Kalkan v MSS Security Pty Ltd

[2022] VCC 886

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-04978

NURHAN KALKAN	Plaintiff
v
MSS SECURITY PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2021
DATE OF JUDGMENT:	17 June 2022
CASE MAY BE CITED AS:	Kalkan v MSS Security Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VCC 886

REASONS FOR JUDGMENT
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Catchwords:  Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – application in respect of pain and suffering and loss of earning capacity – reliance upon paragraph (a) of the definition – number of injuries relied upon, including to both upper limbs and lower limbs – issues concerning identification of separate or combined assessment of injuries in relation to the statutory test – whether burden of proof satisfied – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Ms B Loughnan	Carbone Lawyers
For the Defendant	Mr A Middleton	Thompson Geer

HIS HONOUR:

(a)General background

1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies on paragraph (a) of the definition of “serious injury” found in s325(1) of the Act. She is seeking leave in respect of both pain and suffering and loss of earning capacity.

2The plaintiff relies upon injuries suffered in the course of her employment, such injuries being to both upper limbs and particularly to the shoulders, and to both lower limbs, including the condition of plantar fasciitis.  The plaintiff also relies upon injury to the cervical spine – see Transcript (hereinafter referred to as “T”) 3.  As a separate injury, this tended at times to be overshadowed by or merging with the injury to the upper limbs.  However, reliance was also placed upon it and consideration must be given to it.  Essentially, this aspect of the application was opened on the basis of aggravation of degenerative changes in the cervical spine – again, see T3.  It was made clear in the opening on behalf of the plaintiff that no reliance was placed upon paragraph (c) of the definition.  I would refer to T4.

3I would also point out that, due to the number of injuries relied upon, questions of aggregation or separation of consequences, and the manner of presentation of the plaintiff’s application, a considerable amount of repetition is required.

4The plaintiff’s employment with the defendant involved her working as a security officer at Melbourne Airport and in particular checking in and dealing with hand luggage which passengers were attempting to bring on board an aircraft and dealing with the “walk through” x-ray.  This shall hereinafter be referred to as “the work”.  In some histories, the plaintiff indicated that the work involved the handling of substantial items of luggage.  However, I accept that her duties were as described in the affidavit of Mr Chad Cooke, who was Assistant Aviation Services Manager for the defendant at various times when the plaintiff was employed by it.  I say now that I accept that the work was not strenuous, involving as it did the screening of passengers and their hand luggage, and that the handling of heavy objects was seldom required.  I also accept that, in addition to that description, the work at times involved a considerable amount of standing, but, as stated by Mr Cooke, anti-fatigue mats covered the floor at each station.  Given the number of injuries or areas of injury alleged, issues concerning their separate consideration arose.  In short, this was quite a complicated matter, involving various injuries and, in some instances, aggravation of pre-existing conditions.

5By letter of 17 December 2018, the defendant accepted liability in relation to the plaintiff’s right elbow and shoulder injuries.  However, the payment of any benefits ceased pursuant to a notice of 12 April 2019.  Liability was accepted for the aggravation of bilateral plantar fasciitis and tenderness of the Achilles tendons on 27 March 2019, prolonged standing being allegedly causative.

6Mr V Morfuni QC with Ms B Loughnan of counsel appeared on behalf of the plaintiff.  Mr A Middleton of counsel appeared on behalf of the defendant.  The plaintiff gave oral evidence, at times with the assistance of an interpreter, and was cross-examined.  The balance of the evidence was documentary in nature and was tendered either by consent or without objection.

(b)The plaintiff’s background, education and employment prior to the accident

7The plaintiff is aged 62 years, she having been born in 1959.  She was born in Turkey and emigrated to Australia in approximately 1986.  She is a married woman with two adult children.  She is right handed.  She commenced working in a clothing factory in 1986 and, following a return trip to Turkey in 1987 when she met her husband-to-be, worked comparatively briefly in a curtain factory, before again returning to Turkey.  Having married there, she and her husband came back to Australia.  She resumed work at the curtain factory and at a knitting factory.  She also learnt some English in a course.  She and her husband purchased a hairdressing store in approximately 2002, selling that business in 2004.  She then worked in a factory sewing car-seats.  She and her husband bought another business in 2005, this time one specialising in textiles and clothing distribution.  They worked in that business until it was sold in 2009.  She also worked briefly in a cheese factory.

8In approximately 2008, the plaintiff commenced employment working as a cleaner based at Melbourne Airport.  The plaintiff worked in this capacity for approximately two years.  In 2009 she obtained a Private Security Individual Licence.  She worked for approximately two years as a cleaner in the Qantas Club at the airport and, on approximately 20 January 2012, commenced employment with the defendant.  She was originally employed on a casual basis as a security officer, but was ultimately promoted to a permanent part-time position in 2013, before being promoted again to a full-time position in approximately November 2014.

9The plaintiff’s duties required her to work as a screener, this involving the checking of hand luggage and objects showing up in passengers’ x‑ray tests.  She also checked passengers’ passports, as well as conducting explosive tests.  She asserts that her work involved a lot of standing, although she has also referred to repeated lifting, twisting, pulling and carrying heavy luggage.  As stated, I am not persuaded that the manoeuvring or carrying of heavy luggage played any significant role in her employment.  Only at one of five screening stations was she able to be seated.  She claims that the bulk of her time required her to work whilst standing on hard concrete, although Mr Cooke in his affidavit, has stated that there was an anti-fatigue mat on the floor.  I accept that, at times, she was also required to handle small items of luggage that were travelling on a conveyor belt.  She agreed that most passengers loaded and unloaded their own hand luggage and that it was not often that she had to carry a bag back for further investigation – see T20-21.  She commenced suffering pain in the feet, and also pain in the right elbow, both shoulders, and neck.

10The plaintiff returned to Turkey in August 2018 for a period of approximately two months.  She alleges that, shortly after resuming work on approximately 12 October 2018, the pain in her shoulders and feet worsened, leading to a cessation of work on 19 December 2018.  She has not engaged in employment since that date.

(c)The plaintiff as a witness

11The credit of the plaintiff was not something that was put in issue by counsel.  Indeed, in his closing address Mr Middleton specifically stated that he had not put credit in issue – see T51.  However, whilst it may be that the plaintiff was not deliberately trying to be misleading in relation to her employment duties, I do not accept some of her descriptions of them as being entirely accurate.  The same observations could be made in relation to the histories given to medical examiners.  Such histories may not always have been accurate, and at times seem not to have been so.  However, in the absence of any attack on credit, I do not say that they were deliberately misleading.    

(d)The state of the plaintiff’s health prior to employment with the defendant

12The state of the plaintiff’s health prior to her employment with the defendant is an issue that did receive considerable attention.  The plaintiff had left tennis elbow problems in the 1990s – see T18.  In 2005, she had right shoulder problems, apparently diagnosed as tenosynovitis and bursitis.  She underwent an ultrasound of the right shoulder in February 2005.  In her affidavit of 10 July 2020, the plaintiff has sworn that a CT scan which she had on 20 September 2006 was in relation to pain in her cervical spine and left shoulder, the latter also being investigated by way of an ultrasound.  She has sworn that such pain went away after a while.  It would seem that she was prescribed Losec in 2005.  In approximately 2008 the plaintiff underwent a procedure in relation to kidney stones. 

(e)The injuries, their treatment, diagnoses, and prognoses

13Insofar as is possible, given the way in which the plaintiff’s case was put, I shall attempt to deal with the injuries separately, before turning to the issue of the discharge of the burden of proof in each instance.

14I shall divide the areas of injury essentially into those relating to the upper body and arms and those relating to the legs and feet.  I shall then set out my findings in relation to the various injuries, before dealing with concepts such as whether they can be grouped or dealt with as being effectively two injuries – one to the neck and upper limbs and the other to the feet and lower limbs.  Whatever else may be said, I do not see how they all can be combined to make one injury which satisfies the statutory test.

(i)     The injury to the neck, shoulders and upper limbs

15As stated, it would appear that the plaintiff had some radiological investigations of her cervical spine and shoulders in 2005 and 2006, with at least some of the associated pain being investigated in those areas abating.

16On approximately 3 December 2015, the plaintiff underwent an x‑ray scan of her lumbar spine.  However, the first radiological investigation of her left shoulder appears to have been an x‑ray on 9 July 2018.  This was at the request of Dr Walla Alazam, a general practitioner located in Sydney Road, Fawkner.  Essentially the report of the radiologist was that there were no abnormal soft tissue calcifications and no fractures.  An ultrasound seems to have been organised by the same general practitioner, with the radiologist’s report being dated 17 September 2018.  The finding was of mild fluid at the subacromial bursa consistent with mild bursitis.  The rotator cuff and long biceps tendon appeared normal.  There was no AC joint tenderness or glenohumeral joint fluid.  No report from Dr Alazam was placed in evidence.

17The plaintiff’s treating general practitioner then appears to have become Dr Hakan Baglar of Lalor, who apparently had treated her previously.  The history of events is set out in Dr Baglar’s report of 22 October 2020.

18Dr Baglar first saw the plaintiff in relation to work-related conditions on 11 December 2018.  The multiple problems reported by the plaintiff to Dr Baglar were of pain in the shoulders, radiating to the neck, and of right elbow pain.  I shall deal subsequently with her complaints in relation to her legs and feet.  She attributed her shoulder and elbow pains to the repetitive action of lifting heavy suitcases on and off the x‑ray inspection belt.  I again say that whether her duties involved her in the repetitive action of lifting heavy suitcases is a moot point, given that her duties centred on the inspection of hand luggage.  Again, I would refer to the affidavit of Mr Chad Cooke of 10 September 2021.  In any event, Dr Baglar stated that the ultrasound that had been taken showed bursal thickening of subacromial and subdeltoid bursars in both shoulders, along with bursal impingement, and also revealed right-sided tennis elbow.  The plaintiff had received conservative treatment in the form of physiotherapy.  The plaintiff had been able to return to work on modified duties, but her pain flared up again after a short time.

19It should be said that Dr Baglar’s report tends to group the injuries together at times and deal with them collectively.  That is no criticism of Dr Baglar, who cannot be expected to be familiar with the legal intricacies of the Act and its interpretation.  He has provided a quite lengthy and detailed report.

20In any event, Dr Baglar made it quite clear that he disagreed, with some force, with the opinion of Dr David Barton, who had examined the plaintiff at the request of the defendant, to the effect that the plaintiff’s conditions were not attributable to work, were based on age, and that she did not have any incapacity for work.  Dr Baglar also recorded that the plaintiff had recently completed some physiotherapy sessions.  She had shown some improvement, but still had an issue with chronic pain.  She had been certified as being unfit for work since last being certified for modified duties in May 2020.

21On 16 September 2019, Dr Baglar had provided a report to the Accident Compensation Conciliation Service.  Much of the material in that report is also contained, with some updating, in the report of 22 October 2020, which is under consideration.

22Dr Baglar had also organised various radiological investigations.  On 8 January 2019, an MRI of the cervical spine and an ultrasound of both shoulders were conducted.  The radiologist concluded that, in relation to the right shoulder, there was bursal thickening with impingement on abduction, but no rotator cuff tear.  There were similar findings in relation to the left shoulder, including the absence of a rotator cuff tear.  However, in relation to the left shoulder there was thickening of the subacromial/subdeltoid bursa with bursal impingement on abduction.  An MRI of the cervical spine had also been carried out.  The conclusion of the radiologist was that there was a disc osteophyte complex at C5‑6, resulting in moderate bilateral foraminal stenosis.  There was mild left-sided foraminal stenosis at C4‑5.  There was no evidence of high-grade canal stenosis.  A syrinx (which I understand to be a type of cyst) was noted within the cervical spine, extending into the thoracic cord.  The distal-most extent of this had not been visualised, and imaging of the entire spine was suggested, which would help exclude a cord/conus lesion.  As I understand it, this further investigation was not in fact performed.]

23Turning to other radiological investigations, on 21 November 2019, an ultrasound of the left elbow was performed, this revealing a partial tear of the distal biceps tendon insertion.  On 1 February 2021, an x‑ray of the cervical spine was carried out.  The radiologist reported that there was straightening of the normal cervical lordosis; mild disc space narrowing at C5‑6 with small endplate osteophytes; the neural exit foramina were patent; there was no bony foraminal stenosis and no cervical rib; finally, there was minor right apical pleural thickening.

24At the request of Dr Ali Mohtaji, each of the plaintiff’s hands was x‑rayed on 22 March 2021.  There were early multi-level degenerative changes, including small carpal bone cysts bilaterally and a little degenerative joint space reduction.  A little marginal osteophyte formation was also noted.  There was no fracture, dislocation or focal bony erosion seen on either side.

25On 18 June 2021, at the request of Dr Baglar, an ultrasound and x‑ray of the right shoulder were performed.  The findings, as reported by the radiologist, were of minor degeneration in the AC joint and glenohumeral joint, with no fracture or destructive osseous lesion.  The ultrasound revealed that rotator cuff tendons were normal.  The subacromial bursa was thickened with impingement on shoulder abduction suggestive of bursitis.  There was no shoulder joint effusion.

26Dr Baglar provided a very brief report to the plaintiff’s solicitors on 7 September 2021.  He stated that the plaintiff’s condition and capacity had not changed and that she was still unfit for work.  She was attending at his clinic for regular consultation for her certificates and also in relation to medications for her condition.  He went on to refer to a recent imaging study concerning her calcaneal spurs.  There was no specific reference to the plaintiff’s neck or shoulders.

27Ms Shamsun Nahar, clinical physiotherapist, reported to Dr Baglar on 12 December 2018.  She stated that it appeared that the cause of the plaintiff’s symptoms was rotator cuff muscles strain at each shoulder and associated increased neural tension of the cervical spine.  She had been treating the plaintiff with manual therapy and neuro-myofascial needling techniques.  She had also initiated a home exercise program.  Ms Nahar stated that the plaintiff had made some improvements following her treatment.  Whilst there was still a fair amount of pain and a degree of joint restriction remaining, Ms Nahar believed that the plaintiff would achieve great outcomes with the current treatment plan.

28On 25 February 2019, Ms Nahar provided a “To Whom it may Concern” report.  She stated that her clinical assessment was that the apparent cause of the plaintiff’s symptoms was a cervical nerve impingement syndrome.  She implicated employment.  She also stated that she had been treating the plaintiff with manual therapy and soft tissue release techniques and that the plaintiff had made significant improvements as a result.  Because her pain was a chronic one in nature, it would take a little longer for “great outcomes”.  She felt that further investigation was necessary.

29Also placed in evidence by the plaintiff was a report from Mr Emre Akgoz, physiotherapist, this report being dated 7 October 2020.  It is addressed to “Professor Thomas Kossman”.  Mr Thomas Kossmann is an orthopaedic surgeon who examined the plaintiff at the request of her solicitors and reported on 22 October 2020.  Certainly the report of Mr Akgoz is included in the list of documents received by Mr Kossmann.  In any event, Mr Akgoz reported to Mr Kossmann, who was to carry out a medico-legal examination.  Mr Akgoz reported on a history of severe constant aching pain, referring to bilateral shoulders and the neck.  Apart from referring to numbness and headaches, he also referred to bilateral subacromial bursitis and right lateral epicondylalgia.  His treatment had been aimed at improving postural control, improving endurance and modification of activities.  He was attempting to provide short-term pain relief.

30On 2 April 2021, Mr Akgoz provided a detailed report to the plaintiff’s solicitors.  He stated that the plaintiff had been a patient at the Glenroy Physiotherapy Centre since 16 June 2020.  In relation to work requirements, the plaintiff had complained of repetitive handling of baggage weighing up to 25 kilograms, and of loading and unloading in relation to the x‑ray machine.  Again, I would point out that the evidence would suggest that the plaintiff essentially dealt with hand luggage only.  In any event, apparently she informed Mr Akgoz that she believed that this was the biggest factor contributing to bilateral shoulder and bilateral elbow injuries.  She also complained of x‑ray monitoring in a prolonged seated position, which she believed was the biggest factor contributing to her neck and upper back injuries. 

31Mr Akgoz had viewed the reports of the various radiological investigations.  He believed that her “workplace accident” was the material contributing factor to her injuries, given the physical requirements of her employment.  He thought that she was suffering from severe chronic pain and hyperalgesia to the neck and shoulders.  She had constant aching pain and intermittent numbness referred along the entire bilateral upper limbs, including the hands.  She had frequent cervicogenic headaches.  Her right elbow injury also caused significant pain and restrictions.  It was likely that these injuries and their consequences would increase significantly the likelihood of gradually worsening osteoarthritis in multiple joints as she aged.  Apart from physiotherapy, she was engaging in a home exercise program, Pilates, and various other strategies.

32Mr Akgoz thought that the plaintiff needed to continue an activity-based exercise program in order to help restore as near normal function as she was able to achieve in the foreseeable future.  It is to be remembered that Mr Akgoz is the plaintiff’s treating physiotherapist.  He also referred to her affected mental state and mood secondary to the workplace injuries, these meaning that her progress was expected to be more prolonged than normal.  He thought that a further three months of weekly physiotherapy was required.  He placed various restrictions upon the plaintiff’s movements and activities, and stated that he did not believe that she could currently perform her pre-injury duties and hours, given the physical nature of her previous employment.  He thought that her incapacity could be expected to continue for the long-term foreseeable future.  He found it difficult to know what kind of employment would fit in with the various restrictions that were operating, also thinking that the plaintiff needed to start on very reduced hours (possibly a maximum of four hours twice weekly), which could potentially be increased later if duties were tolerable.  He thought it unlikely that she would ever demonstrate significant improvements and was likely to demonstrate some deterioration.

33The plaintiff has also been examined in relation to her neck and arms for medico-legal purposes.  Mr Thomas Kossmann, orthopaedic surgeon, saw the plaintiff at the request of her solicitors, reporting on 22 October 2020.  Mr Kossmann took a detailed history.  He noted that her duties involved the monitoring of bags placed on a conveyor belt which went through an x‑ray machine, and that she was also involved in the x‑ray monitoring of passengers when they were required to walk through special x‑ray machines.  She also did some loading and offloading of luggage involved in the testing.  Mr Kossmann set out the radiological findings.  If it is assumed that the bags referred to were items of hand luggage, the description of the work duties seems to accord with that of Mr Cooke and the impression formed by some other medical examiners.

34To Mr Kossmann, the plaintiff’s complaints of pain upon examination were quite numerous and widespread, including pain in the neck radiating to both of her shoulder joints; a sore thumb on the right side; headaches originating from the right side of her occiput; pain in the right side of the face; pain in both temporo­mandibular joints; pain in the right ear; intermittent tinnitus, dizziness and light sensitivity; and tingling in the fingers of both hands.  She described difficulties in relation to various daily activities.

35Mr Kossmann noted that the plaintiff had issues with her cervical spine and left shoulder joint prior to her work as a security officer.  He referred to the radiology performed in 2006.  The plaintiff also had a kidney problem.  She was taking Losec and painkillers as needed and having weekly physiotherapy.  (This does not fully accord with what has been recorded by Mr Akgoz.)  In relation to activities of daily living, the overwhelming majority were classified by the plaintiff as “Can do with difficulties”.  This category also seems to have included social and recreational activities.

36Mr Kossmann carried out a detailed physical examination, including ranges of movement and the like.  His diagnosis was of cervical spondylosis in the form of a reversal of the normal lordosis; evidence of a syrinx; broad-based disc osteophyte complex at the C4‑5 level; and an asymmetric broad-based disc osteophyte complex at the C5‑6 level.

37In relation to causation, Mr Kossmann expressed the opinion that the plaintiff had been engaged in physically demanding work in security at the airport and suffered injuries to her cervical spine and both shoulder joints in the course of her employment.  He expressed the opinion that the plaintiff had been misdiagnosed and under-treated.  He believed that a lot of her symptoms related to a thoracic outlet syndrome, which had to be verified.  He recommended various radiological investigations.  He thought that she also required a neurological examination, including EMG and nerve-conduction studies.  He stated that she had no work capacity due to her ongoing symptoms, but, once the investigations which he had recommended had been performed and she had received some treatment, she may regain a work capacity.  However, he stated that she was restricted in all activities in relation to employment and that this incapacity would continue for the foreseeable future.  She had no capacity to return to her pre-injury work, and this would also continue.  He also stated that she had no capacity to perform suitable employment and that this would continue for the foreseeable future.  This does not seem to sit particularly comfortably with his earlier expressed opinion that, following investigations and some treatment, she may regain a work capacity.  He also thought that the plaintiff would continue to be restricted in relation to social, domestic and recreational activities.

38Mr Kossmann reported to the plaintiff’s solicitors for the second time on 12 August 2021, having also conducted a video conference with the plaintiff on that day.  A similar history was taken.  There had been radiological investigations carried out since the last report.  The plaintiff was complaining of a considerable range of symptoms, including neck pain radiating to both shoulder joints.  There was also tingling in the fingers of both hands, pain in the right ear, pain on the right side of the face, and other complaints.  The plaintiff was taking Losec and painkillers as needed.  Her physiotherapy had ceased due to the COVID-19 pandemic, but she intended to return to it.  She was trying to walk every day for approximately 45 minutes.  Mr Kossmann again enquired as to the plaintiff’s ability to perform many movements and tasks, and it would be fair to say that her response in relation to the vast majority of these was that she could do them with difficulty.  This list included sleeping.

39The plaintiff’s range of movements was tested by a system which Mr Kossmann seems to have developed for video-conferencing.  His diagnosis was again of cervical spondylosis and along much the same lines as his earlier diagnosis.  He listed various symptoms, including pain on the right side of the lumbar spine and pain in the metacarpo­phalangeal joint of the right thumb.  It was also his view that the plaintiff continued to have positive surrender signs indicative of thoracic outlet syndrome, more on the right than on the left.  He recommended further radiological investigations and dynamic examination of both brachial plexus.  He also referred to the need for such things as a neurological examination including EMG, nerve-conduction studies, ophthalmology, and a hearing test.  Unlike the previous examination, on this occasion the plaintiff made no mention of pain in the right iliosacral joint and clicking in the knees.  Mr Kossmann felt that her bilateral shoulder condition had improved and that she required treatment according to her symptoms.  Her condition had made a profound impact on all aspects of her life.  He thought that the plaintiff required further investigation and treatment, and might regain a work capacity once these had been performed.  He recommended a further review in 12 months.

40Again, despite the suggested possibility of improvement and a further review, Mr Kossmann expressed the view that the plaintiff was restricted in all activities in relation to employment and the like and that such incapacity would continue for the foreseeable future.  He again stated that she would have no work capacity in relation to her pre-injury work for the foreseeable future, and expressed the same opinion in relation to her capacity to perform suitable employment.  I shall return to the opinion of Mr Kossmann in relation to the plaintiff’s plantar fasciitis, but the impression given is that his ultimate opinions in relation to work capacity, or lack thereof, embraced both the orthopaedic situation and the plantar fasciitis.  Certainly, the questions directed to him were broad enough to embrace both and, for example, at least one of them specifically directed his attention to the arms, shoulders, spine and feet.

41Dr James Rowe, specialist occupational physician, saw the plaintiff at the request of her solicitors on 24 March 2021, reporting on the same day.  The stated reason for Dr Rowe’s examination was for the assessment of injuries sustained to the neck and left shoulder during the course of employment.  The history taken by him included that the plaintiff had last worked for the defendant in approximately July 2020, at which time she was performing duties on a part-time basis.  However, he noted that her capacity to do her job well was compromised by her inability to stand in the one place.  Dr Rowe stated that the plaintiff had developed pain in the neck and left shoulder in 2006, this being diagnosed as a possible tear of the rotator cuff.  I am uncertain as to whether the date just referred to should be 2006 or 2016.  The plaintiff had suffered some right shoulder problems in approximately 2005, and the context of what Dr Rowe has recorded could suggest that he may have intended that the date in question was 2016.  In any event, during 2015, the plaintiff underwent some further investigations because of back pain and was found to have some degeneration in the lumbosacral spine.  The foot pain developed in approximately September 2016.  In 2019, she travelled overseas.  Upon her return, the plaintiff tried to resume part‑time work, but was not successful. 

42In relation to her present condition, Dr Rowe recorded that the plaintiff was suffering from pain in both shoulders and in her feet.  She had pain and restrictions around her neck, right and left shoulders, right and left legs and feet.  She was taking over-the-counter anti-inflammatory medication, namely Mobic, daily.  She was also taking Losec for depression.  She had undergone some physiotherapy for her shoulders, having weekly treatment for about four months.  She took an occasional Panamax for her various aches and pains.  She continued to have painful shoulders and feet.  She had trouble sleeping because of the pain in her shoulders and had various other symptoms, including tingling about her right arm more than the left, neck pain and painful feet.  She was limited in what she could do by way of housework and working in the garden, although the report contains no detailed account as to which parts of the body were the sites of particular pain and restrictions.

43Upon examination, the plaintiff had a restricted range of movements of the shoulders in all directions.  The diagnoses of Dr Rowe included bilateral shoulder soft tissue injury with loss of range of movements, which he considered to be directly related to her work over a period of time.  Dr Rowe also referred to underlying degeneration of the cervical spine, particularly at the C5-6 level.  The plaintiff had difficulties in relation to pushing, pulling, kneeling, squatting and walking for more than half an hour approximately.  She had difficulty walking up and down stairs and using her arms above shoulder height.  Due to her various work-related injuries, the plaintiff was not fit to return to her previous work and, in the opinion of Dr Rowe, that was unlikely to change in the future.  He considered that she now had no work capacity and that her impairments were permanent.  She was unlikely ever to get back to her airport work on either a full‑time or part‑time basis.  Her social and domestic activities had been impacted adversely.  I might say that, in making these general statements, Dr Rowe was not specifically focussing upon individual injuries or areas of injury.

44Dr Rowe did not consider the plaintiff to be fit for any position which required prolonged periods of walking and standing.  He did not think that she was capable of performing various alternative employments which had been suggested, essentially on the basis that the suggested roles, including that of a security officer, required prolonged periods of walking and standing.  She needed a referral to an orthopaedic surgeon for investigations concerning her shoulders and spine.  Dr Rowe considered her prognosis to be poor.  He found that her present conditions and consequent restrictions were entirely consistent with the nature of the work which she had been performing.  I might add that it is not entirely clear whether Dr Rowe was aware of the fact that the plaintiff’s primary duties involved the inspection and handling of items of hand luggage.

45The defendant has also had the plaintiff examined for medico-legal purposes.

46Dr Catherine Bones, consultant occupational physician, examined the plaintiff on 15 March 2019, reporting on 18 March.  This examination seems to have focussed particularly upon the plaintiff’s feet.  She told Dr Bones that her heel pain had continued after the development of her work-related shoulder problem, giving the impression that its onset preceded the shoulder symptomatology.  She said that she had been off work in respect of her shoulder condition since approximately November 2019.  I shall return to a discussion of the report of Dr Bones when dealing with the plaintiff’s lower limb injuries.

47Dr David Barton, consultant occupational physician, saw the plaintiff at the request of the defendant on 21 March 2019, reporting on the following day.  The plaintiff gave a history of developing increasing problems in the shoulders and neck in late November 2018.  She described her work duties as rotating approximately every 20 minutes and involving a lot of sliding of items on trays on the conveyor, in addition to other duties that might involve some lifting.  She told Dr Barton that she was not sure when she might return to work.  She also had a foot problem and heel spurs.  She was seeing a physiotherapist twice a week, essentially for massage, and was taking Tramal and Indocid.  She confirmed that she was right handed.

48Dr Barton was of the view that the plaintiff was strongly symptom disability focussed, referring to much contrived grimacing and gasping and holding on to her neck.  Measurement of the arms and examination of the shoulders revealed, effectively, normal muscular contour, normal keratinization pattern in both hands, and no wasting in the small muscles of either hand.  There was moderate and generalised tenderness upon examination of the neck.  Examination of both shoulders showed a limitation of movement symmetrically of about half the expected range, both left and right, and accompanied by “much grimacing and complaining of pain”.  Dr Barton did not believe that he had been given any clear evidence of an ongoing physical problem related to the plaintiff’s work activities.  He claimed to be familiar with the activities described by the plaintiff as a result of his own travelling through airports and having specifically looked at the relevant duties during previous work site visits. 

49Dr Barton provided a supplementary report on 25 March 2019, three days after his initial report.  He stated that he believed that the plaintiff had recovered from any mild physical problem that may have occurred, accepting that initially those mild symptoms may have been related to her general work activities.  Allowing for a brief period of graduation in hours and duties, he saw no reason why she could not then return to normal work.  This should be within a few weeks of starting her return to work program.  He thought that illness belief and motivation factors may have been playing a part. 

50Dr Barton saw the plaintiff again on 21 June 2019, reporting on 24 June.  At this time, the plaintiff was working four hours a day, three days a week, rotating between her normal duties.  On this occasion, Dr Barton appears to have been seeing the plaintiff in respect of the condition of her heels and feet.  However, because there is some intermingling of his opinions in relation to the various areas of alleged injury, I shall summarise his report at this stage.  I would point out that, as I understand it, on 27 March 2019 the plaintiff had accepted liability in respect of the aggravation of bilateral plantar fasciitis and tenderness of the Achilles tendons – that is, prior to the examination and report by Dr Barton.

51In relation to her heels and feet, the plaintiff told Dr Barton that problems had begun to develop in 2017.  The pain had persisted and more recently she had been seen by a podiatrist, who recommended that she obtain gel inserts and, if problems persisted for more than six months, possibly laser treatment would be tried.  Apparently even when she was absent from work because of her shoulder and neck problems, there was no improvement in relation to her feet.  She was wearing the inserts at all times and there had been no improvement in her foot condition, despite working reduced hours.  She did not believe that she could increase her working hours, because she was in too much pain after two hours’ work.  It is not entirely clear as to whether she was referring to neck pain, foot pain or both. 

52Specific examination of the plaintiff’s feet and ankles showed normal colour, no increased temperature and no sweating difference.  Pulses were normal.  There was a normal range of movement of both feet and ankles.  Everywhere that was touched was apparently tender and equally so in both feet.  Dr Barton reported some of his findings from the earlier examination relating to the plaintiff’s neck and shoulders.  He thought that her problems with her feet and heels seemed to be following a similar pattern to those relating to her shoulders and neck.  He did not believe that the general nature of her work, involving as it did staff rotation on a regular basis and sometimes being seated, would be likely to cause any significant or long-term health issues. 

53Dr Barton stated that the radiological presence of heel spurs is not necessarily diagnostic or indicative of any particular problem and is widespread in the plaintiff’s age group.  There were widespread areas of tenderness that did not correlate with the reported diagnoses, nor with radiological findings, although whether Dr Barton was confining these remarks to the plaintiff’s feet or was addressing her complaints generally is not entirely clear.  He expressed the view that he did not believe that the plaintiff had any medical condition of her heels or feet that related to her work activities.  He did not believe that work had caused any problem or that there was any incapacity.  The plaintiff could return to work in her pre‑injury duties and hours.  He was of the opinion that illness belief and motivational factors were playing a part.  He did not believe that any treatment was required.

54As stated, I appreciate that a considerable part of the above discussion of Dr Barton’s report of 24 June 2019 involves the plaintiff’s lower limbs, but there was also some discussion of her upper body and some observations of Dr Barton which seemed to embrace both the neck and shoulders and the lower limbs.

55Mr Rodney Simm, orthopaedic surgeon, reported to the defendant on 1 February 2021.  His report was based solely upon material supplied to him and he did not see the plaintiff.  The history of the plaintiff’s claim in respect of her shoulder tendinitis was at least in part extracted from her claim form of 30 November 2018.  In that form, the mechanism of injury was described as a bag becoming stuck on the x‑ray belt and the plaintiff noticing the pain when moving that bag – in other words, a specific incident of injury.  This was said to have occurred on approximately 2-3 April 2018.  On that claim form, the plaintiff recorded that she had not had a shoulder issue before.  Mr Simm pointed out that this was incompatible with her medical records of significant bilateral shoulder symptoms for which she had sought medical treatment on a number of occasions.  Mr Simm noted what he referred to as the “extraordinary number of claimed injuries” listed in the plaintiff’s affidavit and said to have arisen throughout the course of her employment up until approximately 19 December 2018.  He also listed a considerable number of potentially relevant pains and symptoms which the plaintiff had experienced prior to commencing employment with the defendant. 

56As the plaintiff’s claim forms related only to bilateral shoulders and bilateral heel pain, Mr Simm effectively focussed his attention upon them.  He noted that, in April 2018, she had attended her doctor complaining of right elbow pain and a provisional diagnosis of tennis elbow was made.  In May 2018, she attended her doctor with a three-week history of left shoulder pain attributed to handling luggage on the conveyor belt.  In August 2018, she went on leave to Turkey and returned to work on 12 October 2018.  Mr Simm noted that a physiotherapist’s report of 12 December 2018 contained the opinion that the plaintiff had symptoms of rotator cuff muscle strain in both shoulders and associated increased neural tenson of the cervical spine.  It was shortly after this that the plaintiff had ceased work.

57Mr Simm stated that the plaintiff had returned to work in October 2019, working two hours per day, five days per week.  An ultrasound of the left elbow performed on 21 November 2019 reported “irrelevant pathology in the distal biceps tendon insertion”.  As referred to above, employment ceased in December 2019.

58Mr Simm also commented upon the results obtained from various radiological investigations.  Whilst it is not entirely clear, the impression gained is that he was looking at the radiological reports, rather than at the actual films.  He also noted the plaintiff’s current symptoms as recorded in her affidavit (presumably her original affidavit of 10 July 2020).  Mr Simm summarised various reports which had been forwarded to him. 

59Mr Simm expressed his opinions based upon the material which he had examined.  In relation to the plaintiff’s neck, he thought that she may have symptomatic degenerative pathology in the cervical spine.  If this was so, it was due to constitutional and genetic progressive age-related changes.  He noted that the symptoms in the cervical spine dated back to 2006.  Progressive age-related degenerative changes were evident on the MRI scan done on 8 January 2019, but these were only moderate changes, with no neural compression.  Mr Simm observed that cervical symptoms became part of the plaintiff’s symptom complex after the onset of bilateral shoulder pain in late 2018.

60Mr Simm reported that the initial symptom, for which the plaintiff had sought treatment in that year, concerned left shoulder pain.  He expressed the view that, whilst her work duties could have been responsible for exacerbating symptoms from her underlying degenerative cervical spine pathology, the exacerbation would cease on cessation of work duties.  The duties did not cause, accelerate or aggravate the age-related progressive degenerative cervical spine pathology.  The contemporaneous file material at the time that the plaintiff complained of the shoulder pain did not record her as having significant problems in the cervical spine, but rather “associated neural tension at the cervical spine”.

61In relation to the left shoulder, Mr Simm noted the existence of some minor rotator cuff changes demonstrated in an ultrasound in 2006 and subsequent further complaints of arm pain in 2009.  A further ultrasound investigation in 2018 again showed only minor subacromial changes and no significant rotator cuff pathology.  The repeated handling of luggage could cause symptoms in the left shoulder related to early degenerative rotator cuff changes and secondary reactive subacromial changes.  However, Mr Simm noted that the requirement for her lifting was not sustained.  It did not involve arduous lifting or the use of the arms at or above shoulder height.  The plaintiff’s work duties would not cause or otherwise modify any underlying degenerative pathology.  They had the potential to cause a temporary exacerbation of symptoms, which would cease upon cessation of work duties.  Similar comments applied in relation to the right shoulder.  Whether Mr Simm was, at this stage, familiar with the actual size or nature of the luggage handled by the plaintiff is not clear.

62In relation to the plaintiff’s right elbow, Mr Simm noted that she presented to her doctor with tenderness for three weeks from 10 April 2018, the history being of pulling and lifting bags at work.  Apparently investigations did show some evidence of lateral epicondylitis.  However, subsequently it was for her left elbow pain that she was referred for an ultrasound on 21 November 2019.  This did not confirm the diagnosis of medial or lateral epicondylitis, but reported an incidental ultrasound finding in the biceps tendon.  I shall come to Mr Simm’s comments in relation to the plaintiff’s lower limbs and feet subsequently.

63In conclusion, Mr Simm stated that the plaintiff had progressive age-related moderate degenerative changes in the cervical spine, with the potential to cause symptoms, although many people with such changes are asymptomatic.  There were minor degenerative and reactive ultrasound changes in both shoulders, although Mr Simm described the pathology reported as being “much less” than that which he frequently sees in someone of the plaintiff’s age.  He had not been provided with investigations of the right elbow, but the ultrasound of the left elbow did not show changes of medial or lateral epicondylitis.  Mr Simm expressed the opinion that the plaintiff’s employment did not cause, accelerate, aggravate or otherwise modify degenerative pathology involving the cervical spine or either shoulder.  There may have been some aggravation of degenerative extensor tendon pathology in the right elbow in 2018, but this was not confirmed in the file material.  There was no relevant pathology evident in the investigation of the left elbow.  He concluded that the pathology of her complaints (apart from the plantar fasciitis) was presumably degenerative.  There may have been factors involving emotional disturbance. 

64Mr Simm reported again on 17 June 2021.  There had been a Zoom video link conference with the plaintiff.  The plaintiff had confirmed that her main injury was to the right shoulder and both heels, although she was also claiming a left shoulder injury.  Over the previous year, the plaintiff had received 10 physiotherapy treatments in relation to her neck and bilateral shoulder problems.  She was attending her doctor at monthly intervals, using a hot water bottle or a hot pack on her shoulders, and rubbing them with Deep Heat.  She was taking an anti-inflammatory, Mobic, essentially using medication intermittently because of reflux.  She was taking two Panadol tablets when required.  The main problem was right shoulder pain, which had increased over the last six months.  She had pain when she elevated her arm overhead or used it for physical activities, which she avoided.  She was not able to lie on her right side in bed at night.  She had similar, but less troublesome, symptoms in the left shoulder and had almost normal use of the left arm, although certain movements and activities were painful.  She had some localised pain at the base of the neck, and in the right forearm and elbow.  On awakening, she had numbness in all fingers.  The plaintiff was independent in relation to personal activities of daily living.  She was able to go to the supermarket, prepare meals and perform light household chores, but could no longer do heavier cleaning, such as vacuuming, because of her shoulder pain.  She could not hang washing out on a high line. 

65Mr Simm described the plaintiff as being a pleasant and cooperative person, but it was evident that she had a symptom focus.  She moved her head and neck normally.  She gesticulated freely with both upper limbs and showed no evidence of restriction of shoulder movement or pain on movement.  She demonstrated essentially normal cervical spine movements, with no evidence of pain on such movements.  In relation to the right shoulder, she was able to achieve normal flexion and abduction, although seemingly experiencing pain and difficulty with the last 30^o of elevation.  Lowering the fully elevated right arm was associated with painful arc of movement at approximately shoulder height.  External rotation was normal, but internal rotation of her elevated arm was restricted and painful, consistent with impingement.  The plaintiff had full movement of the left shoulder, the lowering of the fully elevated arm producing minimal symptoms of impingement.  External rotation was normal, but internal rotation appeared to be mildly painful, suggesting the possibility of minor impingement.  Inspection of the hand showed no small muscle wasting.  No sensory changes were evident and, in particular, there were none suggestive of median nerve involvement.

66Mr Simm concluded that the plaintiff had mild cervical symptoms, but a full range of cervical movement.  Her symptoms were probably due to age-related degenerative changes and were not work-related.  In relation to the plaintiff’s shoulders, Mr Simm confirmed with her that the luggage which she handled was cabin luggage or other carry-on items, with a 7-kilogram weight limit, and that the lifting requirements were intermittent.  There was no overhead lifting.  This description by the plaintiff of her workplace activities seems far more in line with that given by Mr Cooke and with the observations of Dr Barton.  It seems to me to be accurate.  Mr Simm stressed that the plaintiff had minimal symptoms of residual impingement involving the left shoulder, with the symptoms probably relating to her underlying and already degenerative rotator cuff changes.  The condition was not work-related.

67Mr Simm thought that there were clinical signs of moderate impingement of the right shoulder, although the plaintiff retained a full range of movement.  The right shoulder symptoms interfered with a number of activities which involved elevation of her arm or movement of her arm to extremes of the range of movement.  He presumed that there was underlying rotator cuff pathology which was responsible.  The pathology was not caused or otherwise permanently affected by activities in the workplace.  In relation to the plaintiff’s upper limbs, Mr Simm stated that he was not able to establish the diagnosis of her rather widespread symptoms, including numbness in all fingers upon awakening.  There was no objective evidence that she had a significant physical problem involving the upper limbs.

68Overall, there were some inconsistencies in the plaintiff’s history and physical examination, which suggested to Mr Simm that her conditions had been associated with a chronic adverse pain and injury response.  Patients with features of chronic pain often respond poorly to conventional treatment.  The plaintiff presented with only minor abnormalities on physical examination.  Mr Simm anticipated that she would continue to seek physiotherapy treatment for her neck and shoulder girdle symptoms, but there were no plans for her to be referred to a specialist.

69Mr Simm felt that the plaintiff did not have the capacity for unrestricted pre‑injury duties, and it was unlikely that she would return to the workforce performing duties that involved long standing or repetitive heavy lifting.  This conclusion seems to have embraced both her neck and shoulder girdle symptoms and her other pain.  However, the plaintiff had the capacity for suitable employment.  A Recovre Vocational Assessment Report of 2 December 2020 (“the Recovre report”), which had been obtained by the defendant and had been considered by Mr Simm, included reference to several sedentary light occupations, such as a Control Room Screening Security Officer and a Building Concierge/‌Information Officer, where there would be no requirement for overhead lifting.  Mr Simm thought that the plaintiff could undertake such duties on a full-time basis.  He concluded that there was no evidence of conscious exaggeration or signs of abnormal illness behaviour, but that the plaintiff had a rather widespread symptom complex and anxiety regarding her symptoms.  I would point out that no vocational assessment report on behalf of the plaintiff was tendered.

70Dr Sam Soliman, occupational medicine consultant, reported to the defendant on 2 February 2021, having seen the plaintiff on that day.  The purpose of this examination was to provide medical advice on fitness for employment.  In relation to her neck and shoulders claim, the plaintiff stated that she had bilateral shoulder injuries in 2019, with no specific incident.  One day she could not move her shoulders and it gradually worsened over time.  She had seen her general practitioner and had radiological investigations, but she had received no treatment or physiotherapy, save for that for which she paid herself or organised payment.  There would have been a total of something in the order of 12 or 13 physiotherapy treatments.  However, it was subsequently noted that the plaintiff had also had some intermittent physiotherapy since October 2019, this being some months after her benefits were terminated.  She detailed her periods away from work, including her overseas trip, and her time on restricted duties.  She complained of pain when she moved her right arm and when she slept on it; numbness from the right shoulder tip all the way down to her fingers; left shoulder pain of a similar nature; and constant neck pain which never went away and which nothing made better.  However, Dr Soliman noted that she was able to move her neck freely during the consultation.  The plaintiff stated that she was able to do most things, but nothing heavy, referring to the hanging out of clothes.

71Examination of the plaintiff showed no muscle wasting of her neck, with no localised tenderness.  The plaintiff’s cervical spine range of movement was normal, with no restrictions.  She expressed some discomfort at the end of all movements.  Right shoulder examination showed 170^o flexion, with slight discomfort at the end.  There was some discomfort upon internal rotation and abduction and an impingement test was mildly positive.  The left shoulder examination does not seem to have demonstrated any marked restrictions. 

72Dr Soliman noted that the plaintiff had undergone multiple investigations, which showed bursitis and degenerative changes in the cervical spine, with osteophytes complex leading to foraminal stenosis.  She continued to complain of neck and shoulder pain, which was to be expected, given her underlying degenerative conditions.  Dr Soliman noted that the plaintiff had had similar pain in the shoulders in 2002 and 2006.   He referred to the ultrasound reports.  In relation to her shoulders, he diagnosed bilateral shoulder bursitis, worse on the right, and with no rotator cuff tendon tears.  He repeated his observations about the radiological findings in the cervical spine.  He referred to the findings as being relatively common in the plaintiff’s age group and being mainly managed conservatively.  Such conditions were degenerative in nature, with intermittent flare-ups common, depending on personal activities, weather and the like.  The plaintiff was able to sit comfortably and move her neck and arms freely during the examination.

73In the opinion of Dr Soliman, the plaintiff has longstanding degenerative conditions which may flare up intermittently, and did so in 2002, 2006, 2017, 2018 and 2019.  They settled down after a period of rest and treatment.  The 2019 flare-up occurred as a result of “a work-related incident as alleged”.  This should have fully resolved.  Dr Soliman noted that the plaintiff was not receiving any treatment, apart from a couple of Panadol tablets a day.  He was of the view that any work-related contribution to her pre‑existing degenerative conditions had resolved.  He thought that she had a capacity for pre‑injury duties, with some adjustments to accommodate her pre‑existing conditions.  These adjustments included the need to avoid having arms outreaching, lifting above shoulder height and lifting away from her body.  These adjustments would minimise the risk of her exacerbating the underlying degenerative conditions.  He thought that she was fit to perform each of the identified suitable employment options contained in the Recovre report which had been forwarded to him.  She could do these on a full‑time basis.  The plaintiff was not precluded in relation to domestic, social and recreational activities, but she needed to appreciate that she had underlying degenerative conditions and that she should avoid activities that might exacerbate them.  He thought that there was a degree of abnormal illness behaviour or exaggeration. 

74The defendant also organised for the plaintiff to be examined by Dr Dush Shan, consultant psychiatrist.  He reported on 19 August 2021, being the day of the examination.  I appreciate that there is no reliance upon paragraph (c) of the definition.  However, in some of the medical material there are references to factors other than those of an organic nature.  The conclusion of Dr Shan was that currently there was no mental condition or injury affecting the plaintiff.  Any work-related contribution to any mental condition that may have existed had resolved.  He also added that it was not apparent that there was either a conscious or unconscious exaggeration present. 

(ii)     The injury to the legs and feet

75As earlier stated, not each of the numerous medical reports in evidence in this case distinguishes clearly between the consequences of injury to the plaintiff’s upper body and those to her legs and feet. 

76Mr Mohammed Al Hamdani, podiatrist, provided a report of 7 January 2019.  It appears to be a report to a general practitioner.  It is evident that he had seen the plaintiff.  The report of Mr Al Hamdani commences with a summary of his assessment.  It indicates that the plaintiff had long-term plantar fasciitis of both feet, with pain on standing and walking, as well as limiting activity.  There was also chronic inflammation of tibialis posterior, causing tibialis posterior tendinopathy.  Achilles tendonitis was noted in both feet.  A long-term treatment plan had been constructed, involving dry needling and orthotics.  Prolonged standing and walking on hard surfaces had possibly been the biggest contributor to the symptoms.  No neurological symptoms or vascular problems were found.  Blood was flowing adequately for healing.  There was weak muscle strength in both feet, but good balance.  The treatment plan was of dry needling, with orthotics to stabilise, along with footwear assessment.  The ultimate object was to resolve pain and prevent reoccurrence.  The plaintiff was going to be seen by way of a follow-up appointment.  The overall plan was to reassess the situation in 12 months or if symptoms arose.  There is no subsequent report from Mr Al Hamdani. 

77Mr Andrew Beischer, foot and ankle surgeon and orthopaedic surgeon, saw the plaintiff on referral from Dr Baglar, reporting back to that doctor on 9 April 2019.  The plaintiff had painful heels and was diagnosed as having plantar fasciitis.  Mr Beischer instituted treatment by way of the use of spot heel cushions and a vigorous course of Achilles and plantar fascial stretching exercises, which he described as being effective in 95 per cent of cases over a three-month period.  If that did not work, he thought that it would be reasonable to consider some heel shockwave therapy.  The possibility of endoscopic plantar fascial release surgery also existed, but Mr Beischer believed the results of this to be unpredictable and it should not be considered for at least another 6 to 12 months.  He made no specific plans to review the plaintiff at the current time. 

78Mr Beischer reported to the plaintiff’s solicitors on 29 March 2021.  He understood the plaintiff to work as a security officer.  She had described to him a two-year history of bilateral plantar heel pain consistent with a diagnosis of plantar fasciitis. This had become progressively worse over the three to four months prior to her attending at his clinic.  Upon examination, she was noted to have tenderness and tightness, a finding quite commonly seen in patients with plantar fasciitis.  She had brought x‑rays with her, which demonstrated bilateral sub-calcaneal spurs that are seen in 50 per cent of patients with a diagnosis of plantar fasciitis.  The plaintiff was advised of the natural history of the condition and the fact that the vast majority of patients resolve their symptoms within 6 to 12 months, providing that they undertook a rigorous Achilles and plantar fascial stretching exercise program and used heel cushions.  Mr Beischer had not seen the plaintiff since that initial visit.

79In answer to specific questions put to him by the plaintiff’s solicitors, Mr Beischer stated that the plaintiff had developed plantar fasciitis, which is a very common condition that is not usually caused by a particular injury.  He was not convinced that her work was the cause of her trouble, although standing for prolonged periods of time, which she may well have done as a security guard, may exacerbate her symptoms.  As a consequence of the condition, patients often report difficulty with activities that require them to stand or walk for long periods.

80Mr Beischer did not believe that the plaintiff’s plantar fasciitis was likely to effect significantly activities such as bending, lifting, twisting and stooping.  He did not believe that kneeling, prolonged sitting or walking up and down inclines would exacerbate her heel pain, but potentially prolonged squatting or crouching or prolonged standing and walking may well exacerbate symptoms.  He also thought it likely that, if she undertook the stretching program as indicated, her symptoms would settle.

81Mr Beischer repeated that he was not of the opinion that the plaintiff’s bilateral plantar fasciitis was a work-related injury.  However, the diagnosed condition may impact on her ability to stand and walk for prolonged periods, which could impact her ability to undertake work as a security officer.  Mr Beischer again stated that he was not of the opinion that the plaintiff had sustained a work-related injury, but plantar fasciitis could have a significant impact on various activities and limit the person’s ability to stand and walk for prolonged periods.  When seen by him, the plaintiff was reporting significant heel pain that could cause some dysfunction.  Mr Beischer also stated that, if non-operative therapy failed, surgery to release the plantar fascia may be considered, although it is something that is infrequently required for what he described as a common diagnosis.  The plaintiff could be assisted by heel shockwave therapy undertaken by a sports physician.  Normally symptoms resolve over a 6 to 24-month period, providing that patients undertake a vigorous Achilles and plantar fascial stretching exercise program, use heel cushions and reduce their weight if necessary.

82In his report of 16 September 2019 to the Accident Compensation Conciliation Service, Dr Baglar referred to the plaintiff as having four different types of problems, including bilateral heel pain.  She attributed that to being obliged to walk and stand on concrete surfaces for long hours.  Dr Baglar referred to x‑rays of both feet revealing bilateral calcaneal spurs.  He briefly mentioned his referral of her to Mr Beischer and the recommendation for orthotics and possible shock treatment, as well as the possibility of surgery should the conservative approach fail.  In his detailed report of 22 October 2020 to the plaintiff’s solicitors, Dr Baglar expressed the opinion that the plaintiff’s injuries were, to a significant degree, attributable to her employment.  He said that x‑rays of both feet revealed bilateral calcaneal spurs.  He also mentioned that Mr Beischer recommended orthotic footwear and a conservative approach, whilst not ruling out the possibility of a more invasive procedure. 

83Dr Baglar stated that the plaintiff’s present symptoms were that she was unable to stand for reasonable amounts of time without unbearable pain in her feet and heels.  He mentioned chronic foot pain.  It was stated that her heel pain reportedly became unbearable after a little while and he imagined that walking on hard surfaces for prolonged hours “would definitely be out of the question”.  A form of employment where she was free to sit and stand as she required would help alleviate any heel problems from prolonged standing.  He observed that, should her condition get worse, “there is no telling how debilitating her not being able to stand on her feet for reasonable periods will become”.  These latter observations do not seem to address the issues of compensability and causation, but rather the question of whether prolonged standing and the like would cause any increase in symptoms.

84In a brief report of 7 September 2021 to the plaintiff’s solicitors, Dr Baglar said that the plaintiff’s most recent imaging studies revealed moderate degree calcaneal spurs bilaterally.

85Mr Emre Akgoz, physiotherapist, in his letter of 7 October 2020 to Mr Kossmann, noted that the plaintiff reported chronic pain in bilateral knees and feet.  He referred to bilateral calcaneal spurs.  He stated that her injuries “seemed to be materially contributed to as a direct result by her work requirements”.  Her treatment had focussed on exercises, in addition to hands-on treatment, but there is no reference to specific exercises or treatment specifically directed to her knees or feet. 

86Mr Akgoz reported to the plaintiff’s solicitors on 2 April 2021.  Amongst the workplace injuries sustained during 2018, there is reference to work requirements over a prolonged period of time causing injury to the heels.  He referred to the plaintiff’s belief that standing for 80 minutes on a concrete floor was the biggest factor contributing to her bilateral heel injuries.  He also referred to an x‑ray of the feet of 4 April 2019 as showing some degenerative changes and accessory ossification.  Specifically, the radiology showed moderate sized plantar calcaneal spurs, more marked on the left.  Mr Akgoz expressed the belief that the plaintiff was suffering from bilateral plantar fasciitis.  He believed that what he referred to as the workplace accident was a material contributing factor to her injuries.  He noted that she suffered from constant bilateral heel pain, which significantly limited her ability to weight bear on her lower limbs, her standing or walking “or transferring type activities”.

87Mr Akgoz made the somewhat sweeping statement that the plaintiff’s injuries and resultant altered movement patterns would significantly increase her likelihood of leading to gradually worsening osteoarthritis in multiple joints.  He referred to the physiotherapy treatment which she had undergone, but this reference is in general terms which seem to embrace all injuries.  Mr Akgoz also referred to a home exercise program and the like, again in general terms.  He thought that the plaintiff needed a further three months of weekly physiotherapy.  He also referred to a standing tolerance of less than one hour “continuous” and a walking tolerance of less than 30 minutes on even surfaces.  He addressed her capacity for suitable employment in general terms, apparently embracing all injuries.  He thought that she was unlikely ever to demonstrate significant improvements “taking into account the chronic nature of her conditions”.

88Mr Thomas Kossmann reported to the plaintiff’s solicitors on 22 October 2020.  This would appear to have been a report resulting from a medico-legal examination.  He took a history of the plaintiff’s duties, including that she spent approximately 80 minutes for each task standing and then 20 minutes in a sitting position.  Mr Kossmann referred to x‑rays as resulting in a description by the radiologist of bilateral plantar degenerative calcaneal spurs on both feet, the one on the left side being slightly bigger.  Ultrasounds of both heels were also performed, but did not show any pathology.  Mr Kossmann also mentioned that the plaintiff had been referred for a podiatric assessment and had been diagnosed with weak muscle strength, although she had good balance and no falls were reported.  Mr Kossmann set out details of the x‑rays of both feet performed on 4 April 2019.  He also referred to the report of Mr Beischer, who had seen her on 9 April 2019.  Mr Kossmann noted that Mr Beischer formed the opinion that the plaintiff suffered from plantar fasciitis, for which he recommended conservative treatment.  If this was not successful, he recommended shockwave therapy and the possibility of an endoscopic plantar fascial release.

89The list of present complaints obtained from the plaintiff by Mr Kossmann was quite detailed.  It is to be remembered that Mr Kossmann was also examining the plaintiff in relation to her upper body.  However, save that it was noted that the plaintiff had difficulty putting on socks and shoes, it did not address foot or leg problems.  The same could be said of the history obtained by him, including the radiological investigations of 3 December 2015.  Mr Kossmann set out a long list of what could be described as interference with daily activities, but these are not directed specifically to particular areas of injury.  Standing and walking could well be related to foot problems (apparently the plaintiff said that she could do each with difficulty), but these are included in a list of in excess of 40 activities, functions and the like.

90Mr Kossmann also set out details of physical evaluations, some involving the use of a goniometer.  These included measurements in relation to the knees, ankles and toes.  His overall diagnosis was of bilateral plantar degenerative calcaneal spurs on both feet, the one on the left side being slightly bigger than that on the right.  He also referred to pain and cracking noises in both knees and restricted movements of both big toes.  In broad terms, he referred to her as suffering from injuries to her cervical spine, both shoulder joints and both feet.  The clicking noises in the knees warranted further investigation, including radiology.

91Mr Kossmann further reported to the plaintiff’s solicitors on 12 August 2021.  Again, this appears to have been in the nature of a medico-legal report.  He set out in detail the treatment which the plaintiff had undergone.  He again recorded that she could perform such things as standing and walking with difficulties.  He once more diagnosed plantar degenerative calcaneal spurs on both feet, the one on the left side being slightly bigger than that on the right.  He referred to the plaintiff’s history in broad terms and to her having engaged in physically demanding work. He listed injuries to both feet as arising in the course of her employment.  In this examination, the plaintiff did not mention any pain issues relating to her right iliosacral joint or clicking noises in both knees.  Comparatively little attention is paid to the plantar fasciitis in this report.

92Overall, Mr Kossmann was of the view that the plaintiff had no work capacity.  However, she required further investigation and treatment, following which she may regain such capacity.  He recommended a review in 12 months.  Whether these opinions of Mr Kossmann include the plantar fasciitis condition is not clear.  Mr Kossmann noted that Mr Beischer was of the opinion that the plaintiff’s employment was not the cause of her bilateral fasciitis.  Mr Kossmann commented that Mr Beischer had not given any other explanation as to why the plaintiff suffered from it and, as he read it, conceded that her employment may have exacerbated her symptoms.  Further, Mr Kossmann had done research on the internet which indicated that employment was “in fact the cause/risk factor for the development of plantar fasciitis …”.  He then set out extracts from material, primarily or almost entirely from American clinics, concerning prolonged standing on hard floors being a causative factor in relation to plantar fasciitis.  Mr Kossmann concluded that, based upon these findings, from well-respected medical institutions, he believed that it could be said that the plaintiff’s employment was in fact a significant contributing factor to her developing plantar fasciitis in both feet.

93I say now that, whilst Mr Beischer may have used the terminology relating to causation referred to by Mr Kossmann, he in fact went further.  He not only said that the plaintiff’s plantar fasciitis was not caused by her employment, but he also stated that he was not of the opinion that plantar fasciitis was or is “a work-related injury”.  He repeated this, saying “… I do not believe the patient has sustained a work-related injury …”.  Mr Beischer went on to say that the diagnosis may impact upon the plaintiff’s ability to stand and walk for prolonged periods and thus have some effect upon her ability to undertake work as a security officer.  Indeed, when commenting upon the impact upon her social and recreational activities, he repeated again that he was not of the opinion that the plaintiff had sustained a work-related injury.  Whilst Mr Kossmann had not specifically mentioned it, Mr Beischer stated clearly, and three times, that his opinion was that the condition was not work-related.  That is a broader statement than his initial observation that employment may have exacerbated the plaintiff’s symptoms and appears to be some indication as to the meaning that he was intending to convey.

94In any event, Mr Kossmann included in his listing of things to be avoided as a consequence of the plaintiff’s plantar fasciitis injury such matters as prolonged sitting, walking or standing; repetitive and/or prolonged use of her feet; and walking up inclines or down declines.  Interestingly, he also opined that the plaintiff’s incapacity would continue for the foreseeable future, this being an observation in respect of her work-related injuries and impairments.  As previously stated, this does not sit particularly well with his earlier expressed opinion in relation to work capacity.  Under that heading, he stated that she had no capacity due to her ongoing symptoms, but required further investigation and treatment.  He expressed the opinion that, once such investigations had been performed and she had received some treatment, she may regain her work capacity and he recommended review in 12 months.  This seems to be in contrast with his statement that she had no work capacity and that such incapacity would continue for the foreseeable future.  He repeated this latter answer in relation to pre‑injury work, suitable employment and lifestyle evaluation.  Presumably the somewhat general observations include symptoms associated with the plantar fasciitis. 

95As earlier stated, Dr James Rowe is a specialist occupational physician, who examined the plaintiff at the request of her solicitors.  Unlike the situation with Mr Kossmann, his report of 24 March 2021 pre-dates that of Mr Beischer of 29 March 2021.  Thus, he had only Mr Beischer’s report of 9 April 2019, which is brief and does not contain the observations as to the absence of any work relationship.  That Dr Rowe did have that report is clear from the list of documents with which he had been provided as set out essentially at the commencement of his report.  However, there is no reference to the report of Mr Beischer, even though it is quite evidently a report back to a general practitioner from a treating specialist.  Indeed, at that early stage of the report of Dr Rowe, the only injuries specifically referred to were bilateral shoulder soft tissue injuries.  Also listed in the index is the medico-legal report of Dr Bones, which does focus upon the plantar fasciitis.  Dr Rowe quotes briefly from it, but, as stated, does not refer to the report of the treating specialist. 

96The history obtained by Dr Rowe was that in approximately September 2016 the plaintiff developed pain in her feet and mostly in her heels.  On the basis of the history obtained, this seems to have preceded the pain in her shoulders, neck and right elbow.  In her description to Dr Rowe of areas of pain, she included right and left legs and feet.  Dr Rowe noted that there had been radiological scans and ultrasounds performed in relation to the plaintiff’s feet and heels.  He noted the diagnosis of plantar fasciitis in relation to the calcaneal spurs observed on x‑ray.  He observed that her heels had been injected with cortisone by Dr Munir, but this did not relieve her symptoms for more than two or three months.  He also commented that the plaintiff had consulted a podiatrist in 2019.  Her foot pain had been treated with acupuncture and orthotics, and she had seen an orthopaedic surgeon (presumably Mr Beischer), but had not really improved.  Her feet ached if she walked for more than half an hour.

97The plaintiff was currently not having any treatment for her feet and had not had any for some time.  Dr Rowe noted that she wore orthotics for the condition in her feet, but that they did not really help her.  She continued to have pain in her feet.  Upon examination, the plaintiff was tender about the feet and had some limitation of movement in her feet and in the soles.  This prevented her from walking for more than half an hour and she had trouble walking up and down stairs or standing from a seated position.

98Dr Rowe answered a series of questions.  These were based broadly upon “her work-related injury and impairment”.  I note that, in his diagnoses, there is no specific reference by him to plantar fasciitis.  In answer to one question, he stated that the plaintiff could not walk for more than half an hour or so and had trouble walking up and down stairs, but again there is no specific reference to any diagnosis of a foot complaint.  He described her impairments as being permanent, also referring to possible further injections into her feet and shoulders.  He referred to the impact upon her social and domestic activities as a consequence of her work-related injuries and impairment, but, as stated, he did not include foot injuries in the diagnoses set out in response to the earlier question.  There is no specific reference to the plaintiff’s feet in relation to her incapacity to perform certain specified occupations.  Dr Rowe did comment that she was at an increased risk of developing arthritis in her neck, shoulders and feet, but why that would be so in relation to her feet is not spelt out.  He considered that she required further investigations, treatment and management, but again there is no specific reference to her feet or to plantar fasciitis.

151I say now that the same can be said of the injuries to the plaintiff’s legs.  The plantar fasciitis, if accepted to be a compensable injury, occurred in both feet and allegedly arose out of the same employment requirement – prolonged standing on a hard concrete floor whilst performing duties.  However, to say that the feet injuries could in some way effectively be aggregated was not argued and is not a proposition which I accept.  I would refer again to the decision in Lexa.

152The end result is that it is my opinion that there are five separate injuries to be considered – namely injury to the right upper limb; injury to the left upper limb; injury to the cervical spine; injury to the right lower limb, and particularly to the foot; and injury to the left lower limb, and particularly to the foot.  I would add that there is no evidence of any force, nor was there effectively any submission, that there is any substantial difference in the symptomatology, restrictions or consequences relative to one foot or lower limb as compared to the other.

153In summary, there are the consequences of five separate injuries to be assessed and the question of whether the burden of proof has been discharged is to be considered in relation to each of them.

(iii)    Ruling as to the plantar fasciitis and the injury to each lower limb

154Whilst, as stated, the consequences of injury to each lower limb are not to be aggregated, the position in relation to them can be summarised collectively for the purposes of this Ruling.

155The principal injury in each instance is plantar fasciitis.  Whilst there have been passing references to other conditions such as Achilles tendinitis and cramping in the calf muscles, by far the greatest complaint in relation to the plaintiff’s lower limbs has been that associated with plantar fasciitis.  In short, I find that the plaintiff has plantar fasciitis in each foot and that this is the relevant injury in respect of each lower limb.  Whilst there may be some slight differences in the condition or consequences relating to each, effectively the same Ruling applies.

156In my opinion, the application in so far as it relates to the lower limbs must fail.  That is so whether the lower limbs be considered separately or collectively.  Mr Beischer is the only foot and ankle specialist surgeon to have examined the plaintiff and state an opinion as to the work relationship.  Of course, he in fact has treated the plaintiff.  He expressed the opinion that plantar fasciitis is a very common condition, not usually caused by a particular injury.  He stated, and repeated, that he was not of the opinion that the plaintiff’s bilateral plantar fasciitis was a work-related injury.  Thus, he did not believe that she had suffered a work-related injury.  Her standing whilst working may have drawn attention to her symptoms, but the injury itself was not otherwise work-related.  This opinion, coming as it does from a treating surgeon and the only surgeon in this case who specialises in injuries of this kind, is one which I accept and prefer.  It may be that there was a temporal relationship between standing at work and the experiencing of symptoms in the feet.  However, that is a different proposition from saying that the standing at work was causative of the condition or caused permanent aggravation of an otherwise asymptomatic complaint.  This different proposition was one that Mr Beischer quite firmly rejected.  His opinion would appear to be expressed irrespective of whether an anti-fatigue mat was in place.

157I appreciate that liability was accepted in relation to the lower limb injuries.  However, that would appear to have been an acceptance based upon the opinion of Dr Bones and before any opinion was obtained from the treating specialist, Mr Beischer.  I prefer and accept his opinion.

158In any event, the other problems faced by the plaintiff are whether the consequences of the plantar fasciitis condition or injuries are permanent within the meaning of the Act, whether they are of sufficient magnitude to satisfy the “very considerable” test and whether they are productive of a loss of earning capacity in excess of the statutory limit.  Mr Beischer has expressed the opinion that the vast majority of patients resolve their symptoms within 6 to 12 months, providing that they undertake the appropriate exercise program and use heel cushions.  He also made the observation that patients suffering from this condition often report difficulty with activities that require them to stand or walk for long periods, but again repeated his opinion that plantar fasciitis is not a work-related injury.

159I note that, when the plaintiff saw Dr Soliman on 2 February 2021, she was having no treatment for her plantar fasciitis and was taking no medication, apart from two Panamax tablets a day, and, as earlier stated, that appeared to be the total of her medication in respect of and covering all complaints.  Dr Soliman was of the view that, when he saw the plaintiff in February 2021, any work-related condition had resolved.

160I also note that Mr Simm, whilst implicating employment, stated that the plaintiff had a capacity to engage in the areas of employment suggested in the Recovre report.

161However, leaving to one side questions of permanence and capacity, and the plaintiff faces problems in relation to each of these, I am not satisfied that the plaintiff has sustained any ongoing work-related injury to her lower limbs.  Insofar as her application is based upon such injuries to the lower limbs, whether assessed collectively or individually, the application fails. 

162Given that the application is unsuccessful insofar as it relates to causation and permanence of consequences of injuries of the lower limbs, there is no necessity for me to move onto the issue of loss of earning capacity.  However, in any event I am of the opinion that an entitlement to claim damages for loss of earning capacity resulting from injury to the lower limbs has not been proven.  In relation to the plaintiff’s employment capacity, I would accept that the employments suggested in the Recovre report represent suitable employments in which she is capable of engaging.  Mr Simm, whilst implicating employment in the condition of her feet (a proposition which, as stated above, I do not accept), thought that the plaintiff did not have the capacity for unrestricted pre‑injury duties and was unlikely to return to work that involved prolonged standing.  However, he also found that the plaintiff had the capacity for suitable employment and specifically stated that four particular occupations suggested in the Recovre report (Despatch Clerk/Clerk; Control Room Screening Security Officer; Building Concierge/Information Officer; and Production Clerk) were occupations that were essentially sedentary and all were within the plaintiff’s capacity.  Dr Bones, who concentrated her attention upon the alleged injuries to the lower limbs, stated that the plaintiff had a current capacity for modified or alternate pre‑injury duties, with the avoidance of prolonged standing.

163The issue of suitable employment did not receive a great deal of attention in the opening on behalf of the plaintiff, save to say that the Recovre report had identified a number of jobs alleged to be suitable employment and Dr Rowe disputed that.  Further, in relation to the plaintiff’s capacity for suitable employment, in his closing address her counsel referred to Dr Rowe as expressing the opinion that he did not think that the plaintiff had any work capacity, pointing out that her treating general practitioner was of much the same view.  Indeed, counsel stated that “… our case is that she has no capacity for work at the moment in the future”, also submitting that the jobs identified in the Recovre report were in fact not suitable.  These propositions do follow submissions in relation to the plantar fasciitis.  Counsel made a broad submission of a lack of capacity – see T47.  He also made a broad submission that the jobs identified in the Recovre report were in fact not suitable because of the plaintiff’s lack of training or lack of capacity – see T50.

164Thus, even if I were to find that the condition of the plaintiff’s lower limbs, and in particular plantar fasciitis, was work-related (and I have not been so satisfied), I would still not be satisfied that such injury, viewed on its own, produced consequences sufficient to discharge the burden of proof in relation to earning capacity.  I might add that I also accept the proposition advanced by Mr Middleton that, if the plaintiff were found to be capable of performing any of the allegedly suitable employments identified in the Recovre report, the 40 per cent loss of earning capacity would not be established.  Further, I am not satisfied that the requirement of permanence of consequences has been established.  I would refer again to the opinion of Mr Beischer.

(iv)    Ruling as to injury to the cervical spine

165I am of the view that the application also fails in so far as it is based upon injury to the cervical spine.  One of the problems in relation to this alleged injury has been the focus by the plaintiff upon her bilateral shoulder and elbow conditions – see, for example, the observations of her treating physiotherapist, Mr Akgoz.  He considered that the repetitive handling of baggage was the biggest factor contributing to the shoulder complaints.  In the history taken by Mr Akgoz, this can be seen to be virtually a separate complaint from any injury to the neck and upper back, which was attributed to being in a prolonged seated position.  The plaintiff was complaining of constant aching pain and intermittent numbness referral along the entire bilateral upper limbs, including the hands.  There was reference to a specific right elbow injury.

166The situation is further complicated by the fact that, as noted by Mr Kossmann, the plaintiff had issues with her cervical spine and left shoulder joint prior to the relevant employment.  Mr Kossmann also referred to the plaintiff as suffering injuries to her cervical spine and to both shoulder joints.  The impression given by this statement is that the plaintiff suffered a neck injury and shoulder injuries, rather than a neck injury with the radiation of pain to the upper limbs.  After Mr Kossmann’s second examination on 12 August 2021, he made a diagnosis of cervical spondylosis, but also listed such symptoms as pain on the right side of the lumbar spine and in the metacarpo­phalangeal joint of the right thumb.  There were also positive signs indicative of thoracic outlet syndrome.  He referred to her bilateral shoulder condition as having improved.

167Dr Rowe diagnosed bilateral shoulder soft tissue injury, but also referred to underlying degeneration of the cervical spine.  He thought that the plaintiff needed referral to an orthopaedic surgeon for investigations concerning her shoulders and spine.  Again, there is an intermingling of injuries and body parts.

168I note that Ms Nahar, clinical physiotherapist, who had treated the plaintiff, stated that the cause of her symptoms was rotator cuff muscles strain in both shoulders and associated increased neural tension of the cervical spine.  In another report, she stated the apparent cause of the symptoms was a cervical nerve impingement syndrome.

169Earlier radiological investigations organised by Dr Alazam, from whom there is no report in evidence, seem to have concentrated on the left shoulder and arm.

170Dr Baglar, who became the plaintiff’s treating general practitioner, took a history of pain in the shoulders, radiating to the neck, and right elbow pain.  Initially he also referred to such matters as shoulder and elbow pain and tennis elbow.  Subsequently he organised an MRI of the cervical spine and an ultrasound of both shoulders, with the radiologist reporting bursal thickening with impingement on abduction, but no rotator cuff tear in the right shoulder, and similar findings in the left, although there was some bursal impingement on that side.  The MRI of the cervical spine was also performed and showed moderate bilateral foraminal stenosis of C5‑6 and mild left-sided foraminal stenosis at C4‑5.  Subsequently there was also an ultrasound of the left elbow, x‑rays of the hands, and an x‑ray of the cervical spine, the last-mentioned showing that there was straightening of the normal cervical lordosis and mild disc space narrowing at C5‑6.  Subsequently, there were radiological investigations of the right shoulder.

171Thus, the reports from those who have treated the plaintiff (and these would seem to total two general practitioners and two physiotherapists, although there is no report from one of the general practitioners) leave the question of injury to the cervical spine and symptoms emanating therefrom in a somewhat unclear and potentially confusing state.  I have set out above and again refer to the reports from Mr Kossmann and Dr Rowe, who saw the plaintiff at the request of her solicitors.

172In relation to the histories obtained and opinions expressed by those examining on behalf of the defendant, Dr Bones, reporting in March 2019, concentrated her attention mainly upon the plaintiff’s plantar fasciitis and her lower limbs, but noted that the plaintiff was off work in relation to her bilateral shoulder condition.  She made no comment of significance in relation to the cervical spine.

173In his report of 22 March 2019, Dr Barton took a history of the plaintiff developing pain in both shoulders and into the neck, referring to increasing problems around 29 November 2018.  She described widespread pain extending throughout both shoulders, through the trapezial muscle area into the neck, and more recently was experiencing pain in the upper thoracic spine.  She claimed that her neck and shoulder movements were limited.  As earlier stated, Dr Barton thought that there were findings that pointed towards a considerable degree of illness behaviour, including marked limitation of neck and shoulder movements.  He did not believe that she presented with any clear evidence of any ongoing physical problem related to work activities.  In a brief subsequent report, he stated that she had recovered from a mild physical problem that may have occurred.

174Dr Barton saw the plaintiff again on 21 June 2019, at which time she was working restricted hours.  This examination was largely in relation to the plantar fasciitis.  He repeated that there was a considerable degree of illness behaviour, including the marked limitation of neck and shoulder movements with associated grimacing, all of which, in his opinion, seemed contrived.  He did not accept that there was an incapacity.

175Mr Simm noted that the claim form of 30 November 2018 was based upon bilateral shoulder tendinitis subsequent to a specific incident.  He noted that, when the plaintiff saw Dr Baglar on 11 December 2018, her symptoms, apart from in her heels, related to shoulder pain and right elbow pain.  In relation to the plaintiff’s neck, Mr Simm stated that the plaintiff may have had symptomatic degenerative pathology in the cervical spine.  He referred to the history of investigations back to 2006.  He thought that the MRI scan of 8 January 2019 reported only moderate changes, with no neural compression.  He also noted that cervical problems became part of the plaintiff’s symptom complex after the onset of bilateral shoulder pain, and that the initial symptom for which the plaintiff sought treatment in 2018 was left shoulder pain.  Any exacerbation of underlying degenerative cervical spine pathology would cease on cessation of work duties.  He was of the opinion that such duties would not cause, aggravate or accelerate age-related progressive degenerative cervical spine pathology.

176When the plaintiff saw Mr Simm via video link on 17 June 2021, she confirmed that her main injuries were to the right shoulder and both heels, although also claiming a left shoulder injury.  To Mr Simm, the plaintiff stated that her main problem was currently right shoulder pain, which had increased over the last six months and was mostly over the front of the shoulder.  She had similar, but less troublesome, symptoms in the left shoulder.  She stated that she had some localised pain at the base of the neck and had received some physiotherapy in this region of the body.  Mr Simm noted that, during the interview, the plaintiff moved her head and neck normally.  She demonstrated essentially normal cervical spine movements, with no evidence of pain on movement.  Mr Simm described her as having mild cervical symptoms, but, on examination, a full range of cervical movement.  He considered that the symptoms were probably due to age-related degenerative changes and that the condition was not work-related.

177Mr Simm thought that the plaintiff’s neck and shoulder girdle symptoms would probably limit her capacity to perform her pre-injury duties, whilst noting that she had continued working until her heel pain worsened.  He thought that she did not have the capacity for unrestricted pre-injury duties, was unlikely to return to work that involved prolonged standing or repetitive heavy lifting, and had the capacity for suitable employment.  He thought her fit to carry out the occupations nominated in the Recovre report.  He concluded that the only residual work-related condition was bilateral plantar fasciitis, although he also referred to residual signs and symptoms of shoulder impingement, particularly in the right upper limb.

178To Dr Soliman, the plaintiff stated that her bilateral shoulder injury commenced with no specific incident or injury and gradually worsened over time, but she did complain of constant neck pain which never ceased, which was 6−7/10 in severity, and which was worse with quick movements, sleep and the like.  She stated that nothing made it better, not even physiotherapy.  However, she was observed to be moving her neck freely.  She was taking two Panamax tablets a day.  Upon examination of her neck, there was no muscle wasting and no localised tenderness.  Her cervical spine range of movements was normal, but she expressed some discomfort at the end of all movements.  Dr Soliman considered her condition to be degenerative in nature.  She had a capacity for suitable employment.  There was a degree of abnormal illness behaviour or exaggeration.

179I note that Dr Dush Shan, consultant psychiatrist, took a history that the plaintiff was on a minimum of prescription medications.  This was as at 19 August 2021.

180I would also point out the following.  In opening the case on behalf of the plaintiff, Mr Morfuni listed the injuries relied upon.  These included subacromial and subdeltoid bursas in both shoulders with bursal impingement, with thickening of the subacromial and subdeltoid bursas and lateral epicondylitis of the right elbow.  After describing the complaints in relation to the plaintiff’s feet, he added that there would be reliance upon aggravation of degenerative changes in the cervical spine.  In cross-examination, the plaintiff was asked whether she suffered from pain in the neck.  Her answer was “Sometimes” – see T25.  In answer to a question of mine, the plaintiff stated that what prevented her from being able to do heavy things around the house was her arms – see T29.  The impression given was that the manner in which the plaintiff was putting her case was that the condition of her shoulders was a separate issue from any cervical spine injury – see T3.

181In summary, I cannot be satisfied that the plaintiff has suffered an injury to her cervical spine the consequences of which are of significant magnitude to satisfy the requirements of being more than significant or marked and of being at least very considerable.  Her levels of active treatment and medication are comparatively modest.  In my opinion, symptoms or restrictions emanating from her cervical spine would not prevent her from engaging in suitable employment, and I prefer the evidence, for example, of Mr Simm in that regard.  Insofar as the plaintiff has suffered an injury to the cervical spine as a result of her employment, I find such injury to be the aggravation of cervical spondylosis.  Even leaving to one side the issue of permanence of consequences and the role played by employment in such aggravation, I am not satisfied that any consequences of sufficient magnitude to discharge the burden of proof in relation to pain and suffering or loss of earning capacity have been proven.  The level of treatment of her cervical spine has not been great.  There has been no specialist treatment.  The level of medication which she is taking in respect of all injuries, including the cervical spine, is also not of great magnitude.  Were it necessary, I would find that permanence of consequences of the injury to the neck has not been proven.

182To Mr Simm, on 17 June 2021, the plaintiff described her main problem as being right shoulder pain, effectively simply saying that she had some localised pain at the base of the neck.  I appreciate this is somewhat in contrast to her most recent affidavit of 23 September 2021, in which she refers to restrictions, particularly as a result of her neck symptoms.  She alleges that she experiences shooting pain that spreads into the shoulders.  This is somewhat in contrast to her initial affidavit of 10 July 2020, in which she referred to pain in the shoulders resulting from everyday activities such as cooking and cleaning.  She also referred to chopping vegetables and the like as increasing the pain which she suffered in her shoulders.  She stated that, if she had to reach out to get something from her husband, she suffered an increase in pain of both shoulders.  Carrying her handbag also increased shoulder pain.  Indeed, specific references in that affidavit to neck pain are comparatively scarce.  Interestingly, when interviewed by Dr Leon Turnbull, psychiatrist, at the request of her solicitors on 14 April 2021, the plaintiff described progressive pain through both shoulders and feet, such pain reaching the point that she discontinued working.

183In summary, when all of the above is taken into account, I am of the view that the plaintiff has failed to discharge the burden of proof in relation to the cervical spine injury.  That is so in relation to both pain and suffering and loss of earning capacity.

(v)     Ruling as to injury to the right upper limb

184I find that the plaintiff has not discharged the burden of proof in relation to injury to the right upper limb.  That is so in relation to pain and suffering and to loss of earning capacity.

185Mr Kossmann expressed the belief that a lot of the plaintiff’s symptoms related to thoracic outlet syndrome, which had to be verified.  Indeed, Mr Kossmann referred to a variety of investigations that he recommended.  In addition, at times he did not distinguish with any clarity between the various body parts under consideration and their effects.  Similarly, Dr Rowe did not focus clearly upon individual injuries or areas of injury (save, possibly, at times the plantar fasciitis) and stated that the plaintiff needed referral to an orthopaedic surgeon for investigations concerning her shoulders and spine.  As earlier stated, it is not clear that Dr Rowe was aware of the actual nature of the plaintiff’s employment duties.

186Dr Barton, examining on behalf of the defendant, seems to have had a comparatively clearer idea of the duties performed by the plaintiff, having had to visit this location or similar locations when carrying out workplace inspections.  In any event, he referred to the plaintiff as having recovered from any mild physical problems, also describing the plaintiff’s symptoms as mild.

187Mr Simm considered that any symptoms experienced by the plaintiff in relation to her right shoulder represented a temporary exacerbation.  He had received from the plaintiff a reasonably accurate description of her duties in relation to the intermittent handling of carry-on luggage items, and essentially was not of the view that her right shoulder condition was work-related.

188Dr Soliman, examining on behalf of the defendant, diagnosed bilateral shoulder bursitis, worse on the right, but with no rotator cuff tendon tears.  He considered the plaintiff to be suffering from a longstanding degenerative condition which may flare-up intermittently. 

189Having weighed up all the evidence, including material from the plaintiff’s treating general practitioner and from physiotherapists, I am of the view that the consequences of any injury to the right upper limb, viewed on their own, are not of sufficient magnitude to discharge the burden of proof, whether or not they are work-related.  That is so in relation to both pain and suffering and loss of earning capacity.

190In her original affidavit of 10 July 2020, the plaintiff referred to an increase in pain in her right elbow and both shoulders, as well as in the neck, in or about 2018.  She also referred to pain in the shoulders when reaching to pick up luggage.  Having gone on leave to Turkey from August 2018 until October 2018, she returned to work and felt the pain in her shoulders and feet worsen.  Apart from the treatment of her feet, she had an ultrasound of the left shoulder in July 2017 and again in June 2018.  She again had investigations of both shoulders in January 2019, and an ultrasound of her left elbow in November 2019.  Throughout her original affidavit there is reference to “shoulders” and “arms”.  Apart from the mentions of treatment, as referred to above, in this affidavit there is only mention of arms or shoulders in the plural and no attempt to describe symptoms or restrictions relating to one particular arm.

191In her third affidavit of 23 September 2021, the plaintiff swore that she was continuing to take Mobic as a result of the pain that she was getting in her neck and feet, although she stated that she was hesitant so to do because of irritation of her stomach ulcer.  She also said that she was required to use Panadol Osteo every couple of days to relieve the symptoms “stemming from my neck and feet”.  The plaintiff has further sworn that she still suffers from the same restrictions as referred to in her first affidavit “particularly as a result of the pain in my neck”.  She referred to that pain as spreading into both shoulders and running down her arms.  In this affidavit, there is considerably greater emphasis upon injury to the neck, as opposed to the arms. 

192In the plaintiff’s affidavit material there is no reference to which is her dominant arm and no evidence was led from her in that regard.  As far as I can see, there was no reference as to which is the plaintiff’s dominant arm in either opening or closing addresses on her behalf.  There is a reference in the reports of Dr Barton and Mr Simm, both examining on behalf the defendant, to the plaintiff being right hand dominant.  I will accept that as being accurate. 

193In my opinion, the plaintiff has not discharged the burden of proof in relation to loss of earning capacity due to injury to her right upper limb.  Nowhere in the material provided, or in the plaintiff’s evidence, can I find a clear statement to the effect that injury to the plaintiff’s right upper limb, viewed in isolation, caused her to cease work or has prevented her from returning to work in either her prior occupation or in alternative employment. 

194In her claim form of 30 November 2018, the plaintiff described her injury or condition as being bilateral shoulder tendinitis (there is no reference to her neck).  The description of how she was injured is that a bag was stuck on an x-ray belt and she noticed the pain then.  She was moving the bag.  This was said to have occurred on either 2 or 3 April 2018.  When asked to provide contact details of anyone who witnessed the accident, she stated in the claim form that she could not recall, as this was a progressive illness or injury.  She stated that she had not had a shoulder issue before.  She also stated that, at this time, she had not stopped work.  The response to this claim form was an acceptance of liability. 

195On 26 February 2019, the plaintiff completed another claim form, this being in respect of her bilateral heel pain and due to prolonged standing.  In relation to working hours and a return to work, what has been typed in is “Currently have another injury as outlined above”.  The date of first noticing the condition is said to be 3 September 2018, with cessation of work on 29 November of that year.

196To Dr Bones, the plaintiff stated that she had been off work in respect of her shoulder condition since around November (2019 was given as the year, but it must have been 2018, given that the date of examination was 15 March 2019).

197As stated, essentially it was not contended that the shoulders or arms could be considered as a unit.  There seems to have been agreement with the contention that the upper limbs are to be assessed separately.  However, that task is not made any the easier given the manner in which the evidence, both oral and written, has been presented.

198Further, I would refer to the reports of Mr Simm of 17 June 2021 and Dr Soliman of 2 February 2021.  Mr Simm referred to the plaintiff’s main injury as being to the right shoulder and heels, although she was also claiming for the left shoulder injury.  In Dr Soliman’s report of 2 February 2021, there is a reference to bilateral shoulder bursitis, worse on the right side.  As stated, in her most recent affidavit, the emphasis of the plaintiff seems to have switched from arm problems to cervical symptoms and problems with her feet.

199In any event, for present purposes I am prepared to accept that the plaintiff’s symptoms and restrictions are worse in her dominant right upper limb than in her left.  However, that does not entirely solve the problem of attempting to view the extent of and consequences of injury to the right upper limb viewed in isolation.  Even after making the assumption that the plaintiff is right hand dominant and that the symptoms in the right upper limb are worse than those in the left, it seems to me that the plaintiff has failed to discharge the burden of proof in relation to the right shoulder and arm injury.  I would point out the following.

200Firstly, the plaintiff has not received a great deal of treatment in relation to her right upper limb, and particularly not in more recent times.  The reports of Dr Baglar, whilst supportive, are not particularly indicative of a lot of treatment as such.  His very brief report of 7 September 2021 indicates that, in his opinion, the plaintiff’s condition and capacity had not changed and she was still unfit for work.  There was reference to her still attending the clinic for regular consultation for a certificate of capacity and medication for her condition.  The only other observation concerns her bilateral calcaneal spurs.  Exactly what treatment she had been receiving and for which injury is not stated. 

201The defendant placed in evidence the clinical notes obtained from Dr Baglar, but these do not seem to extend beyond 21 October 2020.  They are very difficult to read.  The last five entries, covering the period 3 July 2020 to 21 October 2020, would indicate that the sole purpose for contact with the plaintiff was for the provision of certificates.  There appears to be no reference to any examination, treatment or prescription of medication. 

202The plaintiff would not appear to be taking any prescription medication, either for her right upper limb or for her upper body generally.  In her affidavit of 23 September 2021, the plaintiff made reference to taking Mobic because of pain in her neck and feet, but was hesitant so to do because of irritation caused to her stomach ulcer.  She went on to state that she used Panadol Osteo “every couple of days to relieve the symptoms stemming from my neck and feet”.  The impression gained is that she is taking little medication for pain in her upper limbs.  In relation to her right upper limb, she has received no specialist treatment, or certainly not in recent times. 

203In addition, it would seem that the plaintiff has been receiving physiotherapy in relation to all her upper body injuries approximately once every three weeks.  I appreciate that, were her financial situation better, she may receive physiotherapy more frequently.  However, the physiotherapy appears to be in relation to all the injuries in question and the report of the physiotherapist, Mr Emre Akgoz, whilst detailed, does not, for example, isolate the treatment or symptomatology related to the right upper limb.

204The bottom line is that the plaintiff, particularly in more recent times, has been having what could be described as minimal treatment in relation to her right upper limb, and indeed it is the subject of little specific complaint in her most recent affidavit.  She is taking a low level of medication for the totality of her injuries, much less specifically for the right upper limb injury. 

205In relation to that limb, I prefer and accept the evidence of Mr Simm.  Of the medico-legal opinions put before me, his seems to me to be the most balanced and most logical.  It is to be noted that he examined the plaintiff on 17 June 2021, his earlier report being based solely upon documents.  He described her main problem as being right shoulder pain.  Mr Simm took a detailed history, and described her as a pleasant and cooperative person.  He described her as having clinical signs of moderate impingement of the right shoulder, although retaining a full range of movement.  He did not regard her right upper limb condition as being work-related.  In any event, and bearing in mind all her injuries, he considered her as being capable of undertaking four occupations described in the Recovre report.  I might add that this opinion was expressed on the basis of consideration of all the injuries relied upon by the plaintiff, including that to the right shoulder.

206When all of the above is taken into account, it seems to me that the plaintiff has failed to discharge the burden of proof in relation to injury to the right upper limb.  She is not taking a great deal of medication for all of her injuries, much less specifically for injury to that limb.  She has had no specialist treatment.  I accept that any symptoms which she does experience in the right upper limb are not of sufficient magnitude to prevent her from engaging in the four employments suggested in the Recovre report of 2 December 2020.  In that regard, I might add that effectively no argument was advanced to the effect that, if she is capable of engaging in the nominated occupations, there would be a sufficient economic loss to satisfy the statutory requirements.  Given my acceptance of the opinion of Mr Simm and the failure of the plaintiff generally to discharge the burden of proof, the question of permanence of consequences does not require specific attention, but I would find that it has not been established in any event.

207In short, I am of the opinion that the plaintiff has failed to discharge the burden of proof in relation to her right upper limb, and that failure is in relation to both pain and suffering and loss of earning capacity. 

(vi)    Ruling as to injury to the left upper limb

208I also find that the plaintiff has failed to discharge the burden of proof in relation to the left upper limb.  I accept that this is her non-dominant arm.  I would repeat that, in more recent times, there has been reference to her right arm as being a principal concern, but no such reference to the left arm. 

209Many of the observations which I have made above in relation to the right upper limb are again applicable. As with the right upper limb, no arguments of any substance were advanced in relation to the proposition that, if the plaintiff was found to have the capacity to engage in the occupations set out in the Recovre report, the relevant earnings would mean that she would fail to establish the required percentage loss.  I am of the view that her left shoulder injury, viewed separately, would not preclude her from carrying out those occupations. Thus, she fails in relation to her application for leave in respect of loss of earning capacity based upon injury to the left upper limb.

210I am also of the view that she fails in relation to pain and suffering.  At least in recent times, her complaints seem to be directed more towards her right shoulder and neck than towards her left shoulder.  My earlier observations concerning the absence of specialist treatment, the absence of evidence of any significant level of treatment by a general practitioner, and the low level of medication taken, are again relevant.  I also find that the requirement of permanence of consequences has not been satisfied.  In general terms, I prefer the opinion expressed by Mr Simm to the effect that the plaintiff no longer suffers from a work-related injury.  Obviously permanence of consequences has not been established.

211In summary, there is little persuasive evidence in relation to the injury to the non-dominant arm to the effect that such injury has produced consequences of sufficient magnitude to satisfy the statutory requirements.  That is so in relation to pain and suffering and to loss of earning capacity.

(vii)   Conclusion

212As stated, I am not of the opinion that the plaintiff has established, on the balance of probabilities, that the plantar fasciitis condition, whether viewed in relation to the individual lower limbs or collectively, has produced consequences which satisfy the statutory requirements.  I prefer the opinion of the treating surgeon that the condition is not work-related.  It also sems to me that the requirement of permanence of consequences has not been met.  Whilst it would not seem necessary so to do, I also find that the consequences of each lower limb injury do not prevent the plaintiff from engaging in employment as set out in the Recovre report and, accordingly, any claim in respect of loss of earning capacity has not been made out.

213In relation to the neck injury, I am again of the view that the plaintiff has failed to discharge the burden of proof.  In relation to pain and suffering, I am not of the view that the consequences of the neck injury, assuming that they can be separately identified, are of sufficient magnitude to satisfy the “very considerable” test.  I am not satisfied that the plaintiff has discharged the burden of proof in relation of loss of earning capacity in that she is capable of engaging in the employments set out in the Recovre report and of earning the amounts specified.

214The same could be said of the injuries to the individual arms.  For all the reasons set out above, in each instance the plaintiff has failed to discharge the burden of proof.  There has been no specialist treatment and only a modest amount of treatment generally.  There appears to be only a small amount of medication being consumed.  I prefer and accept the view, such as that expressed by Mr Simm, that there are no ongoing work-related consequences in relation to the injuries to the arms, viewed separately.  Even if it were accepted that there are some ongoing consequences, they seem to me to be of insufficient magnitude to discharge the burden of proof.  The same can be said of the application in respect of loss of earning capacity.  Suitable employment has been identified in the Recovre report.  Not that it is a necessary requirement, but I repeat that there is no vocational assessment report to the contrary.

215In summary, the plaintiff has failed to discharge the burden of proof.

216The application is dismissed.

217I shall hear the parties as to any further orders that are required.