Ellison v Colin Joss & Co Pty Ltd
[2023] NSWPIC 216
•12 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Ellison v Colin Joss & Co Pty Ltd [2023] NSWPIC 216 |
| APPLICANT: | Tanya Ellison |
| RESPONDENT: | Colin Joss & Co Pty Limited |
| principal Member: | Josephine Bamber |
| DATE OF DECISION: | 12 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; dispute as to whether applicant sustained plantar fasciitis in the course of her employment with the respondent and whether a fall on 23 June 2021 was as a consequence of the plantar fasciitis condition; claim for weekly compensation and treatment expenses also disputed; pursuant to section 4(b)(i) the applicant has sustained a plantar fasciitis injury to her right foot with her employment with the respondent being the main contributing factor to the contraction of this disease; the applicant sustained a fracture to her right 5th metatarsal as a result of a fall on 23 June 2021 caused by her plantar fasciitis injury; Held – the respondent is to pay the applicant weekly compensation pursuant to sections 35 and 37 and treatment expenses pursuant to section 60. |
| determinations made: | |
Pursuant to s 4(b)(i) of the Workers Compensation Act 1987 the applicant has sustained a plantar fasciitis injury to her right foot with her employment with the respondent being the main contributing factor to the contraction of this disease.
The applicant sustained a fracture to her right 5th metatarsal as a result of a fall on 23 June 2021 caused by her plantar fasciitis injury.
The respondent is to pay the applicant weekly compensation as follows:
(a) Pursuant to s 36 of the Workers Compensation Act 1987:
(i)from 5 April 2021 to 18 April 2021 at the rate of $741.64 per week;
(ii)from 19 April 2021 to 2 May 2021 at the rate of $681.99 per week;
(iii)from 3 May 2021 to 30 May 2021 at the rate of $980.23 per week;
(iv)from 31 May 2021 to 13 June 2021 at the rate of $649.87 per week;
(v)from 14 June 2021 to 27 June 2021 at the rate of $425.04 per week;
(vi)from 28 June 2021 to 11 July 2021 at the rate of $809.91 per week;
(b) Pursuant to s 37 of the Workers Compensation Act 1987:
(i)from 12 July 2021 to 25 July 2021 at the rate of $676.75 per week;
(ii)from 26 July 2021 to 8 August 2021 at the rate of $766.11 per week;
(iii)from 9 August 2021 to 5 September 2021 at the rate of $656,14 per week;
(iv)from 6 September 2021 to 19 September 2021 at the rate of $578.54 per week, and
(v)from 20 September 2021 to 28 November 2021 at the rate of $825.46 per week.
Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicants treatment on production of accounts, receipts and/or Medicare notice of charge in accordance with the workers compensation gazetted rates.
STATEMENT OF REASONS
BACKGROUND
Tanya Ellison, the applicant, was employed with the respondent, Colin Joss & Co Pty Limited, as a cleaner in 2017. In the Application to Resolve a Dispute (ARD) a deemed date of injury is pleaded, 8 March 2021 and the type of injury is a disease. The injury description states:
“The applicant sustained a foot injury due to the nature and conditions of her work as a cleaner which involved physically demanding tasks such as prolonged standing and walking, carrying equipment, pushing from foot whilst vacuuming, and requiring her to carry out her duties in a frantic/hastily manner due to time limits, with her deemed date of injury being 8 March 2021. In particular in March 2020, the applicant's cleaning duties increased as she was required to work additional hours due to the Covid pandemic.
In addition to the above, as a consequence of her foot injury, her right foot was tense, stiff, and unstable. On 23 June 2021 she went to step out of bed when her right foot rolled from underneath her causing her to fall to the floor. She sustained a consequential injury involving a displaced fracture of the base of the fifth metatarsal, as a result.”
The claim for compensation in these proceedings is confined to weekly compensation from 5 April 2021 to 28 November 2021 pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). She also makes a claim under s 60 of the 1987 Act in the sum of $1,289 for treatment expenses, although a “general order” was sought as there is a Medicare Notice of Charge outstanding.
It is not disputed that Ms Ellison suffered from plantar fasciitis and on 23 June 2021 she fractured her right 5th metatarsal. However, the respondent disputes that the plantar fasciitis was caused by her employment with the respondent. It also disputes that the fracture on 23 June 2021 was caused as a consequence of the plantar fasciitis condition.
The respondent also disputes that the applicant was incapacitated for work due to the alleged injury and alleged consequential condition and it disputes liability for the s 60 expenses. The pre-injury average weekly earnings (PIAWE) is agreed at $1,031.82.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
The matter was listed for conciliation conference/arbitration hearing before me on
2 March 2023. Ms Eraine Grotte, counsel, instructed by Ms Megg Ross, solicitor, appeared for Ms Ellison, who was present. Mr Fraser Doak, counsel, instructed by Ms Chantelle Bauer, solicitor, and Ms Fleur Thompson from the self-insurer appeared for the respondent.6.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing on the MS Teams platform but following Ms Grotte’s oral submissions in chief, due to the effluxion of time, the matter adjourned and the respondent provided written submissions dated 13 March 2023. Ms Grotte provided submissions in reply dated 20 March 2023. Mr Doak emailed during the hearing a document as part of his submissions about the weekly compensation calculations that he will refer to as part of his submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence. As noted above Ms Grotte made oral submissions in chief, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Ms Ellison’s statements
Ms Ellison is presently aged 58. She was employed as a part-time cleaner with the respondent and primarily worked as a school cleaner at Ariah Park Central School and she also did some cleaning for the police station. In her statement dated 5 October 2021 at [4] she says she sustained an injury to her right foot due to the nature and conditions of her employment with the respondent from 2020.
She describes her duties as involving working Monday, Tuesday, Thursday and Friday at the school from 5.00am to 8.50am and on Wednesdays she worked at the police station from 10.00am to 11.00am. She says due to the covid-19 pandemic her hours were increased by 1 hour 10 minutes per day as she worked at the school an extra shift from 4pm to 5.10pm to carry out additional cleaning.
She says on 4 May 2020 her duties increased further with another two hours per day so she was doing three shifts per day, 5.00am to 8.50am, 11.00am to 1.00pm and 4.00pm to 5.10pm. She relates she also worked at the school on Wednesdays as well as at the police station.
She says prior to her right foot plantar fasciitis she never had any problems in respect of her right foot and she considered herself to be relatively fit and healthy and able to carry out her employment duties without any issues. She did not go to the doctor much before this injury.
Ms Ellison says she wore “merrel shoes” which were quite supportive and she supplied these herself. She says the shift 11.00am to 1.00pm was particularly busy as she had to walk the entire school ground cleaning handrails, door handles, staff rooms, bubblers, play equipment and replenish the toilet supplies. She says she had to work at a fast pace before the children broke from their classes for lunch. She explains there is a primary and senior section and she cleaned the entire primary section herself during the morning and afternoon shift but in the lunchtime she was also responsible for cleaning the senior site as well.
She says she did not have a trolley and she had to walk back to the cleaner’s room to get supplies at least four times per shift. She describes carrying rubbish to the bins and emptying them and on Thursdays taking the wheelie bins to and from the roadside for collection. She describes her mopping duties and that she carried a vacuum cleaner, a bucket a quarter full of water. She also had to use a cobweb broom and a petrol-powered blower, which she used at least three times per week.
She says on 6 May 2020 she sent a text message to Deb Maher telling her the work was too much on her own but no assistance was provided to her.
Ms Ellison says she first noticed pain in her right foot in about October 2020, which felt like a splinter in the centre of her heel. She says she asked her daughter to get the splinter out but she could not see any splinter. She says she continued to work but over time her pain became worse until she could hardly put her foot down, particularly of a morning. She says she would have to walk on it for a while before her foot would loosen up. She says as her foot warmed up from the constant walking the pain would ease somewhat. She says she found it difficult between shifts as her foot would cool down in the break. She says she purchased an insert for her shoes which provided some cushion to her heel, but it did not help much.
At [30] she says during the five weeks Christmas break her pain subsided but it returned when her duties went back to normal in term one.
She says on 3 March 2021 she told her supervisor, Vicki Lawson, that she had right foot pain. She says Vicki said to her it sounded like plantar fasciitis.
She says she consulted Dr Hodder on 4 March 2021. She says that day Anthony Miles, workcover coordinator, told her to send a medical certificate if she was going to have time off work. She said she supplied a medical certificate but it was not a WorkCover Certificate as Anthony never specified the type of certificate needed.
She says she worked on 5 March 2021 and in her break went and had an X-ray.
She says on 12 March 2021 the respondent sent her a reasonable excuse letter. On 16 March 2021 her shifts were reduced by an hour to help heal her foot. On 18 March 2021 she consulted a podiatrist, Julie Farrugia and on 23 March 2021 Dr Hodder told her she had plantar fasciitis. She says she was certified unfit for work from 23 March 2012 to 5 April 2021 and she says she did not work again until 12 April 2021. She says she then worked only the morning shift until 17 April 2021 as it was school holidays and then was the only shift available. She worked 16 to 26 April 2021 normal hours minus one hour as school had returned.
She says she was certified unfit for work from 26 April 2021 to 5 August 2021. She says on 3 June 2021 she noted on her payslip the respondent was paying her sick pay and she was then told she needed a work cover certificate to be paid by the respondent. On 5 June 2021 Dr Hodder provided a backdated workcover certificate from 4 March 2021 and she was referred for an ultrasound and cortisone injection. This was performed on 23 July 2021.
Ms Ellison describes the incident on 23 June 2021 in her statement as follows:
“[49] Ever since October 2020, my right foot has been incredibly sore and unstable. Of a morning l find it particularly difficult to walk properly as I wake up and my foot is tense, stiff, and painful. I also experience throbbing pain.
[50] On 23 June 2021, I went to step out of bed when my right foot rolled from underneath me causing me to fall to the floor. I had just woken up. I was sitting on my bed, and had just put my dressing gown on, which was hanging on the end of my bed. I put my left foot down, and then went to step forward with my right foot. As I went to stand up with my right foot forward, it went from underneath me as it went to take my body weight. My husband was home and came to my aid.
[51] At first, I had no idea I had broken anything. I just assumed it was a foot sprain and would get better. It swelled and I applied some ice. My husband also got some crutches that day from our friends down the road. He also went into town and got me a camboot.
[52] After a couple of days when it wasn't getting any better, my husband said I needed to see a doctor. I already had an appointment booked in to see Dr Hodder on 1 July 2021 so I decided to wait until then.”
She says she told Dr Hodder about the fall and on 5 July 2021 she sent an email to Lyn Moloney from the respondent advising her she had injured the same foot that she had plantar fasciitis in.
I find that this email is significant because it is consistent with Ms Ellison’s account in her statement about how the incident on 23 June 2021 occurred. It was sent on 5 July 2021 at 3.30pm from Ms Ellison to Ms Moloney and also Amy Williamson. It states:
“Hi lyn
Dr Hodder obviously did not tell you I have broken a bone in my right foot and am currently in an orthoboot for next 5 weeks. I am unable to drive (or walk) to school atm. I went to step out of bed and my foot rolled and I fell. It is same foot as planter
fasciitis which is why I fell as I haven't been able to step properly first thing in the morning on my foot.
I am staying with my daughter for a few weeks as I live alone and need help atm.
Regards Tanya”[1]
[1] ARD p 10.
In her second statement dated 30 November 2022, at [17] to [19] Ms Ellison states that she understands that Dr Hodder and Dr Hatfield have reported that she tripped on a mat when she fractured her toe. She says she did not trip on a mat. She says when she gets out of bed the mat is laid flat and therefore there is no way she could have tripped on it.
Medical evidence
Dr Hodder is Ms Ellison’s general practitioner. There is no evidence in his records of pre-existing right foot symptoms. On 4 March 2021 he records in his clinical notes the history that Ms Ellison has had right heel pain for several months and she thought it may have been due to a splinter. The doctor records “pain worst first thing of a morning, particularly when weight bearing- also bad when taking first steps after sitting a while”.[2] The doctor records his impression that it is plantar fasciitis. Thereafter, Dr Hodder records in his clinical notes the progress of the plantar fasciitis and efforts to return Ms Ellison to work.
[2] ARD p 64.
In the report dated 30 June 2021 Dr Hodder supports the causal connection with the employment with the respondent and the development of plantar fasciitis. He opined that her employment is certainly the main contributing factor to her injury. He adds “the prolonged time on her feet and repetitive movements in completing her duties are the main contributing factor.” He advised that this is an injury caused by repeated overuse which had occurred over the months before when Ms Ellison first sought treatment from him on 4 March 2021.[3]
[3] ARD p 55.
In the entry on 1 July 2021 Dr Hodder records details about her plantar fasciitis, that she still had significant ongoing pain and she does not feel capable of working five days a week at that time. The return to work plan was amended suggesting two hours per day, three days per week, not to work consecutive days.
Then Dr Hodder records:
“Separate Medicare consultation
- additional pain to right ankle/lateral right foot
- inversion injury 8 days ago, tripped on a mat at home
- difficulty weightbearing since
- obtained a CAMboot from physio, has helped with weightbearing
O/E
significant bruising extending from head of 5th metatarsal to hindfoot
generalised tenderness but particularly tender over base of 5th
also tender at lateral malleolus
Closed injury, NV intact”[4]
[4] ARD p 69.
Julie Farrugia in her initial consultation with Ms Ellison wrote on 18 March 2021 “history of plantar fasciitis of the right foot for a few months. Progressively getting worse. Pain presents when getting out of bed of a morning and after getting up from rest”.[5] On 22 August 2021 Ms Farrugia record “history of fracture right 5th metatarsal on 23/06/2021 following an ankle sprain whilst getting out of bed”.[6]
[5] ARD p 153.
[6] ARD p 157.
On 27 August 2021 Dr Hodder wrote a referral to Dr Hatfield in which he sought an opinion about her fractured right base of the 5th metatarsal. Dr Hodder told Dr Hatfield that this fracture occurred when Ms Ellison tripped on a mat.[7]
[7] ARD p 99.
Dr Hatfield in report to Dr Hodder dated 22 November 2021 supports the causal connection with the plantar fasciitis when her cleaning duties were increased. In relation to the fractured fifth metatarsal Dr Hatfield says this occurred when she tripped over a rug at home. Dr Hatfield adds “however I will leave that up to her and her GP to clarify further”.[8]
[8] ARD p 140.
Dr Bodel prepared a medico-legal report dated 23 December 2021 for Ms Ellison’s solicitors.[9] He diagnosed that the plantar fasciitis was caused by the nature and conditions of her work. He took a history that her painful heel rolled on her, causing a fracture of the fifth metatarsal. He said both are causally related to the original work injury. In his second report Dr Bodel states that the “twisting injury, which may have come about because of the pain in her heel associated with plantar fasciitis, and for that reason I believe both are causally linked.” He adds the plantar fasciitis has left her with a painful heel and that has caused her to twist the right ankle and led to the fracture of the 5th metatarsal.[10]
[9] ARD p 48.
[10] ARD p 54.
Dr Miniter provided a medico-legal report for the respondent dated 12 October 2021.[11] Dr Miniter expresses the opinion that heel pain like Ms Ellison experienced is very common in the general population. He states the literature is very clear that the issue resolves itself one way or the other in 99% of people irrespective of the treatment. He states unfortunately the resolution can be slow and take 12 to 18 months. He opines it is a constitutional condition which is not caused by work and it would have happened had she been at work or otherwise.
[11] Reply p 92.
In relation to the fractured 5th metatarsal, Dr Miniter says Ms Ellison told her this happened when she fell over at home. This does not assist to determine if it occurred due to the pain from the plantar fasciitis. Dr Miniter does not offer an opinion in this report about that. He does state that Ms Ellison showed no signs of exaggeration or malingering.
In his second report dated 20 August 2022, Dr Miniter says the general practitioner’s notes clearly indicate the fractured 5th metatarsal is not related to work, that she sustained a trip and fall at home unrelated to the alleged plantar fasciitis. As to the proposition that the second injury was due to the development of heel pain, Dr Miniter says this is simply incomprehensible and the matters are simply unrelated. However, what Dr Miniter does not do is to consider whether the account that Ms Ellison gave in her email to the respondent on 5 July 2021 is medically possible.
In that email Ms Ellison advised the respondent “I went to step out of bed and my foot rolled and I fell. It is same foot as planter fasciitis which is why I fell as I haven't been able to step properly first thing in the morning on my foot.” Dr Miniter does not consider whether a person with plantar fasciitis would have difficulty stepping properly first thing in the morning.
I find there is some support for the account given by Ms Ellison in the records of Julie Farrugia in March 2021 she took a history from Ms Ellison that “pain presents when getting out of bed of a morning and after getting up from rest”.[12] This was a history well before the fall and it consistent with Ms Ellison’s later account of how it was she came to fall on 23 June 2021. I also am persuaded that the email Ms Ellison sent to her employer on 5th July 2021 is a fairly contemporaneous account of how the injury happened.
[12] ARD p 153.
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[13] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[13] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The determination of the causal connection of the 5th metatarsal fracture as a result of the plantar fasciitis largely turns on whether Ms Ellison is to be believed that she did not tell Dr Hodder that she tripped over the mat. Having examined the causal chain and applying the principles in Kooragang, I am inclined to accept her as a witness of truth because the email sent on 5 July 2021 makes no reference to tripping over a mat and gives an account that is consistent with the problems Ms Ellison had described to Ms Farrugia, that she did experience pain in her right foot when first alighting from her bed. Dr Miniter also found her not to exaggerate.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[14] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[14] [2008] NSWCA 246, Nguyen.
I am satisfied on the balance of probabilities that Ms Ellison is telling the truth that she did not tell Dr Hodder that she tripped on a mat at home on 23 June 2021 and that her account to the respondent in her email dated 5 July 2021 was true. I find that because Dr Hodder advised Dr Hatfield in the referral about the tripping on the mat, that version was erroneously repeated. I find it is plausible that Dr Hodder did misunderstand her history about the fall. As I have explained Julie Farrugia months earlier had recorded Ms Ellison’s difficulties getting out of bed and the pain she experienced of a morning.
The next crucial question is whether the plantar fasciitis is a work related injury. Ms Ellison has relied upon s 4(b)(i) of the 1987 Act, a disease injury. The condition certainly developed over time. I find that Dr Miniter’s opinion cannot be accepted because he did not properly consider whether standing/walking for many hours would have caused the plantar fasciitis. He just dismisses the central issue by saying it is a constitutional type of a condition. He says it would have occurred regardless of her work. I accept Ms Grotte’s submission that Dr Miniter has not sufficiently engaged with the factual evidence about the nature of Ms Ellison’s work.
Ms Ellison has the onus of proof in establishing that she has suffered an injury within the terms of s 4 of the 1987 Act. Drs Hodder, Hatfield and Bodel all have considered the plantar fasciitis was caused by her work for the respondent with standing and walking for considerable periods of time. I prefer their opinions to that of Dr Miniter as they provide more detailed reasoning of the causal connection and they have actually considered her type of work duties.
In the respondent’s submissions at [5] it is submitted that that Ms Ellison’s evidence falls well short of establishing what the precise nature and extent of the physical activities being performed by her between March 2020 and March 2021 and how “those activities are said (based on the medical opinion relied upon by the applicant) to have caused the alleged injury”. However, Dr Hodder does refer to the fact that Ms Ellison spends “prolonged time on her feet and repetitive movements in completing her duties.” She stood on her feet to clean, she has given evidence in her statement of walking under time pressures across the school backwards and forwards. The respondent is critical about the lack of time estimates for particular tasks. However, Ms Ellison has given the times for when she worked and it is clear for the entirety of that time she was on her feet. The respondent at [10] asserts that a significant number of tasks could not have possibly placed force on her heel. I do not accept this because standing and walking did make her condition worse.
Ms Grotte in her submissions in reply referred to the evidence in Dr Hodder’s notes that she walked about 6,000 to 10,000 steps per day at work.
Furthermore, while the respondent tried to cast doubt on Ms Ellison’s credibility, Dr Miniter did not find her to exaggerate.
At [13] of the respondent’s submissions, counsel submits that it is inconsistent that if Ms Ellison had suffered the extent of pain in her right foot as she alleges, that she could hardly put her foot down, that it is not consistent that she would not have informed her general practitioner about this until March 2021 when she consulted Dr Hodder. However, I accept Ms Grotte’s submission that Ms Ellison has given a plausible explanation as to why she did not seek medical treatment straight away because initially she thought it was splinter, which she self-managed and then with the Christmas break it settled down but became worse again with the activities at work in the new school year. Also Ms Ellison’s evidence was that she could hardly put her foot down, particularly in the morning and that she had to “warm” it up. She did not say in the early period that she could not walk at all. The evidence that she continued to work in 2020 and in the early part of 2021 supports that she could walk, but with difficulty. I accept she had put up with the pain and was stoic trying to keep working until is got to the point where she felt she had to seek medical assistance on 4 March 2021.
I also do not accept the absence of a statement from Ms Ellison’s daughter is determinative. While a statement from her may have been helpful, I do not consider an inference should be drawn that the absence of a statement would not have supported Ms Ellison. I have explained why I have accepted Ms Ellison as a witness of truth.
The respondent’s counsel also refers to the clinical note of 21 May 2021 recording that Ms Ellison had experienced increased pain in her right foot after chasing sheep. However, this is after the plantar fasciitis developed. The respondent says it is logical that she would have engaged in non-work activities before March 2021 or October 2020 that could have been causative. However, there is no medical evidence to that effect. Dr Miniter does not relate plantar fasciitis to activity. The treating doctors of Ms Ellison have actually considered the nature of her work duties, which I accept as a matter of fact were fast paced, requiring her to be on her feet for hours during the day, carrying objects and equipment and involved a lot of walking backwards and forwards across the school grounds. I reject the submission that the opinions of Dr Hodder, Dr Hatfield and Dr Bodel are unpersuasive.
I find that Ms Ellison has established the elements of s 4(b)(i) of the 1987 Act because of the weight of medical opinion supporting the proposition that her plantar fasciitis was contracted due to her constant walking during her employment with the respondent. I accept the nature of her work with the respondent was the main contributing factor to the contraction of her disease.
Having established that the plantar fasciitis is caused by her work, I have given my reasons earlier for finding the fall on 23 June 2021 was as a consequence of her plantar fasciitis condition.
Weekly compensation
Ms Grotte has submitted that the medical certificates certifying partial capacity for employment have to be considered with the evidence of incapacity for employment in relation to the fractured 5th metatarsal. I have found the plantar fasciitis was a work-related injury and that the fracture is a consequential condition, therefore I accept the incapacity for employment flowing from both have to be taken into account.
Ms Grotte referred to the non-workcover certificates which certified Ms Ellison as being unfit for work. She submitted that Mr Doak’s document emailed during the hearing as part of his submissions is not correct as he refers to Ms Ellison in the period 4 March 2021 to 11 June 2021 being cleared for work for 30 hours per week.
Ms Grotte relied upon Ms Ellison’s statements about her ability to work in the varying periods for which she claims weekly compensation. I accept this evidence as it is consistent with the treating medical evidence and all of the medical certificates. When calculating an injured person’s ability to earn in suitable employment regard needs to be had to s32A of the 1987 Act which includes considering her medical certification, other medical evidence and rehabilitation plans. Ms Grotte referred to the return to work plans and how Ms Ellison in the later part of the period needed transport to enable her to work. Unfortunately this became unavailable for the respondent to supply due to covid restrictions. Ms Grotte submitted in these periods Ms Ellison should be treated as someone with no capacity for employment. I accept this as her medical restrictions could not be met. Her wages schedule does reflect the periods where she did not work and I accept that this was when she had no current capacity for employment.
I accept Ms Grotte’s submission that the non-workcover certificates provide evidence that she was unfit for work due to the plantar fasciitis condition and need to be taken into account even though they are ordinary medical certificates. It is submitted that therefore Ms Ellison would be entitled to 13 weeks at the 95% rate under s 36 of the 1987 Act which is PIAWE of $1,031.82 at 95% is $980.23 less her actual earnings as set out in the applicant’s wages schedule.
From 6 July 2021 to 28 November 2021 pursuant to s 37(1) of the 1987 Act Ms Ellison, when considering both her plantar fasciitis and her fracture, I find she is entitled to 80% of her PIAWE which is $825.46 per week less her actual earnings as set out in the applicant’s wages schedule.
I have made orders in relation to the weekly compensation in my certificate of determination by taking the 95% and 80% of the PIAWE figure and deducted the actual earnings figure set out in the applicant’s wages schedule. I give liberty to apply if there is any mathematical error.
Having found for Ms Ellison on the issues of “injury” I order that pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s treatment on production of accounts, receipts and/or Medicare notice of charge in accordance with the workers compensation gazetted rates.
0
4
0