Corman v Metrans
[2014] VMC 5
•13 MARCH 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. B13211505
| MATTHEW CORMAN | Plaintiff |
| v | |
| METRANS PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 3, 4, 5 & 6 FEBRUARY 2014 |
DATE OF DECISION: | 13 MARCH 2014 |
CASE MAY BE CITED AS: | CORMAN v METRANS |
REASONS FOR DECISION
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Catchwords: s 109 rejection of claim for diabetic ulcer condition of left and right feet necessitating amputations of toes. Worker suffering diabetes mellitus – alleged incident 12 November 2010 – causation – whether injury arose out of or in the course of employment – whether employment a significant contributing factor – credit issues – capacity for employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Johnstone | Melbourne Injury Lawyers |
| For the Defendant | Mr Churilov | Herbert Geer |
HIS HONOUR:
1 Mr Corman is 52 years of age and commenced employment as a courier driver with the defendant on 9 September 2010. He had previously completed a light engine mechanical apprenticeship, owned and operated a motorbike business and was then employed as an Installer for Foxtel. In an Amended Statement of Claim he alleges that as a consequence of dropping a 10-15 kg box of pamphlets on his left foot on 12 November 2010, he developed a laceration to his left foot and consequent infection leading to amputations of the 4th and 5th toes. He also alleges that as a consequence of that injury he altered his gait by placing greater weight on his right foot during his employment between 12 and 19 November leading to a right foot ulceration and amputation of the 2nd and 3rd toes of the right foot. He alleges that he has been incapacitated for employment from 19 November 2010 save and except for a four day period in September 2012 when he worked as an Installer on the National Broadband Network at Ayr Peninsula in South Australia.
2 The defendant by way of an Amended Defence disputes that the incident occurred, denies injury arising out of or in the course of employment or that employment was a significant contributing factor and denies any incapacity as a consequence of injury. The defendant withdrew its reliance on s 82 (7) and (8) on the filing of its written submissions.
3 It is not in dispute that Mr Corman has suffered from diabetes mellitus requiring insulin since 2002 and has had numerous episodes of diabetic ulcers since that time requiring amputation of the left 3rd toe in June 2009 and right 4th and 5th toes in 2010. The issues for the court to determine are; whether the alleged incident occurred causing injury to the left foot; if so, whether the left foot injury and subsequent employment was a causative factor in the development of the right foot condition; whether employment was a significant contributing factor; whether the need for subsequent surgery in the form of toe amputations is related to injuries arising out of or in the course of employment; and, whether compensable injury has resulted in an incapacity for employment from 19 November 2010.
4 Mr Corman gave evidence as did Dr Kamal and Dr Carter on his behalf and Dr Griffiths gave evidence on behalf of the defendant. The parties tendered numerous medical records/reports, claim forms and other documents and provided written submissions at the conclusion of the case.
5 Mr Corman gave evidence that prior to commencing employment with the defendant on 9 September 2010, he was able to work as a self employed Installer with Foxtel notwithstanding his diabetes condition. He told the court that he had experienced two incidents involving his feet whilst working as an Installer, the first being in 2008 when he stood on hot concrete resulting in blistering to his left foot which ulcerated subsequently leading to amputation of a toe. He also recalled that in early 2009 he had an infection in his right foot which also resulted in a toe being amputated. He gave evidence that when he commenced employment with the defendant as a courier driver he did not have any foot infection, considered himself fit for work and did not believe his diabetes condition would hinder him in the performance of his duties. He confirmed that in the pre employment workcover questionnaire that he was required to complete he answered “No” with a question mark as to whether his diabetes condition could be affected by his employment and also noted he had recently undergone a diabetes test.
6 Mr Corman told the court that his job required him to collect boxes from the defendant’s clients and deliver them to various locations. He gave evidence that on Friday 12 November 2010, at approximately 2-3 p.m. when loading boxes weighing between 10-15kg onto a trolley, he dropped a box which struck the outside of his left foot just behind the steel capping of his work boot. He told the court that it hurt but not significantly enough for him to inspect his foot or to cease work. He also said that he did not inspect his foot because he “did not have time” to do so. Mr Corman gave evidence that he continued working until approximately 6.30-7 p.m. He told the court that after he got home and cooked tea he took his shoes off and noticed blood on the side of his left foot at the point of impact of the fallen box. He said that he also noticed a “small split” of approximately 5mm on the side of his foot. He said that as no other incidents occurred that day he attributed the injury to the box incident. He also told the court that when he showered that morning before commencing work he did not notice any problems with his left foot. Mr Corman told the court that he washed his left foot and put a bandaid on the split.
7 He gave evidence that he attended the Lancefield Country Medical Practice on Saturday 13 November for an unrelated medical problem and showed the Nurse his left foot injury which she dressed and told him to keep an eye on it. He told the court that on Sunday 14 November, he noticed a “red ring” around the wound and therefore attended Dr Latif at the Central Square Shopping Centre, Altona Meadows, who took a swab and prescribed anti-biotics.
8 Mr Corman gave evidence that on Monday 15 November, he returned to work and reported the injury by telephone to his Manager. He said that he did ask for a workcover claim form but was not given one. He told the court that he continued performing normal duties until Friday 19 November but that during the course of the week he noticed the “red ring” was getting bigger and more inflamed and causing him to limp. He said that because of this he needed to take pressure off his left leg/foot and put more pressure on his right leg/foot which resulted in him developing ulcers near his big toe and ball of the foot by the Wednesday or Thursday of that week. He told the court that he attended Dr Latif who certified him unfit for work.
9 Mr Corman gave evidence that on Friday 26 November, he awoke to find that both his feet were swollen and red in colour so he attended the Western Hospital where he remained as an inpatient for approximately two weeks and underwent multiple toe amputations. He told the court that he was re-admitted on 12 December 2010 until April 2011 with further infections and underwent surgery on his right foot. Mr Corman gave evidence that he has been left with the first two toes on his left foot and only the big toe on his right foot.
10 Mr Corman told the court that he has remained off work since 19 November 2010 except for a four day trial return to work as a contractor with the National Broadband Network at Ayr Peninsula in South Australia in September 2012. He told the court that he could not cope with that work and is currently waiting on the provision of “rubber toes” prosthesis for his left and right feet which would allow him to regain normal mobility. He told the court that at present he walks with a limp and has difficulty managing uneven surfaces and cannot negotiate steps. He said he cannot return to pre-injury work as a courier or installer because of the physical requirements of those jobs.
11 Mr Corman was subjected to a lengthy and thorough cross examination which concentrated on his credibility concerning the state and control of his diabetic condition in the period leading up to and at the time he commenced employment, the state of his general health and his non disclosure of other medical conditions in the pre-employment questionnaire. During cross examination, he agreed that he told the court that the only medical concerns he had prior to commencing employment was his diabetic condition. He denied suffering from any other medical conditions that would effect his capacity for employment. He told the court that the condition of his feet before 2010 and during 2010 was fine apart from the 2008 “hot concrete” incident, the 2009 infection and a burns incident in June/July of 2010. He agreed that the latter incident occurred when he left his foot too close to a heater in the waiting room of his doctor’s surgery leading to burns. He told the court that his condition had healed by the end of August.
12 Mr Corman gave evidence that as at 9 September 2010 his feet were “pretty well clear” of ulcers and wounds. He said he did not require ongoing medical treatment, that his feet had “recovered satisfactorily” and that they were “fine”. He said that he regularly checked his feet because he was protective of them and disputed the suggestion that over the years he was non compliant with the treatment regime recommended by his doctors.
13 Mr Corman agreed that he had previously sustained a work related back injury in 1985 but told the court he had recovered from that injury before 2000 although it did give him “occasional” trouble. He also agreed that he had previously been in receipt of sickness benefits and the disability support pension for his back condition and a significant work related left hand injury. Mr Corman agreed that he did not disclose these prior injuries in the pre employment medical questionnaire and told the court that he did not do so because they were not affecting him at the time he commenced employment with the defendant. Mr Corman also disputed that he suffered a previous hernia condition in 2002 for which surgery had been planned in 2004 and for which he was also receiving Centrelink benefits. He agreed that he had been certified as unfit for all work between 2004 and 2008 because of his diabetes condition and the difficulties in controlling it. He also agreed that in 2008 he was diagnosed as having significant peripheral neuropathy and was regularly experiencing trauma to his feet. Despite his initial denials, Mr Corman did concede that his diabetes has been unstable over the years and that he has been non compliant with treatment recommendations and had recurrent problems with infections in his left foot which led to the amputation of his 3rd left toe in 2009. He agreed that he also burnt his left foot on a car heater in August 2009 which required skin grafts with ongoing ulcerations, a left foot – lateral side infection in December 2009 with a diagnosis being made of cellulitis requiring treatment into 2010 and right foot and knee infections commencing in early 2010 requiring amputation of his right 4th and 5th toes in February 2010.
14 Mr Corman agreed that throughout 2010 he was continuing to experience problems with his feet including symptoms of “hotness, redness and swelling” and that his diabetes was causing problems for him necessitating ongoing medical treatment. He also agreed that his condition of peripheral neuropathy led to him sustaining significant burns and ulceration in five locations of his left foot on 30 June 2010. He accepted the accuracy of the medical records which indicated ongoing treatment for those ulcers and also accepted the accuracy of records indicating that he still experienced ulcerations to the left plantar lateral side of the foot and the medial side as late as 2 September 2010 but said he thought they had healed by then. When it was suggested to him that those ulcers were present as at 9 September he suggested that they must have been “very small” but he could not recall. He disagreed that he was non compliant with medical treatment during this period. He disputed the suggestion that he had ongoing issues with his feet when he commenced employment with the defendant notwithstanding records indicating that he attended the foot clinic on 9 September.
15 Mr Corman also agreed that he suffered from bleeding to the left 3rd toe stump in August 2010 which resulted in the removal of the toe nail as a consequence of kicking a coffee table. He agreed that he ceased work with Foxtel in February or March 2010 due to ongoing problems with his feet but also added that he did so because the pay rates were reduced. Later, in cross examination, he disputed that he ceased work with Foxtel because of ongoing feet problems but did so because of the pay rates and on his doctor’s advice “to rest his feet”. He conceded that he ceased that work because of continuing ulcer problems and agreed that his doctor wrote to the Department of Housing at that time seeking assistance because of the condition of his feet but disputed that these problems continued to persist up to and including the date he commenced employment with the defendant.
16 Although Mr Corman gave evidence that as at the date of incident he was paranoid about checking his feet, he said that he did not do so after the box fell onto his foot because; “I did not have the luxury of time”, notwithstanding that the box weighed 10-15 kg and he felt its impact. He said that he did not have a “spare moment” to inspect his foot. He ultimately conceded, after being referred to his bank statements, that he had time to purchase cigarettes at the Sandbelt Hotel, Moorabbin at 3.18 p.m. that afternoon but told the court that he may not have worried about inspecting his foot at that time because it was no longer painful. Mr Corman also conceded that he can not be sure the incident caused the cut to his foot and for it to bleed but presumed it did as it was not there in the morning but was there at night. He described the cut as “pretty insignificant”. Mr Corman agreed that he did not receive medical treatment in late September or October 2010 and told the court that he did not need to do so because his feet were “clear then”. Mr Corman gave evidence that he attended Dr Carter’s clinic on 13 November for an unrelated matter involving a Department of Housing application. He was adamant that he told the Nurse at the clinic about the incident and injury and that she “washed it and put on an anti septic patch”. He agreed that the clinical notes do not record this attendance and that because of this he attended the clinic on 6 April 2011, emailed and wrote a letter to Dr Carter concerning this lack of history in an effort to correct the record. He also agreed that his email only referred to the nurse “applying a bandaid” and corrected his evidence to state that she only applied a bandaid and did not “wash the wound”. Mr Corman was adamant that notwithstanding the absence of a record of his attendance for treatment he did so. Mr Corman conceded that he knew at the time of his attendance at the clinic on 6 April 2011 that it was beneficial to his claim if the doctor was prepared to support his contention that he was fit for employment as at 9 September 2010, that he had recovered from past infections and that his diabetes was under control. Mr Corman was unable to explain the lack of history of the box incident in the clinical notes of Dr Latif who he saw on Sunday 14 November but told the court he did tell the doctor what had occurred.
17 Under persistent questioning, Mr Corman ultimately conceded that his answer on the pre employment questionnaire “no” ? to the question of whether he had diabetes, was wrong, because he was aware that he had diabetes but he was unsure which type as he was waiting on the outcome of recently performed tests.
18 Dr Carter gave evidence and his clinical records and medical reports were tendered. On the basis of the issues to be determined in this matter it is appropriate to refer to a number of the relevant clinical entries in Dr Carter’s records which indicate that as at 2 September 2009, a past history of; diabetes mellitus – Type I, left middle toe amputation, peripheral neuropathy and scalds to left lower leg. Important entries include;
- a diagnosis of cellulites by Dr Kefford on 24 December 2009 following a presentation by Mr Corman of a red, swollen left foot on the lateral side;
- an episode of hypoglycaemia on 15 January 2010 following which Mr Corman refused to go to hospital for treatment;
- a possible diagnosis of cellulitis and osteomyelitis by Dr Carter on 28 January following a presentation of symptoms of a warm red left foot with a clean ulcer but with a macerated edge;
- a presentation on 18 February with Dr Carter as a result of cellulitis of the right foot tracking up to the knee, a pressure area under the right foot which had broken down, the right middle toe nail having been ripped off and a pressure area under the left foot being macerated. The records reveal that Mr Corman refused to go to hospital for treatment;
- a presentation on 10 April with a notation that the left foot ulcer was still present and a diagnosis by Dr Carter on 13 April that Mr Corman had osteomyelitis of the foot;
- a further episode of hypoglycaemia on 14 April with a low blood glucose reading of 2.4;
- an entry by Dr Kefford on 3 May that the right foot was sloughy and the left foot ulcer was becoming deeper;
- an episode of hypoglycaemia on 31 May with a blood sugar level of 3.2;
- recorded ongoing ulcers in his left and right feet on 18 June and 21 June;
- a recorded incident of burning to the left foot on 29 June when he held it over a heater and did not feel pain because of neuropathy;
- ongoing and regular treatment to the left foot burn from 29 June to 11 September;
- an entry by Dr Carter on 21 August that the wound was healing well with no sign of infection;
- on 4 September an attendance with the Nurse for a dressing change with the nurse cleaning and drying the wound with odour noticed;
- on 7 and 11 September Mr Corman attended the clinic and was treated by the Nurse who changed his dressing and on 21 September he attended the clinic and pathology tests were requested.
19 The clinical records reveal an absence of attendances between 21 September and 7 December 2010. On 7 December, Dr Carter recorded that Mr Corman told him the “infection came back” and they discussed his housing situation and future in general. There is no record of him having told Dr Carter of the incident on 12 November.
20 On 5 April 2011, Dr Carter recorded that Mr Corman attended without an appointment to discuss his legal claim. He noted that he told Mr Corman that he did not have the records to support his story that he attended the clinic on 13 November 2010. A further entry on 6 April indicated that the Practice Manager, Karen Bowden, sent an email to Mr Corman indicating that the receptionist on duty on 13 November 2010 could not recall him attending and that the Nurse on duty at that time was no longer employed at the practice.
21 In his report dated 9 February 2011 to Gallagher Bassett, Dr Carter stated that Mr Corman’s diabetes proved hard to stabilise to some extent because of his poor compliance with issues such as smoking. He noted that he had undergone a number of toe amputations due to gangrene resulting from poor circulation secondary to his diabetes and aggravated by smoking. He opined that the dropping of the heavy weight on his left foot could have aggravated the existing circulation problem and contributed to the need for amputation of the toes but he could not see how the incident could have directly affected his right foot. In his report to Mr Corman’s lawyers dated 19 January 2012, he reported that Mr Corman attended the surgery on 13 November 2010, the day after the incident and was seen by a nurse who cleaned and dressed it but within 24 hours or so the site of injury became inflamed. He noted that the left foot wound started to deteriorate and ulcers developed in the right foot with subsequent amputations to the toes of the left and right feet. He also opined that the whole cycle of events was initiated by the injury to the left foot and he has subsequently developed anxiety and depression. Dr Carter also opined that Mr Corman was unfit for his pre-injury duties but fit for re-training in a wide range of areas which did not require agility of feet, walking distances or essential maintenance of balance.
22 Dr Carter gave evidence that he has treated Mr Corman for a period of 15 years and over that period it has been difficult to control his diabetes. He said it has been a “roller coaster” of Mr Corman having high and low sugar levels and it has been difficult to keep him on an even keel because; it has not been clear whether he has Type I or II diabetes; his diabetes is “brittle”; he is a heavy smoker which puts him at risk of complications; he has not attended for regular appointments; and, he has taken the “law into his own hands” regarding treatment. Dr Carter said that Mr Corman has peripheral neuropathy which has affected his left and right feet causing reduced sensation which is a common consequence of peripheral vascular disease. He told the court Mr Corman’s diabetes has caused deterioration of his large and small blood vessels which resulted in him having gangrene of the toes requiring amputation. He said that gangrene can develop spontaneously or as a result of trauma aggravating the underlying pre-existing disease.
23 Dr Carter gave evidence that Mr Corman suffered 2nd degree burns with widespread blistering to the sole of his left foot when he attended his surgery on 29 June 2010. He said the condition was treated extensively over a number of weeks and it had healed and was stable by early October 2010 and he had no concerns regarding either foot at that time. During evidence in chief, Dr Carter said that the reported incident occurring on 12 November 2010 had a catastrophic effect on what was a very compromised circulation leading to amputation of the toes of his left foot. He told the court that the incident “may have” affected the toxins and temperature of both feet therefore being causally related to amputation of the toes of the right foot. During cross examination, he agreed that this opinion was speculative.
24 In cross examination, Dr Carter agreed that Mr Corman’s heavy smoking put him at risk of developing complications as a result of his unstable diabetes. He also agreed that Mr Corman was non compliant with treatment recommendations given to him by himself, the hospital and the specialist to whom he was referred, failed to attend appointments and that his unstable diabetes placed his medical condition in a precarious position in that he is prone to develop ulcers, wounds and infections. Dr Carter acknowledged that Mr Corman experienced ongoing problems with his diabetes in 2009 and 2010 which included ongoing feet infections, toe amputations, hypoglycaemia, macerated left foot ulcers, possible osteomyelitis and cellulitis until at least 21 September 2010.
25 After being referred to the clinical records of the Diabetic Foot Unit Clinic records of the Royal Melbourne Hospital dated 8 July 2010, Dr Carter agreed that the records confirm that on that date Mr Corman had 5 ulcers on the left foot including a large ulcer on the lateral side of the foot. He also confirmed that he wrote to the Northern Hospital on 13 July 2010 regarding Mr Corman’s infected left foot informing them that he was concerned about its ongoing viability. He told the court that he was of the opinion at that stage that Mr Corman would have to have his entire left foot amputated because of the state of his pre-existing ulcer condition and the consequences of the burns sustained on 29 June. Dr Carter told the court that the RMH records reveal that as at 15 July 2010, the left foot plantar ulcer had increased in size and was very deep as the tendon was visible which was very significant. He also noted that Mr Corman had been advised to remain non weight bearing on the left foot using two crutches at a time and the delay in recovery was in part attributable to his ongoing smoking habit which was compromising the healing process. Dr Carter told the court that the records from the RMH dated 9 September 2010 indicated that his left foot plantar ulcer was improving in that it was less infected and no longer required aggressive anti-biotic treatment but still required daily dressings. He confirmed that those records reveal the continued presence of two other ulcers on the left foot and that he continued to be non-compliant with treatment recommendations to be non weight bearing using two crutches.
26 Dr Carter gave evidence that Dr Kefford wrote to the Office of Housing at the Department of Human Services on behalf of Mr Corman on 13 September 2010 regarding his special accommodation requirements. He confirmed that Dr Kefford informed the Department at that time that Mr Corman was “continually getting foot ulcers that are healing very slowly…He needs to attend RMH Wound clinic on a regular basis…He comes to our practice daily for wound care and dressings”. Dr Carter gave evidence that he received letters from the RMH Diabetic Clinic dated 16 September 2010 and 7 October 2010 informing him that Mr Corman failed to attend the clinic for review as arranged. Dr Carter confirmed that the records indicate Mr Corman did not attend his practice between 21 September 2010 and 7 December 2010 and did not arrive at a scheduled appointment on 1 November 2010. Dr Carter also confirmed that when Mr Corman re-attended on 7 December he did not inform him of the incident on 12 November but stated that; “the infection came back”. Dr Carter told the court that when Mr Corman presented without an appointment on 5 April 2011 to discuss his legal claim he was told that the records did not support his assertion that he attended the practice on 13 November 2010. Dr Carter gave evidence that the practice is “normally careful” about recording attendances by patients.
27 Dr Carter told the court he received a letter from Mr Corman dated 16 May 2011 requesting that he provide a certificate to the effect that he was fit to return to work on 9 September 2010 on the basis that he had “recovered from my wounds…was due for a diabetes review soon and it was controlled and managed well or within limits”. Mr Corman also suggested that Dr Carter show that; “the two previous amputations have no relation to each other and are of completely different cause and no relationship to my current amputations. As it is a result of trauma to the left foot from 12 November 2010”. Dr Carter confirmed that he wrote in reply on 6 June informing Mr Corman that he had; “reviewed your file and am unable to provide you with the specific information you requested, as it is not in keeping with the information documented in your file”.
28 Dr Carter gave evidence that he is unable to inform the court of the condition of Mr Corman’s feet between 21 September 2010 and 7 December 2010 because he did not examine him during that period. He did agree with the proposition that pressure on the feet, heat and non compliance with treatment recommendations can exacerbate an ulcer condition of the left and right feet. Dr Carter told the court that Mr Corman’s considerable pre-existing disease could have led to the toe amputations without the incident occurring.
29 A report from Dr Smylie was tendered as were the clinical records from his practice at the Altona SuperClinic. The records indicate that Mr Corman attended the clinic on 23 October 2010 and saw Dr Pranadi for a repeat script for his diabetes. The nurse recorded that Mr Corman was smoking 20 cigarettes per day. On 14 November 2010, Mr Corman saw Dr Latif who recorded a history that “infected wound left foot has flared up again – the lateral border of the 5th toe has an infected wound with associated cellulitis – swab is taken and started on anti biotic – wound is cleaned and dressed”. The Nurse, Ms Robinson, made the following entry on that date; “wound review and assessment – ulcers to the top of the inner and outer left foot – inflammation present – heavy exudate on one of the wound to the side of the foot – wounds cleaned with normal saline – used chlorhexidine to remove old bandage from around the wounds – solosite applied – covered with combime and mefix – secured with a crepe bandage – back 1/7 for further review – advised to come back or go to an emergency room if any ooze seeping through the bandage – has no feeling in the foot so unable to feel any pain”. On 15 November, Dr Latif recorded that the “wound looks good today and less erythema – wound cleaned and redressed – lab result is not back yet” and the Registered Nurse recorded; Heavy exudate and odour on upper left side of foot. Wounds cleaned with chloherxidine and redressed with solosite, flamyl (edges), jelonet, combine and mefix. Cleaned between toes. Advised patient to see Kylie for a wound review. He is not sure when he would be able to see Kylie due to work”.
30 On 21 November 2010 the following entry was recorded by Registered Nurse, Ms Masoeu-Rasekaba; Spoke to the doctor regarding patients non compliance with dressing regime. I asked the patient why he has not been coming for a dressing change, and his response was that he has a complicated life and that sometimes has no time to come to the clinic. For the last 3 days he has been dressing the wound at home. The ulcer on top has extended to the side of the foot, and patient is aware of it….has a superficial wound on top of the left big toe from kicking “something” – would not specify what it was that he kicked…the patient does not seem concerned about the condition of his ulcers, despite being reminded about the importance of having it dressed at the clinic daily, as well as seeing Kylie for a wound review. His response was “He’s going to lose his foot anyway”. He will be off this week and will make an effort to come and see Kylie”. On 23 November, Mr Corman attended the clinic and saw Dr Smylie who recorded; “has healing pressure ulcer plantar aspect R forefoot. But about 10/7 ago dropped box on L foot, and now has significant non-healing ulceration L foot…o/e deep ulcers L forefoot. Macerated, devitalised skin around ulcers. Feet have Pseudomonal smell…needs surgical debridement”.
31 The report from Dr Smylie indicated that when Mr Corman was first seen by Dr Latif on 14 November 2010, no mention of the mechanism of injury was mentioned and the first recorded history occurred on 23 November to him. He noted that Mr Corman did not attend the clinic between 24 November and 10 March 2011 during which time he underwent a number of toe amputations. Dr Smylie reported that; “According to the patient, he suffered an injury to his left foot in November last year when he dropped a box on the foot and this injury caused ulceration: this ulceration was greatly exacerbated by his diabetes and he went on to require significant surgery to the left foot. He feels that the walking difficulties caused by the left foot injury caused him to damage his right foot, encouraging the development of ulceration of that foot”. Dr Smylie opined that it is plausible that his abnormal gait caused excessive pressure on the right foot and encouraged further ulceration.
32 Dr Kamal from the Civic Parade Medical Centre, Altona, gave evidence and reports prepared by him and dated 11 May 2012, 14 March and 8 June 2013 were tendered as were his clinical records in relation to the first attendance by Mr Corman on 22 September 2011. The records reveal that Mr Corman provided him with a history that he dropped a 5 kg box on his foot on 12 November at his workplace and fractured the lateral metatarsal. In his first and second medical reports, Dr Kamal noted that he did not have any documents relating to the control of Mr Corman’s diabetes at the time of sustaining injury. In his evidence he told the court that he provided Mr Corman with total incapacity certificates from September 2011 to May 2012 and since that date has been providing certificates that he is fit for suitable work. Dr Kamal told the court that he still treats Mr Corman and considers that he would be fit for light work with restrictions. In cross examination, Dr Kamal confirmed that he is unaware of the condition of Mr Corman’s feet when he commenced employment with the defendant or the condition of his feet between that date and 12 November when the alleged incident occurred as he did not treat him at the time. He confirmed that his opinion is reliant on being provided with an accurate history by Mr Corman. He conceded that he has not seen any records from the Royal Melbourne Hospital regarding the treatment received by Mr Corman and only received the records from the Lancefield Clinic in June 2013.
33 The medical records of the Western Hospital and Royal Melbourne Hospital were tendered. The relevant entries from the Western Hospital record the following information:
30 July 2008 – Admission – Discharge 8 August 2008 - Diagnosis of Diabetes Type I – peripheral neuropathy – smokes 30 pd. 47 year old man with poorly controlled type I diabetes presented with a neuropathic foot ulcer on the left of his sole. He reports that he burnt his sole on hot tarmac 4 months ago.
22 April 2009 – Admission 14 April – Discharge 23 April – Diagnosis of neuropathic diabetic foot ulcer – poorly controlled type I diabetes – non compliance – osteomyelitis – smoker (30 pd). Non compliance with insulin, bed rest, non weight bearing status, smoking reduction. Issues: chronic neuropathic ulcer with osteomyelitis – developed ulcer on ball of left foot over Easter 2008 – ulcer healing with regular podiatry review, but patient stopped attending when ulcer almost healed – patient continues to work and refusing to non weight bear – repeated pressure – chronic non healing ulcer – represented with ulcer breakdown – MRI changes consistent with early osteomyelitis.
2 June 2009 – type I diabetes mellitus with foot ulcer due to multiple causes – cellulitis of toe – unspecified osteomyelitis, ankle and foot – type I diabetes mellitus with poor control – personal history of non compliance with medical treatment.
11 June 2009 – admission 11 June – discharge 22 June - septic shock – infected diabetic foot ulcer – hyperglycaemia – unstable type I diabetes mellitus – amputation of left 3rd toe.
4 August 2009 – presented 4 August – injury to left foot big toe – toe burnt on car heater and now blistered.
27 August 2009 – admission 27 August – left toe deep burn.
26 November 2010 – infected diabetic foot ulcer involving ball of right foot near base of 3rd toe – ball of left foot near base of 4th toe – lacerated aspect of left forefoot – R foot wound since Oct – area got macerated in hot weather – despite efforts – left foot – dropped heavy box on lateral aspect 2/52 – R foot swelling and redness.
34 The relevant entries from the Royal Melbourne Hospital record:
22 July 2010 – L foot burn – 5 ulcers left foot - infection
29 July 2010 – 5 ulcers on L foot – wound improving.
5 August 2010 – 2 ulcers on L foot – wound improving – no infection
12 August 2010 – wound improving – infection – 2 ulcers.
19 August 2010 – 2 ulcers L foot – wound improving – no infection.
2 September 2010 – 2 ulcers left foot – wound improving.
25 November 2010 – patient failed to attend 3 appointments – presented today without an appointment – it was explained that this clinic is fully booked and he needed to call podiatry prior to attending – patient said that he has been in Dubai and needs an appointment but it doesn’t matter because he now wants to attend the Alfred – patient then proceeded to walk out – this behaviour will be discussed within the DPU team before another appointment will be offered.
35 Mr Corman tendered a medical reports and records from Dr Janus, Consultant Physician, who consulted with him at Dr Carter’s practice on 22 May 2010. He recorded that Mr Corman had probable Type II diabetes mellitus and peripheral neuropathy and toe amputations with “right still not healed and with 0.5cm ulcer on sole of left foot. He arranged pathology tests which were performed on 27 May 2010 and which revealed that his condition was consistent with autoimmune diabetes. Dr Janus reported that the results were consistent with Type I diabetes.
36 Mr Corman tendered medico legal reports from Associate Professor Lording, Consultant in Diabetes, Endocrinologist and Reproductive Medicine, who assessed him on 17 February 2012 and 13 February 2013. In his initial report he noted that Mr Corman has had severe complications of peripheral neuropathy and has had ongoing foot problems and that in 2008 had a major issue with an ulcer under his left foot which ultimately led to amputation of the 3rd toe in June 2009. He also noted that Mr Corman had issues with his right foot leading to amputation of the 4th and 5th toes. Associate Professor Lording noted the mechanics of injury and the subsequent amputation of the 4th and 5th toes of the left foot, infection of the right foot and amputations of the 2nd and 3rd toes of that foot. He reported that it is clear that Mr Corman has had disease on both feet prior to the incident. He opined that lesions in a diabetic foot require an underlying medical problem such as neuropathy but do require trauma to initiate the lesion. He stated that once a lesion has been initiated the consequences of the neuropathy include poor reaction to the wound in that blood flow is not increased appropriately, healing is poor and infection is poorly contained. He stated that these matters are related to the underlying diabetes and the neuropathy, however, trauma is an essential part of the development of the lesion.
37 Associate Professor Lording opined that, accepting the history provided, it is reasonable to conclude that the trauma to the left foot led to it becoming abraded and then infected which in turn led to amputation on the left foot. He also opined that it is reasonable to conclude that the change in gait caused by the lesion placed undue pressure on the plantar surface of the right foot causing blistering, ulceration and subsequent infection. He expressed the opinion that Mr Corman is unfit for pre-injury duties but would be fit for suitable desk bound work.
38 At his second examination, he reported that Mr Corman’s left foot is healed with only the first and second toe remaining. He noted that only the great toe of the right foot remains which has an ulcer and an infected smell. On perusing the report from Mr Devine who assessed Mr Corman for the defendant’s lawyers on 13 August 2012, he noted that Mr Devine raised four possibilities in relation to Mr Corman’s right foot condition which he accepted as being possible or likely outcomes including that the infection in the right foot developed as a result of his pre existing diabetes mellitus without injury. Associate Professor Lording expressed the view that on the balance of probabilities, the direct injury to Mr Corman’s left foot on 12 November 2010 caused a change in the mechanics of how Mr Corman walked resulting in injury to the right foot and subsequent complications.
39 After being appraised of ulcers suffered by Mr Corman between June and September 2010 by his lawyers, Associate Professor Lording provided a supplementary report dated 30 May 2013 whereby he noted there were no records relating to treatment between 21 September 2010 and 7 December 2010 and on that basis opined that; “I don’t think that one can take the fact that the wound appeared to be healing through August and September as adequate documentation that the wound healed and was separate to the lesion subsequent to the dropped box. This information does raise doubt about the cause of the lesion on the left foot and whether it was a continuous of his pre-existing ulceration and infection or a new lesion. I can’t tell from the information provided”.
40 Mr Corman tendered medico legal reports from Associate Professor Myers, Consultant Surgeon, who assessed him on behalf of his lawyers on 8 February 2012 and 20 August 2013. Associate Professor Myers obtained a history of the incident on 12 November 2010 from Mr Corman and reported that Mr Corman also told him that; “he believed that the trauma to the left foot had occurred but I had continued to work until an operation later that month and this required walking and putting more load on the right foot, causing pressure and breakdown of the foot, particularly while I was driving, walking and carrying objects, the breakdown being associated with development of infection in the right foot”. After reviewing medical reports and records, Associate Professor Myers opined that Mr Corman had an underlying predisposition to infection and damage to his feet as a result of diabetes and diabetic neuropathy. He stated that the incident as described led to the damage to the left foot and that abnormal gait then placed strain upon the right foot, leading to pressure ulceration. In a supplementary report dated 4 March 2013, Associate Professor Myers agreed with the alternative scenarios as suggested by Mr Devine but, on balance, favoured the second scenario (as did Associate Professor Lording), that being; that in the days following the 12 November 2010 incident to the left foot, there was a change in the mechanics in the way Mr Corman walked, resulting in minor injury to the right foot which then led to more serious problems.
41 Associate Professor Myers was subsequently provided with records relating to the “burns incident” on 29 June 2010 and subsequent treatment. He noted the record on 21 August 2010 (by Dr Carter) that the “wound was healing well with no sign of infection” and on that basis opined that the injury sustained on 29 June 2010 had essentially resolved and would not have been responsible for ongoing problems at the time of the incident on 12 November 2010. At re-examination on 20 August 2013, Associate Professor Myers obtained a history from Mr Corman that his diabetes was now well controlled although he had an ulcer over the tip of his right first toe. He opined that his prognosis was good providing Mr Corman takes care to avoid any further pressure on the right foot and that the operative treatment performed post incident results from the damage sustained from the injury and not to impaired circulation. Associate Professor Myers is of the opinion that Mr Corman has no work capacity.
42 Mr Corman tendered a medico legal report from Dr Kaplan, Consultant Psychiatrist, who assessed him on behalf of his lawyers on 29 February 2012. He obtained a history from Mr Corman that he suffered a post traumatic stress disorder in 2003 and received treatment from a psychologist and psychiatrist. Dr Kaplan noted that Mr Corman is upset with his employer and Workcover over the rejection of his claim and that he is now exceedingly cautious with regard to protecting his feet and is fastidious in caring for his feet. He noted that Mr Corman smokes 30-40 cigarettes per day. Dr Kaplan opined that Mr Corman does not suffer from any psychiatric disorder but has some psychological sequelae.
43 Mr Corman tendered a medico legal report from Mr Devine, Vascular and Endovascular Surgeon, who assessed him on behalf of the defendant’s lawyers on 13 August 2012. Mr Devine obtained a history of the incident on 12 November 2010 and was also told by Mr Corman that; “around 18th or 19th November troubles began in his right foot which he described as it became puffy and red”. On the basis of the history and medical documents provided, Mr Devine reported that the wound to the left foot became infected and did not respond to oral anti biotics and led to the need for amputation of the left 4th and 5th toes. Mr Devine reported that when he asked Mr Corman how the injury to the left foot caused the problems in the right foot he said; “I don’t know, it doesn’t make any sense to me”. He reported that Mr Corman went on to say that continuing to work aggravated the problem in his left foot which contributed to the problems he developed in the right foot.
44 Mr Devine noted that the possibilities concerning the problems in the right foot are;
a. the infection in the right foot developed simply as a result of his pre-existing diabetes mellitus without any work related injury;
b. during the days that he worked following the injury to his left foot on 12 November 2010, there was some change in the mechanics in the way that he walked, resulting in minor injury to the right foot which then led to the more serious problems. He commented that he could see no way that such a thing could be proven, although he believed it would be possible;
c. he just sustained an injury to the right foot within the boot that he was wearing, and it would have occurred regardless of whether he’d injured his left foot. He commented that it would have to be possible; and
d. he did sustain an injury to his right foot which he was aware of and did not report, or maybe there was an injury to the right foot that he was unaware of.
45 Mr Devine noted that a diabetic neuropathic foot is a very serious problem in that a minor injury of which the patient may be unaware of because of their inability to feel pain can very rapidly lead to the onset of infection within the foot that can become serious within a short space of time. He noted that because of reduced ability to feel pain, serious damage within the foot can occur within a short space of time, resulting in the development of diabetic gangrene, which can lead to the need for surgical drainage, amputation of toe(s), part of the foot or major amputation. He opined that in this case, Mr Corman’s pre-existing diabetes mellitus was a major factor in causation and contributed to the need for amputations to occur.
46 Dr Griffiths, Consultant Surgeon, gave evidence as an “expert witness” on behalf of the defendant and a report prepared by him and dated 11 March 2013 was tendered. It became apparent, during cross examination, that Dr Griffith did not examine Mr Corman and based his opinion on a review of the documentation (between 130-160 pages) provided to him by the defendant’s lawyers. Furthermore, it also became apparent that Dr Griffith does not have the training, qualifications or expertise in the field of vascular surgery. Dr Griffith told the court that he has not practised as a surgeon since returning to Australia from the United Kingdom in 1991 and since that time has specialised in the treatment of chronic back pain. He said that he has not completed any training nor is he a Fellow of any College of Vascular Surgeons and that the “experience” he gained in the United Kingdom and Jeddah was based on clinical observations only. He told the court that he keeps abreast of changes in the vascular area of medicine by “reading journals and attending courses”, of which he did not specify. Dr Griffith told the court that in his opinion he is qualified to give an opinion in this matter as it is based on his 50 years experience as a doctor. He told the court that he consults with patients who have chronic back pain once per month and the remainder of his work involves medico-legal consultations of which he would have assessed 20-25 people over 20 years who suffer from diabetes.
47 Dr Griffith noted after reviewing the documentation that Mr Corman had an infected wound in the left foot on presentation at the Altona SuperClinic on 14 November 2010 which had flared up again. He expressed the opinion that this localised pathology could not have occurred in a period of two days, without a pre-existing traumatic wound/ulcer being present. On reviewing the history recorded in the clinical notes, Dr Griffith stated that Mr Corman was suffering from poorly controlled insulin dependent diabetes mellitus and severe diabetic neuropathy compounded by decades of heavy smoking. In his opinion, Mr Corman suffers from recurrent ulceration, secondary infection and tissue necrosis because of the natural history of the disease process. He opined that the alleged incident “further injured”, the existing ulcer on the left foot and had a minimal effect on the progression of his disease and the need for surgery on the left foot and had no effect on the condition of his right foot and need for subsequent surgery. Dr Griffith told the court that in his opinion it was inevitable that Mr Corman would come to surgery because of his underlying disease and his continued smoking.
48 During cross examination, Dr Griffiths was unable to refer to specific entries in clinical notes that he had used to support his conclusions including his assertion that Mr Corman had an ulcer on his left foot or right foot as at 12 November 2010 and that he sustained “3rd degree burns” in the incident on 29 June 2010. He agreed that the records did not substantiate his conclusion that ulcers were in fact present on both feet as 11 November 2010 although he told the court that the ulcers that existed in September 2010 “would have remained there”. In re-examination, he agreed with the proposition that the entry in the clinical records of the Western Hospital on 26 November 2010 that Mr Corman presented with a history of a; R foot wound since Oct – area got macerated in hot weather – despite efforts – deterioration” and “L foot –dropped heavy box on lateral aspect 2/52 – worsening then” means that it was highly likely the ulcers were present when the incident occurred.
49 The defendant tendered the clinical records of Dr Srinivasan, relating to Mr Corman’s attendances at his clinic between 2001 and 2008. The records reveal that Mr Corman attended in 2004 and 2005; for a left ulnar nerve and hernia condition for which surgery was planned, in 2006; for a back problem and left hand injury, and in 2007; for ulnar neuropathy and back complaints.
50 The defendant also tendered a medical report and records from the Romsey Medical Centre relating to Mr Corman’s attendances between 25 September 2002 and 26 October 2009. The records reveal that he attended the clinic on 9 occasions since 2002. The records note that Mr Corman attended for treatment in 2002 in relation to his diabetes which was said to be “out of control”, in July 2008 for a chronic ulcer on the ball of his left foot with notations of “various other lesions on toes and soles of both feet – blisters, callous/corns, dystrophic nails etc” – “blister in left foot since April” - deep ulcer in left foot under metatarsals, small ulcer on big toe, abrasion superficial ulcer in little toe – the ulcers are not pus discharging – granulation seen”. On 12 August 2008, Mr Corman attended Dr Vu who recorded; “recent admission for burn on foot complicated by infected chronic ulcer and osteomyelitis in left foot”. Mr Corman also attended for treatment for his left foot ulcers on 14, 18, 20 and 22 August.
51 The defendant tendered records obtained from Centrelink relating to medical certificates provided by Dr Srinivasan from 2005-2008 and job capacity assessment reports from 2004. The certificates certify Mr Corman as being unfit for work due to a “left ulnar nerve paralysis, back condition and diabetes mellitus”. Other medical conditions listed in the job capacity reports included his diabetes condition (being unstable), hernia and shoulder/upper arm disorder. The report indicates that he sustained injury to his back in 1985 following a work accident, a left hand injury in 2005 affecting the ulnar nerve, a hernia condition in 2005 and a left shoulder injury in 1980 The reports indicate that Mr Corman had a capacity to work only 8-14 hours per week. In May 2011, the Job Capacity Assessment Report noted that Mr Corman indicated that as a result of his back condition; he could not walk, sit or stand for long periods and that he struggled with housework duties and required a carer. In relation to his diabetes condition he reportedly told the assessor that “his amputations were as a result of an unusual bug he picked up in Asia and worsened by his diabetes”. He said that his left non dominant hand injury causes restricted movement of two fingers which seizes up and becomes paralysed. He also told the assessor he has post traumatic stress disorder and that he had been “attacked and knifed in numerous places on his body in 2004”. As at 3 May 2011, he was assessed as having a capacity to work of 8+ hours per week.
Conclusion
52 The following facts are not in dispute:
a. Mr Corman has suffered from diabetes for many years and has experienced recurrent bouts of left and right foot ulcerations;
b. his diabetes has been poorly controlled contributed to by his continued heavy smoking and his reluctance to adhere to treatment recommendations by his treating doctors;
c. between late 2009 and 21 September 2010 he suffered from ulcerations to his left and right feet for which he received ongoing treatment from Dr Carter and the Diabetic Clinic at the Royal Melbourne Hospital;
d. Mr Corman commenced employment with the defendant on 9 September 2010 as a courier driver working from Monday to Friday each week from approximately 7 a.m. to 5 p.m.
e. Mr Corman did not attend any medical practitioner or Nurse between 22 September 2010 and 12 November 2010 for his diabetic condition or any complications that may have arisen during that period;
f. Mr Corman attended on Dr Latif on Sunday 14 November 2010;
g. Mr Corman reported the alleged incident to his employer on 15 November, completed a Workcover claim form in relation to his left foot condition on 28 December 2010 for which liability was rejected on 2 March 2011 and completed a further Workcover Claim Form on 18 September 2012 in relation to his right foot condition which was rejected on 30 October 2012;
h. Mr Corman continued working with the defendant as a courier driver from Monday 15 November 2010 until he ceased work on Friday 19 November 2010;
i. Mr Corman has remained off work since 19 November 2010 save and except for a 4 day return to work in September 2012.
53 In order to determine the matter, it is necessary for the court to make findings as to the probable state of Mr Corman’s feet prior to the alleged incident on 12 November 2010 and making findings as to his credibility as a witness. In my opinion, the credibility of Mr Corman as a witness is an important factor to consider as the medical opinions relied on are based on the accuracy of the history given to them by him. In circumstances where it is found that a witness is not reliable, the medical opinion, ‘may have little or no probative weight’.[1]
[1] See Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108.
54 During his evidence, Mr Corman attempted to play down the nature and significance of his diabetic ulcer condition throughout 2010 until confronted with the true picture painted by the clinical notes and records. The picture painted was that of a man with unstable diabetes and recurrent left and right foot ulcers leading to infections with a background of him being non compliant with treatment recommendations and failing to attend review appointments. The picture he tried to paint was that the condition of his left and right feet during 2010 was “fine” except for the 29 June 2010 “burns incident” which he said he had recovered from by the end of August. He gave evidence that as at 9 September his feet were “pretty well clear” of ulcers and wounds, that they had “recovered satisfactorily”, they were “fine”, that he regularly checked his feet and was protective of them.
55 Mr Corman also rejected suggestions that he was still suffering from any other medical problems leading up and subsequent to 12 November 2010 as he did in the pre-employment questionnaire that he completed for the defendant. In that questionnaire, he denied suffering from diabetes when he knew he did, whether it was Type I or II was the only unknown factor, he denied suffering a previous hernia, which the records indicate he did, he denied suffering a back injury, which he did and in fact told the court he had recovered from that injury before 2000, although it did give him “occasional trouble” and he did not disclose a prior left hand injury. Although giving evidence to the effect that his back condition only gave him “occasional trouble”, the Centrelink Job Capacity Assessment in 2011 indicates that it was very disabling and required medication. He also indicated to the writer of that report that the fingers of his left hand seized and became paralysed impacting on his ability to use it which was not disclosed to the defendant in September 2010.
56 The Centrelink documents, which consisted of applications for assistance, job capacity assessment reports and certificates indicate that Mr Corman suffered from regular medical problems between 2005 and 2011 including; left ulnar nerve paralysis, inguinal hernia, back symptoms, diabetes, left shoulder pain and hypoglycaemic episodes. When giving evidence, his Mr Corman downplayed the nature and effect these conditions had on his day to day functioning and capacity to work. I do not accept that his inability to recall these medical problems was due to him being a poor historian or his misunderstanding of the questions posed in the pre-employment questionnaire but rather was a conscious decision by him to minimise the existence and significance of those conditions.
57 The medical evidence confirms that Mr Corman was experiencing ongoing complications from his diabetic condition throughout 2010. In addition to being non compliant with treatment recommendations he was also interfering with management of his condition as reported by Dr Kamal in that he ‘used to pull off the dressing applied by the clinic nurses and put dressings on his own’. Notwithstanding his denials, I find that Mr Corman’s diabetic condition and recurrent ulcers were an ongoing problem throughout 2010 contributed to by the 2nd degree burns he sustained to his left foot on 29 June 2010. Following that incident, he had 5 ulcers on his left foot, a dressing regime was implemented and he was advised to non weight bear and the condition of his left foot had reached a state where Dr Carter questioned its ongoing viability. Mr Corman’s evidence that his feet “had recovered satisfactorily”, were “fine” and “pretty well clear” of ulcers and wounds when he commenced employment is not supported by the medical evidence. At that date, he still had 3 ulcers on the left foot, including a large ulcer wound on the lateral side which required ongoing treatment, which according to Dr Kefford on 13 September, were healing “very slowly”. Notwithstanding these ongoing problems, Mr Corman failed to attend review appointments at the Diabetic Foot Clinic on 16 September and 7 October and, according to the records, failed to return to Dr Carter’s clinic until 7 December. In Dr Carter’s opinion, this failure to attend for review and treatment would exacerbate the ulcer condition.
58 With this background, I do not accept his evidence that he was “paranoid” about the state of his feet or that he regularly checked them. In fact, even after the alleged incident on 12 November, the Registered Nurse, Jennifer Masoeu-Rasekaba from the Altona SuperClinic recorded on 21 November that he was still unconcerned about the state of his ulcers and the importance of regular treatment. If he was as “paranoid” as he said he was, it beggars belief that he did not check the state of his foot immediately following the 10-15 kg box falling on it. I do not accept his explanation that he did not have the “luxury of time” or a “spare moment” to inspect his foot during the course of the day as a reason for his failure to do so. It appears to me and I find that his failure to do so is not inconsistent with what appears to have been a blasé attitude to medical care.
59 I am also unable to accept his evidence as being correct that he attended Dr Carter’s clinic on Saturday 13 November. He initially gave evidence that he attended for an unrelated medical problem and saw the Nurse who “dressed it” and told him to “keep an eye on it”. In cross examination, he gave evidence that he told the Nurse about the incident and that “she washed it and put on an anti-septic patch” and when he was referred to his correspondence to Dr Carter in April 2011 that stated the Nurse applied a bandaid only, he the told the court that he recalled that she only applied a bandaid and “did not wash the wound”. An inspection of the clinical records leads to a strong inference that all attendances and non-attendances on doctors and nurses are recorded. Dr Carter also gave evidence that his practice is “normally careful” in recording attendances. It is probable that Mr Corman is mistaken in his belief that he attended the clinic on that date.
60 I have noted that the first medical record of the “box incident” occurred on 23 November 2010, some 11 days after the incident, when Mr Corman saw Dr Smylie. A history of the incident was also given to the Western Hospital on 26 November 2010. I do not consider the absence of a recorded history of the incident in the records of Dr Latif on 14 November lead to a conclusion that the incident did not occur. I am mindful of what was said by Kaye AJA in Woolworths Ltd v Warfe[2]; “However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. They are often, at best, an approximate paraphrase or précis of the account given by the plaintiff to the medical practitioner”.
[2] [2013] VSCA 22
61 Importantly, and notwithstanding some of the adverse findings I have made concerning his evidence, it is not in dispute that he reported the “box incident” to the defendant upon commencing work on Monday 15 November. On balance, I accept his evidence that the incident occurred as he described and that he only felt pain for a short time thereafter because of his peripheral neuropathy and then thought no more of it until he discovered the lesion when he removed his footwear that evening. I find that as a consequence of that trauma he suffered a laceration to the lateral side of his left foot which subsequently became infected.
62 The absence of medical attendances between 21 September 2010 and 14 November 2010 requires the court to make a finding as to the state of Mr Corman’s feet leading up to and including 12 November 2010. Mr Corman had 5 ulcers on his left foot following the 29 June 2010 “burns incident” which became infected. The records from the Royal Melbourne Hospital indicate that as at 2 September he still had 2 ulcers that were improving and on 9 September his left foot plantar ulcer was still improving, was less infected, reducing in size, no longer required aggressive anti-biotic treatment but still required daily dressings with the presence of two other ulcers on the left foot. Dr Carter gave evidence that Mr Corman’s condition was stable by late September and he had no concerns about either foot at that stage. During this period, he continued to work with the defendant until 19 November. Therefore, notwithstanding the frequent and intensive treatment he had been receiving prior to commencing employment, he was able to maintain his 5 day full time work capacity in the absence of active treatment until 14 November 2010. On the basis of his medical history, I accept that he is unlikely to have been able to do so if his condition progressively worsened after that date. The records reveal that Mr Corman attended Dr Carter’s practice on 138 occasions between 2 September 2009 and 21 September 2010 for ongoing treatment for his diabetes and its complications. Of those 138 visits, he was seen by a Registered Nurse on 63 occasions principally for left and/or right foot ulcer wound care. I find it probable that if he was experiencing ongoing problems between 21 September and 12 November he would have sought medical treatment. In addition, I have noted that there was no complaint or mention made of ongoing left foot ulcer problems when he attended Dr Pranadi and the Nurse at the Altona SuperClinic on 23 October 2010 when he obtained a repeat script for his diabetic condition. This also indicates that he was not having ongoing difficulties at that time.
63 I therefore accept the evidence of Mr Corman that between 21 September and 12 November the ulcer condition of his left foot had healed to the extent that it did not require ongoing treatment and did not preclude him from working. On the basis of finding that Mr Corman’s pre-existing ulcer condition had essentially resolved and that the “box incident” occurred, I accept and prefer the evidence of Dr Carter, Associate Professor Myers and Mr Devine as to the causal relationship between that incident, the infection and the need for surgery.
64 I do not place any weight on the opinion of Dr Griffith. He did not examine Mr Corman and I do not consider him to be an “expert” in the field of vascular surgery. He does not have the necessary training or experience and has not practised as a surgeon for over 20 years. His experience in this area is limited to clinical observations only, over 20 years ago. He does not have “specialised knowledge” based on training, study or experience. The opinions he expressed are not based wholly or substantially on specialised knowledge.[3]
[3] See s76 & 79 Evidence Act 2008. Dasreef P/L v Hawchar [2011] HCA 21, Dura Australia Constructions P/L v Hue Boutique Living P/L [2012] VSC 99 and Hudspeth v Scholastic Cleaning & Consultancy Services P/L & Ors [2012] VSC 555.
65 I therefore find that Mr Corman sustained a traumatic laceration injury to his left foot which arose out of or in the course of his employment on 12 November 2010. I find that this trauma aggravated his underlying vascular and diabetic condition for which employment was a significant contributing factor.
66 In relation to his right foot, he alleges that the injury to his left foot caused him to alter his gait which in turn caused him to place more weight on his right foot leading to ulceration, infection and amputation. The medical records indicate that as at 14 November 2010, there was no complaint or notation of right foot wounds or ulcers. Mr Corman gave evidence that he noticed right foot discomfort on 17 or 18 November and an ulcer was developing near his right big toe. The first clinical entry of right foot problems occurred on 23 November when Dr Smylie recorded; “has healing pressure ulcer plantar aspect R forefoot”. Dr Carter speculated that the “box incident” may have affected the toxins and temperature of both feet thereby having a causal connection to the ulceration and infection of the right foot leading to toe amputation. Associate Professor Lording and Dr Smylie expressed opinions that it was plausible that abnormal gait caused excessive pressure on the right foot and encouraged further ulceration. Mr Devine, Associate Professor Myers and Associate Professor Lording all supported a possible scenario being; that in the days following the “box incident”, Mr Corman’s gait altered due to the left foot ulcer, which caused injury to the right foot and subsequent problems.
67 On balance, I find that it is more probable than not that the right foot ulcer and subsequent infection occurred as a consequence of Mr Corman altering his gait because of his left foot injury in the period following 12 November whilst continuing to work with the defendant, the symptoms of which he first became aware on 17 or 18 November 2010. I find that the injury to his left foot, his altered gait and the duties he performed between 15 and 19 November were significant contributing factors to the aggravation of his underlying condition.
68 Accordingly, I find that he sustained an injury to his right foot which arose out of or in the course of his employment between 12 November 2010 and 19 November 2010.
69 From19 November 2010, Mr Corman has had periods where has had no capacity for any work when undergoing and recovering from surgery to his feet. At other times he has had a capacity for sedentary duties. He is an intelligent man (save and except for healthcare) and has significant skills and experience having previously owned and operated a business over 10 years. He gave evidence that he has not required any treatment since March 2013 and is on the waiting list for the provision of prosthetic rubber toes to assist with ambulating in a normal and unrestricted manner. He said that he only attends his doctor once per month for insulin and to monitor his sugar levels. Mr Corman has a number of other non work related medical conditions and said that he has recovered from his back injury and wrist injury. He also said that he does not have any issues regarding anxiety or depression and is leading a “normal life”.
70 Dr Kamal told the court that he has been providing Mr Corman with ‘suitable work’ certificates since 21 May 2012. He said that he sees Mr Corman on a regular basis in relation to symptoms of swollen legs and tiredness which he attributed to an iron deficiency caused by poor nutrition. He considers Mr Corman has a capacity for suitable work including that of a courier delivering light parcels but noted that he has other medical conditions that would make it difficult for him to work. Associate Professor Lording opined that Mr Corman was fit for ‘suitable work’ in February 2012. Dr Carter was of the opinion that Mr Corman was fit for re-training in wide range of areas in January 2012. Mr Corman told the court that he considers himself fit for ‘suitable work’ and that he is able to drive and ride a motorbike and that the only real difficulty he has is that he walks with a slight limp and finds it difficult to manage uneven surfaces and negotiate steps and on this basis does not believe that he would be able to return to work as an Installer.
71 I find that Mr Corman has had had a realistic capacity for ‘suitable work’ since 21 May 2012 in a wide range of duties, including that of a courier delivering letters or light parcels, where he has the ability to avoid prolonged standing, walking and the use of steps or stairs which could aggravate his underlying vascular and diabetic condition. His age, work experience and skill level lead me to conclude that he has a ‘current work capacity’.
72 Accordingly, Mr Corman is entitled to weekly payments and reasonable medical and like expenses from 19 November 2010 in accordance with the provisions of the Accident Compensation Act (1985).
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