Nonoa v Victorian WorkCover Authority
[2024] VCC 1504
•22 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04980
| WIRI NONOA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2024 | |
DATE OF JUDGMENT: | 22 October 2024 | |
CASE MAY BE CITED AS: | Nonoa v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1504 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right knee injury – left knee injury – disentanglement – aggregation – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; s 335 and s 325(1)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Accident Compensation Commission v Tilley [1992] 2 VR 499; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 60; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; Harvey v Methodist Ladies College [2008] VSC 425; Peak Engineering and Anor v McKenzie [2014] VSCA 67; Shah v Victorian WorkCover Authority [2022] VSCA 95; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dressing v Porter and Anor [2006] VSCA 215; Kadhim v Victorian WorkCover Authority [2022] VCC 2110; Coskun v Victorian WorkCover Authority [2023] VCC 507; Clifford v Victorian WorkCover Authority [2024] VCC 217; Connelly v Transport Accident Commission [2024] VSCA 20
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering for a right knee injury sustained 21 October 2017
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr L Allan | Slater and Gordon Ltd |
| For the Defendant | Mr T Storey | Russell Kennedy Lawyers |
HIS HONOUR:
Background to the application
1The plaintiff, Mr Wiri Nonoa, is 43 years of age. Mr Nonoa lives with his partner. Mr Nonoa has four children, aged 24, 11, eight and six years.
2Mr Nonoa was born in New Zealand. He came to Australia in 2007.
3Mr Nonoa commenced work with the Department of Justice (“the Department”) in or around February 2017. He was employed as a Youth Justice Worker at a detention centre.
4Mr Nonoa alleges he has sustained separate injuries to his right knee and left knee while employed by the Department.
5Mr Nonoa says, by reason of his right knee and left knee injuries, independently and separately, he suffers ongoing pain and pain-related impairment. Mr Nonoa says he should be granted leave to pursue common law damages for pain and suffering for both the injury to his right knee and the injury to his left knee injury.
6The Victorian WorkCover Authority (“the VWA”) is the worker’s compensation insurer for the Department. It denies Mr Nonoa has suffered a serious injury to either his right knee or his left knee.
The nature of this proceeding
7This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”). Mr Nonoa relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his right knee injury and/or left knee injury is a “permanent serious impairment or loss of a body function”.
8For Mr Nonoa to be successful, he must establish that the consequences from his right knee injury and/or left knee injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable” as per the narrative test set out in s 325(2)(b) and to s 325(2)(c) of the Act.
What are the issues for the Court’s determination?
9That Mr Nonoa suffered injury to his right knee and left knee in the course of his employment is accepted by the VWA. That, however, in effect represents all which was agreed.
10Mr Harrison said Mr Nonoa’s primary case was that he suffered a right knee injury and a separate and independent left knee injury by reason of the nature of his employment over time.
11Specifically, Mr Harrison said Mr Nonoa sustained injury by reason of “repeated insults”.[1]
[1]Transcript (“T”) 94, Line (“L”) 1
12In the alternative, Mr Harrison said:
(a) There was an incident on 21 October 2017 when Mr Nonoa injured his right knee (“the 21 October 2017 right knee incident”).
(b) There was an incident on 25 March 2020, when Mr Nonoa injured his left knee (“the 25 March 2020 left knee incident”).[2]
[2]There was, in the course of the application conflicting evidence and submissions in respect to the date of this incident. It was variously described as occurring on 20 March 2020, 24 March 2020 and/or 25 March 2020. I shall, for the balance of this judgment, refer to this incident as the 25 March 2020 injury.
13As to the timing and circumstances of both Mr Nonoa’s right knee and left knee injuries, having considered all of the evidence and the submissions, there is tension between:
(a) Mr Nonoa’s affidavit evidence;
(b) Mr Nonoa’s oral evidence;
(c) the Medical Panel Certificate of Opinion in respect to Mr Nonoa’s right knee;
(d) the balance of the medical evidence which Mr Nonoa sought to rely;
(e) the submissions made on Mr Nonoa’s behalf.
14The VWA said there had been “a lot of unnecessary muddying of the waters”.[3] It said there were two frank incidents at play:
(a) the 21 October 2017 right knee incident;
(b) the 25 March 2020 left knee incident.
[3]T27, L6-7
15The VWA maintained there was no relevant work process and this was not a course of employment case.
16The VWA said the issues for the Court’s determination included:
(a) Mr Nonoa’s reliability;
(b) the identification of the timing and circumstances of any work-related injury;
(c) to ensure there was no impermissible aggregation of injuries;
(d) to disentangle;
(e) whether Mr Nonoa’s right knee injury and/or left knee injuries were serious injuries.
17I accept the issues for the Court to address and determine include:
(a) as to Mr Nonoa’s credit and reliability and whether I can accept his evidence;
(b) the identification of the timing and circumstances of Mr Nonoa’s work-related right knee injury and left knee injury. This will involve an analysis of:
(i)Mr Nonoa’s evidence;
(ii)the Medical Panel Certificate of Opinion and Reasons for Opinion in respect to Mr Nonoa’s right knee injury;
(iii)the balance of the medical evidence and identification of which of the medical opinions should be accepted and what assistance they provide;
(c) having reached conclusions in respect to the timing and circumstances of Mr Nonoa’s work-related injuries, to:
(i)identify and avoid any impermissible aggregation of injury;
(ii)assess the need for disentanglement and consider what, if any, consequences may flow;
(d) determine whether Mr Nonoa has sustained a serious injury by reason of his right knee injury and/or left knee injury.
18Before moving to my analysis of the issues which I have identified, I will make some preliminary comments in respect to the law relating to:
(a) injury by way of gradual process due to the nature of employment;
(b) disentanglement and aggregation.
Injury by way of gradual process due to the nature of employment
19It has been accepted, going back to the very early days of the predecessor to the Act,[4] that where there is a gradual onset of injury over time,[5] or where a worker suffers injury to the same body part in successive similar incidents close in time and while working at the same job with the same employer, that may constitute injury for the purposes of the Act.[6] There have been many examples of nature of employment cases over the years; far too many to reference. I list as examples:
(a) Grech v Orica Australia Pty Ltd and Anor;[7]
(b) Ronchi v Alcoa Portland Aluminium Pty Ltd;[8]
(c) Harvey v Methodist Ladies College.[9]
[4]Accident Compensation Act 1985
[5]Accident Compensation Commission v Tilley [1992] 2 VR 499
[6]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at paragraph [89]
[7](2006) 14 VR 602
[8][2007] VSC 340
[9][2008] VSC 425
20As I have already noted, Mr Harrison said Mr Nonoa has suffered injury in such circumstances.
21The VWA said, on the facts of this case, this was not such an application. The VWA said there were separate and discrete incidents.
22The VWA said it was necessary for Mr Nonoa to avoid aggregation of separate injuries and to disentangle:
(a) any pre-existing knee injuries;
(b) the various separate incidents which occurred in the course of Mr Nonoa’s employment;
(c) non-work-related injury.
Disentanglement and aggregation
23That the consequences of any non-work-related or pre-existing knee injury must be disentangled from any work-related knee injury is clear.[10]
[10]Peak Engineering and Anor v McKenzie [2014] VSCA 67. See also Shah v Victorian WorkCover Authority [2022] VSCA 95
24Likewise:
(a) the process to be followed in disentanglement is well established[11]; and
(b) aggregation of discrete and separate injuries is impermissible.[12]
[11]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309: see the analysis in paragraphs [25]-[35]
See, for example, Petkovski v Galletti [1994] 1 VR 436 and Rowe v Transport Accident Commission [2017] VSCA 377.
25Having said that, for completeness, it is appropriate to recognise that Mr Nonoa is not precluded from a finding of serious injury for a specific subject injury by reason of the existence of such comorbidities that may also impact upon him.[13]
[13]See in particular Ashley JA in Dressing v Porter and Anor [2006] VSCA 215 at paragraph [47]. See also the analysis of J Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454
What do I make of Mr Nonoa’s credit and reliability?
26Moving now to the first issue which I have identified: Mr Nonoa’s credit and reliability.
27As in a great number of cases of this type, Mr Nonoa’s credit and reliability is critical.[14]
[14]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76]
28The VWA said it did not make the submission that Mr Nonoa gave dishonest evidence. This was an appropriate concession. Mr Nonoa presented as a straightforward and decent man who tried to do his best when giving evidence.
29Having said that, the VWA said there are aspects of Mr Nonoa’s evidence which are unreliable by reason of his self-confessed poor memory.[15] I agree.
[15]T37, L18-20
30The background factual matrix in this application is complex. Over a period of in excess of seven-and-a-half years, Mr Nonoa:
(a) has received a significant amount of medical treatment;
(b) has had many periods off work.
31There were many times when giving his oral evidence Mr Nonoa conceded he had dates/facts wrong. Indeed, Mr Nonoa at one stage apologised to the Court for giving an incorrect history and went on to say “I have had so much time off work it just melts together”.[16]
[16]T38, L30-31
32Fortunately, I was assisted in my understanding of the true state of affairs by the return to work chronology which was tendered into evidence by consent.[17] This chronology provided a degree of clarity.
[17]Exhibit 1
33Overall, I found Mr Nonoa to be a vague and sometimes mistaken historian, but a truthful witness. Having said that, there were a number of discrete incidents, where Mr Nonoa had good recall and which were corroborated by other evidence. I accept there are aspects of Mr Nonoa’s evidence which are reliable.
34It is through this lens which I assess Mr Nonoa’s evidence.
What is Mr Nonoa’s evidence in respect to the timing and circumstances of his right knee injury and left knee injury?
35I shall in this section of my judgment analyse the evidence in respect to the timing and circumstances of his work-related knee injuries. I shall, later in my judgment, if necessary, consider the evidence in respect to the consequences flowing from such injuries.
Mr Nonoa’s affidavit evidence
36The starting point of my assessment of Mr Nonoa’s evidence is his affidavits. There are two affidavits:
(a) the first sworn 10 May 2023;
(b) the second sworn 16 April 2024.
The first affidavit
37Going firstly to the 10 May 2023 affidavit.
38The circumstances of Mr Nonoa’s work injuries were identified very helpfully in paragraph 10 under the heading “Circumstances of Injury”.
39I shall:
(a) given the importance of that paragraph to this application, reference that paragraph in its totality;
(b) then identify my “take outs” from this evidence.
40Mr Nonoa said:
“In or about October 2017, I was required to do vigorous tactical training. We were required to do deep and fast squats, kick a mixed martial arts pad (‘pad’) and work with untrained co-workers. I recall experiencing right knee pain on various occasions during this training session. I felt pain when squatting deeply and after being paired with a much smaller co-worker, who was scared to hold the pad when I was kicking. I felt pain when performing this exercise, as he moved the pad and my right leg slipped off. I was never pain free following this. I experienced flare ups of right knee pain following this when doing simple things such as climbing stairs. I developed left knee pain, as I was leaning more on this side. I also experienced a flare up of left knee pain, when I was required to restrain a male resident in or about 2020. I am aware that others were injured during the abovementioned training session and that the trainers were essentially told to stop going so hard after our injuries. I note that even after reporting my initial injury, I was still required to walk for long periods, stand frequently, walk up and down stairs and perform forceful restraints. I believe this is why I continued to experience flare ups of knee pain.”[18]
[18]Plaintiff’s affidavit, paragraph 10 at PFACB 27-28
41I shall split my observations into:
(a) the right knee injury;
(b) the left knee injury.
The right knee
42In respect to Mr Nonoa’s right knee injury I take from this evidence:
(a) Mr Nonoa sustained a right knee injury while undertaking tactical and martial arts training in October 2017 (subsequently identified to be 21 October 2017 right knee incident);
(b) following this incident, Mr Nonoa said his right knee has never been pain-free;
(c) following this incident, Mr Nonoa has suffered flare-ups of right knee pain when doing simple things, such as walking, standing or climbing stairs.
The left knee
43In respect to Mr Nonoa’s left knee injury, I take from this evidence:
(a) after the right knee incident Mr Nonoa said he developed left knee pain which he attributed to favouring his left side;
(b) he alleges he suffered a flare-up of the left knee pain when restraining a male resident in or about 2020 (now identified as “the 25 March 2020 left knee incident”);
(c) following the 25 March 2020 left knee incident he said he suffered flare-ups of left knee pain when doing simple things such as walking, standing, or climbing stairs.
The nature of employment submission
44I pause here to revisit the last two sentences of paragraph 10 of Mr Nonoa’s first affidavit in the context of the submission made by Mr Harrison that this application is one which should be properly assessed as injury occurring over time due to the nature of employment.
45This submission was based on Mr Nonoa’s evidence that, in the course of his work, he had to:
(a) walk;
(b) stand;
(c) use stairs;
(d) perform restraints.
46Mr Nonoa said he experienced “flare ups” of pain. Mr Nonoa did not put it any higher than suffering increased levels of pain. Mr Nonoa did not allege, in his first affidavit, that he:
(a) suffered further injury[19]
(b) had a permanent worsening of the knee conditions following such flare-ups.
[19]Mr Harrison, in the course of submissions, referred to Commonwealth of Australia v Beattie (1981) 35 ALR 369. In that matter, the Federal Court of Australia held that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. The Court went on to say that whether it does or not will usually be a question of fact to be decided by the tribunal or prescribed court.
47I shall come back to the nature of employment submissions made by Mr Harrison later in this judgment.
The second affidavit
48Moving now to Mr Nonoa’s second affidavit.
49The key focus in this affidavit was:
(a) disclosing a second job which had not been disclosed in Mr Nonoa’s first affidavit;
(b) outlining the consequences of the knee injuries.
50As to the events at work which were said to be causative of his knee injuries, Mr Nonoa, on my reading of his second affidavit, was in reality silent. The only paragraphs which, on the most favourable view, perhaps touch upon causation are paragraphs 10, 12 and 13. In these paragraphs Mr Nonoa said:
“I continue to work for the Department of Justice as a Youth Justice Worker. I usually work 26-27 hours a week. My hourly rate is about $37 an hour. I don’t feel capable of doing more than that, because my pain levels increase the more I work. My job is more physical than you would think, since I have to deal with violent people or people who might try and escape. I don’t think that I could go back to full time work like I used to do before I was injured. I have tried doing longer hours, but as I said this was too much for me and too painful.
…
I continue to have regular flare ups of knee pain at work, for example when using stairs, bending my knee, or squatting, which I avoid if I can.
I do my best to try and avoid squatting, kneeling or uneven surfaces because these give me increased pain.”[20]
[20]PFACB 33-34
51Mr Nonoa talks in terms of:
(a) his pain increasing at work;
(b) the difficulty he has with the demands of the work given his underlying injuries;
(c) what he does to try and avoid increasing his pain levels.
52I find Mr Nonoa’s evidence in paragraphs 10, 12 and 13 is in reality evidence in the context of:
(a) his pain and pain-related consequences;
(b) the impact of his injuries on his work capacity;
such matters going to pain and work consequences in accordance with the guidance provided by such authorities as Haden Engineering Pty Ltd v McKinnon[21], Stijepic v One Force Group Aust Pty Ltd & Anor[22] and Ellis Management Services Pty Ltd v Taylor,[23] to name a few.
[21](2010) 31 VR 1
[22][2009] VSCA 181
[23][2013] VSCA 326
Mr Nonoa’s oral evidence
53Moving now to Mr Nonoa’s oral evidence.
54Firstly, Mr Nonoa in his evidence in chief said:
(a) he had read both his affidavits over the course of the morning (being the day of the hearing);
(b) he was satisfied as to the accuracy of their contents.
Mr Nonoa did not seek leave to add to or expand upon his affidavit evidence in respect to the timing and circumstances of injury.
55Secondly, at the commencement of the cross-examination Mr Storey took Mr Nonoa through paragraph 10 of his first affidavit. Mr Nonoa again adopted the contents as being true and correct.
56I will now set out what I consider to be the key aspects of Mr Nonoa’s further oral evidence in respect to the timing and circumstances of injury. I shall firstly address the right knee injury and then address the left knee injury.
Right knee injury
57Of his right knee injury, Mr Nonoa:
(a) Said he accepted the contents of the 10 November 2017 WorkCover claim form which he had lodged in respect to his right knee and, in particular, the description of the incident which occurred while undertaking the tactical and martial arts training on 21 October 2017.[24]
(b) When he consulted Dr Reda Makarious, general practitioner, on 16 February 2020, was complaining of a flare-up of right knee pain which was consequential to the “old injury at work”.[25]
(c) Said the time off due to his right knee injury, which he told Dr Makarious about, was as a result of the original WorkCover injury.[26] That is, in the context of the 21 October 2017 right knee incident.
(d) Said on 30 January 2021, there was another restraint incident when he hurt his right knee. However, he agreed this was a minor incident.[27]
[24]See Mr Nonoa’s evidence between T35, L12 ꟷ T37, L11; the DINMA Incident Report Form, PFACB 36-38 and Worker’s Injury Claim Form, PFACB 39-40
[25]PFACB 274
[26]T45, L27-29
[27]T51, L22 – T52, L5
Left knee injury
58Of his left knee injury, Mr Nonoa said:
(a) The left knee problems had not yet started at the time he filled out the further WorkCover claim form for his right knee on 8 June 2018.[28]
[28]T41, L16-20
(b) He could not recall any discussions with his physiotherapist about his left knee in September 2018.[29]
[29]T65, L6-17
(c) His left knee problems commenced when he was walking outside his house.[30]
(d) While he could not be specific, he agreed the left knee problems commenced towards the end of 2018. He agreed the left knee problems coincided with the referral for an MRI scan of his left knee which occurred in November 2018.[31]
(e) His left knee had remained constantly painful from around the time he saw Dr Sameh Selwans on 18 July 2019.[32]
(f) He did not accept that the incident which occurred on 25 March 2020 referred to in the WorkCover claim form was the cause of his persisting left knee problems. Indeed, Mr Nonoa said:
“To my understanding, when I took the MRI for my left knee injury it showed significant damage to my PCL and that lingered throughout. I always felt pain there. I think I stated in this that it was a rehash or – I’m not sure but I believe that was, how do you say it, a re-injury of that same injury.”[33]
(Emphasis added.)
(g) In April 2021 he said he felt an increase in left knee pain walking up a hill.[34]
[30]T34, L24-26; T35, L1-3; and T42, L18-21
[31]T41, L29 – T42, L13
[32]T44, L21-22 and PFACB 271-272
[33]T46, L30 – T47, L5
[34]T52, L6-21
The Medical Panel Certificate of Opinion 15 November 2022 and Reasons for Opinion 15 November 2022
59Having identified what I consider to be the important aspects of Mr Nonoa’s evidence in respect to the timing and circumstances of injury, I will now move to the next issue which I have identified: the Medical Panel evidence.
60Mr Nonoa was referred to the Medical Panel for an assessment of his right knee impairment benefit entitlement pursuant to the Act.
61Mr Nonoa was assessed by the Medical Panel on 14 November 2022. The Medical Panel provided a Certificate of Opinion and Reasons for Opinion dated 15 November 2022.[35]
[35]DCB 35-42
62In respect to the right knee injury, the Medical Panel concluded in the Certificate of Opinion:
“In the Panel's opinion Mr Nonoa has a 4% whole person impairment resulting from the accepted right knee lateral meniscal tear injury, when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.”[36]
As I will set out later in the judgment, the Medical Panel accepted the date of the injury to be 21 October 2017.
[36]DCB 35
63In determining what use is to be made of the Medical Panel Certificate of Opinion and Reasons for Opinion, I shall:
(a) review the legal principles which govern the application of a prior Medical Panel Opinion to the Court’s determination in a subsequent serious injury application;
(b) analyse the Medical Panel Certificate of Opinion and Reasons for Opinion;
(c) set out how I will apply the Medical Panel Certificate of Opinion and Reasons for Opinion in the context of Mr Nonoa’s application.
The legal principles
64The Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority[37] considered the application of a prior Medical Panel Certificate of Opinion in a subsequent serious injury application.
[37](2018) 57 VR 545 (“Yirga-Denbu”)
65In Yirga-Denbu, the Medical Panel:
(a) was asked to provide an opinion in respect to the worker’s statutory benefit entitlement, rather than provide an opinion in a serious injury application context;
(b) provided an opinion setting out the nature of the worker’s work-related injury.
66Neither counsel, in the course of submissions, took me to Yirga-Denbu, or specifically addressed me on what use I should make of the Medical Panel Certificate of Opinion and Reasons for Opinion. Both the Certificate of Opinion and Reasons for Opinion do, however, form part of the evidence in this application.
67Moving firstly to the question whether I am bound by the Medical Panel Certificate of Opinion and Reasons for Opinion.
68It is clear from the Court of Appeal’s comments in Yirga-Denbu, I am bound by the Certificate of Opinion.[38]
[38]See paragraph [41] of Yirga-Denbu.
69Turning now to what I should do when the evidence of a witness in a serious injury application conflicts with the Medical Panel Certificate of Opinion. The Court of Appeal said:
“… We accept that an opinion of a witness that conflicts with a certificate of the opinion of a medical panel cannot be used in any way to undercut the medical panel’s opinion as expressed in its certificate of opinion. That does not mean, however, that there may not remain admissible evidence of the relevant witness that is capable of bearing on a question not foreclosed by the medical panel’s opinion. In a case like the present, an expert’s opinion that there would be no physical improvement after a particular point in time (or at all) contains within it the opinion that if that opinion is not accepted then whatever improvement might ultimately occur will not be great. Consistently with what is said by trial judges to juries, when charging them about the acceptance or rejection of evidence, merely because the trier of fact might reject (or, as in this case, be required to reject) particular evidence from a particular witness does not mean that all of that witness’s evidence must be rejected in its entirety.”[39]
(Emphasis added.)
[39]Yirga-Denbu at paragraph [87]
70Thus, it would be impermissible for me and I would fall into error, should I adopt evidence which would “in any way … undercut the medical panel’s opinion as expressed in its certificate of opinion”.
71However, that is not the end of what the Court of Appeal said.
72In Yirga-Denbu, the main issue in dispute centred around the possibility of the applicant’s injury improving, something the Medical Panel had accepted was a possibility. The Court of Appeal was open, in those circumstances, for evidence subsequent to the Medical Panel’s determination to be considered by the Court in making its determination. In this context, the Court of Appeal said:
“… The question of the precise extent of the applicant’s permanent incapacity was one that fell to be resolved by a consideration of all of the evidence.”[40]
[40]Yirga-Denbu at paragraph [89]
73Further, I must bear in mind that it is the consequences flowing from Mr Nonoa’s right knee injury which ultimately falls for my determination.
74That said, I accept:
(a) I am bound by the Medical Panel Certificate of Opinion;
(b) as long as care is taken by the Court not to adopt evidence which “undercuts” the Medical Panel’s Certificate of Opinion, the balance of evidence, including medical evidence, may be used by the Court in undertaking its determination.
What did the Medical Panel conclude in Mr Nonoa’s right knee impairment benefit application?
75Moving back to the Medical Panel Certificate of Opinion.
76I have outlined the relevant part of the Medical Panel Certificate of Opinion in paragraph 62 above. In simple terms, the Medical Panel:
(a) accepted Mr Nonoa has a 4 per cent whole person impairment consequential to the 21 October 2017 right knee incident;
(b) said this impairment is permanent.
The Reasons for Opinion
77I now move to the Reasons for Opinion.
78The Court of Appeal, Yirga-Denbu, considered the use to be made of the Reasons for Opinion.[41] The Court said:
(a) it doubted the Reasons for Opinion needed to be admitted to evidence to give context to the Certificate of Opinion;[42]
(b) the Reasons for Opinion could be admitted as admissible evidence about a fact in issue in accordance with s55 and s79 of the Evidence Act 2008 (Vic).[43]
[41]See in particular the Court of Appeal’s discussion in Yirga-Denbu set out in paragraphs [56]-[62]
[42] Ibid, paragraph [58]
[43] Yirga-Denbu at paragraph [59]
79The Court of Appeal went on to say:
“The Panel Reasons were admissible because they contained admissible evidence, the probative value of which was not outweighed by the danger that the evidence might be unfairly prejudicial to the applicant, or misleading or confusing, or cause or result in some undue waste of time.”[44]
[44] Ibid, paragraph [62]
80In this application, the Medical Panel Reasons for Opinion were tendered into evidence by the VWA. No issue was taken by Mr Nonoa. I accept the Reasons for Opinion to be not only admissible but very helpful.
81Moving to the Reasons for Opinion themselves.
82The Reasons for Opinion assist me in respect to:
(a) the history adopted by the Medical Panel;
(b) the timing and circumstances of the right knee injury.
83At page 3 of the Reasons for Opinion, under the heading “Sequence of Events”, the Medical Panel noted Mr Nonoa told them he:
(a) Suffered an injury to his right knee on 21 October 2017 when performing the tactical and martial arts training.
(b) Consulted his general practitioner on 3 November 2017 and was certified off work.
(c) Underwent an MRI scan of his right knee on 16 November 2017, which the Panel noted was reported to show a degenerative horizontal tear of the lateral meniscus, with some extrusion consistent with chronic lateral compartmental degenerative change.
(d) Was referred for an opinion of an orthopaedic surgeon, who he consulted in December 2017. Surgical and conservative treatment options were presented and he elected to proceed with conservative treatment.
(e) Sustained further injury to the right knee on 31 May 2018, when he was walking on stairs. Mr Nonoa told the Panel that he did not stumble or fall, or twist his right knee. A repeat MRI scan of the knee was undertaken on 26 June 2018, which the Medical Panel noted showed similar findings to the previous MRI scan, involving a degenerative lateral meniscus tear.
(f) Subsequently Mr Nonoa complained of spontaneous onset of left knee pain, which he attributed to favouring the right knee. The MRI scan of the left knee was undertaken on 7 November 2018.
(g) Had a further episode of left knee pain, for which he consulted his general practitioner on 18 July 2019.
(h) Had a flare-up of right knee pain, for which he consulted a general practitioner on 16 February 2020 and was certified unfit for work for a couple of days.
(i) Suffered a further injury to his left knee on 25 March 2020, when he twisted his left knee while restraining a male resident.
(j) Three weeks after the 25 March 2020 left knee incident, he suffered a further aggravation of left knee pain while walking down an incline.
84The Medical Panel went on to say, and I accept this is important in respect to the timing and circumstances of the right knee injury and disentanglement:
“In making an assessment of impairment, the Panel took into account Mr Nonoa's history and the referral material to determine the level of impairment that may have been present prior to and/or after the designated injury date of 21 October 2017, and which the Panel ought to disregard in accordance with Section 53(2)(b) of the Act, as impairment from unrelated causes or injuries.
The Panel understands that, in performing the task of assessing any pre-existing impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment, which is to be disregarded.
The Panel noted that Mr Nonoa suffered a second injury to the right knee on 31 May 2018, with a history of walking in a stairwell, with no specific incident of injury. The Panel noted that the subsequent MRI undertaken on 26 June 2018 showed no evidence of any significant new right knee injury.
The Panel therefore concluded that there is no permanent impairment from an unrelated injury or cause which is playing a part in Mr Nonoa’s current impairment of the right knee and which ought to be disregarded in accordance with Section 53(2)(b) of the Act.”[45]
(Emphasis added.)
[45]DCB 39-40
85The Medical Panel went on to conclude:
“The Panel therefore concluded that Mr Nonoa has an 4% whole person impairment resulting from the accepted right knee lateral meniscus tear injury, when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.”[46]
[46]DCB 40
Given the Medical Panel’s Certificate of Opinion and Reasons of Opinion, what conclusions do I reach for the purposes of this application?
86It follows from the Medical Panel’s Certificate of Opinion and Reasons for Opinion:
(a) on 21 October 2017, while undertaking tactical and martial arts training, Mr Nonoa sustained a right knee injury;
(b) that injury included a right lateral meniscus tear;
(c) Mr Nonoa has a permanent impairment consequential to this injury;
(d) as at 14 November 2022, there was no permanent impairment from any unrelated injury or cause which ought be disregarded (i.e. disentangled).
Which of the balance of the medical opinions should be accepted and what assistance do they provide?
87Having completed my assessment of the Medical Panel evidence, I shall now move to the next issue which I identified: to assess the balance of the medical evidence.
88I shall, when assessing this evidence:
(a) firstly review the treating medical practitioner evidence;
(b) then review the medico-legal expert evidence.
The treating medical practitioners
89As seems to be the norm in many applications of this type, formal Order 33 reports were not sought by the applicant’s solicitors from a number of treating health service providers. Rather, reliance was made to various questionnaires, plans, clinical records and letters between medical practitioners. These materials may or may not address the salient issues in dispute in the application.
90Having said that, I had the following reports which had been requested by Mr Nonoa’s solicitors:
(a) Dr Magdy Azer, general practitioner, 4 April 2024;
(b) Mr Owain Morris, physiotherapist, 8 April 2024.
91The various additional materials include:
(a) Ms Danica Fitzgerald, physiotherapist, medical questionnaires 24 January 2018 and 2 July 2018;
(b) Ms Danica Emery, physiotherapist, occupational physiotherapy management plan, undated;
(c) Ms Vanessa Kakos, physiotherapist, physiotherapy management plan, 24 June 2020;
(d) Mr Morris, letter to Allianz, 19 May 2021 and physiotherapy management plan, 6 September 2021;
(e) Dr Azer, referral letters, 15 October 2018, 17 June 2020, 23 June 2020 and 30 June 2020;
(f) Ms Emma Glynn, physiotherapist, letter to Allianz, 8 November 2018 and treating health professional questionnaire, 11 December 2018;
(g) Mr Audi Widjaja, orthopaedic surgeon, reporting letters to Dr Azer, 30 November 2017 and 1 January 2018;
(h) Dr Gamal Awad, general practitioner, letter of referral, 5 May 2021.
92I also had in evidence:
(a) a bundle of radiology reports;[47]
(b) clinical records, which include:
(i)Back in Motion Physiotherapy;
(ii)Sydenham Medical Centre;
(iii)Life Physiotherapy.[48]
[47]Exhibit “I”
[48]Exhibit “M”
93There was a lot of material tendered into evidence which I was not taken to in the course of the application. I have reviewed it. Having said that, I shall focus my analysis on what I consider important to my determination.
Dr Azer
94Moving firstly to one of Mr Nonoa’s general practitioners, Dr Azer.
95Dr Azer first saw Mr Nonoa for his right knee injury on 3 November 2017.
96Dr Azer said:
(a) Mr Nonoa injured his right knee while working in youth training on 29 October 2017 (I accept this to be the 21 October 2017 right knee incident);
(b) on examination, there was mild swelling and mild limitation, for which he issued a WorkCover certificate for about ten days off to rest and review;
(c) on review on 9 November 2017, Mr Nonoa’s symptoms did not show good improvement and he was referred for MRI scanning;
(d) the MRI scan showed:
“There is tearing of the body of the lateral meniscus as described which is partially extruded from the lateral femorotibial compartment.There (sic) is a small joint effusion. There is some tendinosis of the proximal popliteus tendon insertion.”;[49]
(e) on 20 November 2017, he referred Mr Nonoa to:
(i)Mr Widjaja, orthopaedic surgeon;
(ii)for physiotherapy treatment.
[49]PFACB 131
97Dr Azer said Mr Nonoa re-presented to him on 14 June 2018 with right knee pain. Dr Azer, in his clinical records, simply recorded “injured right knee again at work on 31 May 2018” (in the course of the application it was suggested this consultation related to the walking-up-the-stairs right knee pain referred to by the Medical Panel).[50]
[50]PFACB 267
98Dr Azer:
(a) Ordered a further MRI scan which reported a tear of the meniscus which, he said, appeared to be chronic.
(b) Referred Mr Nonoa back to Mr Widjaja.
Mr Widjaja
99I pause here in my analysis of Dr Azer’s evidence to refer to Mr Widjaja’s evidence. Seemingly, Mr Widjaja saw Mr Nonoa on two occasions. The first being 30 November 2017 and the second being 1 August 2018.
100Mr Widjaja, in his reporting correspondence to Dr Azer of 30 November 2017, said:
“Diagnosis : Right knee - lateral meniscus tear
Dear Dr Azer, Thank you for referring Mr Nonoa, 36 years old, with painful right knee from defence training 3 weeks ago. The pain is on the lateral compartment. He has locking symptoms. He is taling (sic) Neurofen (sic) and Ibuprofen for analgesia. He has a history of Gout. He denies having any hip or back problems.
Clinically he has a large body habitus. There is tenderness on the lateral compartment of the knee. The knee range of motion is 0-90 degrees.
MRI of the right knee shows lateral meniscus tear. He will need to have right knee arthroscopy to deal with the meniscus tear.
I have discussed his treatment in detail including informed consent and he is happy to proceed with surgery. I will organise the surgery and I will inform you his progress post operatively.
In summary, the management will be :
1. Right knee arthroscopy
2. Keep mobilising as tolerated
3. Analgesia as needed”[51]
[51]PFACB 334
As at November 2017 right knee surgery had been recommended to Mr Nonoa.
101In his report to Dr Azer, of 1 August 2018, Mr Widjaja said:
“Diagnosis : Right knee lateral meniscus tear
Dear Dr Azer,
I reviewed Mr Nonoa, 37 years old, with painful right knee which is associated with locking symptoms. The pain is not improving and repeat MRI still shows lateral meniscus tear. I think he will benefit from knee arthroscopy to deal with the lateral meniscus tear but he is afraid of surgery at the moment. I would like him to continue with physiotherapy until he is ready for surgery.
At this stage, the management will be as follows :
1. Right knee arthroscopy when he is ready
2. Physiotherapy for the right knee
3. Analgesia as needed
4. Review in 6 weeks.
I will review his progress and inform you. Please do not hesitate to contact me if you have any question. Thank you for your time and attention.”[52]
[52]PFACB 143
102I note in particular, Mr Widjaja’s comment that the further MRI scan “still shows lateral meniscus tear”. I take that to refer to the original MRI scan of 16 November 2017, which was undertaken consequential to the original incident on 21 October 2017. Further, I take from Mr Widjaja’s letter of 1 August 2018, he considered Mr Nonoa’s right knee pain had not improved between the date of the original assessment on 30 November 2017 and his review of 1 August 2018. Again, surgery was recommended.
103There was no evidence that Mr Nonoa subsequently re-attended Mr Widjaja. Mr Nonoa has not proceeded to surgery on his right knee. I note, in the course of the application no criticism was made of Mr Nonoa for not proceeding to surgery.
Returning back to Dr Azer
104Returning back to Dr Azer’s evidence.
105On 15 October 2018, Mr Nonoa consulted Dr Azer, complaining of anxiety secondary to his knee injury. I assume this to be the right knee injury. There is no history recorded at this time by Dr Azer of any left knee problems either in his report or in his clinical notes.
106The next attendance referred to by Dr Azer is Mr Nonoa’s consultation with his colleague, Dr Bahaa Roushdy, on 8 May 2020.[53] Dr Azer said, at this time, Mr Nonoa was complaining of a left-knee injury, which dated back to 2018 and for which Mr Nonoa had consulted a physiotherapist. Dr Azer said Mr Nonoa had made reference to aggravating his left knee problems at work walking up a hill on 5 May 2020.
[53]See paragraph 112(a) for the clinical records of this consultation
107Dr Azer did not, in his report, refer to the 25 March 2020 left knee incident.
108Dr Azer said, on 20 May 2020, he ordered a further MRI scan of Mr Nonoa’s left knee (the first left knee MRI scan of 7 November 2018 having been organised by Ms Glynn, physiotherapist). Dr Azer said the left knee MRI scan of 24 June 2020 showed:
“1. Grade 3 chondromalacia over trochlear of femur. Minimal chondropathy over weight bearing part of medial femoral condyle also seen. No other cartilage wear or any other significant osteoarthritic changes.
2. No meniscal or ligament tear identified. No residual signal or morphological abnormality in the posterior cruciate ligament.
3. Minimal joint fluid.”[54]
[54]PFACB 117 and 118
109Dr Azer said he had not seen Mr Nonoa since 16 July 2020.
110Dr Azer said he had mainly attended Mr Nonoa for his right knee, which he considered to be work related. Dr Azer did not otherwise proffer an opinion.
111The further letters in evidence authored by Dr Azer[55] do not provide any further meaningful assistance to me.
[55]Exhibit “J”
112For completeness, I make reference to a number of extracts from the clinical records of the Sydenham Medical Centre and make the following observations:
(a) Mr Nonoa, despite having a number of attendances at the Sydenham Medical Centre subsequent to the 25 March 2020 left knee incident, did not report any left knee injury to the doctors until 8 May 2020. On this day, Mr Nonoa did not attribute his then left knee problems to the 25 March 2020 left knee incident. On this occasion, Dr Roushdy recorded:
“Recorded by: Dr Bahaa Roushdy Visit date: 08/05/2020
Recorded on: 08/05/2020
working in Youth justice centre
hjad an old right knee injury work related ( had work cover claim with Magdy 3 yeas ago
then had another injury to left knee 2 yearts ago ( cliam managed initiated by his physio )
was given work cover cert by him
dfiagnosed with PCL tear
was at work on tuesday & did a lot of walking uphill & aggravated the left knee injury needs certificate for today w/ c
was told about opur policy with billing agreed”.[56]
[56] PFACB 276
(sic)
(b) On 9 April 2021, when attending Dr Awad at the Sydenham Medical Centre, it was recorded:
“Recorded by: Dr Gamal Awad Visit date: 09/04/2021
Recorded on: 09/04/2021
History:
work youth justice worker
parkville youth justice
twisted his left knee while going on uphill on tuedsays
todays left knee swollen
painfull and can not bend
phx
left knee pcl tear
meniscus tear lkneescope Right knee
patellar dislocation left knee
Examination:
on crutches
swollen left knee
marked effusion
Actions:
Imaging request printed to Capital Radiology VIC MRI left knee
(recnt trauma ACL ruorure ?)
Letter printed
Letter written re Medical certificate Surgery”.[57]
[57]PFACB 280
(sic)
Dr Awad made specific reference to a left knee PCL tear (posterior crucial ligament tear). I note Mr Nonoa’s PCL tear dates back to at least the 7 November 2018 MRI scan.
(c) When Mr Nonoa attended Dr Roushdy again on 17 September 2021, it was recorded:
“Recorded by: Dr Bahaa Roushdy Visit date: 17/09/2021
Recorded on: 17/09/2021
history of chronic left knee injury
claimed on W C
recent excaerbation with pain & swelling
diagnoised with chondromalacia patella & tibial plateau contusion
injury
was asymptomatic until recently
case managed by M Azer
asking for another MRI
last one was in april
unsure if insurance will accept liability
Actions:
Imaging request printed to Capital Radiology VIC MRI Scan Knee
left (reccurrent injury tibial plateau chondromalcia recent pain &
swelling)”[58]
(sic)
I note in particular Dr Roushdy’s history of:
(i)chronic left knee injury;
(ii)the left knee being asymptomatic until recently, when there was an exacerbation. No cause was identified.
[58]PFACB 281
Mr Owain Morris
113Mr Morris, in his report of 8 April 2024, said Mr Nonoa first presented to Back in Motion Physiotherapy in September 2018.
114Mr Morris said, at this time:
(a) Mr Nonoa complained of right knee pain following a workplace incident during a training course (which I accept refers to the 21 October 2017 right knee incident);
(b) six months following this incident, Mr Nonoa’s right knee pain flared after climbing stairs;
(c) the MRI scanning revealed a posterolateral meniscal tear in the right knee;
(d) Mr Nonoa was under the care of Mr Widjaja, who was advising physiotherapy before proceeding to a surgical option.
115Mr Morris outlined his treatment program for Mr Nonoa’s right knee.
116In respect to Mr Nonoa’s left knee, Mr Morris said:
(a) Early on in the rehabilitation program for the right knee injury following the 21 October 2017 incident, Mr Nonoa reported a left knee injury at work.
(b) Mr Nonoa re-presented following a workplace incident involving his left knee. Mr Nonoa said, at the time of this further incident, he was restraining a youth inmate (which I take to be the 25 March 2020 left knee incident). Following this incident, Mr Nonoa underwent a comprehensive functional program to build strength in his left knee.
(c) On 8 September 2020, Mr Nonoa was cleared for full duties.
(d) On 6 April 2021, Mr Nonoa re-presented, complaining of an exacerbation of his left knee following a minor slip walking on uneven ground.
117In respect to the timing of the left knee injury referred to in paragraph 116(a) above, I note from the physiotherapy practice clinical records:
(a) Mr Nonoa had one consultation in 2017, being 6 December 2017.[59]
(b) The next consultation was 22 September 2018. That was for Mr Nonoa’s right knee.[60]
(c) There was reference to the left knee on 22 October 2018. While this made reference to work, it also recorded “unsure of ‘MOI’ ”.[61] I take the ‘MOI’ reference to mean: method of injury.
[59]PFACB 332 and 333
[60]PFACB 331
[61]PFACB 329
118Mr Morris said Mr Nonoa had not attended at the physiotherapy clinic since 29 August 2022. At that time, Mr Morris said Mr Nonoa had full functional capacity of his left and right knees.
119Mr Morris said that, by reason of the internal derangement evidenced by the MRI scans, it is likely Mr Nonoa will develop further osteoarthritic changes in his knees as time progresses.
120Mr Morris also said, by reason of the internal derangement of his knees, Mr Nonoa:
(a) was at increased risk of further injury;
(b) will naturally develop arthritic change in his knees;
(c) may require invasive procedures such as surgery.
The medico-legal evidence
121Moving now to the medico-legal evidence.
122I have in evidence, in chronological order, reports from:
(a) Dr John Fraser, consultant orthopaedic surgeon, 2 May 2019;
(b) Dr Joseph Slesenger, occupational physician, 3 June 2020 and 17 June 2020;
(c) Associate Professor Bruce Love, consultant orthopaedic surgeon, 14 October 2021 and 22 April 2022;
(d) Associate Professor Evange Romas, consultant rheumatologist, 26 July 2022;
(e) Mr Barclay Reid, general surgeon, 8 December 2022;
(f) Dr David Love, consultant orthopaedic surgeon, 11 October 2023;
(g) Mr Iain McLean, orthopaedic surgeon, 24 January 2024;
(h) Dr Nicholas Ingram, consultant psychiatrist, 12 March 2024.
123I shall review this evidence in this order.
Dr Fraser
124Dr Fraser assessed Mr Nonoa for the VWA on 30 April 2019.
125Dr Fraser said he assessed Mr Nonoa in respect to a right knee injury which occurred on 4 June 2018, when Mr Nonoa was ascending stairs at work.
126I pause here to note it was the Worker’s Injury Claim Form, dated 8 June 2018, which led to this assessment. This form records, in response to the question “What happened and how were you injured?”, Mr Nonoa saying, “[r]einjured old injury walking staircase. Injured in work training exercises, where I tore my minisci (sic) doing kicking drills + squats.”[62] I accept this to be the 21 October 2017 right knee injury.
[62]PFACB 50
127Specifically, Mr Nonoa said the injury which he had suffered was a “torn miniscal (sic) in my right knee”.[63]
[63]PFACB 50
128Referring back to Dr Fraser’s evidence.
129Relevant to the VWA question, Dr Fraser said he obtained a history:
(a) Mr Nonoa was ascending stairs on 4 June 2018 when he felt pain in his right knee;
(b) in November 2018, Mr Nonoa developed pain in his left knee, which he attributed to compensating for his painful right knee.
130Dr Fraser noted the MRI scans as reporting:
(a) a longitudinal tear of the medial meniscus in the right knee;
(b) Grade 2 degenerative patellofemoral joint change and a partial tear of the posterior cruciate ligament (“PCL”) in the left knee.
131Dr Fraser said he obtained a prior history from Mr Nonoa of a right knee condition in December 2017 or January 2018, when he was diagnosed as suffering a right knee meniscal tear (the date here is clearly wrong and I accept ought to have referred to the 21 October 2017 right knee injury). Dr Fraser recorded Mr Nonoa telling him that he recovered from that injury.[64]
[64]DCB 8
132When asked what injury or medical condition Mr Nonoa had, Dr Fraser said Mr Nonoa:
(a) suffered an aggravation of the meniscus tear in the right knee;
(b) had an aggravation of patellofemoral arthritis and a PCL injury to his left knee.
133Dr Fraser did not provide any analysis in respect to:
(a) the aetiology of the meniscus tear in the right knee;
(b) the aetiology of the PCL injury and degenerative change within the left knee joint.
134Dr Fraser said he expected Mr Nonoa to be able to return to full pre-injury work within a month.
Dr Slesenger
135Dr Slesenger examined Mr Nonoa for the VWA on 2 June 2020.
136Dr Slesenger was asked by the VWA to assess Mr Nonoa’s left knee.
137Dr Slesenger said Mr Nonoa told him:
(a) he injured his left knee during a restraint on 25 March 2020;
(b) he twisted his left knee restraining a male;
(c) he had immediate pain at the time of this incident;
(d) the pain eased and he:
(i)did not seek medical advice;
(ii)remained performing normal duties;
(e) three weeks later, while walking down an incline at work, he suffered an aggravation of his left knee pain;
(f) while the left knee symptoms had persisted:
(i)they had improved;
(ii)he had only intermittent restriction in left knee movement;
(g) he developed some right knee pain in April 2020, but that resolved.
138Having undertaken an examination and considered the material provided, Dr Slesenger went on, in summary, to say Mr Nonoa:
(a) presented with a history of bilateral knee pain, initially presenting in 2018;
(b) suffered further injury to his left knee on 25 March 2020 while performing a restraint;
(c) in the course of recovering from his left knee injury, he had suffered right knee symptoms due to overuse.
139Dr Slesenger said the nature of Mr Nonoa’s left knee injury was:
(a) a soft-tissue injury;
(b) possible aggravation of a pre-existing PCL tear.
140Dr Slesenger said Mr Nonoa had suffered a soft-tissue right knee injury which had now resolved.
141Dr Slesenger did, however, note:
(a) a significant history of bilateral knee injury;
(b) uncertainty about the date of injury;
(c) the need to review further clinical records.
142Dr Slesenger, having been provided with a circumstances report by the VWA (but seemingly not the further clinical records he had referenced), was asked to provide a supplementary report.
143I do not have the benefit of this circumstances report.
144Dr Slesenger, having reviewed this material, said:
(a) Mr Nonoa had pre-existing bilateral knee impairment (i.e. predating 25 March 2020);
(b) Mr Nonoa, as a result, was generally at risk;
(c) while he was prepared to accept injury flowing from 24 March 2020 (what I have defined as the 25 March 2020 left knee incident), he could not exclude other causative factors;
(d) by reason of injury predating 24 March 2020, Mr Nonoa had previous periodic occupational disability;
(e) there was uncertainty regarding Mr Nonoa’s progress subsequent to his injury in 2018;
(f) the injury of 24 March 2020 is a minor cause of impairment and has now resolved;
(g) Mr Nonoa’s work tasks in general were a plausible cause of an aggravation of his symptoms which were at least in part due to pre-injury (that is pre 25 March 2020) impairment.
145I note in particular Dr Slesenger’s comments that:
(a) for three weeks following the 25 March 2020 incident, Mr Nonoa remained performing normal duties and did not seek medical advice;
(b) it was reasonable to assume the injury factors associated with the 25 March 2020 left knee injury had now resolved;
(c) Mr Nonoa only sought medical advice after suffering an aggravation of his left knee pain while walking down an incline at work (that being consistent with the consultation records which I have referenced in paragraph 112 above).
Associate Professor Love
146Associate Professor Love examined Mr Nonoa for the VWA for the first time on 14 October 2021.
147Associate Professor Love said his letter of instruction gave a history of left knee strain on 6 April 2021.
148Associate Professor Love said Mr Nonoa told him on 6 April 2021, while walking on uneven ground, he had a minor slip. This resulted in the left knee pain and swelling.
149Associate Professor Love obtained a past history of:
(a) Mr Nonoa, on 21 October 2017, injuring his right knee and having a medial meniscus tear;
(b) while recovering from his right knee injury, suffering a left knee injury which was diagnosed as a PCL tear.
150Associate Professor Love said:
(a) he considered Mr Nonoa to have non-specific internal derangement to both knees;
(b) the 6 April 2021 incident is the cause of the current left knee problems;
(c) it is probable there is a pre-existing condition in the left knee which had been aggravated on 6 April 2021;
(d) he was not confident of full resolution of symptoms;
(e) it would be appropriate to review Mr Nonoa in two to three months’ time.
151Associate Professor Love re-examined Mr Nonoa for the VWA on 14 April 2022.
152Associate Professor Love again said he was asked to assess a left knee injury which occurred on 6 April 2021.
153Associate Professor Love, at this time, said:
(a) Mr Nonoa has bilateral chondromalacia of the patellar, from which he has minor symptoms;
(b) the left knee was rendered symptomatic by the April 2021 slipping incident;
(c) Mr Nonoa could now return to pre-injury duties and hours.
Associate Professor Romas
154Associate Professor Romas assessed Mr Nonoa for the VWA on 26 July 2022.
155Under the heading “Description of injury”, Associate Professor Romas said:
(a) Mr Nonoa injured his right knee on 21 October 2017, when performing tactical training;
(b) the MRI scan of the right knee on 9 November 2017 disclosed a degenerate longitudinal tear of the lateral meniscus, with some extrusion consistent with chronic lateral compartment degenerative change;
(c) while the VWA had accepted a further right knee injury when Mr Nonoa was walking on stairs:
(i)Mr Nonoa did not stumble, fall or twist;
(ii)he was doubtful there was any further injury to the patellofemoral joint in this incident;
(d) Mr Nonoa had suffered a spontaneous left knee injury;
(e) the MRI scan of the left knee injury disclosed a partial tear of the PCL and patellofemoral degenerative change;
(f) the “left knee condition is obviously entirely constitutional”.[65]
[65]DCB 29
156Associate Professor Romas assessed Mr Nonoa consequential to his right knee injury sustained 21 October 2017 as suffering:
(a) an unresolved soft-tissue injury;
(b) a 4 per cent AMA whole person impairment.
157Of the “second incident” in 2018, when Mr Nonoa was walking down stairs, Associate Professor Romas said:
“There was second incident of injury in 2018 but the history indicates that he had pain in the right knee walking on a stairwell and no significant new right knee injury. This was simply a continuation of the injury he sustained on 21 October 2017 with pain when the right knee was excessively loaded on the stairs. …”[66]
[66]DCB 31
Mr Barclay Reid
158Mr Reid assessed Mr Nonoa for the VWA on 2 December 2022.
159Mr Reid was asked to assess Mr Nonoa’s left knee for the purposes of a statutory benefit impairment claim pursuant to the Act.
160Mr Reid obtained a history that, on 25 March 2020, Mr Nonoa injured his left knee while restraining a male inmate. Mr Reid went to say that Mr Nonoa told him “[h]e believes that he was off work for nearly a week after the injury”.[67]
[67]PFACB 243
161I pause here to note that this history in respect to having a week off work after 25 March 2020 is contrary to:
(a) the general practitioner medical records;
(b) what Mr Nonoa told Dr Slesenger back in June 2020;
(c) the return-to-work chronology, being Exhibit 1.
162Mr Reid recorded a past history of a partial tear of the PCL of the left knee in 2018. Mr Reid said that Mr Nonoa attributed that injury to putting more pressure on his left knee due to a right knee injury. Mr Reid took a history that Mr Nonoa said he had recovered spontaneously from the left PCL tear without surgery.[68]
[68]PFACB 244
163As to diagnosis, Mr Reid said:
“The current diagnosis is chondromalacia of the patella and the medial femoral condyle. A previous partial tear of the posterior cruciate ligament, seen in the MRI on 7 November 2018, is no longer seen in the MRIs of 24 June 2020 and 14 April 2021, or 8 October 2021, and therefore must be regarded as having healed.”[69]
[69]PFACB 245
164As to prognosis, Mr Reid said there would be a gradual worsening of the chondromalacia and osteoarthritic change.
165Mr Reid said that Mr Nonoa’s left knee condition had stabilised.
166Mr Reid said that Mr Nonoa’s left knee injury constituted an 18 per cent whole person impairment.
167Mr Reid said, in respect to apportionment:
“His symptoms have begun with the claimed incident of 25 March 2020 and have remained nearly constant from then up to the present date. There has been no non-work-related activity which has impacted on the impairment. I therefore apportion the full 18% whole person impairment to his injury at work.”[70]
[70]PFACB 246
168I pause here to note that Mr Reid’s assertion that Mr Nonoa’s left knee symptoms began with the incident of 25 March 2020 is contrary to:
(a) Mr Nonoa’s oral evidence;
(b) the general practitioner evidence;
(c) histories provided by Mr Nonoa to other assessing doctors.
169Mr Reid said that Mr Nonoa should be reviewed by an orthopaedic surgeon for further treatment options for his left knee.
Dr David Love
170Dr Love examined Mr Nonoa for the VWA solicitors on 8 September 2023. Dr Love, under the heading “History Relevant to Injury”, said:
(a) Mr Nonoa injured his right knee on 21 October 2017 in the course of a training session;
(b) that, since this incident, the pain in Mr Nonoa’s right knee has gradually deteriorated;
(c) about a year after the 21 October 2017 incident, Mr Nonoa injured his left knee. This came on spontaneously without any specific trauma.
171Dr Love obtained a history from Mr Nonoa that he currently suffered pain in his right knee and left knee, which fluctuates. At the time of the assessment, Mr Nonoa was using a crutch to mobilise.
172After undertaking an examination and considering materials he had been provided, Dr Love concluded:
(a) Mr Nonoa is currently suffering from bilateral degenerative change in both his right and left knees;
(b) in the left knee, it is particularly affecting the patellofemoral joint;
(c) to a lesser extent, there are problems with patellofemoral transits in the right knee;
(d) there are associative degenerative meniscal changes particularly in the right knee;
(e) the symptoms are quite severe and significantly affecting Mr Nonoa’s mobility and function.
173When asked to explain Mr Nonoa’s pain and pain-related consequences, Dr Love said:
“[Mr Nonoa] has been experiencing pain in both knees which seems to have been aggravated by this incident in 21.10.2017. While there was the onset of pain in the right knee probably associated with his exercise session, the left knee became painful more spontaneously and less related to work.
There is a definite degenerative component to [Mr Nonoa’s] presentation. There is a definitive organic basis to his symptoms based on his history, examination, and his MRI findings. This is causing significant functional disability in his ability to walk significant distance, squat, ascend or descend stairs or do any major physical activity. I do not think there is a significant non-physical component to his knee.”[71]
[71]DCB 51
174As to prognosis, Dr Love said Mr Nonoa’s condition, because it is degenerative in nature, is likely to get worse over time. Dr Love thought it was likely to deteriorate to the point where Mr Nonoa would benefit from knee replacement.
175Dr Love, when asked specifically about the 21 October 2017 work injury, gave what I consider to be conflicting answers.
176As referred to above, Dr Love said the 21 October 2017 incident aggravated Mr Nonoa’s pain and specifically he said there was an onset of right knee pain probably associated with the exercise program. However, Dr Love went on to say:
(a) although there is definitive organic pathology in both Mr Nonoa’s right and left knees, he did not think the incident on 21 October 2017 would materially contribute to the condition;[72]
(b) he did not think there was any significant pre-existing pathology he could identify and it is possible that Mr Nonoa has had some chondromalacia brewing for some time and in 2017 it became symptomatic;[73]
(c) it is likely Mr Nonoa would be developing symptoms regardless of the 21 October 2017 incident.[74]
[72]Question 8, DCB 53
[73]Question 9, DCB 53
[74]Question 10, DCB 54
Mr Iain McLean
177Mr McLean assessed Mr Nonoa for his solicitors on 24 January 2024.
178In respect to Mr Nonoa’s right knee, Mr McLean said:
(a) On 21 October 2017, Mr Nonoa sustained injury by way of internal derangement of meniscal and chondral origin.
(b) That Mr Nonoa’s ongoing pain and functional disability suggests progressive degenerative changes to the patellofemoral and lateral compartments.
(c) Mr Nonoa will have ongoing and progressive knee symptoms, pain and functional limitations, and progressive pathology in his right knee.
(d) As to impaired function by reason of his right knee injury, Mr Nonoa will have:
“Moderate to significant limitations that relate to bending, lifting, twisting, stooping, pushing, pulling, lifting, repetitive pushing, pulling or lifting with repetitive and/or prolonged use; along with the limitations described relating to kneeling, squatting or crouching along with prolonged sitting, walking or standing and particularly associated with walking of inclines both up and down and with any steps, stairs and not using ladders. He does not do manipulative movements or find dexterity relative to the lower limbs.
I would consider that these limitations will continue into the foreseeable future.”[75]
[75]Question 4, PFACB 148
(e) Mr Nonoa does not have full capacity to return to his pre-injury duties and this will continue into the foreseeable future.
(f) Mr Nonoa is no longer, on a reliable basis, able to perform any gardening maintenance or mow lawns, and he is limited with his social and recreational activities.
(g) The prognosis is very guarded.
(h) Mr Nonoa is at high risk/likelihood of developing and progressing with degenerative change in his right knee.
(i) There is no current indication for surgical intervention. However, in the future:
(i)Mr Nonoa may need an arthroscopy;
(ii)with progressive degenerative change, there is a likelihood of replacement surgery at an earlier time than would otherwise be expected.
179In respect to Mr Nonoa’s left knee, Mr McLean said:
(a) following the 21 October 2017 right knee injury, which resulted in increased loading on the left knee, Mr Nonoa developed resulting symptomatic patellofemoral chondral change;
(b) the specific injury on 25 March 2020 resulted in internal derangement of the patellofemoral chondral origin and aggravation of underlying change.
180Mr McLean went on to say:
(a) he did not consider there had been stabilisation of the left knee, as Mr Nonoa has ongoing and progressive knee symptoms, pain and functional limitation, and progressive pathology;
(b) Mr Nonoa has similar consequences resulting from his left knee, as outlined in paragraph 178(d) above, relevant to the right knee.
Dr Nicholas Ingram, consultant psychiatrist
181Dr Ingram assessed Mr Nonoa for his solicitors on 12 March 2024.
182This is not a paragraph (c) application. It is impermissible for me to take heed of the psychological consequences in my determination of a paragraph (a) application.
183The only matter which I will refer to (for the purposes of disentanglement) is Dr Ingram’s opinion that Mr Nonoa, from a psychological perspective, would be able to undertake full-time work.
What conclusions do I reach in respect to the timing and nature of Mr Nonoa’s knee injuries?
184Before setting out my conclusions in respect to the timing and circumstances of Mr Nonoa’s right knee injury and left knee injury, I will make some observations in respect to:
(a) Mr Nonoa’s evidence;
(b) the medical evidence.
185Firstly, as I have already set out earlier in this judgment, I consider Mr Nonoa to be a generally honest man, but a man who at is sometimes unreliable.
186Mr Nonoa’s affidavit and oral evidence, and the histories which he provided to the various doctors who have assessed him, are, in many important aspects, at odds.
187This, of course, creates limitations on what use can be made of those opinions where the doctors rely upon histories which do not accord to the facts as I accept them.
188Secondly, a number of the VWA opinions were commissioned specifically to advise on a particular claim for compensation. Those assessing doctors did not focus on the totality of Mr Nonoa’s history, nor did they have the totality of the evidence which I have received in the course of the application. Such opinions are of limited utility.
189Thirdly, of the expert evidence in respect to the right knee injury, it is the Medical Panel, Associate Professor Romas, and Mr McLean, which I found to be most helpful.
190Finally, in respect to Mr Nonoa’s left knee application, there are many inconsistencies between Mr Nonoa’s evidence, the histories which he provided to the doctors, the medical records and the various medical opinions which have been expressed. There is a great deal of evidence in respect to Mr Nonoa’s left knee which is clearly unreliable.
My assessment of the timing and circumstances of the right knee injury
191I move now to my conclusions in respect to Mr Nonoa’s right knee injury.
192It was not submitted by the VWA that Mr Nonoa was experiencing any problems with his right knee prior to the 21 October 2017 right knee incident. Indeed, that Mr Nonoa, on that day, was undertaking a strenuous training program, tends away from a contrary conclusion.
193While Mr Nonoa may have had present, in his right knee joint, asymptomatic degenerative change, I do not accept he was suffering any pre-existing pain or functional impairment. The overwhelming weight of the evidence is to that effect.
194I accept, on 21 October 2017, Mr Nonoa suffered a traumatic injury to his right knee while undertaking tactical and martial arts training. The injuries to Mr Nonoa’s right knee included a meniscus tear and an aggravation of underlying and previously asymptomatic degenerative change within the structures of the right knee joint.
195In coming to this conclusion, I was assisted by:
(a) Mr Nonoa’s affidavit evidence as identified;
(b) Mr Nonoa’s oral evidence as identified;
(c) the evidence of Dr Azer, and in particular, his clinical findings at the consultation of 3 November 2017;
(d) the MRI scan report of 16 November 2017;
(e) Mr Widjaja’s evidence in respect to the meniscal tear and his clinical findings;
(f) the Medical Panel Certificate of Opinion;
(g) the Medical Panel Reasons for Opinion and in particular the detailed history which the Panel obtained, which I accept to be accurate, and the Panel’s analysis and conclusions;
(h) the evidence of Associate Professor Romas;
(i) the evidence of Mr McLean in respect to the right knee injury.
196I found, in particular, the analysis undertaken by the Medical Panel and Associate Professor Romas in respect to the importance of the 21 October 2017 right knee incident and the analysis of Mr Nonoa’s subsequent complaints of increased pain to be helpful. I do not accept the subsequent flare-ups of pain represent further injury of a permanent nature which I need to disentangle.
197I accept that, from 21 October 2017, “the die was cast” in respect to Mr Nonoa’s right knee. I accept the events of 21 October 2017 have:
(a) caused permanent injury;
(b) caused ongoing symptoms of pain and limitation which may fluctuate;
(c) made Mr Nonoa vulnerable to increased pain levels while undertaking activities involving his right leg;
(d) contributed, in a significant way, to ongoing degenerative change within the right knee joint.
198While Mr Nonoa did lodge further WorkCover claims referring to activities such as walking on stairs, I do not accept this, in itself, establishes the need to disentangle. Nor do I accept this, in itself, establishes a foundation for a nature-of-employment application.
199I do not accept there is a proper basis for Mr Harrison’s submission that Mr Nonoa’s right knee injury occurred over time by reason of the nature of employment. That submission is simply not supported on the facts as I have found them. At best, Dr Slesenger (on whom Mr Harrison relied) speculated in vague terms that such a proposition may be plausible. Indeed, even that suggestion was subject to numerous qualifications. I do not accept the submission based on Dr Slesenger’s supposition.
200It is the discrete incident of 21 October 2017 that I accept to be the significant cause of Mr Nonoa’s right knee problems.
201In as far as there are some histories which attribute Mr Nonoa asserting his right knee has “got better”, there is other direct evidence from Mr Nonoa that he has had ongoing problems ever since 21 October 2017. Insofar as there is any tension in such histories, I am assisted by the Medical Panel Certificate of Opinion, the Medical Panel Reasons for Opinion and Associate Professor Romas’s analysis.
My analysis of Mr Nonoa’s left knee injury
202Moving now to Mr Nonoa’s left knee injury.
203As I have already set out, the timing and nature of Mr Nonoa’s left knee injury is much more complex and difficult to unravel. There is a great deal of contradictory evidence. There is a great deal of evidence which is unreliable.
204As to the history of events, what I accept is:
(a) Mr Nonoa first injured his left knee in late 2018,[76] probably October 2018.
[76]T41, L29 – T42, L13
(b) This initial left knee injury occurred while Mr Nonoa was walking outside his home. Mr Nonoa said so. This is an aspect of Mr Nonoa’s oral evidence where he was adamant.[77]
[77]T34, L24-26; T35, L1-3; and T42, L18-21
(c) Mr Nonoa underwent a left knee MRI scan on 7 November 2018 at the request of Ms Glynn, physiotherapist. Under “Comment”, that scan was reported:
“Comment:
There is a grade 2 degenerative change in the patellofemoral joint.
There is a partial tear of the posterior cruciate ligament at the femoral attachment.”[78]
[78]PFACB 115
(d) As at 7 November 2018, Mr Nonoa had:
(i)significant degenerative change within the left knee joint;
(ii)an established PCL tear.
(e) By November 2018, Mr Nonoa had significant left knee pain which was consistent with the radiological findings.
(f) Mr Nonoa, in his oral evidence, said subsequent to the PCL injury he had ongoing lingering pain in his left knee.[79]
[79]T46, L30 ꟷ T47, L5
(g) Mr Nonoa’s evidence that he was suffering ongoing left knee pain subsequent to November 2018 is consistent with the history he provided to Dr Fraser in April 2019 and Dr Fraser’s diagnosis. As at April 2019, Dr Fraser said, and I accept, Mr Nonoa was suffering ongoing left knee pain due to the PCL tear and degenerative change within the left knee joint structures.
(h) Mr Nonoa attended Dr Sameh Selwans on 18 July 2019. Mr Nonoa was continuing to complain of left knee pain. Mr Nonoa told Dr Selwans he was travelling to Samoa in three weeks. There was discussion about an “ACL injury”.[80] That presumably was a mistake and should have referred to the PCL injury. Dr Selwans recorded “Nil traumas or injuries”.[81]
[80]PFACB 271
[81]PFACB 271
(i) In cross-examination about this consultation, Mr Nonoa said:
Q:“Is it your evidence that your left knee remained constantly painful from around this time?---
A:Yes.”[82]
[82]T44, L21-22
(j) Mr Nonoa’s left knee pain subsequent to November 2018 may have fluctuated, but he clearly had ongoing pain and problems. From July 2019 Mr Nonoa’s left knee remained consistently painful. He said so.
(k) Mr Nonoa was involved in an incident on 25 March 2020 while restraining an inmate. Mr Nonoa lodged a WorkCover claim form on 17 May 2020. However, Mr Nonoa:
(i)did not have time off immediately after 25 March 2020;
(ii)continued working for three weeks on normal duties;
(iii)when he attended his general practitioner on 24 April 2020, complained of right knee pain and foot gout, but did not complain of any left knee injury;
(iv)first raised an aggravation of his left knee injury with Dr Roushdy on 8 May 2020 and did so in the context of doing a lot of walking uphill on the previous Tuesday.
These matters tend against Mr Nonoa suffering a left knee injury of any significance on 25 March 2020.
(l) When cross-examined about the 25 March 2020 incident, Mr Nonoa said:
Q:“I suggest that this was the incident which caused the regular persisting left knee pain that you refer to in your affidavits. Do you accept that?---
A:No.”[83]
[83]T46, L23-25
Mr Nonoa, in his oral evidence, when given the opportunity to adopt the 25 March 2020 left knee incident as the cause of his left knee pain, did not. Again, this tends against the 25 March 2020 left knee incident being of any real significance.
(m) Dr Azer said in his medical report he had not seen Mr Nonoa for knee problems since June 2020.
(n) On 9 April 2021, Mr Nonoa attended Dr Awad. Dr Awad recorded “twisted his left knee while going on uphill on tuedsays (sic)”.[84] This corresponded with the WorkCover claim form dated 20 April 2021.
(o) On 17 September 2021, Mr Nonoa consulted Dr Roushdy again. Dr Roushdy noted “history of chronic left knee injury” with a recent exacerbation.[85] No details are recorded in respect to such exacerbation.
(p) On 7 October 2021, Mr Nonoa consulted Dr Mounir Michael complaining of painful swelling in the left knee. No history of injury was recorded.
(q) On 1 July 2022, Mr Nonoa returned to full pre-injury duties and hours with the Department.
(r) Mr Morris said Mr Nonoa had not attended for physiotherapy treatment since 29 August 2022.
(s) In October 2022, Mr Nonoa commenced working a second job with Swissport/Carbridge Pty Ltd. He was working around 15 hours per week with this employer. This was in addition to his normal work with the Department.
(t) Between 25 May 2023 and 11 August 2023, Mr Nonoa attended at the Sydenham Medical Centre complaining of right knee pain on six occasions. No reference is made in these clinical notes to any left knee problems.
(u) The only reference to left knee problems at the Sydenham Medical Centre subsequent to 7 October 2021 was on 16 January 2024, when Dr Michael Abdelsayed recorded “LF Knee pain”.[86]
[84]PFACB 280
[85]PFACB 281
[86]PFACB 293
205I now put these findings into context with the balance of the medico-legal evidence.
206The high point of Mr Nonoa’s left knee application is Mr Reid’s evidence.
207I do not accept Mr Reid’s evidence. It is based on an unreliable history which bears no meaningful relationship to the facts as I find them. It is simply wrong to say that Mr Nonoa’s left knee symptoms began with the 25 March 2020 left knee incident. Further, it is contrary to my findings of fact to say this incident has contributed to Mr Nonoa’s current left knee problems in a significant way.
208In respect to the nature of employment submission, Mr Nonoa relied upon Dr Slesenger. However, Dr Slesenger variously said:
(a) Mr Nonoa had pre-existing left knee impairment prior to the 25 March 2020 incident;
(b) he could not exclude other causative factors;
(c) any 25 March 2020 injury had resolved;
(d) there is uncertainty regarding Mr Nonoa’s prognosis subsequent to his 2018 injury;
(e) there was uncertainty about the date of injury;
(f) at best, the nature of employment proposition was plausible, but that was subject to significant qualification.
I do not accept that Dr Slesenger’s evidence assists Mr Nonoa in any meaningful way.
209Associate Professor Love, who assessed Mr Nonoa in October 2021, considered Mr Nonoa was suffering non-specific internal degeneration of his left knee. That is consistent with Mr Fraser’s assessment back in April 2019. Associate Professor Love said the 6 April 2021 incident rendered Mr Nonoa’s left knee symptomatic. However, Mr Nonoa clearly had symptoms well prior to this event. Mr Nonoa said so. Associate Professor Love’s conclusion is based on a history which is unreliable.
210Moving now to Associate Professor Romas. I found his opinion of assistance. Associate Professor Romas said Mr Nonoa had suffered a spontaneous left knee injury. That is consistent with Mr Nonoa’s evidence of suffering left knee pain walking outside his home. Associate Professor Romas concluded the left knee condition to be “entirely constitutional”.[87]
[87]DCB 29
211That takes me to the evidence of Dr David Love. Dr Love said Mr Nonoa’s chondromalacia had been “brewing” for some time prior to 2017. Dr Love’s evidence focused primarily on the 21 October 2017 right knee incident. Of the left knee issues, Dr Love said they were “more spontaneous” and came on without specific trauma.
212That leaves me with the evidence of Mr McLean. Mr McLean’s left knee focus was on the 25 March 2020 left knee incident. Indeed, Mr McLean was specifically asked by Mr Nonoa’s solicitor to report on this incident.
213As a finding of fact, I do not accept the 25 March 2020 left knee incident to be of any real significance in this application. It therefore follows that I do not accept Mr McLean’s evidence in respect to Mr Nonoa’s left knee injury to be of any real assistance. It is based on an unreliable history.
214Having been in the unique position of considering the totality of the evidence in respect to Mr Nonoa’s left knee, I conclude:
(a) Mr Nonoa suffered spontaneous left knee pain while walking outside his home in or about October 2018.
(b) At the time when Mr Nonoa underwent the MRI scan on 7 November 2018 he was suffering:
(i)a partial tear to the PCL in his left knee
(ii)significant degenerative change within the left knee joint.
(c) Since November 2018 Mr Nonoa has suffered ongoing pain and dysfunction in his left knee. This has fluctuated.
(d) The 25 March 2020 left knee incident was not an incident of significance. The facts as I accept them do not establish that to be so.
(e) The references to Mr Nonoa suffering increased pain while walking up a hill or having had a minor slip do not, of themselves, establish that Mr Nonoa:
(i)suffered any injury of significance
(ii)established injury by reason of the nature of employment.
(f) While there have been flare-ups of pain which occurred at work, they were temporary in nature, and Mr Nonoa’s left knee settled to the underlying condition which dates back to October 2018.
(g) There is no reliable evidence which establishes, on the balance of probabilities, permanent injury to Mr Nonoa’s left knee by reason of the nature of employment and/or any of the various incidents which led to complaints of increased pain.
Some general observations on the “serious injury” test
215Before moving to complete my determination of Mr Nonoa’s applications, I make some general comments in respect to the “serious injury” test.
216It is Mr Nonoa who has the onus of proof.
217To establish “serious injury”, the threshold is high.
218As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[88] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Mr Nonoa to be successful, I have to be persuaded that the consequences due to his right knee and/or left knee injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[88][2009] VSCA 181
219The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[89] The observations made by Maxwell P provide me with some assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[90] That said, Maxwell P’s observations are descriptive, not prescriptive.[91]
[89](2010) 31 VR 1 (“Haden”)
[90](Ibid). See, in particular, Maxwell P at paragraphs [9]-[17]
[91] Richard Kesper v Victorian WorkCover Authority [2024] VSCA 237 at paragraph [101].
220Further, it is the “collective nature” of the pain and suffering consequences which must be considered. That is, the Court must consider “globally” all of Mr Nonoa’s:
(a) actual experiences of pain; together with
(b) disabling and debilitating effects of the impairment.[92]
[92]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
221As a part of my analysis, I must give consideration to not only what it is that Mr Nonoa says that he has lost, but also what it is that he has retained.[93]
[93]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
222As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[94] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[95]
[94][2013] VSCA 326
[95](Ibid) at paragraph [59]
My serious injury analysis
223I now move to complete my determination in respect to Mr Nonoa’s applications.
224I shall firstly complete my determination in respect to the right knee application. I will then set out my determination in respect to the left knee application.
Is Mr Nonoa’s right knee injury a serious injury for pain and suffering purposes?
225In completing my analysis, I will:
(a) in general terms follow the template set out by Maxwell P in Haden; and
(b) when appropriate, undertake case specific analysis.
226Referring firstly to pain.
227I accept that Mr Nonoa, by reason of the injury to his right knee sustained on 21 October 2017, suffers chronic pain which fluctuates in severity. Mr Nonoa has suffered such pain since October 2017. I accept that there are periods when Mr Nonoa has reduced levels of pain. However, I also accept that significant right knee pain is never far away. I also accept that Mr Nonoa suffers periods of right knee swelling and significant restriction in movement, and what he describes as clicking and clunking.
228I accept Mr Nonoa’s right knee injury and the consequential pain and pain-related impairment will continue into the foreseeable future.
229While Mr Nonoa has avoided any left knee operation thus far, I accept it is likely that at some future time he will, despite his fear of surgery, undergo surgery. I accept, by reason of the levels of pain and pain-related dysfunction, Mr Nonoa is likely to undergo either arthroscopy or a total knee replacement. I accept in the meantime, Mr Nonoa is reliant upon painkilling medication such as Diclofenac, Panadol, and Nurofen.
230Given Mr Nonoa’s relatively-young age, I accept Mr Nonoa’s pain consequence in its own right to be a very significant consequence.
231Moving now to the pain-related impairment and dysfunction which Mr Nonoa suffers.
232The VWA said that Mr Nonoa had not, in his evidence, sufficiently distinguished between consequences flowing from his right knee injury and his left knee injury. That is, he had not disentangled.
233Certainly, Mr Nonoa’s affidavit evidence did not address matters of disentanglement as comprehensively as it could have. If Mr Nonoa’s affidavits had been the totality of the evidence, that may have proved an impediment for Mr Nonoa establishing serious injury. However, they are not. I am assisted in my analysis of the pain-related consequences and right knee dysfunction consequential to the 21 October 2017 injury by the analysis of Mr McLean. I refer specifically to paragraphs 4, 6, 8 and 10 of Mr McLean’s report. Mr McLean set out in great detail the consequences to Mr Nonoa in functional terms flowing from his 21 October 2017 right knee injury alone. I accept Mr McLean’s analysis.
234Referring back to the Haden template.
235The pain-related impairments and dysfunction identified by Mr McLean are, I accept, very significant, and I accept in general terms will impact upon Mr Nonoa’s work capacity, lifestyle, and activities of daily living on a daily basis.
236Referring to Mr Nonoa’s mobility.
237I accept that, generally, Mr Nonoa’s mobility is, by reason of his right knee injury alone, significantly impacted. His capacity to stand, walk, negotiate stairs, walk on inclines or rough ground, I accept to be impacted.
238I accept the impact on Mr Nonoa’s mobility to be a very significant consequence.
239Moving now to sleep.
240Mr Nonoa said his sleep is impacted by his knee pain. Mr Nonoa did not specifically identify this to flow from his right knee. However, I accept, given the nature and extent of the organic injury which Mr Nonoa suffers and the general pain consequences which I accept, it is reasonable to accept that there are sleep consequences flowing from Mr Nonoa’s right knee injury alone.
241Moving now to work.
242I accept, by reason of the restrictions identified by Mr McLean as flowing from the right knee injury alone, that Mr Nonoa will have permanent vocational restrictions by reason of that injury and he will continue to suffer pain when undertaking normal work activities. As far as is permissible in a pain and suffering case,[96] I take into account the impact of Mr Nonoa’s right knee injury on his work.
[96]See for example paragraph [15] of Haden and also Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
243I also accept, by reason of Mr Nonoa’s right knee pain and pain-related impairment, that he will be restricted in general activities of daily living such as:
(a) domestic activities around the home (both inside and out)
(b) sporting activities
(c) general family activities.
244I accept the impact of the right knee injury alone on these activities of daily living to be significant.
245As I have already identified, I must also be informed by what Mr Nonoa has retained. For example:
(a) there was no suggestion that Mr Nonoa is not able to self-care and self-manage
(b) Mr Nonoa has continued in employment with the Department
(c) Mr Nonoa is still able to undertake a level of activity around his home
(d) Mr Nonoa is still able to drive.
246I accept that these retained capacities must be considered and synthesised with the consequences which I accept Mr Nonoa suffers by reason of his right knee injury.
247I must also make an assessment of the impact of Mr Nonoa’s right knee condition on his overall enjoyment of life.
248I have formed the view that the cumulative effect of Mr Nonoa’s right knee injury alone does adversely impact his general enjoyment of life and will do so into the foreseeable future.
249I am also conscious that I must take into account comparative cases. I have, over the years, determined numerous “knee cases”. For example:
(a) Kadhim v Victorian WorkCover Authority[97]
(b) Coskun v Victorian WorkCover Authority[98]
(c) Clifford v Victorian WorkCover Authority.[99]
[97][2022] VCC 2110
[98][2023] VCC 507
[99][2024] VCC 217
250I am also assisted in this application by the recent Court of Appeal decision in Connelly v Transport Accident Commission.[100] In that matter, which had numerous similarities to this application, the Court of Appeal granted leave.
[100][2024] VSCA 20
251Having been in the unique position of observing Mr Nonoa in the witness box and considering all of the evidence, I accept the pain and suffering consequences to Mr Nonoa by reason of his right knee injury sustained on 21 October 2017 are “at least very considerable”.
252Leave will be granted to Mr Nonoa to pursue common law damages for pain and suffering for his right knee injury sustained 21 October 2017.
Is Mr Nonoa’s left knee injury a serious injury for pain and suffering purposes?
253Moving now to Mr Nonoa’s left knee application.
254The VWA said that Mr Nonoa has not:
(a) disentangled any work-related left knee injury from any pre-existing or other non-work-related left knee injury
(b) established that he has suffered a left knee injury by way of gradual process due to the nature of his employment
(c) established that the 25 March 2020 left knee incident led to permanent injury upon which serious injury leave could be based
(d) established that any other of the specific incidents involving his left knee led to a permanent injury upon which serious injury leave could be based.
I agree.
255Having analysed in detail the history of Mr Nonoa’s left knee problems and the medical evidence, I accept:
(a) Mr Nonoa suffered a spontaneous left knee injury while walking outside his home in or about October 2018.
(b) That left knee injury involved a partial PCL tear and internal derangement of the structures of the left knee, either by way of primary injury or aggravation of underlying pre-existing degenerative change.
(c) Mr Nonoa has failed to discharge the onus to establish that this injury was caused by his employment. Specifically:
(i)No explanation was provided to the Court how the PCL injury was work-related;
(ii)Likewise, I do not accept there is evidence which establishes that Mr Nonoa’s employment up until that point was a material contributing factor to the significant degenerative change and pathology within the left knee joint which existed at that time.
(d) Mr Nonoa, from October/November 2018, has suffered fluctuating left knee pain. While there may have been temporary increases in the level of his left knee pain caused by reason of incidents at work, Mr Nonoa has not discharged the onus of establishing that such events caused permanent injury upon which a finding of serious injury could be based.
(e) Mr Nonoa has not established injury by gradual process by reason of the nature of his employment. The weight of evidence is against such proposition. It is speculative and without proper basis.
256To summarise, I do not accept Mr Nonoa has discharged the onus of establishing that any left knee injury which occurred at work was more than a temporary exacerbation of left knee pain. Further, I do not accept that Mr Nonoa has disentangled such incidents from the primary event which occurred spontaneously in October 2018 and/or his underlying constitutional degenerative left knee pathology.
257In the circumstances, Mr Nonoa’s left knee application fails.
Consequential orders
258I will hear from the parties in respect to the consequential orders to be made.
0
25
0