaja made no mention of a knee problem due to work, because maybe the plaintiff did not tell him.[63]
[63]T63
105When told Mr Hunt noted in his August 2017 letter that the plaintiff fell into a hole with his right knee and made no mention of a work injury, the plaintiff did not know about his rights about work and the injury prior to 2019. When he was going to doctors, he was just explaining he had an injury. Since 2019, he has become aware of his rights, and that he could complain about work injuries. He was told by someone else who was injured at work. Ever since, whenever he went to a doctor he told them about his work-related injuries – “prior to that he didn’t know and therefore he only said he had injuries.”[64]
[64]T64
106“Maybe” that was how he described the incident to Mr Hunt and that was his understanding because he did not have an interpreter – otherwise why would he say “a hole”.[65]
[65]T64 - Mr Hunt’s letter indicated a friend helped facilitate communication
107On 29 January 2019, Dr Mahani noted:
“History:
few years gao ]by 2014
at factory
meat factory
got low back pain
been todl tdomnt put yourself on wc by employers
as they were going to help him
no help happaned
talked to alawyer
been tld needs to go to wc
now asks for that
done lots of tests mri and ct
before/been told wc by previous GP in medical one
also 2016 I referred him due to low back poain for mRI
disx seems to be late
he wants me to puit the date from today
disx need sto take it to laywer
and asked to uodate me as I dont have to bill medicare if there is a claim number.”
(sic)

108When it was suggested that this was the first time the plaintiff had told Dr Mahani about hurting his back at work,[66] he could not recall talking to him about WorkCover. He did not know anything about it until one of his friends came to him.[67]
[66]T65
[67]        T66
109When the plaintiff was leaving the factory, the supervisor gave him a piece of paper. He got him to sign it because he could not work – “So he said I don’t want you to go the ambulance. I don’t want you to go and make a claim or lodge a claim. I didn’t even know what is a claim. And I was wondering why he was asking me not to do something that I didn’t even know what it is … The supervisor has got that piece of paper.”[68]
[68]T67
110When asked whether that conversation with the supervisor made him curious, the plaintiff responded – “To be honest, I didn’t know anything about it.”[69]
[69]T67
Work
111Dr Ziabari certified from 7 November 2014, the plaintiff was unfit for work or study. The diagnosis was “degenerative disease right knee” and as to “date of onset, if known,” the doctor noted “Chronic”. Dr Ziabari gave him a Centrelink certificate, not a WorkCover certificate.[70]
[70]T60
112Dr Lechner was incorrect when she noted he was looking for work with lighter duties in May 2015. However, he was not exactly sure when he stopped working.[71]
[71]        T72
113When read Dr Mahani’s note of 4 February 2017 that he could not get to work because of asthma and required a medical certificate, the plaintiff denied he had worked – “I haven’t worked even a second”. He did not work at all. He did not even look for work because he did not have the capacity to work. He cannot work now because of his lower back and his leg.[72] He did not know anything about MetLife payments when told of a MetLife application signed by him.[73]
[72]T73
[73]T72
114He denied he worked, or had any involvement in, his brother’s business, Cheap Moving Service.[74] That business is now deregistered.[75] He did not work with them, “not at all, even a day”.[76]
[74]T70
[75]        Deregistered on 30 June 2021
[76]T71
115In re-examination, he explained he hurt his back when lifting something heavy at work. Ever since, he has lower back pain, and he underwent an MRI scan because of his pain. He did not have any lower back problems before the factory.[77]
[77]        T74
116The MRI said he had a disc condition, and the doctor said he could not do heavy work. He cannot work because of the pain. He cannot do even light work on a regular, reliable basis because of his back and leg pain.[78]
[78]T74
117He cannot work, having separate regard to his knee and back pain:
“I mean who would give me a light job? Just imagine if I do even light work and I get an onset and it gets aggravated and I cannot continue working, would that employer agree to give me a break and send me home?”[79]
[79]        T75

Plaintiff’s medical evidence
Treaters
Mr Audi Widjaja, orthopaedic surgeon
118Mr Widjaja wrote to Dr Mahani on 1 August 2016 thanking him for referring the plaintiff, who had a painful right knee after a fall four years earlier which had become worse recently with locking symptoms.
119An MRI scan of the right knee showed a lateral meniscus tear, ACL tear, and osteoarthritis of the patellofemoral joint. A lumbar MRI scan showed disc protrusion at L3‑4 and L4‑5 with mild nerve root impingement of left L3 and right L5.
120He thought the plaintiff would benefit from a knee arthroscopy to deal with the meniscus tear because of the locking symptoms.
Mr Justin Hunt, orthopaedic surgeon
121Mr Hunt wrote to Dr Mahani in August 2017, having seen the plaintiff that month. A friend attended to help with communication.
122The plaintiff had two problems, the first being chronic lower back pain and the second a right knee injury. He had had low back pain for many years, which had limited normal activities.
123The plaintiff also described right knee pain and described falling in a hole with his right knee. There was quite significant swelling after the injury and ongoing symptoms.
124Mr Hunt noted the results of an August 2014 MRI scan of the right knee[80] which demonstrated evidence of an ACL deficient knee with a torn lateral meniscus in keeping with the plaintiff’s clinical presentation and findings.
[80]This is the only mention of this MRI scan of which no report is available
125The plaintiff had chronic lower back pain with right leg radicular pain which involved the anterior aspect of the leg without clear evidence of significant nerve root impingement in his lower back, but definitely had degenerative disc disease and facet joint arthritis at L3‑4 and L4‑5 motion segments. In addition to this, the plaintiff had sustained a right knee injury and had an ACL-deficient knee with ongoing symptoms.
126The plaintiff’s back should be treated conservatively. With respect to the right knee, an arthroscopic lateral meniscectomy and possible ACL reconstruction would be an option.
127In April 2018, having re-examined the plaintiff, Mr Hunt advised Dr Mahani that the plaintiff, unfortunately, was having ongoing instability of the symptoms in his right knee associated with giving way. The plaintiff’s knee remained slightly swollen with a positive anterior draw. The plaintiff was keen to proceed with the ACL reconstruction, as the instability of his symptoms was concerning him.
128Mr Hunt summarised these two attendances in his April 2021 report to Zaparas Lawyers. He noted that the plaintiff alluded to the fact that the injury (back) had been made worse by his occupation as a worker in an abattoir.
129Mr Hunt noted that the plaintiff hurt his knee when he fell into a hole while walking at work. The plaintiff advised of some trouble to his right knee when living in Iran, but when there, and when living in the detention centre, he was able to play both volleyball and soccer without difficulty. Since the work-related injury, he was unable to partake in these activities, and even with everyday activities, his knee felt unstable.
130The plaintiff had some pre-existing right knee symptoms prior to his arrival in Australia. However, they did not preclude him from his sporting activities, including volleyball and soccer. Due to the acute injury to his right knee and the repetitive and heavy nature of the work, the plaintiff had become increasingly symptomatic with pain and instability problems. His acute work-related injury and the heavy physical work in the abattoir had been significant contributing factors in the plaintiff’s ongoing disability and incapacity relating to his right knee.
131The acute knee injury caused an injury to the knee with resultant ACL rupture and meniscal tear. The ACL deficient knee injury was then aggravated by the repetitive heavy physical work.
132The plaintiff had been on a public waiting list for over two years for management of his right ACL deficiency. He had also seen another private orthopaedic surgeon for a second opinion.
133The combination of the plaintiff’s back and knee complaint made it difficult for him to walk for more than 20 minutes.
134He diagnosed lumbar spondylosis. He understood the plaintiff sustained an injury to his low back during work which had most likely resulted in an aggravation of pre-existing degenerative changes. The heavy physical repetitive work required in his role as an abattoir worker was likely to be considered a significant contributing factor to his ongoing lower back and leg pain symptoms.
135There was an aggravation of pre-existing degenerative changes in the back. The plaintiff’s work with manual handling, heavy physical work and the repetitive nature of his work, and, in particular, his acute injury while lifting a heavy carcass back onto a hook, resulted in the development of persistent and symptomatic lumbar spondylosis which had persisted despite his ceasing working.
136As a result of the right knee injury alone, there would be significant restrictions on the plaintiff’s employment capacity. That would continue into the foreseeable future without the ACL reconstruction.
137Because of his right knee alone, the plaintiff would not be able to perform the specific pre-injury duties required as an abattoir worker. The plaintiff was only able to perform despatch packer or product assembler roles if work was sedentary in nature, in a sitting position. He could work four hours a day, considering his right knee in isolation.
138Mr Hunt also thought the lower back injury incapacity was significant. The plaintiff did not have the capacity to perform the two suggested jobs, when considering his lower back alone.
139On re-examination in April 2022, he noted the plaintiff had had trouble with low back pain and right knee pain.The plaintiff explained that the right knee was the more problematic and the dominant problem, with significant pain and ongoing instability.
140He explained to the plaintiff it would be reasonable to repeat the knee MRI scan to see if there had been a progression of degenerative change in the lateral compartment and also over the patella, as was seen in previous MRI. He would review the plaintiff with the results of those investigations as soon as possible.
141On further review on 19 May 2022, comparing the investigations, he thought there had been a progression of wear inside the knee, both in the medial lateral and patellofemoral compartments. He explained to the plaintiff, based on the imaging findings, definitive management would be in the form of a knee replacement rather than ACL reconstruction as discussed eight years earlier.
142He was not recommending the plaintiff have this procedure, rather explaining it was an appropriate orthopaedic procedure for tricompartmental arthritis of significance. The plaintiff told him his knee was giving way, and Mr Hunt advised that was partly due to the ACL deficiency and most likely due to wear in his knee.

143He explained to the plaintiff there was no easy solution to the instability symptoms and using a soft brace may be helpful. The plaintiff requested details of the cost for knee replacement surgery.
Dr Mahani, Sunshine City Medical
144Dr Mahani first saw the plaintiff in May 2016.
145He referred the plaintiff to Mr Widjaja in July 2016, advising that the plaintiff had been “having trouble with the right knee and lower back for long”.
146He wrote to Mr Hunt in May 2017 thanking him for seeing the plaintiff, who had “been having problem and pain in [right] knee and also lower back”. He then wrote to Mr Hunt again in March 2018, referring the plaintiff for ongoing care and review regarding his right knee.
147On 7 April 2019, Dr Mahani completed a backdated WorkCover certificate of capacity, certifying the plaintiff had a capacity for suitable employment from 27 February to 27 March that year. The injury was described as low back - work related. He continued to provide this certification throughout 2019 and 2020.
148Dr Mahani signed a MetLife medical statement in February 2021 setting out that the plaintiff suffered from low back pain, which was due to discopathies and degenerative facet joint disease. He also had right knee pain due to meniscal tear and osteoarthritis, depression and anxiety, and severe asthma
149Dr Mahani provided a report to the plaintiff’s solicitors in April 2021, noting he began treating the plaintiff on 24 May 2016.
150The plaintiff was working in a meat factory between 2013 and 2014. His main job was with sheep carcasses hanging on moveable hooks. He had to concentrate and work quickly when carcasses came straightaway after each other. His job was in a process which was required before the next person’s duty in a row.
151The plaintiff had realised such a job could carry a risk of injuries to him or others because of his knee pain “and despite [this] he had explained and asked the supervisor to change his position at work”. Unfortunately, the position change never happened, until one day during his work one sheep carcass fell from the moving hook, and he was about to pick it up quickly in order not to delay the meat processing, and suddenly he felt pain in his lower back.
152Low back pain due to disc herniation is common during lifting and pushing overly heavy items, and the risks of discopathies would increase when lifting and pushing is abrupt, even though the item basically is not heavy for the individual.
153The plaintiff stated he had right knee pain and injury since 2006. However, exacerbation and aggravation of the knee pain was possible once physical activities became repetitive.
154He thought the plaintiff would benefit from a rehabilitation program, physiotherapy, and pain management for his back. Knee surgery had been suggested and may help with the plaintiff’s symptoms..
155As a result of the low back and right knee, the plaintiff was restricted in a range of work-related activities including bending lifting, twisting, stooping et cetera and would have difficulty with prolonged postures. After further surgery and rehabilitation, he may have a greater capacity to do various activities.
156By letter dated 26 April 2021, Dr Mahani referred the plaintiff to Sunshine Hospital Adults Outpatients for investigation and management, noting he had had pain in his right knee for a long time.
157Dr Mahani provided a doctor’s declaration in July 2022, noting the plaintiff had been referred to the Western Hospital for his knee.
158The plaintiff completed a Western Health “Knee Injury and OA Outcome Score” in August 2022 in which he described severe pain on a range of activities.
Ms Jan Sutton, physiotherapist
159Ms Sutton from Western Health saw the plaintiff in July 2022 for his right knee problem.
160She noted the plaintiff had a chronically ACL-deficient knee and denied any history of injury but said his knee problems developed in 2014 working in a factory doing heavy lifting under time pressure, long hours.
161The plaintiff was complaining of “right lateral knee pain and giving way. It may lock, and it swells.”
162In summary, she thought the plaintiff had an ACL-deficient knee with lateral compartment and patellofemoral osteoarthritis. He had weak lower limb muscles and had not yet trialled conservative management.
163In the first instance, she had referred him to physiotherapy at the IPC Community Health Centre in St Albans.
IPC Health - physiotherapy
164The plaintiff was referred for management of his right knee pain and attended IPC Health from 16 August to15 November 2022.
165During that time, he received physiotherapy with the aim of improving range of motion and strength. He was also given a home exercise program. He had had some improvement in his range of movement and capacity to perform sit and stand movement. His strength had maintained at grade 3/5 with pain still being a limiting factor.[81]
[81]Paragraphs 69-70 of this Judgment
Dr Sam Asadi, consultant psychiatrist
166Dr Asadi saw the plaintiff on referral from Dr Mahani in June 2021.
167The plaintiff told him he worked in a meat factory from 2013 to 2015, during which time he developed knee and back pain. He also told him that he had developed panic attacks over the last year and a half, mostly at night, and lasting for 15 minutes. He feared sleeping on his own. Panic attacks rarely occurred during the day.
168On assessment, Dr Asadi thought the plaintiff was suffering from panic disorder which had been plaguing him for eighteen months. Those attacks were precipitated by psychosocial stressors including unemployment, health issues, and missing his family overseas.
169He provided psychoeducation to the plaintiff and discussed his diagnosis and treatment. He provided a follow up appointment.
Investigations
170Following an x‑ray of both knees in August 2014, it was reported there was small right suprapatellar joint effusion, and no other relevant focal bony abnormality.
171An MRI scan of the right knee was undertaken on 10 November 2014. The clinical notes read “chronic right knee pain. Twisting injury two weeks ago. Acute swelling and pain.” It was reported – “ruptured ACL. Torn lateral meniscus. Degenerative change on the patellofemoral joint.”
172Following an MRI scan of the lumbar spine in February 2015, it was reported there was left-sided L5 spondylosis. There was a small paracentral L4‑5 disc protrusion without significant neural compression. There was a left posterolateral annulus tear at L3‑4 and some degenerative facet joint degeneration at L4‑5.
173A further lumbar MRI scan in September 2016 was reported to show degenerative facet joint disease at L4‑5 and L5‑S1. There was a small disc protrusion and flattening of the thecal sac at L4‑5. There was a left posterolateral annulus tear at L3‑4, and partial left L5 spondylosis.
174An MRI scan of the right knee in May 2022 was reported to show tearing of the lateral meniscus. This was associated with some full thickness ulceration of articular cartilage over the lateral tibial plateau. There was minor fraying of articular cartilage over the medial femoral condyle. There was an old ACL rupture and Grade 4 degenerative change in the patella.

Medico-legal evidence
Mr Mohammed Awad, neurosurgeon and spinal surgeon
175Mr Awad examined the plaintiff in December 2018. He examined the plaintiff’s knees and back but only reported on his back condition.
176The plaintiff’s symptoms then were constant low back pain and right leg sciatic pain. He also had right knee pain, different to sciatica, and had a collapsing leg as a result of this on mobilising.
177The plaintiff’s past medical history was non-contributory for any previous lumbar spine injuries or any symptoms suggestive of a pre-existing lumbar spine condition.
178The plaintiff described himself prior to injury as enjoying volleyball on a regular basis with friends, and said he used to socialise more.
179He thought the plaintiff presented with aggravation of lumbar spondylosis. Taking into account the nature of his repetitive and heavy workplace activities, he thought the plaintiff’s employment most likely had been a significant contributing factor to aggravation of his lumbar spondylosis, and his employment remained a significant contributing factor to his ongoing pain, disability, and requirement for treatment.
180In his current state, the plaintiff did not have the physical capacity to undertake pre-injury work. He did, in theory, have some physical capacity to undertake extremely sedentary work for several hours a day, several days a week, if a suitable job was available; but in practice, taking into account his age, education, training et cetera, and limited English, and the severity of his work-related lumbar spine condition, it would be unlikely he would be able to procure any suitable employment, and if he did, it would be unlikely he would be able to carry it out in a reliable and consistent fashion.
181The plaintiff was theoretically fit for alternate light duties in the form of a maximum two to three hours a day, for a maximum two to three days a week, with restrictions on any pulling, pushing, lifting, bending, twisting, repetitive lumbar spine movement, or any occupation that required working for more than 15 to 20 minutes without any intermittent breaks. He required further treatment in the form of a formal opinion from a spinal treatment specialist as well as a pain management specialist.
182The prognosis was that the plaintiff was likely now to continue to suffer from some degree of pain and disability into the foreseeable future.
183On re‑examination in January 2021, the plaintiff’s symptoms were an increase in constant lower back pain. Right leg sciatic pain remained constant and severe, and there was a new onset left leg pain that started in the last year.
184As a consequence of the back injury alone, he did not believe the plaintiff had a realistic capacity to perform the suggested vocations of despatch packer/clerk or product assembler.
185His opinion remained unchanged from his earlier report.
Mr Siva Chandrasekaran, orthopaedic surgeon
186Mr Chandrasekaran examined the plaintiff in September 2019.
187The plaintiff said he injured his lower back and right knee while working in an abattoir, stripping and hanging carcasses. He developed those symptoms in early 2015 after working for twenty-seven months. During that time, he was lifting meat when he developed sharp pain in his lower back, radiating down his legs.
188The plaintiff advised that he had a previous injury to his right knee approximately six years ago but his work exacerbated his symptoms.
189On examination, the plaintiff complained of low back pain with numbness and tingling down his left and right lower limbs to the ankles. This was associated with giving way of the right knee. He also described pain and instability in his right knee. He had difficulty bending, kneeling and squatting. The knee gave way with pivoting motions.
190The plaintiff had not been able to return to work since early 2015 due to lower back and knee symptoms. In terms of his functional profile, he was unable to drive and unable to perform activities of daily living such as house cleaning and shopping, and was reliant on his brother for these activities.
191The diagnosis was lumbar spine spondylosis and right knee chronic ACL rupture with torn lateral meniscus and degenerative change in the patellofemoral joint.
192It was possible that the repetitive nature of his heavy work exacerbated his lumbar spine spondylosis. However, given the twenty-seven months since he had worked in the abattoir, it was difficult to quantify the extent of this exacerbation.
193There appeared to be a chronic ACL tear which possibly may have happened six years ago. The repeated bending, pivoting and lifting activities may have potentially exacerbated the knee symptoms, leading to a meniscal tear, patellofemoral degeneration, but it was difficult to quantify this.
194It was difficult to know the exact contribution of work to these two pathologies.
195With respect to the lumbar spine, manual labouring and lifting may be a significant contributing factor. Without any obvious traumatic incident to the knee accounting for the ACL tear, it was difficult to quantify the contribution of the employment to the right knee symptoms.
196As a consequence of his injuries, the plaintiff did not have a capacity to perform pre-injury duties. He could not perform any domestic duties or driving and would therefore have difficulty performing manual labour orientated tasks. He would be more suited to a sedentary office role but given his limited educational capacity and qualifications, this would be difficult to procure.
197On re-examination in March 2021, the plaintiff described constant low back pain ranging from 2-9/10. He described pain and instability in his knee.
198The diagnosis was unchanged.
199He thought the repetitive nature and heavy lifting associated with the plaintiff’s employment in an abattoir had been a significant contributing factor to his lumbar spondylosis. The repetitive bending and lifting had exacerbated his knee injury, leading to a degenerative change within the patellofemoral joint and meniscal tear.
200The condition was entirely consistent with the stated cause and employment had been a significant contributing factor to the aggravation of lumbar spondylosis and right knee pain and instability.
201The plaintiff did not have the capacity to perform his pre-injury duties as he had difficulties sitting and lifting and required help with activities of daily living. Given his educational status, it would be difficult for him to procure any suitable duties. His incapacity for work was likely to be long term.
202He recommended the plaintiff see an orthopaedic surgeon for his right knee problems and a spinal surgeon for his spinal injuries. He may require surgery for his right knee in the form of an ACL reconstruction or an arthroscopy to at least debride his torn meniscus. He also may benefit from an outpatient pain management program.
Dr Joseph Slesenger, occupational physician
203Dr Slesenger examined the plaintiff in March 2021.
204The plaintiff advised that he was working at Missis Abattoir in Sunshine full time, working from 6.00am to 3.30-4.00pm Monday to Friday. The company specialised in sheep and goats, which could weigh up to 60 kilograms.
205He was working on the kill floor and was required to manoeuvre carcasses on and off the hook racking system. He was also required to strip the carcasses of their skin. In addition, he also worked as a general cleaner when working overtime. He would process up to 7,000 carcasses a day.
206On the day of injury, the company was short-staffed. When manoeuvring a ram which weighed up to 60 kilograms, he developed immediate and severe low back pain radiating into his right leg. He reported the injury but remained at work.
207The plaintiff had a pre-existing right knee impairment, which was disclosed to his employer prior to starting work. During the course of his employment, he had intermittent mild to moderate right knee pain, although he was able to remain at work despite his ongoing symptoms.
208During the course of his recovery from his lumbar spinal impairment he was allocated to cleaning tasks, during which his right knee pain deteriorated, and he was struggling to walk. As a result, he ceased employment due to a combination of his back and right knee pain.
209On examination, the plaintiff reported residual mild to severe pain centred in the lower back, radiating into the right leg. The level of pain ranged between 3 to 9. His right leg was weak and gave way, and there was sensory loss in the right calf and right foot.
210The plaintiff had residual right knee pain, swelling, stiffness and restricted movements. He had been seen by an orthopaedic surgeon who had recommended he undergo a right knee arthroscopic repair, although he had been unable to afford treatment under the care of the private sector and had been allocated to the public sector.
211The plaintiff advised he had had depression and anxiety.
212Right knee pain developed when he was living in Iran around 2009.
213Dr Slesenger concluded the plaintiff presented with a history of lower back pain and right knee pain developing during the course of his employment while working as an abattoir worker. He injured his back during the course of employment whilst lifting a 60‑kilogram carcass onto a chain.
214His right knee pain pre‑dated his employment and was first noticed around 2009 prior to moving to Australia, but he had been able to commence work and passed a pre-employment medical. His symptoms deteriorated in the course of his employment, particularly while doing alternative cleaning duties.
215Dr Slesenger diagnosed a soft tissue injury of the lumbar spine and aggravation of degenerative disease, and chronic lower back pain with right leg radiating pain and equivocal evidence of radiculopathy. There was a pre-existing soft tissue injury to the right knee with chronic right knee pain with evidence of an ACL rupture.
216He was satisfied the lumbar spinal impairment related to the injury under consideration, noting the mechanism of the accident and the pre-injury job demands. He was also satisfied that the employment was causal with regard to aggravation of pre-existing right knee impairment, although noting it would be useful to have access to pre-injury and post-injury clinical records.
217He imposed a push, pull, carry or lift limit of 5 kilograms and other restrictions. He did not anticipate those would continue indefinitely, as the plaintiff was awaiting right knee surgery, and he anticipated improvement.
218Based on the right knee alone, the plaintiff could not return to his pre-injury role, as the job demands lay outside his capacity limits: in particular, the requirement to stand, repetitively bend and twist, and to squat and lift weights of up to 60 kilograms.
219Dr Slesenger noted in detail the physical demands of the despatch packer/clerk role. He thought the plaintiff did not have the literacy skills and computer skills to perform this role. He had no experience with the role, and the job demands were likely to lie outside his capacity limits. In addition, he was unlikely to be able to attend work consistently and reliably.
220The role of product assembler required the plaintiff to maintain static postures for prolonged periods. Some of the workstations were unlikely to allow workers to be able to adjust between sitting and standing. These tasks lay outside the plaintiff’s capacity limits. In addition, the plaintiff was unlikely to be able to attend work consistently and reliably.
221In relation to the low back injury alone, Dr Slesenger imposed similar restrictions and held a similar view.
222He thought the plaintiff would benefit from further treatment and should be referred to a pain specialist and may require treatment under the care of a neurosurgeon, but he was cautious with regard to the plaintiff’s likely response to treatment.
Other documents
Claim Form
223An undated and unsigned Worker’s Injury Claim Form set out:
“Low back with referred pain all the way down my legs. Right knee. Right arm. Neck.”

224In terms of what happened and how the plaintiff was injured, it was stated:
“Throughout the course of my employment whilst undertaking my usual duties as a meat process worker which involved fast-paced, strenuous and heavy lifting of meat.
Doing usual duties when injured.”

225Left unanswered was the question, “Have you previously had another injury/‌condition or personal injury claim that relates to this injury/condition?”
226Another version of the Worker’s Injury Claim Form dated 20 January 2019 and unsigned, also included the word “No” to the question “Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?”
Defendant’s evidence
Dr Lechner, psychologist
227Dr Lechner reported in May 2015, having carried out a psychological assessment of the plaintiff for the purposes of his upcoming trial for possession of a controlled drug (opium), the offence having occurred in November 2014.
228She described in detail the plaintiff’s personal background including torture when being interrogated by the police in Iran. His knee was badly injured as a result and, having received no medical attention, used opium he dissolved in water for pain relief.
229She also noted that in May 2012, the plaintiff began working at a meat factory in Glenroy. He worked there for two years, nine hours a day, despite the immense pain that this caused his leg. His doctor advised him to stop work and, since August last year, he has been in receipt of the Newstart allowance. He is looking for work with lighter duties. He has not attended more than two weeks of the language course as he was keen to work and in light of his long hours, was too tired to study.
230The plaintiff acknowledged the use of opium and made no attempt to shirk responsibility. He told one of his friends who had returned about his knee pain. At the time, he was working and, after 6-7 hours, his knee would jus swell. He wanted to go back to Iran for an operation but his friend warned him the situation was bad. Tramadol was upsetting his stomach and his friend offered him natural medicine which the plaintiff realised was opium.
Medico-legal
Associate Professor Bruce Love, orthopaedic surgeon
231AP Love examined the plaintiff in February 2019. He was asked his opinion whether a diagnosable injury had been sustained in relation to the claimed low back, right knee, right arm and neck injuries and if they had been caused by the claimed circumstances.
232In terms of history, the plaintiff stated that in late 2014, he developed low back pain which he attributed to the heavy nature of his work. He reported this to his employer and was given alternative duties but ultimately ceased work in the third or fourth month of 2015.
233On examination, the plaintiff complained of lower back pain radiating to the right leg, with numbness in the foot and toes of the right leg. There was episodic giving way and pain in the right knee.
234On clinical examination, there was tenderness in the lumbar spine and limited movement. There was some irritability and tenderness on flexion of the knee but the knee was stable.
235He thought the plaintiff had degenerative disc disease of the lumbar spine and the heavy nature of his work could reasonably be assumed to have contributed to his symptoms.
236It was almost three years since the onset of symptoms and ceasing work and he was unable to explain why a more active treatment program had not been put in place for the plaintiff such as physiotherapy and exercises.
237The presenting symptoms were pain in the low back with pain and sensory disturbance radiating through the right leg.   There was instability in the right knee.
238He diagnosed lumbar disc disease, aggravated by the nature of work. It was reasonable to accept the physical nature of the plaintiff’s work in an abattoir could be considered responsible for his condition.
239It was probable that the desiccation that was observed in the intervertebral discs in the lower lumbar spine predated the onset of symptoms in late 2014.
240The plaintiff did not have a capacity for his pre-injury duties or alternative duties. The incapacity was likely to continue into the foreseeable future and changes in symptoms would only result if a more active treatment program was put in place.
241In order for the plaintiff to achieve a full return to work, a significant reduction in his symptoms would be required.
Dr Anthony Menz, consultant orthopaedic surgeon
242Dr Menz first examined the plaintiff on 22 October 2019.
243The plaintiff who worked in an abattoir skinning carcasses sustained a gradual injury to his back and right knee which culminated in severe pain in about 31 January 2015 when he ceased work.
244The plaintiff initially said he felt some low back pain after about nine months of work, and it just got worse. Despite him saying he had never had any problems with his right knee, there was strong evidence that he saw his GP in 2013 and reported a twisting injury seven years earlier. A November 2014 MRI scan showed a chronic rupture of the ACL.
245The plaintiff rated his back pain on a good day as 3-4/10, and on a bad day 7-8/10. He said his knee gave way on a regular basis, two to three times a day, one to two times a week. He would rate his knee pain at 10 out of 10, but it did not appear to be that bad on examination.
246The plaintiff was booked in for surgery and was currently on a public waiting list in regard to his knee.
247His walking distance was about 10 to 15 minutes, and his sitting timeframe was similar. He could not do any of the domestic chores. His brother did all of them.
248He concluded the plaintiff sustained a gradual onset of back pain working in an abattoir in January 2015 and had chronic complaints of low back pain since.
249The plaintiff injured his right knee several years prior to the onset of back pain in 2015 and continued to have significant right knee problems associated with an unstable as a result of a ruptured ACL. All of his knee problems predated the back problems from Cedar Meats.
250Dr Menz thought there was some exaggeration in relation to the plaintiff’s back, and certainly there were non-pathological clinical findings consistent with Waddell criteria. His knee symptoms were consistent with the pathology found within his knee joint, but all his knee problems pre‑dated the injury in question.
251Dr Menz did not think that employment was still a significant contributing factor with regard to the plaintiff’s back, and his knee was certainly not related to his employment with Cedar Foods. His employment did not continue to materially contribute to the injury.
252Certainly, the plaintiff probably did not have the physical capacity to undertake his pre-injury work because of his ongoing back problems and his not insignificant right knee instability and pain.
253He thought it was appropriate the plaintiff was on the waiting list for knee surgery. He did require back surgery.
254Dr Menz reported in July 2020, having had the opportunity to review the plaintiff’s surveillance video, which showed no evidence of pain whatsoever. The plaintiff walked very quickly over long distances, was carrying shopping purchases, and at one stage, jogged across the road.
255The surveillance indicated to him that the plaintiff has very few knee or back problems and moved quite easily, rapidly and normally. He had no doubt the plaintiff had the physical capacity to undertake physical requirements of the jobs identified.
256On re‑examination on 23 February 2021 on Zoom, the plaintiff indicated his back and right knee symptoms were much worse. He found a short walk created a lot of pain throughout his body.
257On examination, the plaintiff continued to display significant non-pathological signs to examination of his back and his knee. There was no doubt he had a significant functional component associated with his ongoing back and knee symptoms, referring back to his comments on the earlier film.
258The diagnosis was lumbar spondylosis which pre‑dated the injury in question, and any mild soft tissue injury sustained at the abattoirs would have resolved by now. With regard to his knee, and it was well documented, the plaintiff had pre-existing ruptured ACL associated with degeneration in his knee.
259Dr Menz believed it quite possible the plaintiff’s pre-existing right knee and lower back conditions could have incapacitated him for work in any event.
260He thought the plaintiff had the capacity to undertake lighter duties. The prognosis was very poor, as it was six years since he had ceased work and he had not returned to any work since. He continued to complain of increasing back pain with modest lumbar spondylosis.
261He did not believe the plaintiff’s previous employment continued to materially contribute to the injury. Mr Hunt did not think further knee surgery was appropriate.
262The physical injuries which resulted from work were minor and should have resolved within six to twelve weeks. There was a pre-existing injury in which the plaintiff tore his ACL.
263There was a further examination in September 2022.
264The plaintiff then rated his low back pain as 9 out of 10 and his knee pain as 8. He advised his pain had worsened since the last examination. He was taking Tramadol and Panadol on a regular basis.
265The plaintiff continued to display significant non pathological signs on examination of his back and knee.
266The diagnosis was lumbar spondylosis which predated the injury in question. Any mild soft tissue injury sustained at the abattoirs would have resolved by now. He had a well documented pre existing ruptured ACL associated with degeneration in his knee.
267The plaintiff was capable of undertaking suitable employment. He had the physical capacity to perform the requirements of the jobs suggested in the December 2022 vocational report because the physical injuries which have resulted from his employment are minor and should have resolved within six to twelve weeks and there is a pre-existing knee injury in which he tore his ACL.
Mr Rodney Simm, orthopaedic surgeon
268Mr Simm first reported on 4 November 2020. He did not examine the plaintiff but provided his opinion based on the medical records, affidavit material, sentencing remarks and surveillance investigation reports.
269After reviewing the medical records and summarising the plaintiff’s medical records, he diagnosed a chronic right knee pain in the settling of longstanding rupture of the ACL and a tear of the lateral meniscus.
270In relation to the lumbar spine, he noted the MRI scan showed commonly found multilevel changes, which would be quite common in the asymptomatic general population. These changes may have predisposed the plaintiff to back pain and referred pain into the legs, but he could not verify this. There was no evidence of neural compression and neurological examination was recorded as normal.
271He believed the plaintiff did not suffer an injury to his right knee in the course of his employment likely to cause or aggravate a rupture of the ACL of the knee. There was an incident in late 2014 when his right knee gave way. This episode was consistent with the fact that he had an ACL deficient knee, which rendered him prone to this incident. The chronic pain may have been exacerbated by the physical demands of his employment, but this would only cause a temporary exacerbation of pain from the pre-existing pathology.
272As far as he could determine, the last pay period ended 5 August 2014 and the plaintiff had not worked since. The reason given for ceasing work in the GP’s notes was severe right knee pain. The notes did not record the need for the plaintiff to undergo modified work duties. He presumed the plaintiff continued with his heavy physical work until he resigned or left work on 5 August 2014.
273He was asked his opinion regarding the natural course of the plaintiff’s pre-existing back and right knee conditions without the effects of his work duties.
274The plaintiff had severe, chronic, right knee pain aggravated by activity when he came to Australia and before starting work. That was given as the reason that he required opium. The fact his right knee was pre-existing was recorded in the GP’s notes in 2013. Therefore, in the absence of the heavy physical demands of his work, the plaintiff would have continued to have chronic right knee pain and the potential for episodes of giving way of the right knee because he had an ACL deficient knee.
275He attended the GP on 27 August 2014 complaining of bilateral knee pain for a long time, but recently worsening. He did not report specifically work-related aggravation of the pain, nor any incident from work. Whether or not the plaintiff ceased work in August 2014 or early 2015 did not make any difference to the chronic right knee symptoms. There was also a lack of reference to any work-related back pain.
276He thought the plaintiff’s pre-existing condition was the sole contributing factor to his ongoing right knee pain. He had some difficulty determining the exact nature of his low back pain and thought it may relate to degenerative changes on the MRI, but it may also be non-specific back pain which is a common clinical symptom.
277He would not be confident that surgery would help the right knee symptoms. The severity of chronic right knee pain and the claimed requirement for such strong analgesia would be a negative factor for a satisfactory outcome. An ACL reconstruction is done to address knee instability, not chronic pain. An arthroscope may be appropriate for mechanical symptoms of catching or locking, as Mr Widjaja said, and he agreed that an ACL reconstruction was not indicated. The November 2014 episode was not a further injury, but an episode of giving way due to the chronic pre-existing ACL deficiency.
278He carefully perused the file material and could not find any evidence the plaintiff sustained an injury to the right knee or back at work. There was some indication that activity-related right knee pain, which was pre-existing, was aggravated by the strenuous work duties, but the plaintiff had had these symptoms prior to employment, and on cessation of employment, the work-related increased levels of pain would cease. He could not find any evidence of work-related back symptoms in the contemporaneous material.
279He thought the plaintiff had the physical capacity to undertake the suggested occupations in the vocational report of 19 June 2020 of product assembler and despatch packer clerk.
280He did not have a clear understanding of the plaintiff’s symptoms other than the affidavit. He presumed surgery, in the form of an arthroscopy, had not been done. What the plaintiff deposed to in his affidavit was considerably more than one would expect with an unoperated lateral meniscus in association with a chronic ACL deficient knee. There was a poor relationship between MRI scan changes and back symptoms.
281Considering the plaintiff’s past history, it was likely that non-organic and/or psychological factors were contributing to pain and injury amplification.
282Mr Simm provided a further report on 16 November 2020 after having reviewed the Foundation House and Medical One Sunshine records. He also read the GP consultation records and the report of the November 2014 MRI scan of the right knee.
283The Foundation House records described the torture in Iran. The plaintiff suffered a knee/twist injury primarily when forced to keep his eyes closed and he fell downstairs leaving the interrogation room. This also caused a disc injury and chronic pain.
284Following this review, Mr Simm confirmed his earlier opinion that the plaintiff suffered a significant injury to his right knee in the past, which caused an ACL tear and possibly the lateral meniscus tear. He had chronic knee symptoms from then on.
285He thought the plaintiff’s chronic lower back pain pre-dated the period of employment with the employer and became problematic again after he cased work.
286He could find no evidence in the file material that either the right knee or the back condition was materially contributed to by the injury when asked whether employment continued to materially contribute to the injury.
287On 25 March 2021, Mr Simm was provided with Mr Awad’s January 2021 report and the Department of Immigration and Detention records.
288The history provided by the plaintiff to Mr Awad did not mention previous lumbar spine injuries, which was not consistent with the information he was provided with. Mr Awad concluded that the heavy and repetitive workplace activities were a significant contributing factor to the aggravation of degenerative changes in the lumbar spine and remained as such. However, he thought that the opinion was not supported by any contemporaneous documentation and overlooked the past history of a significant back injury in 2006.
289The additional information did not alter his opinion.
290Mr Simm noted surveillance video obtained in October 2019 showed the plaintiff walking briskly, faster than an average walking pace, and to jog on one occasion and to carry shopping bags.
Dr Anthony Kam, consultant radiologist
291Dr Kam reported in December 2022, commenting on the radiological findings in relation to the plaintiff’s right knee and lumbar spine.
292He thought the radiological changes of the lumbar spine were consistent with longstanding degenerative spondylosis, unrelated to trauma.
293The radiological changes of the right knee were consistent with prior trauma likely sustained prior to arriving in Australia. Tearing of the ACL was consistent with prior trauma, sustained prior to arriving in Australia. Tearing of the lateral meniscus was consistent with prior trauma sustained at the time of the ACL injury and or the sequelae of degenerative change following the ACL injury. Cartilage loss of the lateral patellar facet was consistent with degenerative change.
294Clinical information available indicated the plaintiff had a history of a prior ligamentous tear at the right knee (presumed the ACL), and pre-existing right knee symptoms prior to arriving in Australia.
295A right knee MRI scan taken following arrival in Australia documented disruption of the ACL, lateral meniscus, and osteoarthritis at the patellofemoral joint. It seemed likely that the ACL ligament tear predated the plaintiff’s arrival in Australia.
296A review of the pre-arrival radiological imaging and medical records was warranted.
297He was unable to determine when the lateral meniscus tear occurred, whether it was a result of an injury to the meniscus or whether it was part of the degenerative change that follows tearing of the ACL. The patellofemoral joint osteoarthritis was likely constitutional and unrelated to trauma.
298In relation to the lumbar spine, disc contour change, annular fissuring and facet joint arthritis represented common radiological findings often seen on imaging in people around forty. In the absence of the work injury, it was likely that the plaintiff would have had the same radiological appearance at the lumbar spine. In the absence of the alleged work injury, such radiological changes were expected to progress with time and age.
299Following disruption of the ACL, the knee was at a significantly higher risk of developing meniscal tearing and osteoarthritis. The risk was especially high in the setting where the ACL tear had been treated without ligament reconstruction. Had the lateral meniscal tear occurred together with the initial ACL, the plaintiff was at an even higher risk of knee joint osteoarthritis.

372Having reached this view, he could find no evidence in the material that either the right knee or lower back condition was materially contributed to by the work injury.
373He believed the plaintiff did not suffer an injury to his right knee in the course of his employment likely to cause or aggravate a rupture of the ACL of the knee. The giving way episode in late 2014 was consistent with the fact that he had an ACL deficient knee, which rendered him prone to this incident. The chronic pain may have been exacerbated by the physical demands of his employment, but this would only cause a temporary exacerbation of pain from the pre-existing pathology.
374When Dr Menz examined the plaintiff in October 2019, he thought the plaintiff’s knee certainly was not related to his employment with the employer, noting that the right knee injury problems pre‑dated the injury with the employer and he had a ruptured ACL and a tear of the lateral meniscus.
375The focus of medical treatment in detention and prior to starting work with the employer was on the recurrent dislocations or subluxations of the right knee and the suggestion of surgery – not cruciate repair or reconstruction, replacement – on the mainland for that condition “if” he got there.
Findings
376There is no evidence that, having arrived in Australia having been granted resident status, the plaintiff made any complaint of knee pain to a general practitioner until August 2013.
377When he commenced work with the employer in May 2012, he passed a pre-employment medical.[127]He then undertook, without any medical restriction, heavy manual work in the abattoir lifting carcases and performing other manual duties as a meat worker.
[127]History to Dr Slesenger
378As Dr Slesenger reported in March 2021, during the course of his employment the plaintiff had intermittent mild to moderate right knee pain, although he was able to remain at work despite his symptoms.
379He was clearly able to work for over a year with his pre-existing knee problem, and there is no suggestion that any other activity in which he was engaged caused a worsening of that problem leading him to see Dr Ziabari in August 2013.
The duties
380As Dr Slesenger and the expert vocational assessor detailed the plaintiff’s hours and duties with the employer.
381The plaintiff worked full time, working from 6.00am to 3.30-4.00pm Monday to Friday. The company specialised in sheep and goats, which could weigh up to 60 kilograms.
382The plaintiff was working on the kill floor and was required to manoeuvre carcasses on and off the hook racking system. He was also required to strip the carcasses of their skin. In addition, he also worked as a general cleaner when working overtime. He would process up to 7,000 carcasses a day.
383Dr Slesenger’s history was that on the day of injury, the company was short-staffed. When manoeuvring a ram which weighed up to 60 kilograms, the plaintiff developed immediate and severe low back pain radiating into his right leg. He reported the injury but remained at work. The vocational assessor also detailed the incident with the carcass in November 2014.
384I accept, because of the heavy nature of this work, the plaintiff’s knee pain increased and he ultimately sought medical attention in August 2013, having been engaged in these duties for seventeen months.
385I accept that there is a link to work in the August 2013 note, as there would be no other reason for Dr Ziabari to mention the plaintiff working as a meat worker if that was not somehow relevant to the plaintiff’s complaints of knee pain.
386Had the plaintiff had a significant knee injury in May 2012, the plaintiff would not have been able to work in this heavy job at all, let alone for seventeen months. The heavy nature of this work was not in dispute.
387The first investigation of the plaintiff’s knees was the x-ray in August 2013. The most significant findings were reported on the November 2014 MRI after a twisting incident noted by the doctor, and in the clinical note to the MRI. It was then reported there was a ruptured ACL, torn lateral meniscus, and degenerative change in the patellofemoral joint.
388Although the date on which the plaintiff ceased work is unclear, as there are limited records from the employer, it seems likely he did not work beyond November 2014.
389While Dr Ziabari then gave him a Centrelink certificate and continued to do so, he did note the twisting injury a couple of weeks earlier. There is no evidence of any event, other than work, that could have caused this knee injury.
390Although he did not mention a work connection, Dr Ziabari recorded complaints of increasing knee pain from August 2013.
391While Dr Mahani, who took over the plaintiff ‘s care in 2016, did not link the plaintiff’s knee complaints to work in his notes, in his report he noted the plaintiff told him he had right knee pain and injury since 2006, however exacerbation and aggravation of the knee pain was possible once physical activities became repetitive.
392Mr Hunt only saw the plaintiff twice – in August 2017 and April 2018. The first history, with the help of a friend, was the plaintiff hurt his knee when he fell down a hole.
393While Mr Hunt later had the inaccurate history of the plaintiff having suffered a knee injury when he fell down a hole and twisted his knee at work, he thought the acute injury and also the heavy and repetitive nature of the plaintiff’s work were significant contributing factors to the plaintiff’s ongoing disability and incapacity relating to his right knee.
394The plaintiff explained that he initially did not mention to examiners that his knee pain was work related because he was then still working. He was also scared he would get the sack if he complained at work.
395The plaintiff’s evidence was he did not know about any WorkCover rights until 2019 when he did something about it, seeing a solicitor and putting in a claim which was initially rejected. It was subsequently settled in February 2020 with payment of 26 weeks’ compensation. The date of injury in the insurer’s correspondence was 1 November 2014.[128]
[128]Letter from insurer dated 3 March 2020 – paragraph 463 of this Judgment
396Dr Slesenger thought the employment was causal with regard to the aggravation of his pre-existing right knee impairment. He thought it would be useful to see the plaintiff’s pre-injury clinical records in order to confirm his pre-injury status, the plaintiff having advised that he had a pre existing knee impairment
397Mr Chandrasekaran initially thought there appeared to be a chronic ACL tear which possibly may have happened six years ago. The repeated bending, pivoting and lifting activities may potentially have exacerbated the knee symptoms, leading to a meniscal tear and patellofemoral degeneration, but it was difficult to quantify this. Without any obvious traumatic incident to the knee accounting for the tear, it was difficult to quantify the contribution of employment to the right knee symptoms.
398Following re-examination in 2021, having been told by the plaintiff that despite his previous knee injury, the plaintiff was able to perform all his duties when he commenced work, Mr Chandrasekaran thought the repetitive bending and lifting at work had exacerbated his knee injury, leading to a degenerative change within the patellofemoral joint and meniscal tear. In terms of causation, he thought the condition was entirely consistent with the stated cause, and the plaintiff’s employment had been a significant contributing factor to his right knee pain and instability.
399Taking into account all the evidence, I am satisfied the plaintiff suffered a compensable injury to his right knee, an aggravation of his pre-existing knee condition and or an ACL rupture and ligament damage as first shown on the November 2014 MRI, due to the heavy nature of his work duties with the employer.
400In this context, it is significant that the plaintiff was able to work for over a year despite his subluxation/dislocation problem until the heavy nature of his duties at work aggravated that condition and ultimately he was unable to continue working.
Pre-existing knee condition
401In this case, where there is a pre-existing knee condition, I must consider what the evidence discloses as to the plaintiff’s prior knee condition and determine whether the additional impairment resulting from his work in the period of employment is serious and permanent.
402In Petkovski v Galletti,[129] 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. …”
[129]Supra
403The plaintiff was able, despite multiple dislocations in the past, to do heavy manual work until late 2014 when that situation changed significantly and he was no longer able to work.
404In the early days of working for the employer, the plaintiff did not require any medical treatment for his knee or painkilling medication. Mobic was first prescribed for knee pain in August 2013.
405The records establish there was no pre-existing knee or back pain troubling the plaintiff to cause him to complain to his doctor while he was working at the start.[130]
[130]T110
406As counsel for the plaintiff submitted, whatever the plaintiff was like before, he stopped working after being with the employer. He might have had a problem before, but it was not preventing him doing hard work as an abattoir worker.[131]
[131]T112
407The November 2014 MRI was the first investigation to show an ACL rupture and ligament damage.
408In relation to those findings, In 2016, Mr Widjaja advised arthroscopic surgery which the plaintiff could not afford to undertake. Because of ongoing knee problems, he was referred to Mr Hunt in 2018, who initially advised ACL repair but because of later worsening when seen in May 2022, thought a total knee replacement was the appropriate treatment.

Present situation
409The issue then is, is there an ongoing contribution from any work-related knee injury to the plaintiff’s current presentation?
410I accept there is an ongoing material contribution as the medical examiners relied on by the plaintiff have opined.
411In terms of the defendant’s case, Dr Menz having found the ACL was pre-existing, thought the plaintiff’s employment did not continue to materially contribute to the injury. There would have been an aggravation for six to twelve weeks, and no ongoing material contribution. He provided no path of reasoning for this view.[132]
[132]T117
412Mr Simm, who also thought the ACL rupture predated employment, finally conceded a temporary aggravation, but there was no longer any material contribution. Again, he gave no path of reasoning for this view.
Consequences
Pain
413As Maxwell P said in Haden Engineering[133] the evidentiary basis of the pain assessment would ordinarily comprise, inter alia:
(a)   what the plaintiff says about the pain;
(b)   what the plaintiff does about the pain (example medication, rest, seeking medical treatment)
[133](Supra) at paragraph [11]
(a)    Pain
414From August 2013, the plaintiff has continued to report ongoing right knee pain with flare ups and swelling. His knee gives way and tends to be generally weak. He has difficulty walking long distances.
415When he first saw Mr Hunt in August 2017, his complaints were of significant knee pain and instability. Five years later, when he saw Ms Sutton at Footscray Hospital, this situation continued with pain, giving way, locking and swelling.
(b)    Treatment
416The plaintiff has been under care of general practitioners since August 2013.
417He continues to be prescribed Nurofen and Panadol prescribed by Dr Mahani. It seems he was using opium in late 2014 for pain relief as he was allergic to Tramadol which had prescribed. Tramadol has also been prescribed more recently. [134]
[134]August 2020
418In Kelso v Tatiara Meat Company Pty Ltd,[135] Dodds-Streeton JA said, at paragraph 199:
“.. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[135](2007) 17 VR 592
419The plaintiff was referred to specialist, Mr Widjaja, in 2016, and Mr Hunt, initially in 2018 and most recently in May last year.
420Initially, Mr Widjaja advised an arthroscopy was appropriate. In 2018, Mr Hunt recommended an ACL repair and, more recently, with a worsening of the plaintiff’s condition, thought a total knee replacement was an appropriate procedure for his current condition.
421Dr Menz thought ACL reconstruction surgery was reasonable, but noted a large functional component, and the outcome for surgery would be less predictable than for someone with better motivation. Mr Simm would not be confident that surgery would help the right knee symptoms, although an arthroscope may be appropriate.
422The plaintiff has undergone physiotherapy, most recently in 2022 after Dr Mahini referred him to Western Hospital who, in turn, referred him to IPC, where he last had treatment in November last year. There is some uncertainty why that treatment ceased, with the plaintiff explaining his sessions had run out and IPC reporting the plaintiff ceased treatment as he was fixated on replacement surgery – a situation the plaintiff denied.
423The plaintiff’s knee pain and restrictions continue despite conservative treatment to date.
Consequences
Work
424In terms of any work consequences claimed, counsel for the defendant submitted there is nothing much wrong with the plaintiff, as the film showed.[136] Further, the histories “are all over the place” as to when he ceased work.[137]
[136]T103
[137]T93
425It seemed the likely date of cessation of employment was November 2014, when Dr Ziabari provided a Centrelink certificate, which was significant.[138] The defendant queried whether the plaintiff had in fact worked or looked for work since ceasing work with the employer, noting Dr Lechner’s report and suggesting the plaintiff had some involvement in his brother’s business.
[138]T93
426In any event, it was the defendant’s case the plaintiff had the capacity to do the suggested jobs and work the hours where he would not suffer the requisite 40 per cent loss.
427Counsel for the plaintiff’s submissions were brief. It was submitted “on any view of it, the plaintiff has lost a job he would otherwise have”.[139]
[139]T119
428Most medical examiners consider that as a result of his knee injury, the plaintiff has lost the capacity for his pre injury duties/ heavy physical work.
429As others including Mr Hunt opined, because of his right knee alone, the plaintiff would not be able to perform the specific pre-injury duties required as an abattoir worker.
430Dr Menz initially shared this view but later changed his opinion. Having found no compensable knee injury on the papers, Mr Simm paid little attention to work capacity in his reports, simply concluding the plaintiff had the physical capacity to do the jobs suggested in the 2020 vocational report.
431I accept, as a consequence of his knee injury alone, the plaintiff has lost the capacity to do his pre-injury work or any other heavy manual work. He has been unable to return to any work since leaving the employer in late 2014.
432Loss of ability to undertake previously enjoyed activities, including work, and frustration at that loss, are relevant to assessing pain and suffering.[140]
[140]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Ellis”) at paragraph [35]; and also Peak Engineering (supra) at paragraph [38]
433In this case, this loss of employment has a particular impact on the plaintiff, who is a refugee with limited skills and language issues.
434As the Court summarised in Ellis:
“After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”[141]
[141]      Ibid at paragraph [52]

435I accept the plaintiff’s explanation that he would not have left the employer if he had the physical capacity to continue working.[142]
[142]T83
436Loss of capacity of the ability to do heavy, unrestricted physical work, which he could do despite his pre-existing knee condition, is a serious consequence for the plaintiff.
Other consequences
437As the records confirm, the plaintiff was still playing volleyball while in detention. I accept this was the situation at the time he started work with the employer. While he claimed he was unable to play soccer because of his work injury, he conceded he was not in fact playing at the time he started with the employer.
438The plaintiff is restricted in his ability to do heavy domestic duties both as a result of his knee and back pain.
439In my view, any problems the plaintiff has with sleep appear to be related more to his panic disorder.[143]
[143]T102
440Taking into account the plaintiff’s ongoing knee pain and restrictions, his need for treatment and painkilling medication and the interference with his work capacity, I am satisfied that the plaintiff has a serious injury in relation to his right knee.
441As there has been no improvement in that condition, and in fact a worsening since 2014, I am satisfied any impairment in relation thereto is permanent.
442Accordingly, I grant leave to the plaintiff to bring proceedings in relation to his right lower limb.
443Having made that finding, I am not required to consider the application in relation to the lumbar spine.[144]
[144] Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232

Loss of earning capacity
444Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
445The measurement of loss of earning capacity is set out in sub-paragraph (f) which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.

446The former must be calculated by reference to the six-year period specified in sub-paragraph (f).
447“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning, or was capable of earning, from personal exertion, or would have earned, or would have been capable of earning, from personal exertion had the injury not occurred.
448It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairy reflects the worker’s earning capacity.
449The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in (e), (f) and (g) therein.

450The parties agreed the plaintiff would suffer the requisite 40 per cent loss if he was unable to earn in excess of $510 per week, based on the plaintiff’s pre-injury gross earnings of $850 per week.[145]
[145]T3, T103 – based on a 38-hour week
451By letter dated 3 March 2020, Xchanging advised the plaintiff as to calculation of his weekly payments. The PIAWE amount was $770, the date of injury was 1 November 2014 and the employer was Cedar Foods Australia Pty Ltd (in liquidation).
452Counsel for the defendant submitted the plaintiff had a work capacity based on the level of activity shown in the surveillance film and described by Dr Menz.[146]
[146]T103
453On the agreed figures, the plaintiff would only need to work modest hours to exceed the requisite threshold – working 19 hours per week as a product assembler, 23.5 hours as a despatch clerk and 17 hours as a product tester/assembler. There was no reason why these hours could not be achieved[147]
[147]T103
454Further, there was no retraining required for the job of product tester/assembler. In any event, there no evidence from the plaintiff of any attempts to retrain in circumstances where it was submitted he did have some understanding of written and spoken English. He has some computer skills as he told Recovre.[148]
[148]T105
455The plaintiff’s failure to look for work at all was “another strike” against him because he could not say he had tried and failed.[149]
[149]T105
456The submissions on the plaintiff’s behalf in relation to economic loss were brief. It was submitted the plaintiff should succeed in relation to this issue, as it was clear on any view, he had lost a job he would otherwise have.[150]
[150]T119
457The plaintiff’s evidence is that he is unable to work because of his right knee and back alone. He would not be able due to pain and restriction in both areas to be able to reliably and consistently attend work.
458The jobs of product assembler, despatch packer/clerk have been suggested as suitable for the plaintiff.
459Mr Hunt thought the plaintiff was only able to perform despatch packer or product assembler roles if work was sedentary in nature, in a sitting position. The plaintiff could work four hours a day, considering his right knee in isolation.
460Dr Slesenger, occupational physician, undertook a detailed analysis of the duties involved in the suggested roles.[151]
[151]      Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
461He thought the plaintiff did not have the literacy or computer skills to perform the role of despatch packer clerk, and that the job demands were likely to lie outside his capacity limits. In addition, he is unlikely to be able to attend work consistently and reliably.
462The role of product assembler required maintaining static postures for prolonged periods, and some work stations were unlikely to allow workers to be able to adjust between sitting and standing. Dr Slesenger thought the task lay outside the plaintiff’s capacity limits, and he was also unlikely to be able to attend work consistently and reliably.
463He thought the plaintiff’s inability to return to work was unlikely to be permanent after he had undergone knee surgery.
464Mr Awad did not comment on the plaintiff’s work capacity in terms of his knee in either report.
465Mr Chandrasekaran, in September 2019, thought as consequence of the plaintiff’s “injuries”, he did not have the capacity to perform his pre-injury duties. The plaintiff had had difficulty doing manual-labour-orientated tasks. He may be more suited to a sedentary-type role, but that was difficult for him to obtain, given his limited English and education qualification. He expressed a similar view in his March 2021 report.
466Dr Menz’s views as to the plaintiff’s capacity for employment have changed over time.
467Initially in October 2019, he thought the plaintiff probably did not have the physical capacity to undertake his pre-injury work duties and hours because of his ongoing back problems and his not insignificant right knee instability and pain. His opinion changed, having seen the surveillance film, noting that the plaintiff had very few knee or back problems, moving quite easily, rapidly, and normally.
468In his most recent report, he diagnosed pre-existing ACL tearing associated with lateral meniscal tearing. He thought the right knee would just become more arthritic with time because of the chronic tearing of the ACL. He believed it quite possible the plaintiff’s pre-existing right knee and lower back conditions could have incapacitated him for work in any event.
469Dr Menz thought the plaintiff had the physical capacity to perform the physical requirements of the jobs identified in the June 2020 vocational report but provided no path of reasoning for this view.
470He considered the plaintiff had the physical capacity to perform the requirements of the jobs identified in the 2022 vocational assessment because he thought the physical injuries which had resulted from the plaintiff’s employment were minor and should have resolved within six to twelve weeks and the knee injury in which he tore his ACL was pre-existing and did not related to employment.
471Mr Simm thought the plaintiff had the physical capacity to undertake the suggested occupations in the vocational report of 19 June 2020 of product assembler and despatch packer clerk but provided no specific explanation for this view.
472Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss as a consequence of his right knee impairment alone. On a permanent basis he does not have the ability to earn in excess of $510 per week. There is unlikely to be any surgery in the foreseeable future which may alter this situation. In addition to his physical restrictions related to his knee injury, the plaintiff is an unskilled worker, with limited English who has had only one job in Australia.
473Although, I have granted leave to the plaintiff to bring proceedings for pain and suffering damages, as the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[152]
[152]      See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable
Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Disentanglement
474In Peak Engineering,[153] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[153]      Supra
475In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[154]
[154]      At 1
476The President found that the judge was:
(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of any other condition and
(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[155]
[155]At 2
477Obviously the plaintiff has a lumbar condition which he attributes to his employment and is also the subject of this application. A number of practitioners consider because of his lumbar condition alone, the plaintiff does not have a work capacity.
478Their view was not shared by Dr Menz and Mr Simm who did not think the plaintiff had a compensable injury to his back and also had doubts as to the veracity of his back complaints.
479Excluding any continuing consequences of the plaintiff’s back condition and considering the consequences referable to his knee condition only, I am satisfied that the plaintiff does not have the capacity to earn in excess of $510 per week for the foreseeable future.
480I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
481In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
482Accordingly, I also grant leave to bring proceedings for damages for loss of earning capacity.

- - -

[2023] VCC 755

16 May 2023