Temko v Victorian WorkCover Authority [2026] VCC 263

1. The plaintiff submitted that the back injury in isolation produced a "serious injury" for both pain and suffering and loss of earnings.
2. She submitted that a person could have two (or more) "serious injuries". In support of that principle, the plaintiff relied on the statement by Justice Ashley in Dressing v Porter ("Dressing")[2] that: "If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might have satisfied the test by reasons of its pain and suffering consequences".[3]
3. Therefore, the plaintiff submitted that there was sufficient evidence to conclude that the low back injury met the serious injury threshold for both pain and suffering and pecuniary loss, regardless of the earlier right knee injury.

1. About the evidentiary onus, the defendant having conceded that the right knee was serious, submitted that the plaintiff had failed to identify impairment consequences from the back injury to meet the "very considerable" test.
2. Therefore, the defendant's primary submission was that the plaintiff had failed to discharge her evidentiary onus to disentangle the consequences said to flow from the May 2021 right knee injury and the August 2021 lower back injury. In support of that submission, the defendant relied on what was said in Peak Engineering Pty Ltd v McKenzie.[4]
3. Secondly, where there was the prospect of pain management and further treatment, the defendant raised as an issue the question of stability.
4. In addition, the defendant highlighted the medical evidence about the claimed back injury and submitted that overall, it was best represented by a chronic pain syndrome.[5] In that regard, the plaintiff had relied on a physical injury to the back which she said was the aggravation of an underlying condition,[6] which I understand to be the aggravation of pre-existing degenerative changes and not a pre-existing chronic pain syndrome. Therefore, the defendant highlighted the fact that a chronic pain syndrome was not relied on by the plaintiff.

1. Before dealing with the evidence, I will describe the legal principles and the approach I shall take to 'disentangling' because it is relevant to the result.
2. First, even though it is possible to have more than one "serious injury", the focus remains on the identification of consequences from one or the other of the claimed serious injuries.
3. Second, for the claim based on the back injury, the plaintiff bears the overall evidentiary onus, to identify the claimed injury, and the extent of impairment and impairment consequences caused by that injury. She must do so from the starting point that she was already compromised by her previous right knee injury. As a matter of general principle, so much was acknowledged by Justice Ashley in Dressing because later in His Honour's reasons, in a discussion about the trial Judge's reasons, Justice Ashley said: "The symptoms affecting the hip and knee of which the appellant complained must surely have been susceptible of disentanglement from his complaint of symptoms deriving from his neck injury".[7]
4. More recently, in Palmer v Transport Accident Commission ("Palmer")[8] the Court of Appeal said that where an applicant has a pre-existing injury, the onus is on the applicant to 'disentangle' the effects of the two injuries on the claimed pain and impairment so as to establish that the consequences attributable to the claimed compensable injury satisfy the serious injury threshold.
5. About the evidentiary onus, in Palmer the Court of Appeal also said that it was necessary to identify the impact of the consequences from the compensable injury and in doing so isolate those that followed from the earlier injury.[9]
6. It is this issue of 'disentangling' the right knee from the back that is one of the issues to resolve on a consideration of the evidence. Where the plaintiff was already impaired by the earlier right knee injury, she has the onus to establish the additional impairment caused by the subsequent back injury.
7. To illustrate this point by reference to some of the evidence, in her first affidavit the plaintiff said that: "In the past I used to enjoy a bit of gardening, including the weeding, something I no longer do, again because of the right knee on its own and my back on its own".[10] This is an example of evidence that does not 'disentangle' the claimed restriction for gardening from the back injury, from the restriction caused by the right knee. As I move to discuss the evidence, this will become a recurring theme.
8. But, I reject the plaintiff's submission that because it is possible to have more than one serious injury, it is sufficient to discharge her evidentiary onus to 'disentangle' if she simply says that both the right knee and the low back, in isolation, cause the same or similar impairment consequences.

1. The plaintiff was born in 1981 and will soon be 45 years of age. She was educated to Year 12 and then went on to obtain a Diploma in Community Service and a Bachelor of Criminal Justice. She worked for a while in retail. Then in August 2017 she commenced work with the employer as an education support officer, working approximately 30.3 hours per week for earnings of $819 gross per week. The plaintiff was employed to work at a school for children with special needs.
2. The plaintiff's general medical health is unremarkable. She did have some back pain in 2012 but there is no evidence that it was particularly debilitating or ongoing, other than for several attendances on a general practitioner at the NorthEnd Medical Centre.
3. The plaintiff was at work on 11 May 2021 when she slipped and injured her right knee. The circumstances of that injury are not relevant. Following the first incident the plaintiff attended a general practitioner and was referred for scans of her right knee. She commenced physiotherapy and then returned to work on reduced hours, three hours a day, three days a week from 12 July 2021.
4. As mentioned, the plaintiff was working those hours and light duties when the second incident occurred on 9 August 2021 and she developed back pain after performing some light cleaning by using a rag to wipe shelves and then made a salad for lunch.
5. The plaintiff has not worked since the second incident, apart from an attempt to work on 16 August 2021, when she only lasted two hours.

1. After the second incident, the plaintiff attended her general practitioner with a complaint of back pain. On 18 August 2021 she was referred for a CT scan of her lumbar spine. The report of that CT scan described a finding of minor scoliosis.[11] I understand scoliosis to be a degenerative condition that would not have been caused by the second incident.
2. For her back pain, the plaintiff then commenced attending an osteopath, Ms Celeste Coscarella. Apparently, she had several attendances on Ms Coscarella over the next couple of years. There is no report from Ms Coscarella.
3. Because of ongoing knee pain, the plaintiff was referred to the orthopaedic surgeon, Mr Jarrad Stevens on 25 November 2021. She had further MRI scanning of her right knee and on 28 April 2022 underwent right knee arthroscopic surgery.
4. Shortly after the surgery with Mr Stevens, the plaintiff commenced physiotherapy at Northern Spinal Sports Injury Clinic. On 23 July 2022 Ms Anthea Ranieri, physiotherapist, wrote to Dr Ali Aslani Dareh Moradi, describing several medical issues outside her scope of practice but also treating the plaintiff for the right knee and back pain. Ms Ranieri said the plaintiff needed "some assistance in learning how to navigate and deal with her pain as it is very volatile and changing whilst she is dealing with a plethora of other medical issues at the moment".[12]
5. On 30 September 2022 Mr Stevens wrote to Dr Aslani, a general practitioner at the NorthEnd Medical Centre, describing ongoing restrictions to the plaintiff's right knee after his earlier surgery, which he described as arthroscopy and debridement of the meniscus. He also described a "very painful" right hip and bilateral shoulder pain and that "we know about her back which is symptomatic".[13]
6. Despite surgery, the plaintiff had ongoing right knee pain. She was referred for a second opinion about her knee to Mr Nigel Hartnett, another orthopaedic surgeon. She saw Mr Hartnett on 12 April 2023.[14] He recommended repeat arthroscopic knee surgery and to see Dr Megan Eddy at Empower Rehab. After a delay, Mr Hartnett performed further surgery on 24 April 2024.[15]
7. In her first affidavit,[16] the plaintiff described attending a chiropractor, Ms Natalia Pakzamir, on 27 May 2023 for lower back pain and that treatment was ongoing (that is as at 18 December 2024). There is no evidence from the chiropractor.
8. The plaintiff was assessed by Matthew Richardson, physiotherapist, for "pain education assessment" at Advance Healthcare on 5 June 2023,[17] presumably instead of the suggestion by Mr Hartnett for her to see Dr Eddy. In a document dated 5 June 2023 and titled 'Pain Education Assessment', Mr Richardson said the plaintiff's pain had "features of nociplastic dominant pain",[18] that pain physiotherapy sessions were underway to explore pain mechanisms and that "A network pain management program may then be appropriate to address her knee and spinal condition...".[19] There is no other evidence from Mr Richardson.
9. The plaintiff had a further MRI scan of her lower back on 16 August 2023[20] which was described as showing no evidence of any acute traumatic injury or canal compromise to account for ongoing back symptoms.
10. On 30 August 2023, the plaintiff attended Mr Craig Timms, a neurosurgeon, for ongoing back pain. He recommended a CT-guided epidural injection at L4-5 which was performed on 2 February 2024.[21]
11. Shortly before having the CT-guided epidural injection, according to her first affidavit, from 20 January 2024 the plaintiff commenced physiotherapy treatment with Ms Emma Costa, predominantly for her right knee. There is no report from Ms Costa.
12. The plaintiff next said that on 26 June 2024, she commenced attending a psychologist, Mr Adam Bottomley.[22] There is no report from him.
13. The plaintiff regularly attended a general practitioner, Dr Moradi, at the NorthEnd Medical Centre until mid-2024, before he left and her general practitioner care was transferred to Dr Jee Hao Lim. Since then, the plaintiff has continued to regularly attend Dr Lim and receive WorkCover certificates of capacity. Those certificates are not in evidence. In an affidavit sworn on 16 December 2025[23] the plaintiff described being in receipt of ongoing weekly payments of compensation but did not specify if those payments are made for the knee or the back.
14. Pausing again, the plaintiff said in opening that she had been in receipt of weekly payments of compensation since 2021. In opening her counsel said it was his understanding that the weekly payments were being paid for the back,[24] but that is an issue that is unresolved on the evidence.
15. The plaintiff continues to take over-the-counter and prescription medication. In her affidavits, she said she would not be able to return to her pre-injury duties or any other work to which she was suited due to the pain and restriction in her right knee on its own and her back on its own.[25] She also noted ongoing restrictions such as needing to use a walking stick ever since the first operation to her right knee, but that the stick also helped support her back.[26]
16. Next, the plaintiff was reviewed by Mr Timms and referred for a further MRI scan. That MRI scan was performed 14 May 2025. The radiologist's conclusion was no significant disc disease, no sequelae of disc injury identified on the study and no neural compromise.[27]
17. The plaintiff was reviewed by Mr Timms on 6 June 2025 and underwent a further CT-guided epidural injection at L4-5 on 8 September 2025.[28]
18. Sadly, the plaintiff's husband passed away from cancer in July 2025. She now lives at home with her daughters who are aged 23 and 5 years respectively. Understandably her husband's passing has been felt hard by the plaintiff and her children.
19. Along the way, the plaintiff was reviewed by Mr Hartnett for her right knee and for a right hip problem. On 2 September 2025 she had an MRI scan of her right hip.[29] She was then referred by Mr Hartnett to a hip surgeon, Mr Marc-James Friso. The plaintiff was also referred at that time by Mr Hartnett to a pain physician, Dr Ilonka Meyer.
20. By 30 September 2025, in a report to the plaintiff's solicitors,[30] Mr Hartnett said he did not feel that the plaintiff could "work in a current capacity either part-time or full-time". Whether such incapacity was permanent was said by Mr Hartnett to be a question he could not reliably answer because the expertise of pain specialists had still not then been approved. He said it was his belief that the plaintiff's right knee injury had restricted the plaintiff in relation to "all activities of daily living, including exercise, leisure, work and quality of life".[31]
21. The plaintiff attended Dr Meyer, interventional pain specialist and anaesthetist, on 7 October 2025. Dr Meyer wrote back to Mr Hartnett that day and said the plaintiff had mechanical hip pain; mechanical lumbar spine pain; and post-surgical right knee pain. She described a discussion about changing the plaintiff's medication and the suggestion of medial branch blocks. Dr Meyer said she would "review the plaintiff following completion of her medial branch blocks and appointment with Mr Friso".[32] Despite that advice, the plaintiff did not return to see Dr Meyer.
22. The plaintiff attended Mr Friso on 22 October 2025 and he arranged further scans of her hips. Then on 19 November 2025 Mr Friso arranged a cortisone injection into the plaintiff's right hip. On 19 November 2025 Mr Friso wrote to Mr Hartnett, saying an MRI showed normal hip pathology and that he thought the hip was not her primary pain generator. He said he had referred the plaintiff to Mill Park Physio for a dedicated hip physiotherapy program.[33] There is no evidence that she took up that referral.
23. Pausing, the right hip is not relied on as a serious injury or work-related for the purpose of these proceedings. Therefore, any impairment consequences from the right hip must be disregarded, or disentangled from the low back.
24. On 5 December 2025 Dr Lim wrote a report to the plaintiff's solicitors, setting out the treatment at the NorthEnd Medical Centre.[34] Dr Lim said he had treated the plaintiff since 15 February 2024 for her "2 Workcover injuries".[35] He then dedicated the first part of the report to the right knee injury and the second part to the back injury.
25. About the right knee, as of 5 December 2025 Dr Lim said for management the plaintiff was still taking Oxynorm and Mersyndol Forte. Dr Lim referred to a treatment plan for the right knee being on the last medical certificate of capacity (not in evidence) and that the plaintiff did not have a current work capacity because of her right knee injury and that such incapacity was likely to remain indefinitely.[36]
26. Dr Lim said that if the right knee injury did not recover then the impact on the plaintiff's social, domestic and recreational activities were likely to be of a long-term permanent injury.[37]
27. Next, about the back injury, Dr Lim said that the plaintiff did not have a current work capacity for suitable employment because of the back injury. Dr Lim said "with the current ongoing symptoms with back injury, and the need for ongoing specialist reviews, Mrs Lazarovski's incapacity for employment is likely to remain indefinitely due to her right knee injury".[38]
28. Pausing, I assume Dr Lim's reference above to the right knee is a typographical error and is meant to be a reference to the back injury. It is perhaps a serendipitous example of the difficulty of disentangling the right knee impairment consequences from the additional impairment consequences caused by the low back injury.
29. In any event, Dr Lim then went on to say that if the back injury did not recover, the impact on social, domestic and recreational activities are likely to be long-term permanent injury.[39]

1. As a broad overview, in her affidavits, the plaintiff ascribed various impairment consequences to both the right knee and the low back. She often said that in isolation each of the right knee injury and the back injury caused various identified impairment consequences. For example, in her second affidavit sworn 16 December 2025, the plaintiff said that in terms of work she had not been able to get back into the workforce because of the pain and restriction both in her back on its own and her right leg on its own.[40] For activity such as sleep, walking, standing, shopping, gardening and the like, the flavour of her affidavit evidence was that each of the right knee and the back incapacitated her for those things, without explaining how one compared to the other.
2. Dealing with the affidavits in a little more detail, in her first affidavit sworn 18 December 2024,[41] the plaintiff set out the symptoms that she was then experiencing in her right knee and in her back, as well as relevant matters of history and treatment. She said at that time she was obtaining certificates of total incapacity "both with respect to my right knee and my back".[42] About the right knee she described ongoing pain, numbness, swelling and an inability to bend her right leg fully. She described ongoing physiotherapy and chiropractic treatment and the use of medication. She said she was using a walking stick ever since the first operation to her right knee "which also helps support my back as well".[43]
3. The plaintiff said her sleep had been impacted, particularly because of pain in her back but also to a certain extent because of her right knee. She said she had difficulty driving because prolonged sitting increased symptoms in her back and right hip, but also that the constant use of the accelerator increased the symptoms in her right leg.[44]
4. The plaintiff said because of pain in her right knee on its own and the pain in her back on its own, she found it difficult to stand, sit, and walk for prolonged periods of time. She said that social visits and attending soccer matches had been significantly curtailed as a result of the injury to her right knee and quite independently, the injury to her back. She went on to describe various restrictions for daily activity, for example cooking, cleaning and the like and said she had difficulty with those activities because of pain and restriction in the right knee on its own and pain and restriction in the back on its own.[45]
5. The plaintiff swore a second affidavit on 16 December 2025.[46] She said at that time the symptoms in her back, right hip, right leg and right knee had not improved. She described ongoing lower back pain aggravated by prolonged sitting, standing, bending and lifting. She said she also had ongoing pain in her right knee with a strange sensation over the front of her knee and that weight bearing on the right knee exacerbated pain.
6. In the second affidavit, the plaintiff described ongoing treatment. She described how life had been more difficult since her husband had passed away. She said she had not been able to get back into the workforce because of the pain and restriction both in her back on its own and her right leg on its own.[47] She then repeated her earlier affidavit evidence about restrictions for sleep, cooking, gardening and the like. She described a restriction for involvement at her youngest daughter's school and said she would have been more involved in those activities but it was "trouble enough looking after my young daughter as it is because of my injuries, both the back, right hip on its own and the right leg on its own".[48]
7. The plaintiff's affidavits set out many impairment consequences that were said to apply equally to both the right knee and the lower back injuries. Frequently, there was very little useful evidence about what, if any, additional impairment consequences were caused by the subsequent low back injury.

1. The plaintiff was cross-examined about what she had said in her affidavits and to some of the doctors. It is unnecessary to set out a lot of her oral evidence, because much of it simply confirmed what she had said in her affidavits and in histories to doctors.
2. Relevant to the back injury, the plaintiff confirmed the various injections she had into her lumbar spine in February 2024 and September 2025. She said any pain relief from those procedures was "Just very minor".[49]
3. The plaintiff was asked whether the surgery to her knee had improved her pain. She said she had improvement for a little while after the first arthroscopic surgery and after the second arthroscopic surgery, but then the pain went back to the level of pain she had.[50]
4. The plaintiff said that after the second arthroscopy she could not bend the right knee properly. She said she has had constant pain from the time she first hurt the right knee and apart from brief reduction following surgeries that had remained constant. She said the pain was probably a 7/10.[51] She went on to say that the pain could go above or below a seven depending on the day she was having.
5. The plaintiff was then cross-examined about her use of a walking stick, which she confirmed she had started using after the first operation. She could not recall if it had been recommended by a doctor but said she used it because it felt comfortable for her back and her knee to have the support.[52]
6. About standing, sitting and walking for long periods, the plaintiff confirmed that those activities were difficult due to both the knee and the back.[53]
7. The plaintiff was asked whether she could work at a sit/stand desk and she said she did not think she could cope. She said that maybe within 5, 10 or 15 minutes she would need to stand and have a stretch. She was asked whether all of that came back to feeling pain in the right knee and pain in the lower back and she said yes.[54]
8. About her ability to concentrate, the plaintiff said the injuries to her right knee and back can affect her concentration. She said, "The pain can, yeah".[55]
9. The plaintiff was then cross-examined broadly about her affidavit evidence including restrictions for pleasurable activities such as attending the soccer, cooking and cleaning. She said it was a combination of both injuries that caused those restrictions.[56]
10. The plaintiff was then cross-examined about her attendance on the pain specialist, Dr Meyer and what Dr Meyer said in her reports. The plaintiff described changing her medication at the suggestion of Dr Meyer but that did not work out and made her feel terrible.[57] She said she did not recall whether she was supposed to go back to Dr Meyer.[58] She was cross-examined about Dr Meyer's suggestion of a further injection. The plaintiff said that because she had previous injections, she was not keen on getting something into her nerve.[59]
11. About Dr Meyer's referral for the purposes of pain management, the plaintiff described how she had previously been to Advance Healthcare for pain management with Matthew Richards, who she saw on six occasions. It was then suggested to her that if a pain management program was now available, she would jump at the opportunity to become involved. The plaintiff said "Yeah".[60]
12. The plaintiff was then cross-examined about completing a degree in criminal justice and criminology. She explained how she commenced that degree before her injury in March 2021 and how she completed it in March 2024 at Swinburne University, because she had some credit towards that course.[61] She explained it was online learning[62] and she wanted the degree because she wanted to get out of being a teacher's aide.[63] She described how she wanted to work with vulnerable women in the field of family domestic violence.[64] When asked why she had not explored any employment opportunities with the degree the plaintiff said it was because "I'm in pain. I have injuries".[65]
13. Next, in cross-examination the defendant tendered and played in Court some limited video surveillance of the plaintiff on 20 January 2026 and 10 April 2025. As a broad summary, the video demonstrated the plaintiff was able to drive, attend shopping and go about mundane activity with her daughters, while carrying or using the crutch/walking stick.
14. In re-examination the plaintiff gave some further evidence about the course in criminology that she had completed and how she was able to do that effectively part-time. She was asked whether a job as a case worker would now be in her capacity. She said such a job would be nice, but she did not think it now possible because of the amount of sitting involved.[66]
15. Returning to the criminology course, the plaintiff explained that having started it, it was something she wanted to finish and there might be a better future if she was able to complete it. She said she was devastated that she was not able to pursue a goal of working with that qualification.[67]
16. About pain management, the plaintiff gave evidence about the injections and some of the referrals she had previously had.
17. Next, the plaintiff was re-examined about the pain in her knee on its own. She said that pain impacted her sleep and her housework. She then said the back pain impacted her sleep and housework. She said that each on their own impacted her ability to get the work.[68]

1. I have earlier set out the relevant evidence from treating practitioners in the background section and in the discussion about the plaintiff's affidavit and oral evidence. I shall next set out the relevant medico-legal evidence.

1. The plaintiff relied upon a medico-legal report of Mr John O'Brien, orthopaedic surgeon, dated 5 November 2025.[69]
2. Mr O'Brien obtained a history of the right knee and lower back injuries. Under a heading "current history" he said the plaintiff described experiencing lower back pain generally 6/10 but at times reaching 9/10. He recorded the plaintiff saying the pain was aggravated basically by any activity including prolonged sitting, standing, bending and lifting. Mr O'Brien then got a history of the plaintiff having right hip pain described as 7/10 and also aggravated by any prolonged sitting, standing or "wrong positions". About the right knee, Mr O'Brien had a history that the plaintiff had right knee pain at 4-5/10, a weird sensation over the front of her knee and altered sensation to touch. He recorded that any weight-bearing activity affected the right knee pain, that it occasionally swelled, gave way and that any sudden flexion of the knee was quite painful.[70]
3. Mr O'Brien obtained a history that the plaintiff was taking Mersyndol Forte and Oxynorm, but without specifying which injury that medication related to.
4. Mr O'Brien went on to say that the plaintiff described a combination of constant lower back pain with constant pain described in the vicinity of the right buttock extending into the lateral aspect of the right hip, in addition to constant pain in the anterior aspect of the right knee.[71] He went on to say that the plaintiff's chronic pain was complicated by psychosocial issues indicating the presence of a chronic pain syndrome. He went on to say that the plaintiff required specialist pain management and with well-established multiple sites of chronic pain there was a poor prognosis. He said based on the plaintiff's description of chronic hip and knee pain that of itself would preclude her from returning to her pre-injury occupation and would be a source of major restriction for her general, social, domestic and recreational pursuits.[72] In addition he further reported that the severity of chronic lower back pain, in itself, would preclude her from a return to her pre-injury occupation and of itself would be a source of marked restrictions on her general, social, domestic and recreational activity.[73]

1. Dr Hazem Akil is a neurosurgeon who examined the plaintiff for medico-legal purposes and provided a report dated 28 November 2025 to the plaintiff's solicitors.
2. Like Mr O'Brien, he obtained a history of the plaintiff experiencing constant lower back pain, which he recorded as only minimally improved by medication. He obtained a history of various functional limitations. He obtained a history that the plaintiff's right knee was reportedly "locked", was no better following surgery and that the plaintiff continued to have constant pain in the right knee and hip regions. He obtained a history of the plaintiff being significantly disabled for daily activity and work.[74] He went on to diagnose chronic lower back pain, chronic right knee pain and chronic right hip pain. Perhaps to illustrate the point about disentangling, he also opined that "the injuries have had a profound impact on Ms Lazaroski Temko's life".[75]
3. Dr Akil was then asked questions about the plaintiff's lower back. He answered those questions linking the current symptoms to the plaintiff's employment with the employer and the second incident. He went on to say that her work-related back injury "in conjunction with her other injuries, severely restricts her in all social, domestic and recreational activities".[76]

Dr Joseph Slesenger, specialist occupational physician

1. Dr Joseph Slesenger is a specialist occupational physician who examined the plaintiff at the request of her solicitors and provided a report dated 9 December 2025.[77]
2. Like the other doctors, he obtained a history of the two incidents, the development of symptoms and the plaintiff's then reported restrictions. He recorded symptoms affecting the right hip, right knee and lower back, as well as a description of psychological impairment. He recorded impairment for activities of daily living, sports, driving and work.
3. Dr Slesenger then summarised the situation by saying the plaintiff presented with a history of multiple injuries sustained in several incidents.[78] He went on to recommend a review with a pain specialist. He said he was satisfied that the right knee and right hip related to the first incident and the lumbar spine related to the second incident.[79] He went on to say that opinions expressed by him took into account the three separate conditions. He said the right knee on its own would preclude the plaintiff from returning to work, the right hip on its own would prevent her from returning to work and the lumbar spine would prevent her from returning to work.[80]

Dr Clayton Thomas, consultant in rehabilitation and pain medicine

1. Dr Clayton Thomas is a consultant in rehabilitation and pain medicine who examined the plaintiff at the request of the defendant and provided a report dated 10 December 2025.[81]
2. After taking a history of injury, symptoms and the like Dr Thomas concluded that the lower back pain had come on fairly innocuously whilst working cleaning shelves. He said the plaintiff's "overall presentation is in keeping with a chronic pain syndrome" and that "Nonorganic and organic factors seem to be at play here. It is difficult to know which one is the dominant one".[82]
3. Dr Thomas went on to say that the plaintiff did not have a capacity for suitable employment.[83]
4. In circumstances where the plaintiff does not rely upon a chronic pain syndrome as a serious injury, there is not much else in Dr Thomas' report that is of assistance.

1. Dr Barclay Reid is a general surgeon who examined the plaintiff at the request of the defendant and provided a report dated 3 April 2025.[84] He obtained a history of injury to the right knee and current symptoms, as well as a history of injury to the lower back and current symptoms. He went on to diagnose injuries to the right knee. He said the plaintiff was likely to have ongoing knee pain described by her as 3-4/10 but rising to 9 or 10 with activity. He said the plaintiff might ultimately require a knee replacement. About the lower back he said the prognosis was that the plaintiff was likely to recover within six months to two years and there was no evidence of any injury with long-term consequences.[85]
2. Dr Reid provided a supplementary report after viewing video surveillance. Pausing, I note the video surveillance was tendered and played in Court. It showed the plaintiff to go about ordinary mundane activity with her daughters and using a walking stick and in my view not much turns on it and that was also the opinion of Dr Reid.[86]

1. Dr Armin Drnda is a neurosurgeon who examined the plaintiff at the request of the defendant and provided a report dated 27 November 2025.[87]
2. In response to specific questions Dr Drnda said the plaintiff had aggravated a chronic right knee condition in the first incident and had suffered a myofascial strain in the second incident. He said her current diagnosis was therefore a chronic pain syndrome.[88] He then made comments for the need for a multidisciplinary pain management assessment.
3. Dr Drnda provided a supplementary report dated 29 January 2026.[89] After being provided with the relevant video surveillance he said that having watched that video surveillance the plaintiff did not in fact present with signs consistent with a chronic pain syndrome and he went on to say that the plaintiff was capable of suitable employment, particularly with respect to her spinal condition.[90]
4. Insofar as Dr Drnda suggests that the plaintiff exaggerated her symptoms when he examined her, I consider that to be against the weight of medical evidence.

1. In the context of the earlier discussion about disentangling, which I consider to be the main issue for resolution, it is useful to summarise my factual conclusions based on the plaintiff's evidence and the relevant medical evidence as set out.
2. First, the plaintiff has a significant impairment for daily activity and for work because of her right knee injury.
3. In fact, the right knee totally incapacitates the plaintiff for work.
4. Second, and related to the first point, leaving to one side other issues such as permanency, or identification of the organic back injury for one moment, the issue of disentangling looms large based on the plaintiff's own evidence.
5. About that, there is force in the submission of the defendant that the plaintiff's first affidavit blends the consequences from the right knee with those claimed from the back and that the second affidavit simply recites the overall impairment consequences without any proper disentangling.[91]
6. In the first affidavit the plaintiff said that:

(a) she would not be able to return to her pre-injury duties or any other work due to the pain and restriction in the right knee on its own and the back on its own;

(b) that she was receiving WorkCover certificates of total incapacity both with respect to the right knee and the back and remained in receipt of weekly payments of compensation;

(c) that she had pain in the right knee but in addition had lower back pain with a burning sensation in the left foot, but also suffered a burning type of pain in the right arm and spasm;

(d) for back pain she was consulting the chiropractor Ms Pakzamir twice a week (there is no report from that chiropractor);

(e) that she took various medications to deal with pain, but without specifying which pain she was describing;

(f) she relied on a walking stick for the right knee but also to support her back;

(g) she had an impact on her ability to sleep because of pain particularly in her back but also to a certain extent the right knee;

(h) she had difficulty driving a car long distances and prolonged sitting increased symptoms in the back and right hip, but also the use of the accelerator increased her right leg symptoms when driving. When she was experiencing particularly bad pain, without specifying which pain, she will limit her driving;

(i) because of the pain in the right knee on its own and the back on its own she found it difficult standing, sitting and walking for prolonged periods, and relied on a trolley for support when shopping;

(j) social visits and attending soccer matches had been significantly curtailed as a result of the right knee injury and quite independently the injury to her back;

(k) other social activities such as going to parties and dancing is restricted due to pain, again without specifying which pain;

(l) the plaintiff had difficulty with housework and cooking, without specifying which injury was the cause of that. About cooking, she said standing for prolonged periods increased the symptoms in her right knee, back and right hip;

(m) the plaintiff had difficulty cleaning the bath, shower and toilet because of the pain and restriction in the right knee on its own and pain and restriction in the back on its own;

(n) the plaintiff attributed restrictions for gardening to each of the right knee and the back on its own;

(o) the plaintiff described difficulty with showering and dressing, getting her daughter in and out of the car and how she would no longer be able to look after her dog, without explaining whether that was because of the right knee or the back, or both; and

(p) the plaintiff previously enjoyed travel but now long flights could not be managed because of the right knee on its own and the back on its own.

1. Then in her second affidavit, the plaintiff said the symptoms in her back, right hip, right leg and right knee had not improved. She went on to describe a range of impairment consequences for day-to-day activity without attempting to disentangle the right knee from the low back. She repeated that in terms of work, pain and restrictions both in the back and on its own and her right leg on its own would prevent her from returning to work.
2. In fact, I consider that the blending of impairment consequences in the plaintiff's affidavits and in her oral evidence is of itself fatal to her claim for serious injury based on the back injury.
3. Further, the disentangling issue is not solved by resort to the medical evidence. Several of the treating and medico-legal practitioners also blended the impairment consequences caused by the right knee with those caused by the low back, no doubt due in part because as a matter of fact some of the consequences are blended but also, again at least in part, because of the questions they were asked to answer.

1. I consider that at its highest the evidence supports a conclusion that the plaintiff developed lower back pain performing innocuous duties on a return-to-work plan, for which she has required general practitioner, chiropractic and specialist care. She described back pain objectively sufficient to warrant injections. While there is some debate in the medical evidence about whether the back pain is organically based, overall, I accept the plaintiff has mechanical back pain, probably the aggravation of previously asymptomatic degenerative changes in the lumbar spine.
2. But the next issue is then the identification of impairment consequences other than pain.
3. The starting point for an assessment of impairment consequences is the evidence about the right knee. The earlier right knee injury impaired the plaintiff for activity involving prolonged bending of the right knee (for example to sit), standing, walking, sleep, housework and driving.
4. In that context, because of the pain from the plaintiff's lower back, she may have some further impairment for activity that involves prolonged sitting, standing, walking, sleep, housework or driving. But how much further impairment is simply impossible to say based on the evidence.
5. The plaintiff appears to be having some ongoing chiropractic treatment specifically for the lower back, but an assessment of the relevance of that is difficult because there is no report from the chiropractor. Further complicating the issue is the fact of the ongoing right hip pain and whether that might cause some further impairment independent of either the right knee or the lower back.
6. Where the plaintiff has persisting lower back pain which has required specialist referral and injections, with some further impairment for day-to-day activity, based on the state of the evidence it could be said that she has pain and suffering consequences that are "significant" or even "marked". But the state of the evidence does not enable a conclusion that she has pain and suffering consequences that are "very considerable".
7. Accordingly, the plaintiff has failed to establish a "very considerable" pain and suffering consequence from the lower back.

1. Next, regarding the claim for pecuniary loss consequences from the lower back, the plaintiff submitted that her work capacity was compromised because of the right knee, but that she had at least a capacity for part-time light duties, perhaps no more than nine hours a week, when she developed back pain and since then she has had no capacity for work.
2. Therefore, the plaintiff submitted that she had established a "very considerable" pecuniary loss consequence and in addition that she had satisfied the statutory formula contained in s325(2)(e)(f) and (g) of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act"), namely that because she had some earning capacity before injury and has no earning capacity after injury, she has a loss of earning capacity of 40 per cent or more that will continue to permanently cause her to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
3. But the flaw in that submission is that it ignores the evidence that the plaintiff's right knee injury in isolation has destroyed her capacity for work.
4. At the time of the second incident the plaintiff had ongoing pain and restriction from the right knee injury. In fact, she had an appointment that day with the physiotherapist Ms Ranieri for treatment to her knee. As Ms Ranieri noted in her report of 23 July 2022[92] since the initial knee injury the plaintiff has suffered flare ups, requiring resort to strong pain medication. In that situation, it is problematic as to whether the 9 hours of light duties was going to be sustainable regardless of the back injury.
5. About that, the plaintiff in her oral evidence was asked whether as at the second incident she had a plan or hope that she would be able to increase her hours and duties. She said she really didn't know if that was going to happen.[93]
6. The plaintiff last worked about a week after the second incident, when she attempted a few hours of administrative duties. She has not worked since then. In cross examination she was asked if the fact she had not worked since 16 August 2021 was attributed to the right knee pain, the low back pain, or a combination of both. She said: "It's the both"[94] and how since then both have given her issues or problems for work.[95]
7. On 25 November 2021, that is approximately three months after the second incident, the plaintiff attended Mr Stevens for assessment of her right knee and worsening symptoms.[96] Her evidence is that the two knee surgeries that she has had since then provided only temporary relief, before her symptoms returned to the pre-surgery level.
8. Accordingly, the evidence is that by the time of the second incident the plaintiff was already on a path towards total incapacity for work and a path that had materialised soon after the second incident or perhaps by the time she saw Mr Stevens. Her days of being able to perform even 9 hours of very light duties were already numbered because of her pre-existing right knee injury.
9. Therefore, on my assessment, the plaintiff fails the first requirement in s 325(2)(c) to satisfy the narrative test. Any loss of earning capacity consequences is not capable of being described as more than significant or marked and do not meet the serious injury test of at least "very considerable".
10. Regardless, for the purpose of the statutory formula, the plaintiff had a significant pre-existing right knee injury. It is not a situation of dealing with a hypothetical, or a supervening event for the analysis required in s 325(2)(f) of the Act.
11. For the statutory formula, the Court is entitled to look at the worsening of the pre-existing condition and the impact of that on the plaintiff's capacity to earn.[97] As discussed, the plaintiff may have had a small residual earning capacity at the time she suffered her back injury, but at least by the time she saw Mr Stevens (if not earlier) she was unable to work because of the right knee condition. Since then, she has been plagued by ongoing knee pain, with a need for repeat surgery, ongoing pain, impairment and total incapacity for work.
12. Therefore, even if I was required to consider the statutory formula in s325(2)(e), (f) and (g) of the Act, which I am not because she has failed the narrative test, the plaintiff also fails to establish the requisite 40 per cent loss of earning capacity because the right knee alone meant that she had no earning capacity.

1. On the evidence, the plaintiff has failed to establish either a "very considerable" pain and suffering or pecuniary loss consequence.
2. For pain and suffering serious injury, she has simply failed to discharge her evidentiary onus to establish what additional impairment or impairment consequences were caused by the subsequent back injury, in the setting of the pre-existing right knee.
3. The plaintiff's evidence does not adequately disentangle the impairment caused by the right knee, from the impairment caused by the low back.
4. In addition, the medical evidence from the treaters and the medico-legal examiners when considered as a whole does not assist the plaintiff in disentangling the right knee from the lower back.
5. In addition, consistent with the contentions of the defendant, some of the medical evidence does raise as an issue whether the plaintiff now has a chronic pain syndrome of a nonorganic cause, where she did not rely on such a diagnosis for the injury to the back. There are issues around permanency in the context of the recommendation by Dr Meyer of further pain management. Ultimately it is unnecessary to resolve those issues because of my earlier conclusions about the tangled state of the evidence.
6. Further, in respect to pecuniary loss, again for the reasons as set out, the plaintiff has not made out a "very considerable" loss of earning capacity consequence from the claimed lower back injury.
7. Therefore, for the reasons expressed, the plaintiff's claim for serious injury based on the lower back is refused.
8. I shall hear from the parties as to consequential orders.

[2] [2006] VSCA 215 ("Dressing").

[4] [2014] VSCA 67 at paragraphs [24]-[25].

[5] Transcript Day Two ("2T") 71, Line ("L") 11-12.

[8] [2024] VSCA 254 ("Palmer") at [56].

[24] Transcript Day One ("T") 11, L 7-16.

[97] Acir v Frosster Pty Ltd [2009] VSC 454 at [175].