Box and Military Rehabilitation and Compensation Commission
[2007] AATA 11
•10 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 11
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/388
VETERANS' APPEALS DIVISION ) Re MARK JOHN BOX Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member R W Dunne
Dr G J Maynard (Member)Date10 January 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
COMPENSATION – previous Royal Australian Navy member – review of decision whether applicant entitled to compensation for injury arising as a sequelae to a prior injury for which liability accepted – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 and 14
REASONS FOR DECISION
10 January 2007 Senior Member R W Dunne
Dr G J Maynard (Member)1. The applicant, Mark John Box, enlisted in the Royal Australian Navy (“Navy”) on 13 April 1993 and was discharged medically unfit on 2 February 1998. On 8 July 1996, he submitted a claim under the Safety, Rehabilitation and Compensation Act 1988 (“Act”) for compensation for “injury disc L4/L5/S1” which was stated to have been caused whilst playing soccer on 5 April 1994. The respondent eventually accepted the applicant’s condition of “aggravation of degenerative changes at L4/5 and L5/S1 vertebrae, and left sided sciatica”, with the date of injury deemed to be 12 February 1996. On 28 November 2002, liability was extended to include chronic pain syndrome.
2. On 27 April 2004, the applicant made a further claim for compensation under the Act in respect of in injury described as “pain and soreness in both feet”, sequelae to his accepted back condition. By determination dated 12 July 2004, the respondent denied an extension of liability under the Act to include compensation for the applicant’s claimed condition. The applicant sought reconsideration of the determination and, on 1 November 2004 the determination was affirmed. On 17 November 2004, the applicant applied to this Tribunal for a review of the decision made on 1 November 2004.
3. The applicant was represented by Mr Michael Kernot, of counsel and the respondent was represented by Mr Michael Roder, of counsel. The applicant gave evidence and also called Dr Jeremy Hallpike, neurologist, Dr Nagi Guirguis, orthopaedic surgeon, and Professor Robert Fraser, spinal surgeon. The respondent called no witnesses. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents” and “supplementary T documents”) were admitted in evidence (respectively as exhibit R1 and exhibit R3). In addition, the Tribunal admitted the following documents in evidence:
·report letter of Professor Robert Fraser, dated 24 July 2006 (exhibit A1);
·paginated copy of records summonsed and produced prior to 8 May 2006 (exhibit R2); and
·patient assessment form of applicant dated 24 April 1998 (exhibit R4).
issue for the tribunal
4. The issue for the Tribunal is whether the applicant is entitled to compensation for “pain and soreness in both feet” pursuant to s 14 of the Act arising as a sequelae to the injury of “aggravation of degenerative changes at L4/5 and L5/S1 vertebrae, and left sided sciatica” for which liability has been accepted by the respondent, with the date of injury deemed to be 12 February 1996.
legislation
5. Section 14(1) of the Act provides for compensation for injuries and reads as follows:
“14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
6. Section 4(1) of the Act includes definitions of the words “injury” and “disease”, which apply unless the contrary intention appears. These definitions are as follows:
““injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
evidence
Evidence of the Applicant
7. The applicant’s evidence was that he had been experiencing problems with his left foot. He suffered pain on the outer aspect of the foot, also running down the back of the ankle and on the heel. He described the pain as a tingling numbness with a burning sensation. The pain was much worse in the mornings when he woke up, sometimes he could not bear weight on the foot and he found that he was walking around on “tippy toes”. He also experienced worse pain after he had been walking. Although the pain was felt in both feet, it was mainly on the left side. Sitting and driving also aggravated his left foot, which would become numb if he was driving for too long. When asked by the Tribunal whether he experienced pain underneath the sole of the foot, he said he did on the flat part of the heel, but the pain radiated along the edge of the foot. He said he also experienced pain on the outer aspect of his right foot, but it was totally different to the pain in his left foot. He said he had not experienced tingling or a burning sensation and numbness in his right foot. It was only pain, but it was not constant like the left foot. It occurred mainly when he was walking or was involved in a similar activity. He said he experienced no pain in his right foot prior to enlistment in the Navy.
8. The applicant said he had been referred to a Dr Jeffrey Rosenfeld when he was having problems with his lower back and down his left leg. The problems arose after an incident when he had a fall while playing in a Navy soccer match. Then, after a Navy baseball match in early 1996, he found he was experiencing sciatica-type pain on the outer aspect of the left foot and on the heel. He said he felt the pain down the buttocks, to probably mid-thigh on the left side. He felt the pain running from his back down the legs after he had batted and was running to first base. Again, he described the sensation as a burning pain and definitely a tingling feeling, with a degree of numbness in the left foot. Later, in June 1998, he underwent surgery with two double fusions performed by Professor Robert Fraser, spinal surgeon.
9. Mr Kernot referred the applicant to his non-economic loss questionnaire (exhibit R1, T63 at page 122) in which he described his pain in the following terms:
“Constant ache in lower back & buttocks, throbing [sic] pain to left foot severe heel pain. Cramping of left calf. This pain increases with standing and walking for about 30 mins to a severe stabbing pain to lower back, buttocks and back of leg with severe foot and heel pain. When sitting about 30-40 mins pain increases in buttocks. Back of leg left foot gets tingling and numbness to outer toes. …”
In response to questioning by Mr Kernot, the applicant acknowledged that the non-economic loss questionnaire had been completed for the purpose of compensation, prior to the surgery that took place in June 1998.
10. The applicant was then referred to the further non-economic loss questionnaire that he answered in March 1999, after the surgery in June 1998 (exhibit R1, T78), where at page 168 he said:
“… I am still coming to terms after surgery that some days I feel quiet [sic] good and other days I still have to cope with left feet pain and lower back pain & buttock pain left side. I find in the morning when I wake up sometimes I feel very stiff and in pain. This sometimes settles down and other day [sic] I go through the whole day with back and left feet pain but I now find I cope more knowing that the next day if I rest this will settle down.
…”
11. In cross-examination by Mr Roder, the applicant acknowledged that, in 1991 when a volunteer with the State Emergency Service, he had jumped from a tree to avoid injuring himself. In doing so, he landed on both feet and badly bruised the whole of the bottom of his feet, including the heels. He said he made a claim for workers’ compensation in about November 1991, approximately 12 months prior to entering the Navy. Mr Roder referred the applicant to his medical history questionnaire (exhibit R1, T3 at page 11) where, in answer to the question whether he had ever had an accident for which he had applied for compensation, the applicant replied that he had not.
12. Mr Roder then referred the applicant to the letter from Dr Jeffrey Rosenfeld dated 14 December 1995 (exhibit R1, T10 at page 20), where he noted:
“… He has had six months of left sciatica involving the buttock, thigh, calf, heel and foot. There was no precipitating event and it is associated with occasional numbness. Sporting activities increase the pain and he also describes a dull ache in the lumbar region, which extends up between the scapulae. …”
The applicant acknowledged that the symptoms mentioned were those he had reported to Dr Rosenfeld at the time. Then, when taken to an outpatient clinical record made in September 1995 (exhibit R1, T144 at page 345), the applicant also acknowledged the correctness of the record, when it said:
“Pt [patient] presents with 1/52 history of bilateral heel pain. … Pt describes pain as a pressure pain on heels, more so on (L) foot where it radiates up the back of ankle. …”
He admitted that he had been complaining of pain in the heels, more so on the left foot, and that it radiated up the back of the ankle.
13. In further cross-examination, Mr Roder asked the applicant to look at the summonsed medical records of Dr Anthony Pace (exhibit R2 at pages 151 and 153). Mr Roder asserted that Dr Anthony Pace had made the following diagnosis in relation to the applicant’s condition at the relevant times:
“Friday May 9, 2003 … diagnosis … plantar fasciitis + flat feet + long standing discogenic back pain neuropathic.”
…
“Thursday March 18, 2004 … diagnosis … flat feet.”
When questioned by Mr Roder, the applicant acknowledged that Dr Pace might have told him that he had plantar fasciitis, but that he had not mentioned flat feet.
14. Mr Roder then asked the applicant about the surgery performed by Professor Fraser in June 1998. The applicant said that, following the surgery, the symptoms in his left leg resolved completely. The pain came on only intermittently, as long as he was careful how he managed things. When referred to the report of Dr Gordon Ormandy dated 11 February 1999 (exhibit R1, T60 at page 178) the applicant agreed that he had told Dr Ormandy, at the time, that the pain symptoms in his left leg had resolved completely. Then, he agreed that, in September 2002, he had told Professor Fraser that he had been doing very well following his two-level fusion, up until 7 months previously, that is, until about February 2002. He said he had told Professor Fraser he had experienced some pain in his left leg after starting up a lawn mower. Following further questioning by Mr Roder, the applicant admitted that he had also complained to his general practitioner, Dr Yong, about some foot pain in February 2002, and that the injury then had been caused when he had been running at a children’s football game. However, he said the pain that he had complained of to Professor Fraser in about September 2002 was not related to the pain that he had complained to Dr Yong about in February 2002.
15. Mr Roder again referred the applicant to the summonsed medical records (exhibit R2 at pages 193-194), where the progress notes of Dr Yong read:
“Tuesday February 12, 2002 … Dr Kim W Yong … slipped while running 6 months ago … complained of persistent pain … lump over Achilles tendon 1/12…”
“Thursday February 21, 2002 … Dr Kim W Yong … US scan showed partial tear of Achilles tendon ….”
When asked by Mr Roder whether, since February 2002, he had continued to suffer pain at the back of his left heel going to the Achilles tendon, the applicant said that the pain was in a totally different area – one was at the back of the heel and the other was on the side. The applicant denied that the pain in his left foot had anything at all to do with injury to the Achilles tendon. That had resolved and settled down after approximately 2 to 3 months. Mr Roder referred the applicant to the report of his podiatrist (Mr Fraser Warrick) dated 25 November 2004 (exhibit R1, T142 at pages 335-336), where he said:
“Mr Box advised me that he is experiencing pain in the left foot greater than the right foot. The discomfort is a pain in the left achilles tendon at insertion into the calcaneus within the distal tendon itself. He also experiences a painful tingling/hot/burning feeling on the lateral aspect of the 5th left metatarsal and 5th left toe.”
The applicant agreed that that was what he had reported to Mr Warrick. However, he said he assumed that what was said by Mr Warrick had nothing to do with the Achilles tendon. The applicant then admitted that Mr Warrick had given him orthotics for both feet and that the pain in his left heel had responded to the orthotics. He agreed that he had noticed distinctly that the pain in and around the heels had responded to the orthotics, but that the numbness in the outer foot had not.
16. Mr Roder then questioned the applicant about his meeting with Dr Guirguis. In doing so, the applicant said he had told Dr Guirguis that he had been prescribed orthotics by Mr Warrick for flat feet. The applicant then admitted that he had told Dr Guirguis that the pain in his right foot was in the back and under the surface of the heel. When asked by Mr Roder whether he had been complaining to Dr Guirguis about bilateral heel pain, the transcript of evidence records the following interchanges with the applicant:
“…
Mr Roder: What you were complaining of Dr Guirguis was bilateral heel pain, wasn’t it. Do you know what I mean by that – heel pain in both feet? --- Not as such, no. I complained to him of the pain I got on the outer aspect of the left foot, and also I said pain on the right foot, and on the right heel as well, and the left heel, yes. That’s the way I described it to him.
Mr Roder: You complained of pain in both heels? --- Yes, that’s right, yes.
Mr Roder: As well as this tingling pain …? --- On the left side.
Mr Roder: … on the outer side of the left foot? --- Yes, that’s correct, yes. That’s what I said to him. Can I, sort of, elaborate on that – what I also said to him because it’s not in the report there?
Mr Roder: Well, no, I think if Mr Kernot wants to ask you some questions about that, he is able to do so. --- It’s just that it wasn’t fully described in his written report what we actually spoke about so …
Mr Roder: Well, now you have raised that, what do you contend that Dr Guirguis didn’t record? --- Well, what I said to him is that I have the pain on the left heel and the left foot and I felt – personally, it was my own thing that I felt that I was getting the right foot pain because I was compensating so much on that side.
Mr Roder: That is what you told him? --- Yes, but it’s not written in the report.
Mr Roder: You were aware, weren’t you, that Dr Guirguis’ view was that your heel conditions – sorry, that your presentation with both feet was suggestive of chronic plantar fasciitis? --- Not that I would have been aware of, but, yes, it was probably written in the report.
Mr Roder: You have read this report, haven’t you? --- Yes, yes. Probably, yes – probably a year ago.
Mr Roder: You recall, don’t you, that Dr Guirguis was of the view that your opinion was related to chronic plantar – sorry, your injury was related to chronic plantar fasciitis? --- No, I wasn’t aware of that, no, not at all.
Mr Roder: You say that even having read this report … ? --- Yes.
Mr Roder: … you weren’t aware of that? --- No, I wasn’t aware of that, and I just went with it so how could I agree with something that I disagree with.
Mr Roder: I didn’t ask you whether you agreed with it, the opinion. I asked you whether you were aware of it? --- Yes.
Mr Roder: You are asking this Tribunal to accept that you read this report and were not aware of his opinion, are you? --- Yes, I’m aware of his opinion.
…” (Transcript, Thursday 11 May 2006 at pages 55-56)
17. Mr Roder then asked the applicant whether he had ever reported to doctors that he had pain in the medial aspect of the left foot. To this, he responded that had described pain on the inner aspect of the foot and he had reported that to the doctors. When asked why he had not reported pain in the medial aspect of the foot to Dr McCulloch, he said that he probably didn’t have the pain there at the time and only reported pain on the outer aspect of the foot. However, he said that he had definitely told Professor Fraser about the pain in the medial aspect of the left foot, and he had also told Dr Guirguis and Dr Hallpike. He said the reason he had not raised the topic with the doctors was that he did not understand it to be related to his back injury. The pain in the medial aspect was not a constant pain like the pain in the outer aspect of the foot.
18. Mr Roder asked the applicant whether there were times when he had pain in his back and pain in the buttock and pain in the left foot, all at the same time. The following relevant interchanges between Mr Roder and the applicant appear at pages 60-62 of the transcript (Thursday 11 May 2006):
“ …
Mr Roder: The other thing I was just going to ask you was, in terms of your left or right foot pain when it come on, you told us various things that brings it on. Is it also associated with stiffness? Does that happen? --- Well, what, stiffness of the back or stiffness of the leg, or what are you referring to?
Mr Roder: Well, general stiffness in your body? --- No, not general stiffness, just – it tends to be when my back is feeling – like I get pain in my back and then it’s radiating down my legs and into my foot. Sometimes the pain is so bad with just the feet – the foot pain alone without it coming from the back. Like, my back can feel okay, but I still have that foot pain on the left side.
Mr Roder: So in other words, sometimes you have pain in your back and pain in your foot at the same time? --- Yes, and radiating down my legs and then other times it can be just my foot after I’ve been for a walk.
Mr Roder: I’m sorry. When you say radiating down your legs, you told us that it radiates down to your knee? --- Not as far as that, no, mid-thigh.
Mr Roder: Mid-thigh, and sometimes when you have your foot pain, you have those symptoms as well? --- Yes, very often there’s pain, yes.
Mr Roder: At other times, you have foot symptoms? --- Yes.
Mr Roder: Without pain? --- I normally have it on the back of my – if I can describe it, it’s on the back of the buttocks but not always in the lower back, so I can have it in the buttocks and into the foot, but not such of the pain in the back at that time.
Mr Roder: I mean, you, I suppose – sorry, withdraw that. Sometimes you have pain in your feet without pain in your back, don’t you? --- In my back, yes, but in my buttocks I definitely have it.
Mr Roder: You say you never have pain in your feet without pain in your buttocks. Is that your evidence? --- Yes, definitely right.
…
Mr Roder If you told medical practitioners, or identical practitioner, that the pain in your foot was sometimes associated with pain into your buttock, that would [be] wrong, would it? --- No, they are similar pain. They go together. If I’ve got it in my butt, I’ve got it in my foot.
Mr Roder: So therefore it would have been wrong – let us just assume for a moment? --- Yes.
Mr Roder: Assume you told the medical practitioner that sometimes the pain in your foot was associated with pain in your buttock. That would be an incorrect statement? --- Yes, that’s totally incorrect, because for the simple fact if I get them together, they come on together.
Mr Roder: In both feet? --- No, just on the left side. Just on the left side mainly.
Mr Roder: Sorry? --- I just get confused with both feet, that’s all.
Mr Roder: How often do you have pain in your buttock, by the way? --- Fairly regularly when I sit down, fairly constant.
…
Mr Roder: Well, do you say you got pain in the buttock all day? --- Basically, yes.
Mr Roder: Every day? --- Yes.
Mr Roder: All day, but it flares up from time to time? --- Yes, yes, that’s what I’m trying to explain.
Mr Roder; So I think I’m understanding this now. You have pain in your foot sometimes but you have pain in your buttocks all the time? --- No, no, no, no. They come on simultaneously, right? Okay, so you get the pain in the buttocks which causes me to have the pain in the feet, okay, and then they sort of work hand in hand together, they sort of – if I have the buttock pain, I definitely have the feet pain.
Mr Roder: But you have pain in the buttock without pain in the feet as well? --- No, no, I’m not saying that.
Mr Roder: Well, I’m just – I thought you told us that you had pain in the buttock all day every day? --- Yes, and in the feet, yes.
Mr Roder: Are you saying you have pain in the feet all day every day, is that your evidence? --- Yes, constantly. If I don’t take my medications, yes, I notice it more than others.
Mr Roder: If I understand what your evidence is, I think I want to suggest to you that it conflicts with some of your earlier statements. Are you suggesting now that you have pain in your feet all day every day? --- It’s hard to describe as in saying all day because as I said, when I take the medication, if I wake up in the morning and I’m like that, which is, you know, it’s nearly every day that that happens now, but if I have the pain in the buttocks, yes, I have it in the feet. I take my medications of course, but pain goes away. It is not as severe in my foot, you know, so sitting here like this, causes me to have pain in the buttocks and the feet – on the foot, on the left side, so sitting down quite often causes it where I get very uncomfortable, and it’s not just because I’m here, it’s just sitting in general.
…”
Evidence of Dr Jeremy Hallpike
19. Dr Hallpike gave evidence that he had examined the applicant on 11 January 2006. He said it was his understanding that he was being consulted about possible neurological aspects to the applicant’s chronic left foot symptoms. Mr Kernot referred him to his report dated 16 January 2006 (exhibit R3, T10 at pages 31-33). When asked whether he had examined only the left foot, Dr Hallpike said that it was full neurological examination, with respect to the legs. He was looking at the applicant from the point of view of focal neurological signs or impairments in the legs. His evidence was that all modalities of sensation were normal, but there was a reduction in the applicant’s appreciation of cold over the sole of the left foot in the distribution of the S1 nerve root. Separately, there were also symptoms on the outer aspect or sensory side of the foot that were consistent with an S1 distribution. When Mr Kernot questioned him more closely on the cause of the sensory change, Dr Hallpike opined that, in the circumstances of the applicant, the notion that there might be some low level of damage to one or more nerve roots was completely feasible. In elaborating, he said:
“ … I mean, I am not saying that you can say it is proved, but it is a setting in which that is feasible. So (a), you have got an appropriate setting or a consistent setting, (b), you have got a pattern of symptoms that is certainly accommodated under the label of causalgia and (d) as is also really required if you are going to use the causalgia label you do have some evidence of an anatomical sensory deficit – well, an anatomical sensory deficit within this S1-S1 root lesion, within this S1 territory. So there is an internal consistency with that. And in terms of the important fact that we do have evidence of a neurological impairment, it is important to – I felt it was important to draw in the fact that two other observers have also found something very similar so I would have thought putting all that together, leaving everything else aside, you have a good case for saying that this man had a causalgic affection – a-f-f – affection of his – in an S1 distribution in his left foot.” (Transcript, Thursday 11 May 2006 at page 72)
Dr Hallpike’s evidence was summarised at the end of his report (at page 33) where he said:
“… My interpretation of the situation is that your client’s causalgic condition with respect to left foot symptoms would in all probability be linked to the chronic sciatica symptoms in that leg which, in turn, are linked to the subject accident in February 1996.”
20. In cross-examination by Mr Roder, Dr Hallpike agreed that the pain that arose from an S1 nerve deficit would primarily occur over all the sole of the foot. If the pain was not in the sole of the foot, that made its link to an S1 condition less likely. Dr Hallpike also agreed that, in providing his opinion, he would have noted that Dr Guirguis was of the view that the applicant’s “current bilateral foot clinical presentation is suggestive of chronic plantar fasciitis, possibly associated with calcaneal spurs …”. He admitted that he was unaware the applicant had been diagnosed with flat feet and had been prescribed orthotics for the condition and that, aside from the tingling into the toes, the applicant’s pain had improved as a result of wearing the orthotics. In saying this, he acknowledged there was no particular reason for thinking that orthotics would alleviate the distribution of nerve pain. However, Dr Hallpike reiterated that what had been presented to him was a history of sciatica-type symptoms, left back buttock, upper leg and foot. What he would have expected from someone who had plantar fasciitis or some chronic affection of major ligaments in the foot would be something related to poor arches or flat feet. He saw it very much as a bilateral condition, relatively symmetrical but not something that was typically associated with a back, thigh and sciatica distribution. He was looking at the applicant’s condition mainly from a neurological point of view and he said he could appreciate that someone approaching it from a different point of view, such as a podiatrist or an orthotist, might have got a different history. The applicant did not present him with a history of a bilateral condition, it was very much a unilateral condition with occasional symptoms on the other side as well.
21. In answer to further questioning by Mr Roder, Dr Hallpike said that he had not taken a history from the applicant about whether his foot pain and leg pain had resolved for a period of time after he had had surgery. However, he agreed that, assuming there was a cessation of symptoms, this reduced the credibility or likelihood of an S1 related causalgia. When asked whether a diagnosis of plantar fasciitis might be correct, Dr Hallpike said:
“I think that I have to quite strongly suggest that, to my mind, there is quite a difference between plantar fasciitis symptoms and what I would call – what I have chosen to call ‘causalgia’. I also think that there is the sciatica issue as well, but I think it is very likely that if one catalogued every aspect of this man’s pain, that one might come up with a number of quite credible causes which were not mutually exclusive and I think the argument in favour of the causalgia still remains. The character of certain symptoms that he described to me, the fact that there is an anatomical loss that has been independently noted by different experienced observers and that it is in the setting where some very partial S1 nerve lesion with the lower back is feasible. You could hardly say that is impossible. So those three factors are present and that is really what I focused on in my examination and report.” (Transcript, Thursday 11 May 2006 at page 88)
22. Dr Hallpike was again referred by Mr Roder to his report and to the pin-prick tests he conducted on the applicant. He said (exhibit R3, at page 32):
“… On the sensory side, light and cotton wool touch appeared to be equally appreciated over both feet and lower legs. Cold was less well appreciated over the left sole than the right. There was pin prick appreciation over the left foot and toes. Vibration sense at the toes and joint position sense were normal and symmetrical. Two-point discrimination 4 cm [‘normal’] on the soles of both feet. …”
He agreed that the only abnormal thing he found in testing the applicant was the temperature discrimination, which involved only a very slight change. Dr Hallpike said that there had been no particular wasting of the applicant’s leg, nor any obvious favouring of either leg. He said that he did not take any history of pain on the medial side of the applicant’s left foot. The symptoms that were discussed with the applicant were in relation to the sole of the foot, the side of the foot and the heel. In answer to final questioning by Mr Roder, Dr Hallpike agreed that the pain the applicant had described in the medial side of his foot was not consistent with pain within an S1 distribution.
Evidence of Dr Nagi Guirguis
23. Dr Guirguis, who was proposed as a witness for the applicant, was not examined by Mr Kernot and was presented for cross-examination. In answer to general questioning about causal factors relating to plantar fasciitis, Dr Guirguis agreed that having flat feet was a well-established risk factor for plantar fasciitis. He was referred to his report dated 6 April 2005 (exhibit R3) where he said, at page 21:
“… There was obvious moderate flattening of the arches of both feet, and slight valgus heel on the left side. …”
Dr Guirguis agreed that the applicant had bilateral flat feet. He also agreed that one of the defining characteristics of plantar fasciitis was that it was often most severe when the person who had it woke up first thing in the morning, after stopping exercise and after standing still for a period of time. He said plantar fasciitis would run from the heel of the foot, along the sole to the ball of the foot. Mr Roder then put the following history to Dr Guirguis:
“…
Mr Roder: … I just wanted you to assume for a moment that this is the history of this event, that there is a cessation of foot pain for about 3 years until February of 2002, and that in about 2002, he attended a general practitioner complaining of 6 months pain at about the site of his Achilles tendon with swelling around the Achilles tendon, and he is diagnosed as having a tear of the Achilles tendon and, further, it is about that time that he notices these symptoms in his heel and his foot. Now, on that history, if that were the history, it might suggest, might it not, that the tear of the Achilles would be an important factor in the development of plantar fasciitis? --- Certainly if there is secondary tightness of the Achilles tendon, yes.
Mr Roder: Okay, and knowing that history, that is a distinct possibility, isn’t it? --- Well, assuming this history is correct, yes.
Mr Roder: Assuming that history is correct, but you didn’t have a history like that, so it is not a matter you have considered? --- No. I had a history of – just I’ll find that – have a history of his foot or heel and ankle became swollen, but I’m just trying to find – but I did not get a history of a tear because a tear of the Achilles tendon is a relatively serious injury, and it would be treated in a – it would be diagnosed – it should be diagnosed properly, either clinically or radiologically and then, invariably, treated in a very specific fashion, so that would have been – that history would have been forthcoming coming if there was such a history of an actual tear.
Mr Roder: You would have expected to be given such a history? --- Absolutely yes.
…” (Transcript, Friday 12 May 2006 at page 18)
24. In re-examination by Mr Kernot, Dr Guirguis acknowledged that there were other more important reasons why someone might develop plantar fasciitis. He said the most common reason would be if their occupation or recreation entailed a great deal of standing and walking, particularly on hard surfaces. The other reason was the pre-disposition of the feet. Flat feet place a great deal of strain on the plantar fasciitis and the tendons and that is why these symptoms are helped by wearing orthotics. Orthotics correct the deformity of the feet and take the pressure off.
Evidence of Professor Robert Fraser
25. Mr Kernot referred Professor Fraser to his report dated 9 June 1998 (exhibit R1, T70). Professor Fraser’s evidence was that he first saw the applicant on 24 April 1998. Because of the nature of his symptoms and the duration of his complaints, he felt that it was reasonable to offer the applicant surgery in the form of a fusion procedure at the L4/5 and L5/S1 levels. He said that the applicant’s back pain and its distribution, both in his leg and in his foot, was consistent with a disc lesion at the L4/5 and L5/S1 levels. Mr Kernot then referred Professor Fraser to his report dated 6 October 1998 (exhibit R1, T73), which had been prepared some 3 months after the two level fusion procedure. Between the two reports, he said he had received a letter from a physiotherapist dated 3 June 1998. He said the letter indicated that the applicant had presented on 1 May 1998 complaining of central lumbosacral pain radiating distally to the right buttock and hamstring area. He also reported bilateral foot pain, worse on the right, along the medial and lateral borders of the feet. Symptoms were intermittent and episodic. In answer to questioning by Mr Kernot, Professor Fraser said that the applicant had not complained to him of right foot pain and his initial pain drawing did not illustrate any pain in the right foot, nor in the right buttock, as reported by the physiotherapist. Professor Fraser was referred to his report dated 15 February 1999 (exhibit R1, T75), which was approximately 6 months post-surgery. Again, Professor Fraser said he had no record of any complaint of foot or feet pain. Nor did he have any record of a complaint of foot or feet pain when he reviewed the applicant again at 12 months post-surgery. Then, on referral from a Dr Kim Yong, Professor Fraser said he saw the applicant next in September 2002 and, in his report dated 27 September 2002 (exhibit R2, at page 201) he said:
“ …
He has done very well following his two level interbody fusion in 1998, up until about seven months ago. After starting up a lawn mower he started to experience some pain in the left leg and this has steadily increased since then. The pain is an S1 distribution and is associated with annoying paraesthesia in the lateral aspect of the left foot and a numb sensation in the fourth toe. These symptoms are increased with activity, particularly walking.
…”
Professor Fraser said that the applicant had presented to him in the manner he had described in his report. He said when he examined him there were no signs of nerve root tension. There was a slight sensory loss in the left foot, in both the L5 and S1 distribution, but he had normal strength and normal reflexes. Muscle power was normal and he had reduced sensation over the outer border of the foot and also on top of the foot. He was complaining of annoying paraesthesia, which was a tingling or burning sensation or a surface irritation, rather than pain inside the foot. At about the same time, Professor Fraser reported to the applicant’s solicitors (exhibit R1, T101) on 8 October 2002. He reported on that, on 1 October 2002, he had removed the metal implants that had been put in place at the time of the double-level fusion. He had done this to relieve the pain that had developed 8 months earlier, on the basis that one of the screws may have breached the outer part of the bone and could have been irritating the nerve going past it. He said the complaints the applicant was making in regard to the left foot were similar to the complaints that he had made about the left foot in 1998. When asked whether he had an explanation as to why these symptoms may not have developed until 3 years after the surgery, he said:
“ …
Well, if a patient has a pseudo arthrosis – which is a failure of the fusion to become completely solid – and there may be minor movement at that level, and then the twisting incident of starting a lawn mower could have stressed the back and could have caused an irritation.
…
The inspection of the fusion at the time the metal was removed indicated that the posterior part of the fusion had joined but repeated investigations since that time indicated that at the L4-5 level the bone hadn’t completely joined at the front. So there could have remained very, very minor movement through the flexibility of the bone between those two areas.
… ” (Transcript, Wednesday 16 August 2006 at page 9)
When asked by Mr Kernot about the cause of the leg pain, Professor Fraser said that there was no certainty, other than it continued to be consistent with being largely referred from his spine.
26. Mr Kernot referred Professor Fraser to other reports he had made on 2 January 2003, 21 February 2005 and 23 May 2005, and most recently on 24 July 2006, when Professor Fraser said that that consultation was concerned primarily with the problem of the left foot. In relation to the last consultation, Mr Kernot put the following question to the witness:
“…
Mr Kernot: I interrupt you there. You have seen the applicant, I suspect, on three distinct occasions: the period around 1998 when you first met with him and a decision was made in regard to a double fusion which was performed, then again in about 2002 when the metallic implants were removed, and then again in 2006. Was there, in your view, any consistency or inconsistency in regard to the complaints that he was making in regard to his left foot? --- The complaints were in the same area. The only difference being on the most recent occasion the complaint was more of pain where initially it was more of paraesthesia.
…” (Transcript, Wednesday 16 August 2006 at page 12)
27. When asked whether, in July 2006, he had found symptoms of plantar fasciitis in the applicant, Professor Fraser said that he had pressed very firmly at the origin of the plantar fascia and that he was slightly tender there, but not anywhere near the degree that would be expected with a diagnosis of plantar fasciitis. The pattern of pain was not consistent with plantar fasciitis and, in his opinion, the applicant did not have that condition. He said the pattern was a referral area from the spine, but he could not explain why the applicant was still experiencing symptoms in the area, given that the fusion had substantially stabilised. Nevertheless, he continued to consider that the pain in the applicant’s left foot was related to the back condition. Mr Kernot referred Professor Fraser to the report of Dr Glenn McCulloch dated 28 February 2005 (exhibit R3, at page 17), where he said:
“The only organic condition that I can detect is the slight sensory impairment in the left S1 distribution which could give him some degree of numbness but I would not believe that it would produce any ongoing pain.”
When asked to comment on Dr McCulloch’s proposition, Professor Fraser said it was more common with nerve root irritation to produce paraesthesia in the foot, rather than pain. The patient could also get referral-type symptoms that could include pain and there was a distinction between the two. However, when he saw the applicant most recently, he was complaining of pain, rather than something other than pain.
28. In cross-examination, Mr Roder asked Professor Fraser about the report of pain and change of sensation over the entire sole of the left foot that had been given by the applicant to Dr Hallpike. Professor Fraser admitted that the report given by the applicant was not consistent with the history that the applicant had given to him. Professor Fraser said that he had not examined the applicant’s right foot because there had been no complaints to him of a right foot problem. He also said that, unlike the opinion expressed by Dr McCulloch, the history of a bilateral foot condition with similar symptoms into the right foot, had not been given to him by the applicant and he had not given an opinion himself to that effect. He acknowledged that the opinions in his report of 24 July 2006 (exhibit A1) relied essentially on his findings on examination of the applicant and the symptoms that the applicant had reported to him. He acknowledged that the following, extracted from his report, was a complete record of the history that the applicant had given him and was consistent with the history that he obtained pre-operatively in 1998:
“Mr Box complained of pain in the left foot along the lateral border and the lateral aspect of the dorsum of the left foot in a similar distribution to that which he had complained of when I first examined him on the 24th of April 1998. When I had examined him at that time, there was no complaint of foot symptoms prior to the onset of his symptoms in February 1996.”
In answer to further questioning, Professor Fraser said that the history presented to him by the applicant was inconsistent with that put by Dr Rosenfeld in his report dated 14 December 1995 (exhibit R1, T10). Dr Rosenfeld had reported that the applicant presented with six months of left-sided sciatica, involving the buttock, thigh, calf, heel and foot, with occasional numbness and no precipitating event. Moreover, in the examination of the applicant conducted by Professor Fraser on 20 July 2006, unlike the situation with Dr Hallpike, the applicant did not complain of pain in the left heel running up the back of the ankle. He did not report that he suffered from bilateral heel pain, nor did he give a history that he was tender over the medial and lateral calcaneum with tenderness extending a short distance into the plantar aspect of both feet. He did not complain of a pain in the left Achilles tendon at insertion into the calcaneous within the distal tendon itself. Professor Fraser also agreed that, if what the applicant had was a neurological condition, there would be no reason to think that orthotics would help, whilst if it was an orthopaedic condition, then there would be a reason to think that orthotics would help. Further, he agreed that, if the applicant’s history was that orthotics had significantly improved his foot condition, this would be an indicator of an orthopaedic condition, rather than a neurological condition.
Mr Roder referred Professor Fraser to his report dated 8 October 2002 (exhibit R1, T101). In response to questioning, Professor Fraser said that the applicant had reported at the time that he had suffered no symptoms in his left foot for about 3 years and that the pain came on in about February 2002, after he had started up a lawn-mower. The applicant had not reported that the problems in his left foot started in February 2002 after he had fallen whilst running, nor that he was experiencing problems in and around the back of the heel and up to the Achilles tendon in his left foot as a result of slipping whilst running.
29. In concluding his evidence, Professor Fraser was questioned by the Tribunal about plantar fasciitis. In response, he said:
“…
Dr Maynard: Mr Fraser, you did say in your earlier evidence that the pattern that the patient described to you, the applicant described to you, was not the same as plantar fasciitis. In what way do they differ? Could you tell me please? --- Yes. Plantar fasciitis is normally in the sole, more along the medial aspect, in deep, and on weight bearing, or on standing and the patient will tend to focus very much on that, so it’s not pain that you tend to get over the lateral aspect of the foot or the dorsum of the foot. I mean, you could get it there if you had a particularly painful plantar fasciitis and you were getting an over-reaction of other muscles but, generally, it is a very deep-seated pain anterior to the heel at the origin of the plantar fascia.
…” (Transcript, Wednesday 16 August 2006 at page 22)
Evidence of Dr Glenn McCulloch
30. At the conclusion of the applicant’s case, Mr Roder indicated that he had intended to call the neurosurgeon, Dr Glenn McCulloch. He said that, although the respondent intended to rely on Dr McCulloch’s reports, there was nothing further he could usefully ask him in examination-in-chief. Mr Kernot had also indicated that there was nothing he could usefully ask Dr McCulloch in cross-examination.
consideration
31. The Tribunal has narrated in some detail the evidence of the applicant, together with the effect of the oral medical evidence of Dr Hallpike, Dr Guirguis and Professor Fraser. The applicant did not present as a good historian in giving his evidence. There were inconsistencies in what he said, especially his failure to disclose a previous workers’ compensation claim made in November 1991, when he was with the State Emergency Service, at the time he enlisted to join the Navy, and in the different selective medical histories he gave to different medical specialists. It appears there were also back injuries sustained by the applicant prior to his entry into the Navy, which he did not reveal in his entry medical. In December 1995, Dr Rosenfeld reported that the applicant’s history had been of several back injuries – one at the age of 18 years when a car door hit him in the middle of the back and he had “no feeling” from the waist down for a few hours, and in 1989 when he fell 20 feet from a ladder and jolted his spine with some subsequent bruising, but no actual fracture. Moreover, the applicant’s history was that, for 8 years prior to December 1995, he had a left “hamstring” problem, which had been aggravated by football. The applicant also reported that he had 6 months of left sciatica involving the buttock, thigh, calf, heel and foot, but there was no precipitating event.
32. As far as the present hearing is concerned, there is no doubt that the applicant suffered an injury to his back, for which he received treatment in the form of surgery. His treating surgeon, Professor Fraser, performed a two-level spinal fusion in June 1998. In October 2002 he removed the internal fixation device in the hope that this would help his left leg pain. In October 2002, Professor Fraser had advised the applicant that the cause of his pain symptoms was uncertain. However, he reported that the applicant made a rapid recovery and his leg was pain-free at that time. He also said that he considered the applicant’s condition was stable.
33. On 11 May 2006, when the applicant gave his evidence before the Tribunal, he described pain on the outer aspect of both his left foot and his right foot. However, he said the pain in his right foot was different to that felt in his left foot. There was no tingling or burning sensation, simply pain on the right side. He said he saw a number of orthopaedic surgeons and spinal surgeons. He also saw a podiatrist, who recommended orthotics for both his feet. He also admitted that, in September 1995, he was complaining of bilateral heel pain, more so in the left foot. He said the pain in his heels and around the heels responded to the orthotics, but that the numbness in the outer foot did not. On the resumption of the hearing on 16 August 2006, the evidence given to the Tribunal was that there was only pain in the left foot. It became clear to the Tribunal that, notwithstanding the applicant’s evidence 3 months earlier, if there was to be a finding in his favour, it would be in relation to his left foot condition and not in relation to “pain and soreness in both feet”.
34. Having regard to the inconsistencies in the histories he gave, the Tribunal is of the view that the applicant was selective in what he told the medical specialists and the general practitioners he saw. He focussed on symptoms and problems relating to his compensable injury, rather than reporting all of the symptoms that he had suffered over time. This focus is most evident in the histories of prior injuries and foot pain, of bilateral heel pain and of orthotics that the applicant omitted to give Professor Fraser. Moreover, in his evidence when describing the pain he was suffering, the applicant seemed uncertain about the source of the pain in his foot and whether it was always associated with pain in his buttock or back, whether it occurred every day or only some days and whether there were occasions when there was pain in his foot not associated with pain elsewhere.
35. The Tribunal prefers the reports of and opinions expressed by Dr Guirguis and Dr McCulloch to those of Professor Fraser and Dr Hallpike. Dr Guirguis saw the applicant on three occasions between September 2003 and August 2005. He reported that the applicant’s bilateral foot complaints had worsened since his first assessment in September 2003, in April 2005 the applicant’s bilateral foot clinical presentation was suggestive of chronic plantar fasciitis, possibly associated with calcaneal spurs, and in August 2005 the applicant’s bilateral foot condition had not changed. Dr Guirguis’ diagnosis of plantar fasciitis was supported by the report of Dr Graham Long in January 2006 (exhibit R3 at page 37) and by the diagnosis of Dr Anthony Pace in May 2003 (exhibit R2 at page 151). Dr McCulloch reported that the only organic condition that he could detect was a slight sensory impairment in the left S1 distribution that would give the applicant some degree of numbness in the toes, but he did not believe that it would produce any ongoing pain. He could not detect any abnormality in the applicant’s right foot and did not expect there to be reports of similar type pain in both feet. He did not believe the applicant had pain and soreness in both feet that could be reasonably attributed to the lower back injury that the applicant had sustained.
36. The report and evidence of Dr Hallpike was that there was a chronic pain disturbance affecting the whole of the applicant’s foot, with an emphasis on the sole and the outer aspect. This was inconsistent with other histories given to the Tribunal. Other evidence of Dr Hallpike, based upon the history given to him by the applicant, was inconsistent with the applicant’s own evidence. The diagnosis given by Dr Hallpike was one of causalgia which, when stood against the other evidence before the Tribunal, was difficult to sustain.
37. In his closing, Mr Kernot submitted that Professor Fraser was pre-eminent as an orthopaedic surgeon who had been the long-term treater of the applicant. He submitted that his opinion must stand in contrast to the opinions of Dr Guirguis, Dr McCulloch and Dr Hallpike, who overall saw the applicant on only a few occasions. Based on examination, Professor Fraser discounted the diagnosis of plantar fasciitis and, although he could not entirely explain it, opined that the likely cause of the left foot problems was related to the applicant’s lower back. However, in discounting plantar fasciitis, Professor Fraser made it clear that this was entirely dependent upon the accuracy of the history that he got from the applicant. His evidence was that, in the area of the sole under the applicant’s heel, it was not as tender as he would have expected. He said this was an important finding in the context of the history that he got and he focussed on the fact that he did not have a history of pain extending over the sole of the foot. Again, this has to be contrasted with the histories that were given prior to the issue of plantar fasciitis being raised at the hearing. The other important contrast in Professor Fraser’s evidence was that, when he saw him in July 2006, the applicant presented himself as having a one-sided condition. Professor Fraser was not given a history of bilateral heel pain. He was not given a history of tenderness over the medial and lateral calcanium extending a short distance into the plantar aspect of both feet. He was not given a history of pain in the left Achilles tendon at insertion into the calcanius within the distil tendon itself, nor that orthotics had helped the applicant’s foot condition. In this regard, he admitted that had orthotics significantly improved the applicant’s foot condition, it would be an indicator of an orthopaedic condition, rather than a neurological condition. In the final analysis, Professor Fraser’s evidence was that the answer to the causation of the applicant’s problem depended upon what history was given and what history was accepted.
summary and conclusion
38. In paragraph 33 of these reasons, the Tribunal noted that the applicant’s evidence of pain in both his feet on the first day of the hearing contrasted with the evidence on the final day of the hearing, which was to the effect that the applicant’s complaint was only of left foot pain. The Tribunal is not satisfied that the applicant is entitled to compensation for pain and soreness that the applicant suffers in the left foot (or both feet, for that matter) arising as a sequelae to his accepted lower back injury .
decision
39. The decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne and Dr G J Maynard (Member)
Signed: ...........J Coulthard............................................
AssociateDates of Hearing 11/12 May 2006, 16 August 2006
Date of Decision 10 January 2007
Counsel for the Applicant Mr M Kernot
Solicitor for the Applicant Palios Meegan & Nicholson
Counsel for the Respondent Mr M Roder
Solicitor for the Respondent Sparke Helmore
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