Cehner v Coles Supermarkets Australia Pty Ltd

[2024] VCC 367

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-00919

MELINDA CEHNER	Plaintiff
v
COLES SUPERMARKETS AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	5 April 2024
CASE MAY BE CITED AS:	Cehner v Coles Supermarkets Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 367

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – workplace injury – left foot injury – pain and suffering only – reliability of plaintiff – whether impairment consequences are more than significant or marked

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Hamidi v Transport Accident Commission [2023] VSCA 139; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Dunstan	Maurice Blackburn
For the Defendant	Mr B R McKenzie	Wisewould Mahony

HIS HONOUR:

1Melinda Cehner left school and started work at Coles. Unusually in the modern age, she remains working for Coles to this day. She alleges that she sustained an injury to her left foot on 23 June 2014 when she slipped and fell. She claims that the injury to her left foot constitutes a serious injury in accordance with s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”).  She relies on paragraph (a) of that section in respect of physical injury alone, and claims only pain and suffering certification.  The main issues in the case were:

(a)   was Ms Cehner a credible and reliable witness;

(b)   did Ms Cehner’s injury resolve in the months after June 2014, in which case her condition now is one explained by the presence of an unrelated condition known as ankylosing spondylitis;

(c)   even assuming Ms Cehner can demonstrate she still suffers from her workplace injury, are the impairment consequences such as could be considered serious, because she has retained the ability to do a range of strenuous physical activity.

2For the reasons which follow, I find that while Ms Cehner has an extant left foot injury as a result of her work at Coles, she is not a credible and reliable witness. As such I find that she cannot demonstrate her impairment consequences meet the serious injury threshold.

Relevant chronology

3Ms Cehner was born in 1969 and left school at around the age of sixteen.  She commenced working at Coles on a full-time basis.  She has a reasonably unremarkable medical history prior to the incident in June 2014.  A few matters can be mentioned.  She had a workplace injury in about May 2008 where she dropped a bucket of cheese onto her left foot.  Nothing major seems to have occurred in this incident.  In October 2008 she was diagnosed with deep vein thrombosis (DVT) of the left leg.  She was off work for a considerable period of time and returned to work after being medicated with blood-thinning agents.  She had a recurrence of the DVT in 2011 on the left side.

4In about December 2013 she began presenting to her treating doctor with pain in her left foot, which was diagnosed as a calcaneal spur.  She had prescription pain medication in that regard.  However, she remained at work doing her usual range of duties.

5The subject incident occurred on 23 June 2014.  She deposed in her first affidavit that she slipped on a wet floor, twisting her left foot.  She was able to return to work for the rest of the shift but had significant pain.  She saw her treating doctors in the days afterwards and was diagnosed with sprained tendons in her foot.  She was put onto light duties, which essentially seemed to be her normal job as a worker in the delicatessen and seafood section, however, she described being moved into a more managerial type role.

6She was referred for x‑ray and then CT scanning of the left foot.  She remained at work.  Her treating doctors advised that the scans were both clear.  The treating doctors’ notes were produced for the period from June to December 2014.  They suggest that Ms Cehner saw the doctor during this period on seven occasions for left foot pain.  However, Ms Cehner gave evidence that she was also seeing the work “Care” doctor.  This was arranged by Coles.

7By late October 2014 her problems began to worsen, and she ultimately was referred to an orthopaedic specialist, Mr Altay Altuntas. He saw her on 15 December 2014.  He reviewed an MRI scan completed on the 27 November 2014, which showed nothing unusual except for an increased signal around the plantar fascia. It did note a history of “acute on chronic pain”, suggesting long standing issues in the foot. At that point she was walking with a single crutch and a limp.  She was complaining of pain in the plantar region.  He recommended an ultrasound-guided injection of the plantar fascia with corticosteroids and physiotherapy.  At that point he did not consider that surgery was necessary.

8Ms Cehner was then off work for a period of about six to eight weeks. She filed a Workers Injury Claim on 3 December 2014 and this was accepted. Thereafter, she commenced a graduated return to work program on restricted duties, but she was basically doing her normal duties.[1]

[1]Defendant’s Court Book (“DCB”) 8

9She was referred by her physiotherapist to see Dr Krishant Naidu, sports and exercise medicine physician, in April 2015.[2]  She reported that the corticosteroid injection had not provided any relief.  At that stage she was still using a CAM boot.  She underwent exercise-based rehabilitation and gradually began increasing her working hours, such that by July 2016 she was working six hours a day, four days a week.  She no longer required a CAM boot at this stage.[3]  However, toward the end of 2016 her problems seemed to worsen, and Dr Naidu referred Ms Cehner to Mr Terence Chin for review.

[2]Plaintiff’s Court Book (“PCB”) 47

[3]PCB 47

10Mr Chin is an orthopaedic surgeon with a subspecialty in foot and ankle surgery.  He saw Ms Cehner in March 2017.[4]  He took a history of ongoing pain since the fall in June 2014 and the development of a burning sensation with pins and needles into the sole of her foot.  He considered that nerve conduction studies indicated a left tarsal tunnel syndrome.  He also considered that there were several ganglion cysts present.  Overall, he considered that she had a tarsal tunnel syndrome and chronic plantar fasciitis.[5]  He recommended surgery.

[4]        PCB 68

[5]PCB 49

11Ms Cehner proceeded to surgery on 11 May 2017.  It was surgery paid for by the WorkCover insurer. 

12Overall I should also note that Ms Cehner has received 130 weeks of weekly payments due to incapacity for work. Such payments then ceased.

13In August 2018, Ms Cehner experienced psychological issues and had treatment with Dr Sacks. This caused her to be away from work for some period of time. 

14She was first diagnosed with ankylosing spondylitis in June 2019.[6]

[6]        PCB 13

15After her left foot surgery she was referred to Dr Terence Lim, rehabilitation and pain specialist.  Ultimately, under the care of Dr Lim, she had a ketamine infusion in July 2018 for ongoing pain in the left foot.[7]  That infusion seemed to improve her condition, and she managed to wean her pain medication down to Panadol.  At this stage she was attempting to return to work. 

[7]PCB 71

16Mr Chin considered that she progressed well through 2020 and 2021.  He became reinvolved in her care in September 2021 due to the development of right-sided foot problems.  For the purposes of this judgment, little needs to be said about the right foot condition.  Suffice to say that she had a plantar fascia release in March 2022.  That right foot problem seems to have been reasonably well treated by the surgery, though with some residual pain.

17During the course of Mr Chin’s treatment she was also referred in July 2021 to Dr Greg Harris, a sports and exercise physician, particularly in respect of her right foot.

18She was also referred by Mr Chin to Dr Adam Scott-Charlton, a rheumatologist, whom she saw in November and December 2021.  His opinion was sought, as to the medications which could be used to deal with Ms Cehner’s pain, particularly as she had been diagnosed with ankylosing spondylitis.

19She was also referred to neurologist Dr David Moses by Mr Chin in December 2021.  Dr Moses did not think there were any neurological problems at play in the left foot.[8]  Ms Cehner also saw Professor Stephen Hall, a rheumatologist, in May 2022 regarding treatment for the ankylosing spondylitis.

[8]DCB 62

20More recently she has developed gynaecological problems for which she has had a total hysterectomy.  This also has kept her off work for some periods of time.  Overall, however, Ms Cehner has remained at work, working 25 hours across four days a week as a manager at the Coles store, which largely requires her to be on her feet.[9]

[9]It is unclear how many hours she is currently working. In the plaintiff’s most recent affidavit dated 29 February 2024 PCB 28, she states she is working 25 hours per week over four days. At T52 L 22 – 25, the plaintiff says she is doing eight hours per day.  In the report of Dr Clayton Thomas dated 28 July 2023 at PCB 141, the report says five hours a day, five days a week, see also T105 L18-22

21She lives with her husband, who also works.

The reliability of Ms Cehner

22It has often been said that the reliability of the plaintiff’s evidence in a serious injury application is critical.[10] But an assessment of a serious injury application does not stop at simply an assessment of Ms Cehner’s reliability and credit.  All the evidence in the case must be assessed before a determination can be made.[11]

[10]Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]; Hamidi v Transport Accident Commission [2023] VSCA 139 at [51]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at [87].

[11]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [49]

23Because Ms Cehner’s evidence in this case assumed such importance, I will deal with the issue of the reliability of her evidence first.  An assessment of that evidence leads me to the finding that Ms Cehner was an unreliable witness.  The first reason for that finding relates to fundamental omissions in her affidavit material.  Three affidavits of Ms Cehner were sworn in this proceeding, on 26 October 2021, on 10 August 2023, and on 29 February 2024.

24In those affidavits Ms Cehner mentioned that she regularly went to the gym.  That gym was identified via tendered social media posts as being BuzzFit.  As part of being a member of that gym, it appears that it prompted its members to participate in activities which could be described as physical challenges.  These were activities known as “Mudderella”, “Ridiculous Obstacle Challenge (ROC)”, “Foam Fest” and “Color Run”.

25In the first three of these, participants moved through an outdoor obstacle course, being challenged by terrain and also designed obstacles.  In the Mudderella activity, participants moved through an obstacle course over about a three hour period, walking through mud, crawling through mud, and climbing obstacles which became increasingly slippery due to the presence of mud.  In the ROC challenge course, participants had to swing on ropes and perform other obstacle challenges.  In the Foam Fest challenge, participants, inter alia, had to run up to, and then slide along, a water slide, and then exit through a pool of water.

26She participated in each of these activities (to some extent) in the period before swearing her three affidavits, yet no mention of them appears in her affidavits.

27In her first affidavit, at paragraph [40], PCB 15, she deposed:

“My left foot pain is aggravated by any prolonged standing and walking.”

28She deposed further, at paragraphs [47] and [48], that she used to enjoy walking up to 10 kilometres a day before her injury, and going hiking with her husband.  She then deposed at paragraph 50:

“Outside of work hours, I rest my foot as much as possible, in order to be able to remain at work.”

29Having deposed to the limitations caused by her left foot, it would be expected that she would depose to activities which caused her difficulties, or in which she was limited by reason of the left foot injury. However, there was simply no mention of these activities set out at [24]-[28] above in her affidavits. Further, there were other activities in which she was shown to have participated contained in the tendered social media posts, being the Color Run, walks at the Kokoda Track Memorial Walk in the Dandenong Ranges, and a trip to Hawaii where she went on a hike, which similarly found no expression in the affidavits. I consider it a glaring omission from her affidavits that she did not depose to any of these matters.

30The second reason why I consider Ms Cehner’s evidence unreliable was her manner of answering questions when certain matters from social media posts were put to her.  The first occurred when she was taken to a photograph from a BuzzFit class on 20 October 2018.[12]  It showed Ms Cehner in the plank position.  That is, she was in a position where her elbows were resting on the ground, her legs extended behind her, and she was on her toes.  It was suggested to her that this would cause a strain on her left foot, and she would not be in this position if her left foot was as bad as she said.  To this, Ms Cehner replied immediately that the photograph was taken at a moment in time, and immediately thereafter she put her foot down as she could not hold the pose because of her left foot.[13]  This answer was almost unbelievable.  Ms Cehner seems to suggest that she can recall a moment in time from over five years ago, and the precise moment when a photograph was taken.  This seems highly unlikely.

[12]        DCB 97

[13]        T27 L20 - 23

31The next example of unreliability occurred in answering questions about a photograph taken on 18 November 2021.[14]  It shows Ms Cehner in a position which the defendant suggested was her jumping with two feet off the ground onto a step-up bench in the BuzzFit gym.  Ms Cehner denied this was the case, and stated that she was not jumping with two feet, but rather stepping up.  The photographic evidence all seems to suggest very clearly that she was in fact jumping with two feet coming off the ground simultaneously, to then land on the raised step.  This is consistent with the description of the activities that the participants in the BuzzFit class were doing, which is identified as “Box Jumps”.  Ms Cehner’s unwillingness to accept that she was performing a jump suggests very strongly that she was not being forthright and candid.

[14]DCB 127

32The next point she was taken to was a post by her in which she had written “10 ks smashed then smashed avocado for breakfast”.  It was a post dated 20 October 2019.[15]  Underneath this was Ms Cehner with others at what appears to be the start-line of a walk or run event.  It was put to Ms Cehner that she had walked 10 kilometres, in conformity with what she had written.  Ms Cehner denied this was the case, and said ultimately that she had only walked three kilometres.  It is unclear why Ms Cehner would answer in this way.  It seems unlikely that she would walk only three kilometres out of the 10-kilometre walk, and then write that she had in fact walked the entire 10 kilometres. 

[15]DCB 133

33Next, she was taken to photographs which depicted her in Hawaii at a walk which, it was suggested, took two hours to complete.  In her posting on 27 April 2021 she is seen jumping in the air with both feet off the ground, with the title “The feeling of completion”.[16]  First, this showed ability to jump and land on both feet in contrast to her affidavit. She stated in cross examination that she would not land on both feet, but rather one.  This seemed unlikely. She then seemed to give evidence she had completed the walk. This is inferred from her confirmation that it took her about two hours.[17]  She then recanted from that, and stated that she did not walk all the way to the top.[18]

[16]DCB 122

[17]Transcript (“T”) 35, Line (“L”) 16 – 19.  The transcript is incorrect at T35 L20 - 21, where the plaintiff says “I did go all the way to the top”. The recording was listened back to and the plaintiff says she did not go all the way to the top, the defendant then puts to her “I suggest you did go to the top and come back.”

[18]T35, L30-31

34She then gave evidence that instead of walking all of the hike, she walked half of it.  She gave evidence that at the end of that walk her feet were swollen.  The evidence that she gave in respect of this was confused.  She had written that she had completed the walk, yet on her last version of events she had done only half of it.  She then further gave evidence that the walk caused her feet to swell. In that circumstance why she would be jumping is confusing and unlikely as this would increase pressure on the feet when she landed. Overall I consider this evidence to be unbelievable.

35A further example of her unreliability arising from her manner of answering arose from her tendency to downplay any suggestion that she was active.  An example of this occurred when she was asked about photographs of 9 August 2016, which showed her participating in the BuzzFit gym.  It was put to her that it showed her running, lifting weights and doing push-ups on her toes.  As for being engaged in push-ups which involved being on the toes of both feet, she stated that she always did them on her right foot only.[19]  This is a highly unusual posture and unlikely. It was then put that she was shown running, using both feet normally.  She answered, “[r]unning is more like a jog for me, not a run”.[20]  She seemed to clearly wish to downplay her ability to run.  Then she was taken to the Defendant’s Court Book 102, which showed a video of her running up to a waterslide and then jumping into it.  The following interchange occurred: 

Q:“That video, I suggest, shows you running up to the water slide, would you agree with that?---

A:Um, I would say jogging, and it wasn't that far.”[21]

[19]T17, L15

[20]T17, L17-18

[21]T29, L26-28

36Overall, I consider that the video showed her clearly running and jumping into an area off the waterslide.  She sought to downplay her physical activity involved in this activity in a way which appeared, to me, to be evasive. 

37I further consider that her affidavit material overall sought ultimately to downplay the true nature of her physical abilities. 

38The third reason I find her evidence unreliable arises from  the amendments to her affidavits, which she made on the morning of trial.  It is to be remembered that she swore three affidavits in this matter over a period of three years prior to trial.  Her second affidavit of 10 August 2023, specifically addressed the medical report of Associate Professor Romas, dated 18 May 2022.  In that report, Associate Professor Romas recorded Ms Cehner’s history to him of the left foot pain resolving in mid-2014 and then spontaneously recurring toward the latter part of 2014. 

39In Ms Cehner’s second affidavit, she denied that she had given this history to Associate Professor Romas.  I recount that to make the point that Ms Cehner was acutely aware of the need to correct the historical record if it was incorrect.  However, despite having sworn this affidavit in August 2023 and a further affidavit on 29 February 2024, some two weeks prior to the trial, on the morning of the trial she made further amendments to her affidavit.  In these amendments, she sought to correct her evidence as to her physical capacity.  I consider that this was done in an attempt to deal with the social media material which appeared in the Defendant’s Court Book and of which Ms Cehner was given notice on the day prior to trial.  For example, she went to paragraph 49 of her first affidavit which originally deposed:

“‘So prior to injuring my left foot I enjoyed going to the gym about twice a week. I used to do cardio exercises and exercises for my legs … I cannot do this anymore because of my injury to my left foot’”. [22]

[22]T12, L25-28

40She substituted the words “cannot do this anymore” with the words “I am limited because of the injury to my left foot”.  She further amended it in the following way.  The original affidavit stated:  “‘I still can go to the gym but I only do exercises  for my upper body’”.[23]  She replaced the word “only” with the word “mainly”. 

[23]T13, L3-4

41Then, in respect to her last affidavit, she amended paragraph [24], which read, “‘I can do some exercises as long as they don't affect my feet and I cannot do prolonged walking on a treadmill because of the injury to my left foot”.[24]  She changed the word “cannot” to the word “don’t”. 

[24]T13, L28-30

42Those amendments, and the time they were made, strongly suggest that Ms Cehner was seeking to adapt her evidence to try and confront material she assumed would be put to her during the course of the trial.  It left me with the impression that the original affidavit material had been drawn and presented in a way to influence the Court in favour of Ms Cehner, rather than giving a true and accurate picture of her condition.  I come to this finding given, particularly, that the affidavit material made no mention of the extensive physical activities participated in by Ms Cehner outside of the gym. The complete absence from the affidavit material of any mention of a wide range of physical pursuits is glaring, especially in an application under paragraph (a). I find it is a strong factor telling against the reliability of Ms Cehner’s evidence.

43A further inconsistency also emerged during the course of these amendments, which is that, when amending her first affidavit, she did not change her evidence that she went to the gym mainly for her upper body.  However, during the course of cross-examination, it became apparent that she had participated in a challenge during which she had done some 1,378 squat exercises in a row during her gym work.  A squat exercise is where the participant stands with their feet hip-width apart and then bends from their knee down, taking the weight of the body through the legs.  Ms Cehner gave evidence that this was not a full squat exercise, but modified for her.  However, the fact remains that it is an exercise designed to exercise the lower body, predominantly the legs.  This is in complete contrast to the evidence that she had given in her first affidavit, which she had sought to modify on the day of trial, yet was clearly inconsistent with evidence produced in the social media posts.

44The fourth area which I consider makes Ms Cehner’s evidence unreliable is the inconsistency revealed in her evidence.  I have touched immediately before on the incongruity of her ability to do 1,378 squats in a row, when deposing she did exercises mainly for her upper body.  This inconsistency was furthered when I had regard to Ms Cehner’s behaviour in court.  I raised with counsel, during Ms Cehner’s evidence, that I witnessed her limping to the witness box on two occasions.  She was cross-examined about this.  She does not appear, in any of the videos tendered, to demonstrate a limp.  I recognise that some practitioners have this history, but on the evidence from the videos, Ms Cehner appears to jog or run in an unrestricted manner.  I recognise the limitations of this assessment, given the videos are only of short moment.  A further inconsistency appears to arise when she deposes to having to be careful as to where she parks when she goes out or goes shopping.  Ostensibly, this is because of difficulties walking from a car to the shopping centre or restaurant.  However, this is completely inconsistent with the fact that she can participate, on her own evidence, in walks of at least one to three kilometres, which she does as part of a social group.  It is also inconsistent with the fact that, at work, she is on her feet for the majority of time, and on the evidence is accruing something like 16,000 steps per day.  Why she could not then walk from a supermarket carpark into the store and back with ease is completely unclear.

45I note a further inconsistency arises in her first affidavit where she deposes that she wore a CAM boot on her left foot for about three years following the fall from December 2014 onwards.[25] That is until 2017. The period of time she was in the CAM boot is slightly unclear, but for this example I accept the plaintiff’s sworn affidavit as the correct history that she was in the CAM boot from December 2014 for three years to 2017.[26] The first Buzzfit Facebook post is dated August 2016 showing a before and after picture of Ms Cehner. When asked about when the photo was taken, Ms Cehner confirms it was taken eight months to a year after she started at Buzzfit.[27] Ms Cehner started then at the gym approximately from August to December 2015. The social media posts and videos from late 2016 to early 2017 show Ms Cehner completing her gym exercises with no CAM boot. This goes against her credit in that she supposedly wore a CAM boot for three years yet was able to participate in these intensive training programs at the same time.  

[25]        PCB 12 at paragraph [26]; PCB 177, PCB 196

[26]        DCB 7 Dr Poppenbeek – to October 2016; DCB 177 Dr Keith – to early 2017

[27]        T 17 L 4-8

46Further, Ms Cehner underwent surgery in May 2017 for her chronic plantar fasciitis. She wore a CAM boot for approximately one year following that surgery. The earliest Buzzfit post following this surgery is dated March 2018. She was taken to a post of 22 April 2018.[28] It shows her walking on a bush path up an incline with no CAM boot.

[28]        DCB 83

47In the circumstances, I find Ms Cehner to be untruthful in relation to the amount of time she wore her CAM boot and her capacity to exercise whilst wearing this boot. The fact that she began at Buzzfit gym as early as a year after her fall demonstrates an unreliability in her evidence that she wore a boot for three years whilst undertaking these activities.  It is clear she exercised at the gym with no CAM boot.  I consider it unlikely she would wear a CAM boot in her day-to-day activities while then also undertaking strenuous physical exercise without a CAM boot.

48Having assessed Ms Cehner’s evidence in those four categories, I find she is an unreliable and inconsistent witness whose evidence I cannot accept.

49Having made that assessment, I now come to consider the other evidence in the case.  I do so noting the words of the Court of Appeal in Cakir v Arnott’s Biscuits:[29]

“However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant’s credibility did not, in my view, justify refusal of the appellant’s application.  In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant’s injury.  That evidence is set out above. It includes the circumstances in which the injury was reported, the appellant’s physical condition before and after the accident, evidence as to the cause of the appellant’s pain provided by diagnostic tests and the opinions expressed by the appellant’s treating doctors and the other experts.”

[29][2007] VSCA 104 at paragraph [49]

Does Ms Cehner suffer from an ongoing left foot injury?

50Coles submitted that Ms Cehner’s injury to her left foot resolved by mid-2014 and then there was an idiopathic condition in the left foot which developed in late 2014, which was not work related.  In support of this argument, it relied on the reporting of Associate Professor Romas, in particular, who had recorded that Ms Cehner gave him a history that:

“She kept working after the injury incident which was treated as a simple ‘sprain’. She was on light duties for a time. She actually returned to normal duties. She says the foot settled down. She confirmed this to me. It appears from this distance, quite apparent, that the injury she sustained on 24 June fully resolved. … .”[30]

[30]DCB 46

51In addition, Coles drew in the notes of the treating doctors over the period from June 2014 to February 2015 to support the proposition that Ms Cehner’s injuries had resolved substantially by mid-2014.  It also relied on the fact that she had, in fact, returned to work almost immediately after the June 2014 injury.  Lastly, it relied on the medical opinion of Dr Moses[31] and Mr Harris[32] to support the fact that there was no ongoing work-related injury.  I do not accept the submissions of Coles on this point.  I consider the evidence overwhelmingly supports the fact that Ms Cehner sustained injury on 23 June 2014.  This was reported at work, she filed an incident claim form and she was referred to the Coles’ doctor under the Coles CARE plan.  Further, she almost immediately saw her treating doctor at the time, and the notes refer to ongoing problems after the fall at work.[33]  It is important to note that, in the recording of Dr Bahaa Roushdy on 25 June 2014, he notes, “left foot was caught behind in hyperflexion of the ankle”.[34]  This resulted in referrals for an x-ray and then, later, CT scanning.  All this suggests that there was certainly injury to the left ankle on 23 June 2014, with subsequent problems into July 2014.  While there were no attendances during August relating to the left ankle, but for other conditions, the note from 17 October 2014 refers to left heel spur and plantar fasciitis involving strong pain, with a recommendation for steroid injection.  It is true that Ms Cehner had returned to work during this time, but the evidence is uncontroverted that she was also seeing the Coles’ doctor during this period for treatment and was on modified-duties work.  This suggests her condition was really a continuation of the problems which had begun in June 2014 in the fall.  This is further supported by the treating doctor’s note on 2 November 2014, which refers to “[s]till having left foot pain”.[35]  this suggests that the pain had been continuing for a period of time. The MRI of November 2014 also records “acute on chronic” problems which indicates a long-standing problem. This is in contradistinction to Coles’ submission that the foot problems had resolved by mid-2014.  This works directly against Associate Professor Romas’s history taking and, furthermore, his conclusion that there had been an isolated left foot injury, which had completely resolved by mid-2014. 

[31]DCB 62

[32]DCB 57

[33]PCB 217

[34]PCB 219

[35]PCB 222

52This consistency of history given to various doctors support Ms Cehner’s case that Associate Professor Romas has an incorrect history. It is also relevant to note that Ms Cehner had given a history of a torsion injury in contrast to that taken by Associate Professor Romas.  Relevantly, such a history had been given to medico-legal practitioners, Dr Ralph Poppenbeek,[36] the Medical Panel[37] and Dr Graeme Doig.[38]  This suggests to me that Associate Professor Romas has incorrectly recorded the history on multiple fronts and this supports a finding that on the critical component he has taken the history incorrectly.

[36]DCB 11

[37]DCB 38

[38]DCB 31

53While it is relevant that Ms Cehner denied giving this history of a fully-resolved left foot injury by mid-2014 to Associate Professor Romas, as I consider her evidence unreliable, I put this evidence to one side.  Rather, relying on the material I set out above, I consider there is strong evidence to support the finding that the initial injury in 2014 continued thereafter. 

54I will now turn to consider whether, as of the date of trial, Ms Cehner suffers from a work-related left foot injury.

55Having reviewed the evidence, it leads to a finding that Ms Cehner suffers from a current left foot injury that is work related.  I come to that finding, relying on the evidence giving by the long-term treating specialist, Mr Terence Chin,[39] where he noted:

“[Ms Cehner] reports that her left heel pain occurred following a fall at work in 2014. This is a reasonable cause for her plantar fasciopathy, and may provoke symptoms related to tarsal tunnel syndrome / impingement of the lateral plantar nerve.

Melinda does not report an injury leading up to her right heel symptoms of plantar fasciopathy.”[40]

[39]At PCB 78 in answer to Question 5

[40]PCB 78

56This is consistent with the medico-legal position of Associate Professor Elton Edwards.[41]  In that opinion, he stated:

“The left foot sustained an initial injury at work which involved tearing of the plantar fascia. Additionally, there would have been adjacent soft tissue injury of a diffuse nature including swelling and bruising. Subsequently, a ganglion developed resulting in tarsal tunnel syndrome. Surgery has been performed. There is now damage to the medial plantar nerve and medial calcaneal nerves with chronic heel pain and frequent cramping.”

[41]At PCB 93 in answer to Question 1

57It is relevant, at this stage, to consider the evidence of Dr Moses, neurologist, who conducted EMG studies bilaterally.  While he found no evidence of electrophysiological change to support ongoing nerve injury, I note that, by reason of Ms Cehner’s Warfarin therapy, only a limited needle EMG study was undertaken.  It is unclear whether this compromised the findings, though his reporting made no comment about this.

58I do not accept the opinion of Associate Professor Edwards. This is for three reasons. First, it is unclear if he has the opinion of Dr Moses, the neurologist who opined in 2022 there was no nerve disruption. Even if he had that report he has not engaged with its investigative finding. Second, the treating specialist who treated the plaintiff surgically only considers that nerve problems may have been provoked by the plantar fasciitis. He is the long-term treating specialist and he is in no way definitive as to nerve involvement, as Associate Professor Edwards is. Third, Associate Professor Edwards does not have an accurate picture of the plaintiff’s capacity, which is far more substantial than he has recorded. I put his opinion to one side.

59Overall, I would prefer the evidence of the treating orthopaedic surgeon, Mr Chin, who has operated upon Ms Cehner and consulted her serially over many, many years.  His opinion is clear that she has plantar fasciopathy, which explains her ongoing difficulties. 

60His view about the organic nature of her problems led him to recommend her for pain management therapy and ultimately she underwent ketamine infusion to deal with her pain levels.  To an extent, I also rely on the treating doctor’s reporting of Dr Roushdy[42] and, in addition, the physiotherapy reporting of Ms Skinns.[43]  Both consider Ms Cehner to be demonstrating ongoing organic problems with the left foot requiring treatment in the form of physical therapy and medication.  Though these practitioners are not as specialised in the treatment of foot problems as Mr Chin, I still consider they offer independent objective evidence of ongoing organic foot problems and pain associated with that. 

[42]PCB 84

[43]PCB 82

61To the extent that reliance was placed on the report of Dr Clayton Thomas, I would not accept this represents good objective evidence of her ongoing problems.  He appears to have a history which is compromised by not appreciating the full range of her physical activities.  As he is opining as a medico-legal pain specialist, not surgeon, he is also reliant heavily on Ms Cehner’s history to him.  Given that I consider Ms Cehner to be an unreliable witness, I consider Mr Thomas’s opinion is of limited use.

62I find the plaintiff’s injury is as defined by Mr Chin.

Does the left foot injury result in impairment consequences which can be considered “more than significant or marked”?

63In this assessment, I largely put Ms Cehner’s evidence to one side.  However, all the evidence in the case must be assessed and, particularly, I focus on the independent evidence in the case.  Only where there is such independent evidence which verifies Ms Cehner’s complaints, am I in a position to accept it.  Currently, she deposes to being prescribed Panadeine Forte, taking 2 per night and Panadeine up to four to six daily.[44] Later she desposed to taking four Comfarol Forte per week and six Panadol daily for left foot pain.[45] Given my finding as to the reliability of the plaintiff’s evidence I consider it necessary to confirm that evidence from all other sources. Historically, there is reference to the use of both Panadol and prescription pain medication. However, there is no evidence for the prescription of pain medication by her long-term treating doctor or Dr Chin in his most recent reports.  Nor is there evidence by Dr Hall, her treating rheumatologist, or even Mr Scott-Charlton, her other rheumatologist who prescribed balancing medications in late 2021 but made no mention of Comfarol Forte or similar. Dr Hall discussed use of Celebrex as an anti-inflammatory on a short term basis, but made no mention of the prescription of Panadeine/Comfarol Forte for the left foot. Overall I cannot accept that the plaintiff takes the pain medication she has deposed to.

[44]        PCB 12 at [8]

[45]        PCB 26 at [4]

64She also sees a physiotherapist for therapy.  I accept, then, that her injury requires ongoing physiotherapy treatment and she complains of pain  She has had surgical release on the left side, as well as a pain management program and a ketamine infusion.  This indicates that her historical problems were of such a significant nature to require surgery, pain management and a  course of inpatient stay to deal with pain arising from her situation.  That pain has varied since the date of the fall.  This is recorded in the notes of the treating doctor and is also supported by reporting from that treating clinic.  I accept broadly the plaintiff’s evidence that her pain fluctuates.[46]  However, given the unreliability of her evidence, I can make no finding as to its severity.

[46]PCB 28 at [4]

65It can be accepted that Ms Cehner is somewhat limited in what she can do by reason of her injury. She also wears an orthotic. However, due to the unreliability of her evidence, I am unwilling to accept that she is as limited as she deposed to in her ability to walk, stand or participate in vigorous physical activity.

66To the extent that she relies on the opinions of Mr Chin, Dr Roushdy and Ms Skinns I consider they do not have an accurate picture of her true physical capacity. This is shown in many of the social media posts of her being active. This substantially undermines their opinions as to her impairment consequences. So while it may be accepted that she has an injury of the left foot arising from the 2014 incident at Coles and that such injury is productive of permanent impairment, the assessment of the impairment consequences simply cannot be made with any accuracy.

67To the extent that her husband gave evidence, he was supportive of Ms Cehner.  In particular, he gave evidence that, at the end of each day, Ms Cehner would come home, take off her shoes, lie in bed and raise her feet, so she could apply ice and rest them.  I accept that evidence.  This indicates, to me, that Ms Cehner struggles at the end of the day with pain in her feet, such that she has to rest.  I do not accept the evidence that she is unable to perform housework as she used to, given the unreliability in her evidence and the social media material which shows her able to participate in a range of very physical gym activities.  Further, the notion that she is unable to do the housework is completely inconsistent with her ability to perform an exercise such as 1,378 squats in one session or work.  I do not accept her ability to socialise is diminished by reason of her left foot injury.  This is completely inconsistent with her travelling to Hawaii with friends or participating in the various physical challenges, or even attending dinners, as shown on social media.

68It was also put that her right foot developed problems consequentially to her over reliance on the left foot. I do not consider the medical evidence supports that finding. Furthermore, given the unreliability of her evidence there is no solid evidence to assess to what extent the right foot is impaired.

69It is also relevant to note that she has an ability to perform a range of other activities.  For example, she has the capacity to work 25 hours across four days per week, during which time she is on her feet most of the time.[47]  As set out above, she can travel overseas and participate in walks, and socialise.  I find she retains the ability to perform all activities of daily living.  In addition, she has the ability to participate, at some level which I am unable to determine exactly, given the unreliability of her evidence, in a variety of physical challenges.  She is able to bushwalk and cope with uneven ground.

[47]        PCB 28

70Balancing these matters after a consideration of all the evidence, I accept Ms Cehner has suffered an injury but I find its’ impairment consequences cannot be classified as “more than significant or marked”.